Ndjamba v Toyota Finance Australia Ltd

[2010] NTSC 23

Ndjamba v Toyota Finance Australia Ltd [2010] NTSC 23

PARTIES:	Edouard Ndjoku Ndjamba
v
Toyota Finance Australia
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:	21003602
DELIVERED:	19 May 2010
HEARING DATES:	12 May 2010
JUDGMENT OF:	BLOKLAND J
APPEAL FROM:	Local Court
CATCHWORDS:

PROCEDURE -- Miscellaneous procedural maters -- ex parte proceedings

Appeal form the Local Court against ex parte orders made by a Magistrate - whether matter ought to have proceeded ex parte - no error of law by Magistrate in proceeding ex parte - the appellant has a right to re-hearing before the Local Court - appeal dismissed

Consumer Credit Code ss 66, 70, 78, 80(1), 86, 87, 88, 89, 90, 92, 94, 111,
114, 145, 146,
Local Court Act ss 19(1), 20
Local Court Rule 36.01
The Owners of the SS Kalibia v Alexander Wilson (1910-11) 11 CLR 689 at
694

Cairns, Australian Civil Procedure, 407

REPRESENTATION:

Counsel:

Appellant:	Self
Respondent:	Mr Close

Solicitors:

Appellant:	Self
Respondent:	Vincent Close Solicitors

Judgment category classification: C

Judgment ID Number:	BLO1003
Number of pages:	12
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Ndjamba v Toyota Finance Australia Ltd [2010] NTSC 23

No. 21003602

BETWEEN:

EDOUARD NDJOKU NDJAMBA

Appellant

AND:

TOYOTA FINANCE GROUP LTD

Respondent

CORAM:  BLOKLAND J

REASONS FOR JUDGMENT

(Delivered 19 May 2010)

Introduction

1. This is an appeal against two orders made by a Magistrate in the Local Court on 4 February 2010 firstly, permitting Toyota Finance Australia Limited, (“the Respondent”) to proceed ex parte and secondly, authorising the Respondent’s agent to enter the garden area or garage areas of 79 Byrne Circuit, Moil for the purpose of taking possession of a 2003 Toyota Kluger Motor Vehicle, Registration No. (NT) 932-566. The grounds of appeal are:

   1.         That the matter ought not have been determined ex parte.

   2.         That given that it did the Appellant had no opportunity to defend the application.

2. The Appellant appeared in person to argue the appeal. He told the Court he had obtained legal advice to assist him drafting the grounds of appeal. The Appellant advised the Court he was originally from the Congo. He declined an opportunity to adjourn the hearing of the Appeal in order to attempt to

arrange a French interpreter, despite an acknowledgment he may have been at a disadvantage due to language difficulties. In spite of the difficulties the Appellant sought to proceed.

[3]

effect the issue raised by the Appellant is whether the Local Court was authorised as a matter of law to proceed ex parte. A procedural fairness issue is expressly raised by the second ground. If the Local Court was authorised as a matter of law to proceed ex parte, the second ground will fail as a consequence. Although it is unusual for a Court to proceed with a hearing in the absence of a party, there are some circumstances that permit

Appeals from the Local Court lie to this Court on a question of law[1]. In of access to goods subject to re-possession in exercise of a contractual right.

The Application Before the Local Court

1. The Respondent’s application before the Local Court was for an Order seeking permission pursuant to s 92 Consumer Credit Code to authorise the Respondent’s agent to enter the garden and garage area of 79 Byrne Circuit Moil for the purpose of taking possession of the vehicle . The Respondent asserted it was entitled to possession of the vehicle. Section 92 of the Consumer Credit Code provides:

   92.       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.

   Evidence before the Local Court in Support of the Application

[5] declaration sworn 11 January 2010 of Susan Barnard, who described herself
as the Account Executive for Computershare. Computershare are a firm who

Before the Local Court in support of the application was a statutory Barnard’s statutory declaration attests to sending a default notice to the Appellant and to Mrs Therese Mabouyu, (the joint borrower who is the Appellant’s wife). The Default Notices refer to the consumer loan between the Appellant, Ms Mabouyu and the Respondent. The Default Notice contained information notifying the Appellant that he had defaulted under the consumer loan agreement; that $598.05 was the amount overdue; that with default charges the total Amount Due was $598.58; and that the default could be remedied by paying the total amount due within 30 days. The Default Notice also advised that unless the default was remedied within 30 days the balance of the loan ($26,974.07) would become immediately due and payable. Finally, it notified that pursuant to the agreement the Respondent may take possession of the mortgaged vehicle.

