MoneyMe Financial Group Pty Ltd v Andryous
[2023] FedCFamC2G 592
•6 July 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
MoneyMe Financial Group Pty Ltd v Andryous [2023] FedCFamC2G 592
File number(s): PEG 30 of 2023 Judgment of: JUDGE LUCEV Date of judgment: 6 July 2023 Catchwords: CONSUMER PROTECTION – consumer loan contract – mortgage over vehicle – default – default notice – default notice not complied with – order sought for entry to residential premises – what constitutes residential premises – whether evidence particular premises are residential premises – whether power to make order in respect of any other premises – order sought for delivery up, surrender, and notification of whereabouts of vehicle – whether power to make order sought for delivery up, surrender, and notification of whereabouts of vehicle – undertakings – whether undertakings necessary for protection of other parties and persons
WORDS AND PHRASES – “premises” – “residential” – “residential premises”
Legislation: Criminal Code Act 1995 (Cth) s 6.1
National Consumer Credit Protection Act 2009 (Cth) s 5, Sch 1
Police Act Amendment Act 1902 (WA)
National Credit Code Pt 14, ss 99, 100, 101
Cases cited: BA v The King [2023] HCA 14; (2023) 97 ALJR 358
BMW Australia Finance Limited v Rodrigues [2021] FCCA 1393
Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353; (2013) 194 LGERA 199
Egan & Egan v Kevan (1941) 44 WALR 14
Gardiner v Sevenoaks Rural District Council [1950] 2 All ER 84; (195) 48 LGR 360; (1950) 114 JP 352; (1950) 94 Sol Jo 385; (1950) 66 TLR 1091
GrainCorp Operations Ltd v Liverpool Plains Shire Coucil [2013] NSWCA 171; (2013) 194 LGERA 83
Marana Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 307; (2004) 141 FCR 299; (2004) 214 ALR 190; (2004) 57 ATR 521
Volkswagen Financial Services Australia Pty Ltd v Mandalavi [2018] FCCA 752
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 26 May 2023 Date of hearing: 26 May 2023 Place: Perth Counsel for the Applicant: Mr J Singh Solicitor for the Applicant: Sphere Legal Respondent: No appearance by or for the Respondent ORDERS
PEG 30 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MONEYME FINANCIAL GROUP PTY LTD
Applicant
AND: EVAN ANDRYOUS
Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
26 May 2023
THE COURT ORDERS THAT:
1.By 2 June 2023 the Applicant, by its lawyers, provide a written undertaking to the Court that it will:
(a)submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not that person is a party) affected by the operation of order 2 of these orders or any continuation (with or without variation) of order 2 of these orders;
(b)pay the compensation referred to in (a) to the person affected by the operation of order 2; and
(c)that if, pursuant to order 2, the Applicant, by its officers, employees, or agents, enters the property at 49 Myer Road, Sturt, in the state of South Australia, and takes possession of the vehicle as described in order 2, the Applicant will safely secure and retain possession of the vehicle until further order of the Court.
2.Pursuant to s 100 of Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) the Applicant, by its officers, employees, or agents, is authorised until 30 June 2023 to enter the property at 49 Myer Road, Sturt, in the state of South Australia, for the purpose of taking possession of a Mercedes-Benz Vehicle VIN Number: WDD2050832R425661, Engine Number: 26492030003991, Registration Number: S623CRF (“Vehicle”).
3.There be a further directions hearing at 10.00am on 3 July 2023.
4.There be liberty to apply to any party or any person affected by the operation of order 2 on 24 hours’ notice.
5.Reasons for judgment in relation to these orders be published at a later date from Chambers.
6.Costs reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION – APPLICATION MADE AND ORDERS SOUGHT AND MADE
Before the Court is an originating application filed 7 March 2023 seeking orders under ss 100 and 101 of the National Credit Code (“NC Code”),which is Sch 1 to the National Consumer Credit Protection Act 2009 (Cth) ( “NCCP Act”), in respect of a mortgaged vehicle (“Vehicle”) in the following terms:
1.Pursuant to Section 101 of the National Credit Code (‘the Code’) the Respondent and/or any party in possession of the Vehicle, being a Silver Mercedes Benz C-Class C300 Motor Vehicle VIN: WDD2050832R425661, (hereafter ‘the Vehicle’), deliver, surrender and/or provide the location of the Vehicle to the Applicant and/or its Agent.
