BMW Australia Finance Limited v Fantastic Removals Pty Ltd

[2024] NSWSC 303

Supreme Court

New South Wales

Medium Neutral Citation:	BMW Australia Finance Limited v Fantastic Removals Pty Ltd [2024] NSWSC 303
Hearing dates:	15 February 2024
Date of orders:	25 March 2024
Decision date:	25 March 2024
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	See par [14].
Catchwords:	CIVIL PROCEDURE – default judgment – application for default judgment – requirements of UCPR r 16.6 met – default judgment entered – declarations sought provided to assist with repossession process
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural rulings
Parties:	BMW Australia Finance Limited (Plaintiff) Fantastic Removals Pty Ltd (First Defendant) Hussein Awada (Second Defendant)
Representation:	Solicitors: Mills Oakley Solicitors (Plaintiff) No appearance (Defendants)
File Number(s):	2023/00260817
Publication restriction:	Nil

JUDGMENT

1. By amended notice of motion dated 7 December 2023, the plaintiff sought leave to proceed for judgment and possession of a vehicle that was the subject of vendor finance, and an order that the defendants pay the plaintiff’s costs.

2. The application proceeded ex-parte, the defendants having filed no appearance, no defence, and, having been notified of today’s hearing, failing to appear today.

3. The requirements for entry of default judgment are set out in Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 16. Rule 16.6(1) provides for judgment to be given for the plaintiff against the defendant for a sum not exceeding the sum claimed, interest up to judgment and costs. Rule 16.6(2) provides for the requirements for the relevant affidavits in support.

4. One of the requirements is for an affidavit in support of the application to state when and how the originating process was served on the defendants. In proof of that matter, the plaintiff reads the affidavit of Mark Miller, sworn 20 September 2023, who deposes to personal service upon the second defendant at an address in Warrawong and noting that the second defendant is the sole director, secretary and shareholder of the first defendant.

5. The affidavit of Eden Tsiaples, sworn 22 December 2023, deposed to having provided notice of the hearing date and the orders that were proposed to be sought from the Court.

6. I am satisfied that the defendants have been duly served.

7. The application for default judgment is also supported by the affidavit of Shama Akbar, the collections manager of the plaintiff, sworn 23 November 2023. That affidavit annexed the signed Chattel Mortgage Agreement entered into on 16 May 2022. The terms included a requirement that the defendants make monthly instalment payments with interest calculated at 9.2% per annum. The agreement provided for the plaintiff’s rights in the event of default - clause 17.2 - that included rights to sue for the total amount outstanding, immediate possession of the vehicle and entailing a requirement that the first defendant deliver the vehicle to the plaintiff. The first defendant is also required to pay any and all costs incurred by the plaintiff enforcing its rights under the agreement.

8. By way of guarantee executed on 16 May 2022, the second defendant agreed to guarantee payment of the total amount outstanding, and to indemnify the plaintiff for direct loss and reasonable costs incurred as a result of the first defendant not paying the total amount outstanding under the agreement.

9. On 18 May 2022, the plaintiff advanced the funds to the first defendant and on the same day registered its security on the Personal Property Securities Register.

10. On 6 January 2023, a payment default notice was sent to each defendant. On 14 March 2023, a final demand notice was sent.

11. The plaintiff via Mr Akbar also deposes that since the commencement of the proceedings, no payments have been received or credits accrued to reduce the amount of the claim. The plaintiff has also deposed as to the interest claimed by it and the basis for it, and has provided detailed memoranda of costs and disbursements incurred by it in pursuing its rights under the agreement.

12. The loan agreement provides for the reimbursement to the defendants of any amount recovered from sale of the vehicle, the proceeds of which would depend on the state of the vehicle on recovery. In the event the vehicle is not recovered, it is appropriate to grant the alternative (and additional) relief for judgment in the judgment sum plus interest and the reasonable costs incurred.

13. I am satisfied on the basis of the affidavit evidence that all the relevant matters have been addressed as stipulated by UCPR r 16.6 and 16.7.

Orders

14. For the reasons given above, I make the following orders:

1. A declaration that the plaintiff is entitled to possession of a motor vehicle better described as a 2019 Ford Ranger Raptor Utility motor vehicle (Engine No. YN2SX236658, VIN No. MPBUMFE60KX236658) (“Vehicle”).

2. The first and second defendants shall forthwith deliver up the Vehicle to the plaintiff.

3. Judgment for the plaintiff against the defendants in the sum of $76,440.65.

4. Judgment for the plaintiff against the defendants in respect of the plaintiff’s enforcement costs, including legal costs, in the sum of $16,820.99.

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Decision last updated: 26 March 2024