[6] Johnson. Mr Johnson’s affidavit states the Appellant had not complied with
the default notice; that on 7 January 2010 he visited the Appellant and his
wife at 79 Byrne Circuit Moil; he sighted the vehicle in a fenced yard at the
residence; he requested the Appellant and his wife sign a consent form to
allow him to enter the premises. The consent form (“Form 7”, Consumer
Credit Regulations) facilitates written consent to a credit provider to enter
premises to take possession of goods they are entitled to. His affidavit
indicates the Appellant and his wife refused to sign the Form 7. His

Before the Local Court was an affidavit by a licensed bailiff Grant Eric “the borrowers” (the Appellant and his wife) as noted in the agreement. It also indicates he had previously repossessed a vehicle of “the borrowers” or one of them and believes it is unlikely they will consent to him entering the premises.

1. Before the Local Court there was information indicating that the loan agreement was in arrears; the vehicle the subject of the mortgage was identified as being within private enclosed premises and the borrowers

would not permit entry. Further, the Default Notices before the Local Court
were issued on 13 November 2009, thus on the face of it, complying with
s 80(1) Consumer Credit Code that provides 30 days notice must be given
before enforcement action commences.

making the Orders. In my view the circumstances as they were at the time of the hearing clearly give rise to a strong inference that on the facts known at the time, the Appellant would take action to prevent the repossession of the vehicle which on all of the material before the learned Magistrate was a legitimate recovery exercise pursuant to the loan agreement. I am mindful that courts proceed cautiously concerning ex parte applications. The primary considerations on whether or not to proceed ex parte concern whether there is urgency; whether irreparable damage would flow from making an ex parte order; whether hardship would flow to a party against whom an order is made and whether such an order can be set aside[2].

[9]

right of repossession, there was some urgency to preserve the subject

Should the Local Court have Proceeded Ex Parte?

1. In the circumstances outlined in my view the Local Court was authorised to make the ex parte order. Although His Honour did not give formal reasons, he reviewed the material and clearly relied on the material filed before

   Given the failure to give consent when otherwise the evidence indicated a failure to give consent to enter the premises, it was open in my view for an inference to be drawn that the Appellant may not cooperate if aware of the proceedings. This in turn gives rise to reasonable grounds to suspect the vehicle may be hidden or its position changed if notice of repossession proceedings were given. The Respondent consequentially may have suffered harm or unnecessary expense in locating the vehicle and the debt may have remained unsatisfied.

2. In balancing those factors against the hardship that may be occasioned to the Appellant, it must be noted that the Appellant is still able to reclaim the vehicle by payment of the arrears to the Respondent. The Appellant’s rights to recover the vehicle after the payment of arrears owing and the reasonable repossession expenses are paid are preserved by s 94 of the Consumer Credit Code which provides:

   94.(1) Notice to be given. A credit provider that has taken possession
   of goods under a mortgage must, within 14 days after doing so, give

   the mortgagor a written notice containing the following matters –

(a)	the estimated value of the goods;
(b)	the enforcement expenses incurred up to the date on which the goods were taken into the credit provider’s possession and, if enforcement expenses are accruing while the goods remain in the credit provider’s possession, the rate of accrual;
(c)	a statement of the mortgagor’s rights and obligations in the form set out in the regulations.

(2)        Goods not to be sold immediately. A credit provider must not dispose

of goods taken under the mortgage within 21 days after the date of the notice,
unless the Court authorises the credit provider to do so.

(3) Effect of proceedings. If at the end of that 21-day period a stay of enforcement proceedings is in force under this Code or an application under section 70 has not been determined, the credit provider must not dispose of the goods until those proceedings have been determined and any period allowed for appeal has elapsed.

(4) Payment during notice period. The credit provider must return the

goods if –

(a)	the amount in arrears (less any accelerated amount) and the credit provider’s reasonable enforcement expenses are paid within that 21 day period and the debtor has not committed a further default of the same kind under the credit contract; or
(b)	the credit contract is paid out.

(5)       Offence. A credit provider that contravenes this section is guilty of an

offence.

1. Further, the Appellant has the right to bring an application for re-hearing to set aside the Local Court order. That right is not subject to a time limitation and the Respondent concedes the Appellant could still bring the application. Section 20 of the Local Court Act provides:

   20        Re-hearing

   (1)       Where, other than in a proceeding by way of appeal to the

   Court, an order is made by the Court against a person who:

(a)	did not file a notice of defence;
(b)	did not appear in the proceeding; or
(c)	consented to the making of the order but there are grounds on which to satisfy the Court that the order is to be set aside (for example on the grounds of fraud, duress, suppression of

evidence or the giving of false evidence),

the person may, subject to and in accordance with the Rules, apply to
the Court for an order that the order be set aside and the proceeding

be re-heard.

(2) On an application under this section, the Court may set aside

the order subject to such terms and conditions, if any, as it thinks fit
and re-hear the proceeding.

(3) Subject to subsection (4), an application under this section does not operate as a stay of the order unless the Court so orders.

(4) An application under this section in respect of an order for the

payment of money operates as a stay of so much of the order as

relates to the payment of money.

