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 vehicles 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.

The case is brought by Kenneth John Williams and Direct Claims Services Qld Pty Ltd (the Applicants) on their 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 the Applicants and the group members is Gilbert + Tobin.

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 was 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 using the contact form here.

4. Who is conducting the Toyota class action?

Gilbert + Tobin are the solicitors on the record in the Proceedings and are working with a team of barristers, consisting of Stephen Free SC, Patrick Meagher and Peter Strickland.

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 (whether or not they sign 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”.

The deadline for opting out of the class action has now passed. The deadline for filing an Opt-Out Notice with the Court was 30 September 2020 for Opt-Out Notices sent in July/August 2020 or 22 January 2021 for Opt-Out Notices sent in November/December 2020.

If you did not opt out by the deadline, you will no longer be able to “opt out” of the class action without special leave of the Court. If you did not opt out by 30 September 2020 or 22 January 2021, 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.

If you did not opt out, and have not registered, you can still choose to register and/or sign up as a LFA (Litigation Funding Agreement) Group Member by clicking here.

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 reduction in value of the Affected Vehicles, excess tax and finance costs incurred in acquiring the Affected Vehicle, the costs of excess fuel consumption resulting from the defects, and 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 Applicants and group members. This loss and damage includes the reduction in value of the Affected Vehicles, excess tax and finance costs incurred in acquiring the Affected Vehicle, the costs of excess fuel consumption resulting from the alleged defects, and 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 Applicants’ 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?

The class action is listed for a four-week initial trial commencing on 29 November 2021.

14. 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 or sign 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.  The deadline for opting out of the class action without leave of the Court has now passed.

15. Is there a deadline for signing up?

There is no set deadline for signing up. If you wish to register as a LFA Group Member, please use the registration form located here.

16. 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 Applicants on their 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 or not they are LFA Group Members) must “opt out” of the class action. An Opt Out Notice and Supplementary Opt Out Notice ordered by the Court was previously issued to group members, setting out their options for registering or opting out of the class action. A copy is available here.

The deadline for opting out of the class action has now passed. The deadline for filing an Opt-Out Notice with the Court was 30 September 2020 for Opt-Out Notices sent in July/August 2020 or 22 January 2021 for Opt-Out Notices sent in November/December 2020.

If you did not opt out by the deadline, you will no longer be able to “opt out” of the class action without special leave of the Court. If you did not opt out by 30 September 2020 or 22 January 2021, or sign up, you will remain as a group member and await the outcome of the class action. If you have not signed up, 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.

If you did not opt out, and have not registered, you can still choose to register and/or sign up as a LFA Group Member by clicking on the register button here.

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

17. Why am I signing a funding agreement?

If you wish to sign up as a LFA Group Member in the Toyota class action, you will be asked to enter into a funding agreement with Balance Legal Capital.

Balance Legal Capital (Balance) is the litigation funder who is paying 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. 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 (whether or not they sign 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 LFA Group Member, you should read carefully the funding agreement.  If you then do not understand everything, you should get legal advice from your own family solicitor or a solicitor you choose.

18. 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”.

The deadline for opting out of the class action has now passed. The deadline for filing an Opt-Out Notice with the Court was 30 September 2020 for Opt-Out Notices sent in July/August 2020 or 22 January 2021 for Opt-Out Notices sent in November/December 2020.

If you did not opt out by the deadline, you will no longer be able to “opt out” of the class action without special leave of the Court. If you did not opt out by 30 September 2020 or 22 January 2021, or sign up, you will remain as a group member and await the outcome of the class action. If you have not signed up, 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.

If you did not opt out, and have not registered, you can still choose to register and/or sign up as a LFA Group Member by clicking here.

19. What if I do nothing?

If you do nothing, that is, if you do not opt out 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.

For more information on time limits for opting out please refer to question 18.

20. What is a LFA Group Member?

A LFA Group Member is a group member who enters into a funding agreement with Balance Legal Capital (Balance).

Becoming a LFA 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 LFA Group Member, what you need to do is to:

  • request a call back here.

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

21. What did the independent referee’s reports find?

On 23 October 2020, the Federal Court of Australia adopted an independent referee’s report which concluded that the Diesel Particulate Filter System (DPF System) in all Toyota Hilux, Prado and Fortuner diesel vehicles sold in Australia between October 2015 and April 2020 was defective.

On 7 September 2021, the Federal Court of Australia adopted a second report from the independent referee which concluded that one of the consequences of the defect was increased fuel consumption and that a field fix released by Toyota in mid-2020 is effective to remedy the defect.  Copies of the independent referee’s reports can be found here.

A short summary of the key findings from the referee’s first report can be found here.

Funded by

Balance Legal Capital

Visit Website
Prosecuted by

Gilbert + Tobin

Visit Website