BMW Australia Finance Ltd v Wills

[2011] VCC 1360

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

BANKING & FINANCE DIVISION

Case No. CI-10-02110

BMW AUSTRALIA FINANCE LTD	Plaintiff
v.
GLENN WILLS	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2011
DATE OF JUDGMENT:	13 October 2011 (revised 14 October 2011)
CASE MAY BE CITED AS:	BMW Australia Finance Ltd v. Wills
MEDIUM NEUTRAL CITATION:	[2011] VCC 1360

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Terms of settlement breached – Application for judgment based upon consent to judgment – Vehicle repossessed and to be sold by plaintiff – Defendant asserting that plaintiff intends to sell vehicle at less than market value – Plaintiff entitled to judgment.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J. Bevacqua	Thomsons Lawyers
For the Defendant	Mr J. Alderuccio	Alderuccio Solicitors
HIS HONOUR:

1           The plaintiff seeks judgment, pursuant to terms of settlement entered into between the parties on 18 August 2011, which settled the proceeding. By the terms of settlement, the defendant was to pay the plaintiff $10,000 by 29 September 2011. He failed to make this payment. By reason of the default, the plaintiff was entitled to file a consent to judgment to obtain orders that the proceeding be reinstated and the defendant pay the plaintiff the sum of money then stated to be owed pursuant to the agreement of $190,000.

2           The sum of money owed pursuant to the terms of settlement might vary according to whether the interim payment of $10,000 due to be made on 29 September had been paid and/or the motor vehicle the subject of the dispute had been sold by the plaintiff and the net proceeds of sale (called in the terms of settlement “the residual moneys owed”) had been recovered.

3           The defendant asserts that there is a dispute about the price at which the plaintiff proposes to sell the motor vehicle. The obligation upon the plaintiff is to “take all reasonable steps to sell the vehicle at market value”. Pursuant to the Terms, the defendant has first option to purchase the vehicle at an agreed price after notification by it to the defendant of “the valuation figure of the vehicle”.

4           In my view, although there may be some disagreement between the parties as to the appropriate value of the vehicle, the fact remains that the defendant has defaulted in his obligation pursuant to the terms of settlement to make the interim payment of

$10,000 due on 29 September 2011. In those circumstances, the plaintiff is entitled to
file the consent to judgment and to obtain the orders that I have foreshadowed
entitling it to judgment for the settlement sum of $190,000.

5           The plaintiff would continue to have obligations pursuant to the terms of settlement in relation to the sale of the vehicle, including the taking of all reasonable steps to sell it at market value and to pay or allow the net proceeds of sale to the defendant. If the

defendant considered that the plaintiff had breached those obligations, and as I
understand the position from what counsel have said the vehicle has not yet been
sold, the defendant may then have a right of action against the plaintiff.

6           At this stage, however, there appears to be no basis for the defendant’s opposition to the reinstatement of the proceeding and the entry of judgment for the sum of $190,000 which is presently owing as a result of the breach by the defendant of the terms of settlement, arising from his failure to make the interim payment of $10,000.

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Certificate

I certify that these two page are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 13 October 2011 and revised on 14 October 2011.

Dated:14 October 2011

Caroline Dawes

Associate to His Honour Judge Anderson