Frequently asked questions

1. How do class actions work?

A class action is a legal proceeding where seven or more people have claims against the same individual or corporation in respect of, or arising out of similar circumstances, such that their claims give rise to a substantial common issue of law or fact. Where these criteria are met (as in the present case), class action proceedings can be commenced by one or more of those people on behalf of some or all of them.

The class action process is intended to save time and expense and avoids the need for the court to determine common issues of fact or law more than once. It enables disputes and claims involving large numbers of people to be resolved via a single case.

2. What is the Toyota class action about?

The Toyota class action claims compensation (that is, money) for what are claimed to be defects in Toyota Hilux, Fortuner and Prado vehicles with a 1GD-FTV or 2GD-FTV diesel engine. It is claimed that these defects cause problems with the vehicles, including the emission of white smoke from the exhaust, blockage of the diesel particulate filter (DPF), increased fuel consumption, and increased wear and tear on the engine.

The class action claims that:

  • certain models of Toyota motor vehicle in the Hilux, Prado and Fortuner ranges fitted with a 1GD-FTV engine or 2GD-FTV engine and a diesel particulate filter (DPF) are defective;
  • these vehicles fail to comply with the statutory guarantee as to acceptable quality provided under the Australian Consumer Law; and
  • Toyota Australia has engaged in conduct that was misleading or deceptive and, in the circumstances, unconscionable.

The case is brought by Kenneth John Williams on his own behalf and on behalf of other persons who also own or have owned these Toyota vehicles (known as “group members”). The firm of solicitors running the case for Mr Williams and the group members is Bannister Law Class Actions, supported by Gilbert + Tobin Lawyers.

3. What Toyota vehicles are affected?

This class action involves any model of Toyota motor vehicle in the Hilux, Prado and Fortuner ranges fitted with a 1GD-FTV engine or 2GD-FTV engine and a diesel particulate filter which were acquired between 1 October 2015 and 23 April 2020, in Australia.

An inclusive but non-exhaustive list of Affected Vehicles can be found here.

If you can’t find your vehicle on this list or if you are unsure whether your vehicle is one of the Affected Vehicles in the class action, you can request a call back from a Bannister Law Class Actions representative using the contact form here.

4. Who is conducting the Toyota class action?

Bannister Law Class Actions are the solicitors on the record in the Proceedings and are working with Gilbert + Tobin and a team of barristers, consisting of John Sheahan QC, Matthew Darke SC and Patrick Meagher.

5. Who is Balance Legal Capital?

An experienced litigation funder, Balance Legal Capital (Balance), is currently funding the case. This means that Balance has agreed to pay the costs of bringing this class action against Toyota in return for repayment of those costs plus a funding commission, should the class action be successful (that is, if money compensation is recovered from Toyota). Group members are not, and will not be, responsible for any “out of pocket” legal costs by remaining as group members in this class action (and whether or not they sign a retainer agreement with Bannister Law Class Actions and a funding agreement with Balance).

6. Am I eligible to be a group member?

Group members are people who meet certain criteria. You are likely to be a group member and entitled to participate in the class action if:

  • you acquired (including by way of purchase, exchange or taking on lease, or on hire-purchase) one or more models of Toyota motor vehicle in the Hilux, Fortuner and Prado ranges fitted with a 1GD-FTV engine or 2GD-FTV engine and a diesel particulate filter;
  • you acquired the vehicle between 1 October 2015 and 23 April 2020;
  • you did not acquire the vehicle in an auction;
  • you did not acquire the vehicle for the purpose of re-supply; and
  • you acquired the vehicle from a Toyota dealership or other retailer, including second-hand through used car dealers, or from any person who directly acquired the vehicle from a Toyota dealership or retailer.

If you meet the group member criteria, then you are a group member automatically. Group members will be bound by the outcome of the class action unless they take steps to “opt out” by 4:00pm on 30 September 2020. Details on what this means and how to do so are contained in the Opt Out Notice.

7. What if my warranty has expired?

Whether or not your warranty has expired, you can still be part of this class action.

The Toyota class action includes claims for compensation (that is, money) for the diminution in value of the Affected Vehicles and the costs of excess fuel consumption resulting from the defects, costs incurred in having the Affected Vehicles inspected, serviced and repaired, as well as income foregone as a result of taking these steps. Group members may be asked to submit their documentation relating to their individual claims to be considered at some point in the future.

You may or may not be covered for services from Toyota related to your vehicle’s DPF issues after your warranty has expired. You may need to make enquiries with your Toyota dealer to understand what services will be covered.

8. Does it matter if my vehicle was / is financed?

No. Financing of the vehicle does not affect your ability to be a part of the class action, provided that you meet the group member criteria.

If the class action is successful, you may be entitled to an account of money to reflect your costs of financing your vehicle.

9. What if I have already received a replacement vehicle or refund?

If you have received a refund or are about to receive a refund or replacement, this does not preclude you from participating as a group member in the class action. If you meet the group member criteria, then you are automatically part of the class action and will be bound by the outcome unless you take steps to “opt out”. Receipt of a refund may however affect the amount, if any, you may be entitled to if the class action is successful. Any refund which you may accept from Toyota may be accompanied by formal terms and conditions which may affect your rights in the class action.

