Owen Brewster v BMW Australia Ltd [2020] NSWSC 1261

Owen Brewster v BMW Australia Ltd [2020] NSWSC 1261

Although the plaintiffs' affidavit evidence substantially reduced the basis for finding a controversy, it did not sufficiently take the common fund order issue off the table so as to remove, in a practical sense, a controversy between the parties. Given the defendant's real interest in the jurisdictional issue following BMW Australis Ltd v Brewster [2019] HCA 45; (2019) 94 ALJR 51, leave to file the cross-summons should not be revoked.

Jurisdiction
Australia
Judgment Date
16 September 2020
Procedural Posture
Class Action or Representative Proceedings / Interlocutory Procedural Ruling on Whether Leave Previously Granted for Filing a Cross Summons Seeking Removal of a Separate Question to the Court of Appeal Should Be Revoked
Outcome
Application to revoke leave refused.
Legal Topics
['common Fund Order' 'separate Determination of Question' 'removal to Court of Appeal' 'real Controversy for Declaratory Relief' 'revocation of Leave to File Cross Summons']
['civil Procedure' 'representative Proceedings' 'declaratory Relief'] ['common Fund Order' 'separate Determination of Question' 'removal to Court of Appeal' 'real Controversy for Declaratory Relief' 'revocation of Leave to File Cross Summons']

Case Brief

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Procedural Posture

Class Action or Representative Proceedings / Interlocutory Procedural Ruling on Whether Leave Previously Granted for Filing a Cross Summons Seeking Removal of a Separate Question to the Court of Appeal Should Be Revoked

Legal Issues

  1. 1 ['Whether leave previously granted for the filing of a cross-summons seeking removal of a separate question to the Court of Appeal should be revoked.' 'Whether there remained a legal controversy capable of supporting declaratory relief about whether s 173 of the Civil Procedure Act 2005 (NSW) authorises an order requiring unfunded group members to pay amounts to the litigation funder from settlement proceeds.']

Ratio Decidendi

Although the plaintiffs' affidavit evidence substantially reduced the basis for finding a controversy, it did not sufficiently take the common fund order issue off the table so as to remove, in a practical sense, a controversy between the parties. Given the defendant's real interest in the jurisdictional issue following BMW Australis Ltd v Brewster [2019] HCA 45; (2019) 94 ALJR 51, leave to file the cross-summons should not be revoked.

Court Disposition

Application to revoke leave refused.

Orders

  • ['Revocation of leave for filing the first cross-summons refused.' 'Orders in paragraphs 1 and 2 of the short minutes of order were made.']