Alto Pty Ltd v General Motors Australia and New Zealand Pty Ltd (formerly GM Holden Pty Ltd) [2023] NSWSC 759

Supreme Court New South Wales

Medium Neutral Citation: Alto Pty Ltd v General Motors Australia and New Zealand Pty Ltd (formerly GM Holden Pty Ltd) [2023] NSWSC 759 Hearing dates: 16 June 2023 Date of orders: 16, 29 June 2023 Decision date: 04 July 2023 Jurisdiction: Equity Before: Meek J Decision: The Court approves the plaintiff making applications for orders under § 1782 of Title 28 of the United States Code seeking documents on the condition that any such proposed application be served on the defendants at least 21 days before it is filed in the United States Catchwords: CIVIL PROCEDURE — Applicant brings several claims including a misleading and deceptive conduct claim against respondents — Respondents deny representations but say in any event there are reasonable grounds for making any such representations — Lengthy process of discovery between parties — Little or no documents produced by respondents in respect of categories recording their USA parent company's strategy and documents relating to consideration by the USA parent of shutting down car sales and various operations in Australia — Applicant seeks Court's endorsement of proposed §1782 application under Title 28 of the United States Code to seek production of documentation — Application granted CIVIL PROCEDURE — Principles of case management — Production of documents — The fact that categories of documents do not refer to knowledge of an employee or other relevant person is not decisive in determining the relevance of the document for production purposes — The proposed categories of documents which record or evidence a "comprehensive strategy" of the USA parent and consideration by the USA parent recording or evidencing GM considering shutting downs sales and operations in Australia is important material for the purposes of cross-examination or other testing of a reasonable grounds defence as to (1) what the relevant employees actually knew, and further, what they are to be taken to have known in the circumstances and (2) what the corporate representor in fact took into account and relied upon to make the 2017 express representations and whether its reliance was objectively reasonable in the circumstances CONSUMER LAW — Misleading and deceptive conduct claim — Consideration of legal principles regarding defence of reasonable grounds — Consideration of knowledge of employee extends to what each employee relevantly actually knew and is to be taken to have known in the circumstances — Determination regarding knowledge includes any inferences that may be drawn from circumstances as to each party's ability to call evidence and any failure to call evidence — Consideration of issues in identifying whether a representor had reasonable grounds for a representation Legislation Cited: Civil Procedure Act 2005 (NSW) Competition and Consumer Act 2010 (Cth) Cases Cited: Alto Pty Ltd v General Motors Australia and New Zealand Pty Ltd (formerly GM Holden Pty Ltd) [2022] NSWSC 853 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 City of Botany Bay Council v Jazabas Pty Ltd [2001] NSWCA 94; [2001] ATPR (Digest) 46-210 Crowley v Worley Ltd (2022) 293 FCR 438; [2022] FCAFC 33 Jones v Dunkel (1959) 11 CLR 298; [1952] HCA 8 Jones v Treasury Wine Estates Ltd (2016) 241 FCR 111; [2016] FCAFC 59 Lavecky v Visa Inc [2017] FCA 454 Liristis v Gadelrabb [2009] NSWSC 441 McAssey & Anor v Nemo (BC) HoldCo & Anor [2020] NSWSC 1893 White Oak Commercial Finance Europe (Non-Levered) Ltd v Insurance Australia Ltd [2022] FCA 1587 Texts Cited: Title 28 of the United States Code Category: Procedural rulings Parties: Alto Pty Ltd (Plaintiff / Applicant) General Motors Australia and New Zealand Pty Ltd (formerly GM Holden Pty Ltd) (First Defendant / First Respondent) General Motors Holden Australia NSC Pty Ltd (Second Defendant / Second Respondent) Mark Bernhard (Third Defendant / Third Respondent) Representation: Counsel: M Henry SC and D Delany (Plaintiff / Applicant) J Arnott SC (Defendants / Respondents)