[2022] NSWSC 853

Alto Pty Ltd v General Motors Australia and New Zealand Pty Ltd (formerly GM Holden Pty Ltd)

Disclosure to be made in accordance with Redfern Schedule; costs of application for disclosure to be the plaintiff’s costs in the cause

Catchwords

PRACTICE AND PROCEDURE – discovery – alleged misleading or deceptive conduct – representations as to future matters – whether reasonable grounds to make representations – disputed categories – Redfern Schedule

Cases cited

Australian Competition and Consumer Commission v Woolworths Limited[2019] FCA 1039
Cummings v Lewis (1993) 41 FCR 559;[1993] FCA 190

Judgment

[1]
The plaintiff, Alto Pty Ltd, is a former Holden motor vehicle dealer.
[2]
Alto was appointed by the first defendant, General Motors Australia and New Zealand Pty Ltd as a Holden dealer between 1 January 2012 and 31 December 2017.
[3]
In 2013, the first defendant’s ultimate holding company, General Motors Company (a company incorporated in the United States: “General Motors US”) announced that the manufacture of Holden motor vehicles in Australia would cease in 2017 and that, thereafter, Holdens sold in Australia would be imported.
[4]
On or about 16 February 2018, Alto entered into a Dealer Sales and Service Agreement (“the Dealership Agreement”) with the second defendant, General Motors Holden Australia NSC Pty Ltd, for the period 1 January 2018 to 31 December 2022.
[5]
Alto alleges that it entered into the Dealership Agreement based on representations made by the defendants in March, May and November 2017 to the effect that Holdens, albeit not ones manufactured in Australia, would continue to be supplied to Holden dealers, including Alto.
[6]
On 16 February 2020, General Motors US announced it would “cease Holden sales, design and engineering operations by 2021” and stated that it was:
[7]
The alleged representations were as to future matters.
[8]
The defendants contend that they had reasonable grounds to make the representations.
[9]
A party asserting that it had reasonable grounds to make a future representation must establish that it possessed information that, assessed objectively, gave it a reasonable basis for making the representation. [1]
[10]
The question is thus not only whether the defendants actually relied upon the matters that they contend evidenced reasonable grounds but also whether those matters, assessed objectively in the light of surrounding circumstances, establish reasonable grounds at the time the impugned representations were made. [2]
[11]
The reasonable grounds on which the defendants rely are said to arise from, to oversimplify matters somewhat:
[12]
I am now considering a discovery application by Alto and, for that purpose, it is agreed I should assume that the various alleged representations were made.
[13]
By Notice of Motion filed on 25 March 2022 Alto seeks discovery of documents in five broad categories, being:
[14]
Following argument on 17 June 2022, I directed that the parties prepare a schedule setting out their competing contentions as to the discovery categories which remain in dispute.
[15]
The parties prepared a “Redfern Schedule”. I am grateful for the large amount of work that, obviously, was involved in the preparation of that document.
[16]
I have populated that schedule with my conclusions in relation to each of those categories.
[17]
I attach the schedule so completed. Redfern Schedule (423013, pdf)
[18]
I order that disclosure be given in accordance with those conclusions.
[19]
Alto was substantially successful in relation to the disputed categories. But many categories were agreed. Accordingly, I order that the costs of the plaintiff’s Notice of Motion of 25 March 2022 be the plaintiff’s costs in the cause.
[20]
I stand the proceedings over for directions on 8 July 2022 before the Commercial List Judge.