MoneyMe Financial Group Pty Ltd v Andryous (No 2)
[2023] FedCFamC2G 664
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
MoneyMe Financial Group Pty Ltd v Andryous (No 2) [2023] FedCFamC2G 664
File number: PEG 30 of 2023 Judgment of: JUDGE LUCEV Date of judgment: 26 July 2023 Catchwords: CONSUMER PROTECTION – consumer loan contract –order sought for entry to premises to recover mortgaged goods – whether evidence sufficient to establish that premises residential and to warrant order sought Legislation: Evidence Act 1995 (Cth) s 155
National Consumer Credit Protection Act 2009 (Cth) Sch 1
National Credit Code ss 100, 101
Cases cited: MoneyMe Financial Group Pty Ltd v Andryous [2023] FedCFamC2G 592 Division: Division 2 General Federal Law Number of paragraphs: 15 Date of last submission: 7 July 2023 Date of hearing: 7 July 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:
7 JULY 2023
THE COURT ORDERS THAT:
1.By 4.00pm on 7 July 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 3 of these orders or any continuation (with or without variation) of order 3 of these orders;
(b)pay the compensation referred to in (a) to the person affected by the operation of order 3; and
(c)that if, pursuant to order 3, the Applicant, by its officers, employees, or agents, enters the property at Unit 1, 147 Reid Avenue, Hectorville, in the state of South Australia, and takes possession of the vehicle as described in order 3, the Applicant will safely secure and retain possession of the vehicle until further order of the Court.
2.The Applicant, by its lawyers, by 4.00pm on 27 July 2023 file an affidavit as to the residential nature of the premises at Unit 1, 147 Reid Avenue, Hectorville, in the state of South Australia.
3.Pursuant to s 100 of the National Credit Code, being Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) the Applicant, by its officers, employees, or agents, is authorised until 31 July 2023 to enter the property at Unit 1, 147 Reid Avenue, Hectorville, 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”).
4.There be a further directions hearing at 2.00pm on 4 August 2023.
5.There be liberty to apply to any party or any person affected by the operation of order 3 on 24 hours’ notice.
6.Reasons for Judgment in relation to these orders be published at a later date from Chambers.
7.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
THE ORIGINATING APPLICATION AND EARLIER ORDERS
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 part 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)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”), for reasons set out in MoneyMe Financial Group Pty Ltd v Andryous [2023] FedCFamC2G 592 (“MoneyMe (No 1)”), including the following:
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”).
When the matter again came before the Court on 7 July 2023 the Court made orders (“July 2023 Orders”), as follows:
1.By 4.00pm on 7 July 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 3 of these orders or any continuation (with or without variation) of order 3 of these orders;
(b)pay the compensation referred to in (a) to the person affected by the operation of order 3; and
(c)that if, pursuant to order 3, the Applicant, by its officers, employees, or agents, enters the property at Unit 1, 147 Reid Avenue, Hectorville, in the state of South Australia, and takes possession of the vehicle as described in order 3, the Applicant will safely secure and retain possession of the vehicle until further order of the Court.
2.The Applicant, by its lawyers, by 4.00pm on 27 July 2023 file an affidavit as to the residential nature of the premises at Unit 1, 147 Reid Avenue, Hectorville, in the state of South Australia.
3.Pursuant to s 100 of the National Credit Code, being Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) the Applicant, by its officers, employees, or agents, is authorised until 31 July 2023 to enter the property at Unit 1, 147 Reid Avenue, Hectorville, 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”).
4. There be a further directions hearing at 2.00pm on 4 August 2023.
5.There be liberty to apply to any party or any person affected by the operation of order 3 on 24 hours’ notice.
6.Reasons for Judgment in relation to these orders be published at a later date from Chambers.
7. Costs reserved.
The Court notes that an undertaking and an affidavit were filed in accordance with orders 1 and 2 of the July 2023 Orders. The affidavit was sworn by MoneyMe’s lawyer Mr Singh (“Mr Singh’s 7 July 2023 Affidavit”).
In accordance with order 6 of the July 2023 Orders these are the Reasons for Judgment for making the July 2023 Orders.
POWER TO ENTER PREMISES TO TAKE POSSESSION OF MORTGAGED GOODS
The NC Code is Sch 1 to the NCCP Act. 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.
(As to what constitutes “residential premises” for the purposes of s 100 of the NC Code, see MoneyMe (No 1) at [9]-[16] per Judge Lucev.)
THE VEHICLE HAS LEFT MYER ROAD, STURT
In the May 2023 Orders the Court made an order allowing MoneyMe to enter residential premises at 49 Myer Road, Sturt, in the state of South Australia (“Myer Road Premises”), for the purposes of taking possession of the Vehicle.
When a process server engaged by MoneyMe attended the Myer Road Premises three days after the May 2023 Orders had been made, the Vehicle, which had previously been seen at the Myer Road Premises, was no longer there, and the apparent occupant of the Myer Road Premises disavowed any knowledge of what had happened to the Vehicle: see the affidavit of Tylor Newlyn affirmed 19 June 2023 at [1]-[3].
THE VEHICLE IS REGISTERED TO AN ADDRESS IN REID AVENUE, HECTORVILLE
The gist of Mr Singh’s 7 July 2023 Affidavit is as follows:
(a)on 6 July 2023 he obtained an extract of the register of motor vehicles from the South Australian Department of Infrastructure and Transport (“Registration Extract”) noting that the residential address where the Vehicle is kept is a unit address in Reid Avenue, Hectorville in the state of South Australia (“Hectorville Premises”), and a copy of the Registration Extract was annexed; and
(b)on 7 July 2023 he caused a search to be undertaken on, and a report to be obtained from, Core Logic, which is an online real estate search website, to ascertain whether the Hectorville Premises were used for residential purposes, and obtained a report from Core Logic (a copy of which was annexed), which in relation to the Hectorville Premises:
(i)showed a photo of the Hectorville Premises which, in Mr Singh’s opinion, appeared to be a townhouse; and
(ii)stated that:
(A)the property type is a unit;
(B)the occupancy is rented; and
(C)it has 3 bedrooms, 2 bathrooms and 2 car parking spaces.
CONSIDERATION
The Registration Extract is admissible in evidence by reason of s 155 of the Evidence Act 1995 (Cth). The evidence in the Registration Extract is sufficient to establish that the Vehicle is kept at the Hectorville Premises.
The Hectorville Premises are:
(a)a unit or townhouse;
(b)rented; and
(c)have 3 bedrooms, 2 bathrooms and 2 car parking spaces,
and that evidence is sufficient to establish that the Hectorville Premises are “residential premises” within the meaning of s 100 of the NC Code (as to which see MoneyMe (No 1) at [9]-[16] per Judge Lucev).
It follows from the fact that the Hectorville Premises are “residential premises” within the meaning of s 100 of the NC Code, and the fact that the Vehicle is “mortgaged goods” for the purposes of s 100 of the NC Code: MoneyMe (No 1) at [16] per Judge Lucev, that the Court is empowered under s 100 of the NC Code to order that MoneyMe is entitled to enter the Hectorville 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 3 of the July 2023 Orders.
The undertaking required by order 1 of the July 2023 Orders was required for the same reasons as are set out in MoneyMe (No 1) at [23] per Judge Lucev.
CONCLUSION AND ORDERS
It was for the reasons set out at [11]-[14] above that the Court made the July 2023 Orders set out at [4] above.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 26 July 2023
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