BMW Australia Finance Ltd v Ioannidis

[2015] FCCA 3483

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMW AUSTRALIA FINANCE LTD v IOANNIDIS [2015] FCCA 3483

Catchwords:
CONSUMER LAW – Application for orders permitting financier to enter upon premises to retrieve hired vehicle – application to adjourn – adjournment refused – entry authorised.

Legislation:

National Credit Code, Sch.1 of the National Consumer Credit Protection Act 2009

Applicant: BMW AUSTRALIA FINANCE LTD

Respondent: OURANIA IOANNIDIS

File Number: MLG 1843 of 2015

Judgment of: Judge Wilson

Hearing date: 24 November 2015

Date of Last Submission: 24 November 2015

Delivered at: Melbourne

Delivered on: 24 November 2015

REPRESENTATION

Counsel for the Applicant: Ms S. Gory

Solicitors for the Applicant: Thomson Geer

Mr Ioannidis in person on behalf of the Respondent with leave

ORDERS

1. The respondent’s application for an adjournment of the hearing of

   
   

   24 November 2015 be dismissed.

2. The applicant be authorised to enter the premises at 26 Valentine Avenue, Kew, Victoria 3101 for the purpose of taking possession of mortgaged goods, being a Mercedes Benz motor vehicle with registration ZLL 918.

3. The respondent pay the applicant’s costs fixed in the sum of $6,500.00.

4. The operation of Order 3 be stayed for 30 days.

5. All extant applications be otherwise dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1843 of 2015

BMW AUSTRALIA FINANCE LTD

Applicant

And

OURANIA IOANNIDIS

Respondent

REASONS FOR JUDGMENT

(As revised from transcript)

1. There are two applications before the Court. One is an adjournment application by the respondent, Mrs Ourania Ioannidis

   
   

   (“the respondent”), which seeks to adjourn the further hearing of the application that BMW Australia Finance Ltd (“the applicant”) brings in this case. The second application is for an order in accordance with the Application in a Case[1] filed by the applicant which, in essence, seeks Court authorisation for the applicant to enter upon the premises of the respondent and retrieve a motor vehicle the subject of a finance agreement between the applicant and respondent. Let me take each application in turn. 

   [1] Application in a Case filed by the applicant on 23 November 2015.

2. Turning first to the adjournment application, the respondent did not appear in Court today. Her husband, Mr Ioannidis attended Court and represented her with leave. It was said that the respondent was too ill to attend Court. I accept what Mr Ioannidis says about the respondent’s ill health. It appears that she is under the medical attention of Dr Con Kyriacou (“Dr Kyriacou”). Dr Kyriacou provided a letter[2] expressed “To Whom it May Concern” dated 17 November 2015, saying that the respondent was, as at the date of the letter, “in no state to make serious decisions for the next three months at least”.[3]

   [2] Letter dated 17 November 2015 signed by Dr Con Kyriacou, Barkers Medical Consulting Rooms.

   [3] Ibid.

3. Mr Ioannidis asked for time, at large. This matter was before

   
   

   his Honour Judge Burchardt on 1 October 2015, at which time

   
   

   his Honour made orders for the filing of a defence and any affidavit material to be relied on by the respondent by 29 October 2015.[4]

   
   

   The respondent did not file any substantive material deposing to the merits of her case, whether in accordance with the time limited by the order of his Honour Judge Burchardt or at all. The matter was, by order of his Honour, adjourned for hearing today, 24 November 2015.

   
   

   On behalf of the respondent, Mr Ioannidis advanced a number of reasons why an adjournment should be granted, including that to refuse the adjournment would be to deny him ‘democracy’ (his words).

   [4] Order of his Honour Judge Burchardt made 1 October 2015.

4. During the course of the debate, I told Mr Ioannidis that his conception of democracy was not applicable and was not a proper basis for the granting of an adjournment. I asked Mr Ioannidis what material the respondent wanted to raise if she were given leave to have time.

   
   

   Mr Ioannidis was unable to specify what extra material, beyond that which he put before the Court today, the respondent needed or wanted. The merits of the basis upon which the respondent sought to adjourn dovetailed in to the response of the substantive application brought by the applicant in this proceeding. The application for an adjournment by the respondent was refused.