(5) If an applicant under this section fails to appear at the time

fixed for the hearing of the application and the application is struck out, the applicant may re-apply only if the applicant first obtains the leave of the Court.

[12] Local Court Rule
application to set aside such an order. In my view the matters complained of

Further 36.01 provides a procedure to bring the appropriately considered in the context of an application to set aside as anticipated in the Local Court Act and Local Court Rules. Although the proceedings before the Local Court are brief, the material on which the orders were made in the context of a consumer loan is readily apparent. In my view the Orders were justifiable as a matter of law.

Issues Raised by the Appellant

1. The Appellant’s concerns outlined to this Court are directed to a considerable degree to a first repossession of the vehicle on 9 September 2009. He complains about procedure not being followed in relation to that re-possession. That is not material that can bear on this Appeal concerning the Orders of 4 February 2010. He complains that he has felt “harassed”, discriminated against and has been the “victim of an unlawful judgment”, “moral torture” and “human rights abuse” from a number of persons involved in the enforcement procedure.

[14] Consumer Code
Section 66 provides a debtor who for certain reasons is unable to meet their
obligations, may apply for a change to the credit contract by extending the
period of the contract or postponing dates for particular payments. That
would appear to be a matter that needs to be examined well before
repossession process or related proceedings place. It is not a ground of the
Appeal, nor could it be in these proceedings. If the Appellant is suggesting
that such an application was made by him but was not before the Local
Court at the time the ex parte Orders were made, that question is more
appropriately dealt with by way of re-hearing of those Orders before the
Local Court. The re-hearing process in the Local Court reflects the

The Appellant complains s 66 of the was not complied with. affected may apply for its discharge…”[3]

[16]	Consumer Credit Code mortgaged goods. That would not appear to be relevant to these
[15]	processes by raising ss 86, 87 and 88 Consumer Credit Code. These

The Appellant has also sought to incorporate a number of principles and Once negotiations take place, the debtor may make an application to the Court to vary the enforcement. It would appear the Appellant is still able to make such an application either simultaneously with an ex parte review application or separately.

The Appellant raised s 78 concerning surrender of Government Consumer Agency to apply to the Court to become a party to proceedings. That would not appear to be relevant at this time however it is a matter the Appellant could consider by informing Northern Territory Consumer Affairs about any future proceedings should he think it would be of assistance. The Appellant also raised s 70 Consumer Credit Code allowing the Court to reopen unjust transactions. Once again, that would appear to provide the Appellant with a further form of relief, but does not affect the correctness or otherwise of the Orders made in the Local Court.

[17] 144 Consumer Credit Code dealing with false or misleading representations;
s 145 Consumer Credit Code dealing with harassment by a credit provider
and s 146 Consumer Credit Code dealing with canvassing of credit at home.
None of these are relevant on whether or not as a matter of law the Local
Court should have proceeded ex parte. Similarly the Appellant sought to
rely on s 174 Consumer Credit Code that allows the Court to extend a period
of notice of a document; s 89 Consumer Credit Code that permits a credit
provider to apply for a variation or postponement of an Order; s 90
Consumer Credit Code concerning information to be given on the
whereabouts of mortgaged goods and the notice procedures under s 94.
None of these provisions in my view bear on the correctness or otherwise on
the Orders the subject of this Appeal. Some of these provisions may allow
separate relief for the Appellant but they do not bear on the question of law
before this Court. The Appellant complains that the Respondent’s Agent did The Appellant submitted the following provisions should be considered: s the car. This would appear to be a complaint after the Orders were made and cannot be dealt with in these proceedings. A significant part of the Appellant’s complaints appear to be more relevant to the first repossession. Various other complaints concern allegations of the Respondent taking or stealing certain of the Appellant’s goods. These are clearly not issues covered by the grounds of appeal and are not questions of law relevant to the Orders the subject of the appeal.

Conclusion

[18] this Court concerning alleged irregularities in the process before or after the
Orders were made, he should obtain legal advice with a view to seeking a re-
hearing of the matter pursuant to s 20 Local Court Act and r 36.1 Local

If the Appellant seeks to agitate the further information he has put before subject to a time limit. The Appellant still has the option, (as the Solicitor for the Respondent in these proceedings has indicated), to negotiate with the Respondent concerning return of the car, the loan agreement and repayments generally.

1. In my respectful view the Appellant should obtain further legal advice or Consumer Affairs advice. The Respondent’s solicitor advised the Court at the hearing of the Appeal that the subject vehicle had not as yet been sold and the Appellant could still negotiate with the Respondent.

[20] The Appeal is dismissed.

--------------------------------

[1] Section 19(1) Local Court Act.
[2] Cairns, Australian Civil Procedure, 407
[3] The Owners of the SS Kalibia v Alexander Wilson (1910-11) 11 CLR 689 at 694