BMW Australia Finance Ltd v Trigas [2022] NSWDC 279

The 11 March 2022 Notice of Motion was dismissed because the defendant no longer pursued it; costs followed that event, but a lump sum costs order would cause further expense and delay. The Notice to Produce dated 28 March 2022 had to be set aside because it required production on a date that was not a hearing date or a time fixed by the court for return of subpoenas under r 34.1 UCPR, although its substantive categories were not too wide in light of the proposed amended issues. Leave to amend the Defence and file the Cross Claim was granted because the proposed pleadings were not shown to be futile or bound to fail, fraud was not pleaded against BMW in the Amended Defence, misleading or...

Jurisdiction: Australia
Judgment Date: 22 July 2022
Procedural Posture: Civil Procedural Rulings / Determination of Three Notices of Motion Filed on 11 March 2022, 4 April 2022 and 16 June 2022
Outcome: The 11 March 2022 Notice of Motion was dismissed; the 28 March 2022 Notice to Produce was set aside with a new return date appointed for a similar notice; and the defendant was granted leave to amend the Defence and file a Cross Claim subject to amendments and clarifications, with costs orders made against the...
Legal Topics: ['notice to Produce' 'leave to Amend Defence' 'leave to File Cross Claim' 'misleading or Deceptive Conduct' 'agency Pleading' 'fraud Pleading' 'embarrassing Pleading' 'lump Sum Costs Order']

['civil Procedure' 'costs' 'australian Consumer Law'] ['notice to Produce' 'leave to Amend Defence' 'leave to File Cross Claim' 'misleading or Deceptive Conduct' 'agency Pleading' 'fraud Pleading' 'embarrassing Pleading' 'lump Sum Costs Order']

Case Brief

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Procedural Posture

Civil Procedural Rulings / Determination of Three Notices of Motion Filed on 11 March 2022, 4 April 2022 and 16 June 2022

Legal Issues

1 ["Whether the defendant's Notice of Motion filed on 11 March 2022 for leave to file a Cross Claim should be dismissed and what costs order should follow." 'Whether the Notice to Produce dated 28 March 2022 should be set aside for non-compliance with r 34.1 Uniform Civil Procedure Rules 2005 (NSW) and whether its categories were too wide.' 'Whether leave should be granted to the defendant to amend the Defence in a form similar to Annexure B to the Notice of Motion filed on 16 June 2022.' 'Whether leave should be granted to the defendant to file a Cross Claim against Mr Shade in a form similar to Annexure A to the Notice of Motion filed on 16 June 2022.' 'Whether the proposed Amended Defence pleaded fraud, adequately pleaded agency, or was embarrassing under r 14.28 Uniform Civil Procedure Rules 2005 (NSW).' 'Whether delay in bringing the proposed Cross Claim warranted refusal of leave.' 'What costs orders should be made on each Notice of Motion.']

Ratio Decidendi

Court Disposition

The 11 March 2022 Notice of Motion was dismissed; the 28 March 2022 Notice to Produce was set aside with a new return date appointed for a similar notice; and the defendant was granted leave to amend the Defence and file a Cross Claim subject to amendments and clarifications, with costs orders made against the...

Orders

['The Notice of Motion filed on 11 March 2022 was dismissed at the hearing on 30 June 2022.' 'Order the defendant to pay the costs of Mr Shade of the Notice of Motion filed on 11 March 2022.' 'Decline to make a lump sum costs order.' 'Set aside the Notice to Produce dated 28 March 2022 served by the defendant upon...