2. Pursuant to Section 100 of the Code, the Applicant and/or its duly authorised agent be permitted to take reasonable step(s) in order to take possession of the Vehicle from either of the following premises:
i. Unit 802/ 17 Penny Place ADELAIDE SA 5000; or
ii. any other premises in Australia at which the Collateral are reasonably believed to be located
3. The Respondent to pay the Applicant its costs fixed in the sum of $3,000.00.
4. The Applicant have liberty to apply for further orders.
When the matter first came before the Court on 28 March 2023 the Court was not prepared to make the orders sought in the originating application, for reasons then discussed with Mr Singh, the lawyer appearing for the applicant, MoneyMe Financial Group Pty Ltd (“MoneyMe”), but which principally related to the Court’s concerns that:
(a)there was insufficient evidence of service, or proper service, on the respondent, Evan Andryous (“Mr Andryous”);
(b)there was insufficient evidence that the premises at which the vehicle had allegedly then been located were “residential premises” for the purposes of s 100 of the NC Code;
(c)the form of the order sought, to enter “any other premises in Australia” at which it was believed the vehicle was located, was broader than any order the Court was permitted to make under s 100 of the NC Code; and
(d)that the order sought under s 101 of the NC Code might be too broad as s 101 might require the identification of a person who has possession, and because s 101 was limited to delivery up of mortgaged goods, here the Vehicle, at a specified time or place or within a specified period, and an order which sought that a person surrender up the Vehicle or provide details of its location was broader than any order the Court was permitted to make under s 101 of the NC Code.
When the matter again came before the Court on 26 May 2023 the Court, having regard to the evidence then before it, and an undertaking given on behalf of MoneyMe, made orders (“May 2023 Orders”) as follows:
1.By 2 June 2023 the Applicant, by its lawyers, provide a written undertaking to the Court that it will:
(a)submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not that person is a party) affected by the operation of order 2 of these orders or any continuation (with or without variation) of order 2 of these orders;
(b)pay the compensation referred to in (a) to the person affected by the operation of order 2; and
(c)that if, pursuant to order 2, the Applicant, by its officers, employees, or agents, enters the property at 49 Myer Road, Sturt, in the state of South Australia, and takes possession of the vehicle as described in order 2, the Applicant will safely secure and retain possession of the vehicle until further order of the Court.
2.Pursuant to s 100 of Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) the Applicant, by its officers, employees, or agents, is authorised until 30 June 2023 to enter the property at 49 Myer Road, Sturt, in the state of South Australia, for the purpose of taking possession of a Mercedes-Benz Vehicle VIN Number: WDD2050832R425661, Engine Number: 26492030003991, Registration Number: S623CRF (“Vehicle”).
3. There be a further directions hearing at 10.00am on 3 July 2023.
4.There be liberty to apply to any party or any person affected by the operation of order 2 on 24 hours’ notice.
5.Reasons for judgment in relation to these orders be published at a later date from Chambers.
6. Costs reserved.
In accordance with order 5 of the May 2023 Orders these are the Reasons for Judgment for making the May 2023 Orders.
EVIDENCE
By the time of the making of the May 2023 Orders the evidence indicated as follows:
(a)there was a contract for finance in relation to the Vehicle signed by Mr Andryous and MoneyMe on 30 March 2022 (“Contract”), and which is a Consumer Loan Contract to which the NC Code applies;
(b)under the Contract Mr Andryous agreed to make payments to MoneyMe totalling $72,718.80 over a period of 60 months;
(c)under cl 6 of the Contract Mr Andryous granted a legal mortgage over the Vehicle to MoneyMe to secure MoneyMe’s interest in the Vehicle;
(d)on 16 October 2022 MoneyMe sent a default notice to Mr Andryous at 21a Dashmere Street, Bossley Park, New South Wales, 2176 in relation to the Contract and the Vehicle (“Default Notice”);
(e)the Default Notice states that Mr Andryous owes the sum of $60,758.27 (“Debt”) under the Contract and it gave Mr Andryous 30 days to remedy the Debt;
(f)it appears Mr Andryous did not pay the Debt;
(g)there had been service of the originating application upon:
(i)the respondent, Mr Andryous; and
(ii)a person identified originally as “Liam”, but subsequently as “Lam” (“Mr Lam”), who had been seen and spoken to on two separate occasions, namely 15 February 2023 and 19 April 2023, by a mercantile recovery agent and a process server respectively, in the garage of premises at 49 Myer Road in Sturt in the state of South Australia (“Myer Road Premises”); and
(h)the Myer Road Premises are described by the mercantile recovery agent as a double storey home with cream weatherboard walls and a single enclosed garage underneath, with a letterbox;
(i)the Vehicle had been seen in the garage at the Myer Road Premises by a mercantile recovery agent on 15 February 2023, and identified as the Vehicle by a check of the VIN number and registration which the process server was able to undertake by agreement with, and in the presence of, Mr Lam, but evidence to that effect was not before the Court until after the hearing on 28 March 2023;
(j)on 15 February 2023 Mr Lam told the mercantile recovery agent that he had purchased the Vehicle from a person called Mr Hamid Shaz following an advertisement on Facebook, and had paid for it by way of bank transfer, but Mr Lam could not:
(i)tell the mercantile recovery agent:
(A)how much he paid for the Vehicle;
(B)where he had bought the Vehicle from; and
(ii)show the mercantile recovery agent the bank transfer;
(k)on 15 February 2023 Mr Lam refused to allow the mercantile recovery agent to take possession of the Vehicle without a court order, and told the mercantile recovery agent to leave his property.
