Citation: BMW Australia Finance Ltd v Trigas [2022] NSWDC 279
Court: District Court of New South Wales
Date: 22 July 2022
Judge: Russell SC DCJ
Background
BMW Australia Finance Ltd (the plaintiff financier) commenced proceedings in 2018 against a defendant consumer, alleging he had defaulted on two motor vehicle finance contracts. The contracts related to two luxury Mercedes-Benz vehicles, a G63 AMG wagon and an SLS C197 AMG coupe (the "Gullwing"). BMW sought possession of the Gullwing and damages exceeding $190,000, or alternatively damages of over $175,000 in connection with the G63 finance.
The defendant's account was that a car dealer's employee (Mr Shade) procured both finance contracts without his authority, that he never received either vehicle, and that the insurance arranged to satisfy the financier's requirements was also obtained without his knowledge. He alleged that conduct by Mr Shade and associated parties was misleading and deceptive within the meaning of the Australian Consumer Law (ACL), and that the second finance agreement should not be enforced.
The judgment resolved three separate Notices of Motion filed in 2022, dealing with an abandoned cross-claim application, a challenge to a notice to produce, and applications for leave to amend the defence and file a fresh cross-claim against Mr Shade.
Legal Issues
- Whether costs should follow the dismissal of an abandoned Notice of Motion seeking leave to file a cross-claim, and whether a lump sum costs order was appropriate
- Whether a notice to produce issued by the defendant to the plaintiff should be set aside for lacking a valid production date and for being too wide
- Whether the defendant should have leave to amend his defence, including pleadings of fraud, agency, and misleading or deceptive conduct under the ACL
- Whether the defendant should have leave to file a cross-claim against Mr Shade, including whether the proposed pleading adequately particularised misleading or deceptive conduct and heads of damage
- Whether delay in bringing the proposed amendments and cross-claim was relevant to costs
Decision
First Notice of Motion (abandoned cross-claim)
The defendant filed a Notice of Motion in March 2022 seeking leave to join Mr Shade by cross-claim, but later abandoned it in favour of a more extensive pleading filed in June 2022. Russell SC DCJ held that abandoning an application after bringing another party to court constitutes a costs "event," and ordered the defendant to pay Mr Shade's costs. The court declined to make a lump sum costs order at that stage, as the defendant's counsel opposed the application and no quantum evidence had yet been put before the court.
Second Notice of Motion (notice to produce)
The plaintiff challenged a notice to produce dated 28 March 2022 on two grounds: it lacked a valid date for production, and it was too wide. The court set aside the notice on the first ground alone, accepting that the absence of a valid production date was a fatal defect. On the question of width, the court applied the principle that a notice to produce is not impermissibly wide merely because it calls for documents relating to a particular document. Costs of this motion were ordered to be costs in the cause, and the court appointed a return date for a fresh notice in similar terms.
Third Notice of Motion (amended defence and cross-claim)
The court granted leave to amend the defence and to file the cross-claim, but subject to identified deficiencies requiring correction before the pleadings were finalised. On the agency allegations, the court noted that a party relying on agency must plead the origins, nature, and scope of the agent's authority. On the fraud allegations in the proposed amended defence, the court found the pleading did not clearly identify fraud as distinct from misleading conduct, and directed clarification. The insurance-related representations were treated more leniently in terms of timing, given that relevant documents had only recently become available, but the court observed that the other six alleged representations should have been properly pleaded well before June 2022. Because the defendant came to court seeking an indulgence after significant delay, and no explanation was offered for why the cross-claim had not been brought earlier, the court ordered the defendant to pay the costs of both the plaintiff and Mr Shade of that motion.
Orders Made
Notice of Motion filed 11 March 2022:
- The Notice of Motion was dismissed at the hearing on 30 June 2022
- The defendant is to pay Mr Shade's costs of that Notice of Motion
- Lump sum costs order declined
Notice of Motion filed 4 April 2022:
- The Notice to Produce dated 28 March 2022 served on the plaintiff is set aside
- A return date of 26 August 2022 appointed for a fresh notice to produce in similar terms
- Costs of that Notice of Motion are costs in the cause
Notice of Motion filed 16 June 2022:
- Leave granted to the defendant to amend the defence in a form similar to Annexure B, subject to the corrections discussed in the judgment
- Leave granted to the defendant to file a cross-claim in a form similar to Annexure A, subject to the corrections discussed in the judgment
- The defendant is to pay the costs of the plaintiff and of Mr Shade of that Notice of Motion
Key Takeaways
- A notice to produce lacking a valid date for production is liable to be set aside on that ground alone, regardless of any separate argument about width.
- Under the applicable rules, a notice to produce is not rendered impermissibly wide simply because it calls for documents relating to a particular document identified in the proceedings.
- A party seeking to rely on agency in a pleading must plead the origins, nature, and scope of the agent's authority; a bare assertion of agency is insufficient.
- Abandoning an interlocutory application after bringing another party to court constitutes a costs event, and the ordinary costs-follow-the-event principle applies.
- Delay in bringing forward amendments and cross-claims is a relevant consideration: where a defendant seeks an indulgence to plead matters that were or should have been known from the outset, adverse costs orders may follow even when leave is ultimately granted.
Legislation and Cases Referenced
Legislation:
- Australian Consumer Law, ss 18, 236, 237, 243
- Civil Procedure Act 2005 (NSW), s 64
- Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 14.28, 19.5, 19.6, 34.1
- Contracts Review Act 1980 (NSW), ss 7, 9
Cases:
- AJG Pty Ltd v Mobile Communications Systems Pty Ltd [2015] VSCA 231
- Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9
- Willcocks v Croft [2021] NSWSC 1610
- Williams v Toyota Motor Corporation Australia Ltd [2022] FCA 344