Arraj v Sime Darby Motors Retail Australia Pty Ltd trading as Parramatta BMW [2024] NSWDC 78

District Court New South Wales

Medium Neutral Citation: Arraj v Sime Darby Motors Retail Australia Pty Ltd trading as Parramatta BMW [2024] NSWDC 78 Hearing dates: 6, 7 March 2024 Date of orders: 25 March 2024 Decision date: 25 March 2024 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Judgment for the defendant. (2) Order the plaintiff to pay the defendant's costs. Catchwords: CONTRACT – whether a contract was formed between plaintiff and defendant for offer to purchase motor vehicle – no intention to create legal relations – no offer and acceptance – no consideration – no breach RESTITUTION – failure of consideration – entitlement to recover value of defendant's benefits from motor vehicle display MISLEADING OR DECEPTIVE CONDUCT – whether representations were made – whether representations were relied on – damages Category: Principal judgment Parties: Simon Arraj (Plaintiff) Sime Darby Motors Retail Australia Pty Ltd trading as Parramatta BMW (Defendant) Representation: Counsel: E Ball (Plaintiff) N Mirzai (Defendant)

Solicitors: Blackstone Waterhouse (Plaintiff) HWL Ebsworth (Defendant) File Number(s): 2022/249559

Judgment

Introduction 1. The plaintiff Mr Simon Arraj is an enthusiastic collector of BMW cars. The defendant Sime Darby Motors Retail Australia Pty Ltd trading as BMW Parramatta (BMW Parramatta) is a dealer in BMW cars. BMW Parramatta operated its business pursuant to a BMW Dealer Agreement made with BMW Australia Ltd (BMW Australia). 2. In 2022 a new BMW motor vehicle became available, although only in very limited numbers. The new vehicle was a 2022 BMW M4 CSL (2022 CSL). The letters "CSL" were only rarely part of the model name of any BMW cars. The designation CSL conveyed to BMW aficionados that the car was a special edition performance model and that it was only made in very limited numbers worldwide. 3. Mr Arraj already owned a 2003 CSL and he was very keen to acquire a 2022 CSL for his BMW collection. Besides the 2003 CSL, Mr Arraj already had a BMW X5, which was his everyday car. 4. Mr Arraj applied to BMW Australia to purchase one of the very limited number of 2022 CSLs imported into Australia. His application to purchase a 2022 CSL was unsuccessful. Mr Arraj has brought these proceedings against BMW Parramatta alleging a breach of contract. 5. After Mr Arraj missed out on a 2022 CSL, he sought one in the secondary market. The price he had to pay was more than the price payable for a new 2022 CSL, had he been successful in his application to BMW Australia. Mr Arraj claims the difference between the cost of his vehicle and a new 2022 CSL for which he applied. There are also incidental damages sought relating to increased stamp duty payable on his more expensive second-hand 2022 CSL. 6. In the alternative, Mr Arraj sues BMW Parramatta alleging misleading or deceptive conduct. He has an alternative claim for restitution, arising out of the display of his 2003 CSL in the showroom of BMW Parramatta.