ORDER SOUGHT UNDER S 100 OF THE NC CODE
NC Code, s 100
Section 100 of the NC Code provides as follows:
The court may, on the application of a credit provider that is entitled to take possession of mortgaged goods, authorise the credit provider to enter residential premises for the purpose of taking possession of mortgaged goods.
Section 99(1) of the NC Code provides that a credit provider, or their agent:
… must not enter any part of premises used for residential premises for the purpose of taking possession of mortgaged goods … unless:
(a) the court has authorised the entry;
and, as such, recognises the special status of residential premises “as deserving of the law’s utmost protection”: BA v The King [2023] HCA 14; (2023) 97 ALJR 358 at [23] per Kiefel CJ, Gageler and Jagot JJ (albeit in the minority in the outcome, the principle espoused holds good).
Residential premises
Are the Myer Road Premises “residential premises” for the purposes of s 100 of the NC Code?
There is no definition of “residential premises” in the NC Code. Part 14 of the NC Code does however define “residential property” to mean “land on which a dwelling is … affixed predominantly for residential purposes”. Definitions in the NCCP Act (such as the definition of “premises”) are not of assistance as those definitions do not apply to the NC Code: NCCP Act, s 5.
The word “premises” in its ordinary meaning generally includes “a tract of land, a house or building within the grounds, etc, belonging to it”: Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353; (2013) 194 LGERA 199 at [105] per Newnes JA, citing Macquarie Dictionary (5th ed, 2009). Within that meaning it can have broader or narrower application. In Gardiner v Sevenoaks Rural District Council [1950] 2 All ER 84; (195) 48 LGR 360; (1950) 114 JP 352; (1950) 94 Sol Jo 385; (1950) 66 TLR 1091; All ER at 85 per Lord Goddard CJ it was observed that:
“Premises” is, no doubt, a word which is capable of many meanings. How it originally became applied to property is, I think, generally known. It was from the habit of conveyancers when they were drawing deeds of conveyance referring to property and speaking of “parcels”. They set out the parcels in the early part of the deed, and later they would refer to “the said premises,” meaning strictly that which had gone before, and gradually by common acceptance “premises” became applied, as it generally is now, to houses, land, shops, or whatever it may be, so that the word has come to mean generally real property of one sort or another. There is no doubt that from time to time the word “premises” has been given different meanings, either extended or more restricted.
In Egan & Egan v Kevan (1941) 44 WALR 14 (“Egan”) the appellants had been charged and convicted before a Magistrate on a complaint under the Police Act Amendment Act 1902 (WA) that they “had in their possession in the bush about 20 miles from Norseman, gold, reasonably suspected of having been stolen or otherwise unlawfully obtained” and that they did so “on any premises of which … [they were] the tenant or occupier, or reputed tenant or occupier”: Egan at 18 per Dwyer J. The Supreme Court of Western Australia held that “premises” when read in conjunction with the words “tenant or occupier” was restricted to mean something in the nature of a building or enclosure, and that “it may be a bush shed or some sort of restricted area”, but did not include the “ti-tree thicket” 20 miles outside of Norseman where the allegedly stolen gold was being treated: Egan at 19 and 20 per Dwyer J.
Albeit in relation to Commonwealth GST legislation, the Full Court of the Federal Court dealt comprehensively with the meaning of “residence” and “residential” in Marana Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 307; (2004) 141 FCR 299; (2004) 214 ALR 190; (2004) 57 ATR 521 (“Marana Holdings”) at [20]-[30] per Dowsett, Hely and Conti JJ, and having referred to three sources, the Oxford English Dictionary, the Shorter Oxford Dictionary and the Macquarie Dictionary, said at [31]-[33] per Dowsett, Healy and Conti JJ as follows:
31.All three references stress the relationship between the word “residential” and the word “residence”, suggesting the aspect of permanent or long-term occupation to which we have previously referred. They recognize use of the expression in connection with hotels but generally suggest that such usage describes an hotel that caters for long-term residents. We accept that it is not uncommon to speak of long-term residents in an hotel, but when one speaks of persons who stay for shorter terms, the more common usage is to describe them as “guests”.
