Bailey v BMW Sydney Pty Ltd & Anor [2020] NSWDC 53

District Court New South Wales

Medium Neutral Citation: Bailey v BMW Sydney Pty Ltd & Anor [2020] NSWDC 53 Hearing dates: 26, 27, 28 February, 2 March 2020 Date of orders: 19 March 2020 Decision date: 19 March 2020 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Judgment for the defendants. (2) Order the plaintiff to pay the costs of both defendants. (3) Judgment for the cross-claimant against the cross-defendant for $77,361.89. (4) Order the cross-defendant to pay the cross-claimant's costs. Catchwords: MISLEADING OR DECEPTIVE CONDUCT – whether representations were made – whether representations were with respect to future matters –whether the car suffered from defects – whether there was a failure to promptly service and supply parts for the car – whether representations about the car were misleading or deceptive – damages Legislation Cited: Australian Consumer Law, ss 4, 18, 236, 278(2) Competition and Consumer Act 2010 (Cth), Sch 2 s 52 of the Trade Practices Act 1974 (Cth) Cases Cited: Australian Competition and Consumer Commissioner v Kimberly-Clark Australia Pty Limited [2019] FCA 992 Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60; (2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41; (2002) 210 CLR 109 March v Stramare E& Pty Limited [1991] HCA 12; (1991) 171 CLR 506 Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 Reiffel v ACN 075 839 226 Limited [2003] FCA 194; (2003) 132 FCR 437 Wardley Australia Limited v Western Australia (1992) 175 CLR 514 Australian Competition and Consumer Commission v Audi Australia Pty Limited [2007] FCA 1990 Australian Competition and Consumer Commission v GM Holden Limited [2008] FCA 1428 Texts Cited: Millers Australian Competition and Consumer Law Annotated, 41st Edition, 2019 Category: Principal judgment Parties: Bailey Bailey (Plaintiff) BMW Sydney Pty Limited (First Defendant) BMW Australia Finance Limited (Second Defendant) Representation: Counsel: G Colman (Plaintiff) M Gunning (Defendants)