5. Let me now turn to the relief that the applicant sought. As I have already mentioned, the applicant sought orders authorising it, under the provisions of the National Credit Code (“the Code”) in Sch.1 of the National Consumer Credit Protection Act 2009 (“the Act”), to enter upon premises where the hired Mercedes Benz motor vehicle, registration ZLL 918 (“the vehicle”) is garaged for the purposes of retrieving the vehicle. Under a finance agreement[5] entered into between the applicant and the respondent, the respondent hired the vehicle upon agreeing to make 61 instalments by way of hire, each of the amount of $1,137.50, with a balloon payment of $24,375.00.[6] 

   [5]

   [6]

6. Default was made in meeting the respondent’s obligations under that finance arrangement and a letter of demand was sent on

   
   

   20 March 2015.[7] The respondent did not comply with the letter of demand. The applicant therefore, as it was entitled to do under its hire contract and as it was required to do under the Code, served notices in respect of the default and those notices were not the subject of any response by the respondent, with the consequence that the applicant applied for orders for the recovery of the vehicle. Under s.88 of the Code, the applicant is required to make formal proofs of an array of matters, all of which I am satisfied it has proved. In particular, I am satisfied as to:

   a.the validity of the existence of the debt and its breach;

   b.the existence of the amount claimed, and

   c.the fact that notice of the debt has been given to the debtor and that the debtor currently remains in default, such that no amount of the defaulted sum has been remedied within the time stipulated, or at all. 

   [7] Default Notice for Contract Number 949250 dated 20 March 2015, filed 11 August 2015.

7. Mr Ioannidis told the Court that three weeks ago he, on behalf of the respondent, made a proposal to the applicant to deal with a portion of the amount that was due. The applicant did not accept the proposal, although I declined to enter upon, and do not now want to engage in any consideration of, the private negotiations between those parties. Suffice it to say that Mr Ioannidis openly admitted that the respondent owes $38,000.00 of the amount due, but she contests the balance between the sum owed and $38,000.00.

8. The basis of the dispute, in respect of the balance, is said to reside in a paragraph of the Response[8] that the respondent filed with this Court.  The respondent has addressed her contentions about the debt in the Response, which is undated, but was filed on 30 October 2015.

   
   

   The respondent responded to paragraph 4 of the affidavit filed by

   
   

   Mr Robert Samuel Arfi (“Mr Arfi”), on behalf of the applicant.[9]

   
   

   Mr Arfi deposed to a communication between the respondent and the applicant in which a proposal for payment in a particular period of time was given.[10] In other words, the respondent did not address the substance of the claim but rather addressed some proposal for the giving of time to meet her payment obligations.

   [8] Response filed by the respondent on 30 October 2015.

   [9] Affidavit of Robert Samuel Arfi filed 23 November 2015.

   [10] Affidavit of Robert Samuel Arfi filed 23 November 2015, p.2 at para.4.

9. The proposal put by the respondent was not to the applicant’s satisfaction and the evidence reveals that it was rejected. In her Response, the respondent said, and this goes to what appears to be the substance of her defence to the entire proceeding, that she was not advised that an extension for payment would only be granted in the terms set out in the last sentence of paragraph 4 of the affidavit of

   
   

   Mr Arfi. To my mind, the assertion by the respondent that she

   
   

   “was not advised that an extension for payment would only be granted in the terms set out in the last sentence of that paragraph”[11] does not amount to a defence on the merits to this proceeding. 

   [11] Response – General Federal Law filed by the respondent on 30 October 2015, at p.3.

10. It follows that I am not persuaded that if time were given to the respondent, as she requested, any purpose would be served in the adjournment. That is for the simple reason that the material, such as it is, does not disclose an arguable defence. In those circumstances, I am not satisfied that anything will change between now and the period that the respondent seeks by way of adjournment. His Honour

    
    

    Judge Burchardt has given already, by order dated 1 October 2015,

    
    

    an abundance of time for the respondent to take steps to advance the substantive defence in this proceeding, if one exists. The respondent failed to advance a defence on the merits.

11. On 14 September 2015, his Honour Judge Burchardt made orders adjourning the proceeding to the date on 1 October 2015. Taken in combination, the respondent has had a significant amount of time within which to either compromise the debt or raise a substantive dispute to it. The respondent has failed to do either.

12. In those circumstances, I refuse the application for an adjournment and I grant the relief that the applicant seeks in this proceeding.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Associate: 

Date: 24 December 2015

Loan Contract and Goods Mortgage Schedule as between BMW Australia Finance Ltd and
Ourania Ioannidis dated 9 January 2013, filed 11 August 2015.

Loan Contract and Goods Mortgage Schedule as between BMW Australia Finance Ltd and
Ourania Ioannidis dated 9 January 2013, filed 11 August 2015, at p.1.