Residential premises
32.The term is defined in s 195-1 of the GST Act as:
♦ land or a building which is either occupied as a residence; or
♦ is intended to be occupied, and is capable of being occupied as a residence.
The definition expressly includes a “floating home”, which expression is defined in 195-1 to mean:
“ … a structure that is composed of a floating platform and a building designed to be occupied as a residence that is permanently affixed to the platform, but does not include any structure that has means of, or is capable of being readily adapted for, self-propulsion.”
33.Obviously, such a structure would not normally be land and may or may not be a building. As we have said, the definition of the term “residential premises” in s 195-1 depends to some extent upon the meaning of the term “residence”. We consider that the latter term usually connotes permanent, or at least extended occupation. We are inclined to attribute an analogous meaning to the expression “residential premises” unless the context of the GST Act or extrinsic evidence suggests otherwise. We turn to those matters.
In Marana Holdings at [50] per Dowsett, Hely and Conti JJ the Full Court of the Federal Court observed, as follows:
50.The decision of the Court of Appeal in Owen v Elliott concerned use of the expression “residential accommodation” in capital gains tax legislation. The premises in question comprised a main residence with a small annex. The taxpayer and his family lived in the annex during the summer months, letting rooms in the main residence to paying guests. For the rest of the year they occupied the whole of the property, together with any paying guests. The taxpayer's wife provided guests with meals and laundry services. The premises were licensed to sell liquor. During the summer months most guests stayed for short periods. A few guests stayed for longer periods during the winter. It seems that the taxing authority accepted that the words “residential accommodation” in their usual sense would include the residential accommodation offered at these premises but urged a different approach in the context of the relevant legislation. The court considered that the legislation provided no cause for attributing to those words any meaning other than their usual meaning.
In GrainCorp Operations Ltd v Liverpool Plains Shire Coucil [2013] NSWCA 171; (2013) 194 LGERA 83 at [101] per Ward JA (with whom Beazley P and Sackville AJA agreed at [1] and [126] respectively) it was said that:
101.I accept that on one connotation of the adjective “residential”, the composite term “residential buildings” could be read as meaning more than simply structures used for the purposes of human habitation; namely, that it carries with it the notion of a degree of permanence or settled or habitual abode. However, I also consider that on the ordinary meaning of “residential” it is sufficient that structures are used as the usual abode of people or as their abode “for a time” (in the sense of more than a fleeting stay) or even, in some of the older usages of the expression “in residence”, for the purpose of abode for a stated function.
Across various attendances at the Myer Road Premises the evidence indicates that:
(a)on the premises is “a double storey home with cream weatherboard walls and a single enclosed garage underneath” and a letterbox;
(b)the Vehicle was parked in the garage of the home;
(c)a neighbour identified the occupant of the home as “Liam”;
(d)the mercantile recovery agent spoke with the “occupant of the home Liam”;
(e)“Liam” ultimately asked the mercantile recovery agent to “leave his property”.
(The person identified originally as “Liam”, was subsequently identified as Mr Lam.)
There is sufficient in the above evidence for the Court to infer that the Myer Road Premises are “residential premises” for the purposes of s 100 of the NC Code. There is plainly a residence of which Mr Lam is the occupant, with a garage for parking a vehicle, and a letterbox for the receipt of post, and in respect of which Mr Lam’s attachment was such as to describe it as “his property”, and neighbours who recognised him as the occupant of the home. It follows from that, and the fact that the Vehicle is “mortgaged goods” for the purposes of s 100 of the NC Code, that the Court is empowered under s 100 of the NC Code to order that MoneyMe is entitled to enter the Myer Road Premises for the purposes of taking possession of the Vehicle, and was satisfied that such an order ought to be made in the terms of order 2 of the May 2023 Orders.
Any other premises
In the originating application the form of the proposed order under s 100 of the NC Code also seeks entry to “[a]ny other premises” at which the Vehicle is “reasonably believed to be located”. To purport to make such an order under s 100 of the NC Code would be to exceed the power given to the Court under s 100 of the NC Code, as it only provides for orders to be made to enter “residential premises”. Furthermore, an order in the terms proposed in the originating application might potentially affect the rights of a person who has not been joined in the proceeding, and ought not to therefore be made in those terms: Volkswagen Financial Services Australia Pty Ltd v Mandalavi [2018] FCCA 752 (“Mandalavi”) at [22]-[24] per Judge Cameron, notwithstanding that orders similar to those sought in the originating application might on occasion have been made by the Court: Mandalavi at [31] per Judge Cameron. The Court was therefore not satisfied that it ought to make an order for entry to “[a]ny other premises” at which the Vehicle is “reasonably believed to be located”.