You may wish to obtain independent legal advice from your family solicitor or a solicitor you choose on how a refund or replacement vehicle may affect your rights to compensation in the class action.

Ultimately whether to accept the refund or replacement vehicle is a decision for you.

10. What if I have sold my vehicle?

Even if you have sold your vehicle you are able to be a part of the class action, provided that you meet the group member criteria.

11. What will it cost group members to become a part of the Toyota class action?

It doesn’t cost you anything to be a part of the Toyota class action.

Group members are not, and will not be, responsible for any “out of pocket” legal costs by remaining as group members in this class action. At present, the costs of running the class action are being paid by a company called Balance Legal Capital (Balance). This means that Balance has agreed to pay the costs of bringing this class action against Toyota in return for repayment of those costs plus a funding commission, should the class action be successful (that is, if money compensation is recovered from Toyota).

If the class action is unsuccessful (that is, if no money compensation is recovered), group members will have no responsibility and will not have to pay anything.

If the class action is successful (that is, if money compensation is recovered), the Court may be asked to distribute the legal and funding expenses of the litigation among all persons who have benefitted from the class action. The effect of any such order of the Court, if made, would be that all group members who benefit from the class action (i.e., are due money compensation from it) will pay a share of the legal and funding expenses of the litigation (including a reasonable litigation funding commission). This means that even those who are group members but do not sign up to a funding agreement might have to contribute to these expenses out of their share of the compensation to be received. A group member’s share of these expenses will be taken out of (and will not exceed) the money compensation to be paid to that group member by Toyota before that compensation is paid out.

12. What sort of compensation (that is, money) might I receive if the claim is successful?

The claim is seeking compensation for the loss and damage suffered by the Applicant and group members. This loss and damage includes the diminution in value of the Affected Vehicles and the costs of excess fuel consumption resulting from the alleged defects, costs incurred in having the Affected Vehicles inspected, serviced and repaired, as well as income foregone as a result of taking these steps.

Any potential money compensation awarded to group members will depend on the Court’s findings in relation to the Applicant’s claim and the common issues, or alternatively the terms of any settlement which may be reached with Toyota Australia. It is not possible to be more specific at this stage.

13. How long will the action take?

It is not uncommon for class actions of this type to continue for two to three years from commencement, to approval of a settlement by the Court, or judgment. In some cases, actions can be resolved sooner or continue well beyond this timeframe.

14. What is the current status of the matter?

Current as at 6 July 2020

On 26 June 2020, the Court made orders regarding the next steps in the proceedings.

Opt out

The Court has now made orders regarding the process for group members to opt out of the Toyota class action.

A copy of the orders relating to the opt out process can be found here.

Technical matters

On 26 June 2020, the Court made orders that the technical matters in dispute in the proceedings be referred to a referee to conduct an inquiry and prepare a written report (a process referred to as a ‘reference’).

On 14 July 2020 the Court nominated Mr David Garrett as the independent referee and Mr Guy Donnellan as the counsel assisting the reference.

By 29 July 2020, the referee is to provide the Court with the date by which the referee considers he could provide his report.

Mediation

The Court has ordered that a mediation commence by no later than 13 November 2020.

Case management

A further case management hearing is set down by the Court for 12 August 2020.

Court Documents

The relevant Court documents in this case may be accessed here. The Court documents page will be updated with new Court documents after they have been filed with the Court.

Further updates will be provided as the case progresses.

15. Do I need to register or sign up to be a part of the class action?

No. Anyone who is entitled to be a group member (because they meet the group member criteria) is automatically a group member in the class action, whether or not they register, sign a retainer agreement with Bannister Law Class Actions or a funding agreement with Balance Legal Capital. Group members will be bound by the outcome of the class action unless they take steps to formally opt-out.

Further, as stated in the Opt Out Notice, Balance Legal Capital’s continued involvement in the class action may depend on a sufficient number of group members entering into funding agreements, and so it is important that you take this matter into consideration when choosing whether (and when) to either register as a Represented Group Member or a Registered Unrepresented Group Member, do nothing or formally opt-out.”

Further information in relation to your options in connection with the Toyota class action can be found in the Opt Out Notice available here.

16. Is there a deadline for signing up?

There is no set deadline for signing up, however if you wish to register either as a Represented Group Member or a Registered Unrepresented Group Member, it would assist the lawyers for you to do so by 28 August 2020.

Further, as stated in the Opt Out Notice, Balance Legal Capital’s continued involvement in the class action may depend on a sufficient number of group members entering into funding agreements, and so it is important that you take this matter into consideration when choosing whether (and when) to either register as a Represented Group Member or a Registered Unrepresented Group Member, do nothing or formally opt-out.

17. If I sign up, can I later change my mind and not participate?

The Toyota class action is an “open class action” meaning it has been brought by the lead applicant on his own behalf and on behalf of other persons who also own or have owned the affected Toyota vehicles (known as “group members”). The criteria for group members can be found here.