ORDER SOUGHT UNDER S 10 OF THE NC CODE
NC Code, s 101
Section 101 of the NC Code provides as follows:
(1)The court may, on the application of a credit provider that is entitled to take possession of mortgaged goods, order a person who has possession of the goods to deliver them to the credit provider at a specified time or place or within a specified period.
(2)The court may, on the application of a credit provider or other person required to deliver goods to a credit provider, by order vary the place at which or time or period within which goods must be delivered to the credit provider.
(3)A person who contravenes an order under this section commits an offence.
Criminal penalty: 30 penalty units.
(4)Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code
Section 101 of the NC Code does not provide for the Court to make a general all-purpose order for delivery up, surrender, or notification by a person of the whereabouts, of the Vehicle as sought in the originating application. Rather s 101(1) of the NC Code provides for an order directed to “a person”, where that person “has possession” of the mortgaged goods, and for them to be delivered to the credit provider “at a specified time or place or within a specified period”. This requires that “a person who has possession of the goods” be identified for the purposes of the order. In Mandalavi at [23]-[24] per Judge Cameron this Court (then known as the Federal Circuit Court) refused to make an order that “any person in possession of the vehicle … deliver or surrender possession to the Applicant”, observing that (emphasis added):
23.Although the applicant’s security interest was registered on the PPSR and it is unlikely that anyone in possession of the Vehicle would be able to own it free of that security interest, that question remains to be determined. In that regard, although the operation of the Personal Property Securities Act 2009 in the context of the present case was canvassed in the applicant’s address to the Court it was not canvassed in the level of detail which would permit a conclusion that whoever possesses the Vehicle at the moment could not have any possessory rights in relation to it such that the Court could confidently declare that the applicant had an unqualified right to immediate possession of the Vehicle.
24.Until such a situation is demonstrated, the Court should not make an order potentially affecting the rights of a party who has not been joined in the proceeding. That ss.100 and 101 of the Code are drawn in unspecific terms, in that they speak of “premises” and “a person” without expressly requiring further particularisation by a court when making an order, does not alter this conclusion. Consequently, to the extent that prayers 1 and 3 seek such relief, they will be dismissed.
Insofar as the order sought in the origination application under s 101 of the NC Code seeks an order for “surrender” of the Vehicle or an order to provide the location of the Vehicle, such an order would exceed the power given to the Court under s 101 of the NC Code, which is limited to an order, directed to “a person”, for delivery to the credit provider, here MoneyMe, at a specified time or place or within a specified period (each of which may be varied by a further order of the Court: NC Code, s 101(2)). Moreover the order sought in the originating application under s 101 of the NC Code was deficient in that it did not specify a time or place or period for delivery to MoneyMe.
The importance of specificity in any order sought or made under s 101 of the NC Code is heightened by the fact that contravention of such an order is a strict liability offence under the Criminal Code Act 1995 (Cth), s 6.1.
In the above circumstances the Court was not satisfied that it ought to make the order sought under s 101 of the NC Code.
UNDERTAKINGS
The making of an order made in the absence of persons other than an applicant (and even where those persons may have been served or otherwise given notice of the proceedings) and which authorises access to residential premises must be the subject of an undertaking as to damages in order to protect the rights of others: see BMW Australia Finance Limited v Rodrigues [2021] FCCA 1393 at [37] per Judge Manousaridis, and in particular where the owner of the residential premises sought to be entered may be a person with no knowledge of the mortgage or mortgaged goods, or the presence of mortgaged goods on the premises (particularly, for example where they are rented). Similarly, an undertaking to safely secure and retain possession of the mortgaged goods is appropriate, lest there be any issues arising as to the ownership or right to possession of the mortgaged goods. The latter might be important in this case where there is little evidence as to how the Vehicle, for which Mr Andryous, a resident of New South Wales, granted a mortgage over to MoneyMe, allegedly came to be sold by a Mr Shaz to a Mr Lam, the latter seemingly a resident of South Australia, seemingly without MoneyMe’s knowledge or consent.
In the above circumstances the Court considered it appropriate that MoneyMe provide a written undertaking in the terms set out in order 1 of the May 2023 Orders.
CONCLUSION AND ORDERS
It was for the above reasons that the Court made the May 2023 Orders set out at [3] above.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 6 July 2023
1