In an open class action, any group members who do not wish to participate in the class action (whether they are group members, Registered Group Members or Registered Unrepresented Group Members) must “opt out” of the class action. An Opt Out Notice ordered by the Court was issued to group members on 20 July 2020, setting out their options for registering or opting out of the class action. A copy is available here.

Once the deadline for opt out of 4:00pm on 30 September 2020 has passed, you will no longer be able to “opt out” of the class action without special leave of the Court. If you meet the group member criteria and do not opt out of the class action you will be bound by the outcome of the class action.

Group members should seek legal advice before opting out. To opt out is to take a serious step – you should not do it unless you understand what it means.

If you have signed a retainer agreement with Bannister Law Class Actions and a funding agreement with Balance Legal Capital, please request a call back here if the five business days cooling period during which you can terminate those agreements has expired and you no longer wish to participate in the class action.

18. Why am I signing two different agreements?

If you wish to sign up as a Represented Group Member in the Toyota class action, you will be asked to enter into two agreements:

  1. a retainer agreement with Bannister Law Class Actions; and
  2. a funding agreement with Balance Legal Capital.

The retainer agreement highlights that Bannister Law Class Actions agrees to conduct legal proceedings against Toyota Australia on behalf of Represented Group Members and will incur costs in doing so. If you sign this agreement you are retaining Bannister Law Class Actions to represent you in the class action.

Balance Legal Capital (Balance) is the litigation funder who is paying the costs (of, amongst others, Bannister Law Class Actions) of bringing this class action against Toyota in return for repayment of those costs plus a funding commission, should the class action be successful. This is what is set out in the funding agreement.

Group members are not, and will not be, responsible or liable for any “out of pocket” legal costs by remaining as group members in this class action (and whether or not they sign a retainer agreement with Bannister Law Class Actions and a funding agreement with Balance). At present, the costs of running the class action are being paid by Balance.

If you are considering becoming a Represented Group Member, you should read carefully the funding agreement and the retainer agreement and, if you then do not understand everything, you should get legal advice from your own family solicitor or a solicitor you choose.

19. What is opt out and how do I opt out?

If you meet the group member criteria then you are a group member automatically. Group members will be bound by the outcome of the class action unless they take steps to formally “opt out” by 4:00pm on 30 September 2020. Details on what this means and how to do so are contained in the Opt Out Notice.

Any group member who wishes to opt out of this proceeding must, before the Opt Out Date, deliver a duly completed opt out form to the New South Wales District Registry of the Federal Court of Australia.

Group members should seek legal advice before opting out. To opt out is to take a serious step – you should not do it unless you understand what it means.

20. What if I do nothing?

If you do nothing, that is, if you do not opt out by 30 September 2020 or sign up, you will remain as a group member and await the outcome of the class action. You will be an Unregistered Group Member, but if the class action is successful, then at some point in order to get any money out of any settlement or an award of damages (if that happens), you will need to register.

21. What is the difference between a Represented Group Member and a Registered Unrepresented Group Member?

A Represented Group Member is a group member who submits their details to Bannister Law Class Actions, enters into a retainer agreement with Bannister Law Class Actions and enters into a funding agreement with Balance Legal Capital (Balance).

Becoming a Represented Group Member will not require you to pay any “out of pocket” legal costs, but it will mean you agree to pay Balance a share of any money you receive from the class action in return for Balance having paid the legal and other expenses of the litigation (including paying Balance a funding commission). If you want to become a Represented Group Member, what you need to do is to:

https://www.toyotaclassaction.com.au/register/

If you are considering becoming a Represented Group Member, you should read carefully the funding agreements including the retainer and, if you then do not understand everything, you should get legal advice from your own family solicitor or a solicitor you choose.

A Registered Unrepresented Group Member is a group member who only submits their details to Bannister Law Class Actions but does not enter into a retainer agreement with Bannister Law Class Actions or a funding agreement with Balance.

At the end of the class action, an order may be sought requiring Registered Unrepresented Group Members who benefit from the class action, to contribute to the costs and the funding of the action out of any money they receive. If you want to become a Registered Unrepresented Group Member, what you need to do is to:

https://www.toyotaclassaction.com.au/register/

Further details about your options in relation to the Toyota class action are set out in the Opt Out Notice.

22. Why should I sign up?

Group members who sign up provide their details and information about their claims to Bannister Law Class Actions.

Although you do not have to sign up to remain a group member, at some point you will need to register your interest to get any money out of any settlement or an award of damages (if that happens).

Also, an an aspect of the funding of this class action by Balance Legal Capital (Balance) is that it can be withdrawn by Balance. The Court has been told that:

  • in considering whether this class action is commercially viable and whether to continue to fund the proceedings, Balance will take into account the number of Represented Group Members and the value of the claims of the Represented Group Members; and
  • Balance may decide to cease funding the proceeding if there are an insufficient number of Represented Group Members.

As Balance’s continued involvement may depend on a sufficient number of group members entering into funding agreements, it is important that you take this matter into consideration when choosing between the options set out in the Opt Out Notice.

Funded by

Balance Legal Capital

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Prosecuted by

Bannister Law Class Actions

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