Nissan Financial Services Australia Pty Ltd v Prospective Respondent

[2023] FedCFamC2G 1035

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Nissan Financial Services Australia Pty Ltd v Prospective Respondent [2023] FedCFamC2G 1035  

File number(s):

ADG 292 of 2023

Judgment of:

JUDGE STREET

Date of judgment:

25 September 2023

Catchwords:

CONSUMER LAW – protection – Preliminary hearing – security interest – vehicle – proposed joinder – prospective respondent

Legislation:

Acts Interpretation Act 1901 (Cth)

Personal Property Securities Act 2009 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Division:

Division 2 General Federal Law

Number of paragraphs:

3

Date of hearing:

25 September 2023

Place 

Sydney

Solicitor for the Applicant

Mr S Sankey of Wallmans Lawyers

ORDERS

ADG 292 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

NISSAN FINANCIAL SERVICES AUSTRALIA PTY LTD

Applicant

AND:

THE PROSPECTIVE RESPONDENT

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	25 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.Pursuant to Rule 7.22 (2) (c) of the Federal Court Rules 2011 that, upon sufficient conduct money being provided to the Transport for NSW together with service of any such Order, the Transport for NSW give discovery to the Applicant of the name and address details of the current registered owner of the Collateral (the Prospective Respondent), being a black 2021 Volkswagen Amarok Utility Motor Vehicle VIN: WV1ZZZ2HZMA033662, Engine Number: DDX174579, Registration Number: YLL65L (NSW) (hereafter the Collateral), within 14 days of service.

2.Pursuant to Rule 7.01 (1) of the Rules that the Applicant file an amended Application noting the full name of the Prospective Respondent once ascertained and seek the allocation of a date and time for hearing pursuant to Rule 10.03 (c) of the Rules.

3.The matter is stood over for further directions commencing at 10:00AM (AEST)/ 9:30AM (ACST) on 10 November 2023 via video and audio link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

4.Liberty is granted to apply on two (2) days’ notice.

5.Leave is granted to the applicant and the prospective respondent, correctly named, to provide consent orders to be made in chambers if appropriate.

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).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE STREET

1. These are proceedings under the Personal Property Securities Act 2009 (Cth) (PPSA), within the Court’s jurisdiction under s 207 in relation to a matter of a kind identified in s 206, as defined by s 10 of the PPSA. The applicant is seeking ex parte orders for a kind of preliminary discovery and then enforcement of a security interest under s 123. Those are orders within the scope of this Court’s jurisdiction picked up through r 1.06(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law)Rules2021 (Cth), which to the extent of insufficiency pick up the Federal Court rules. The Court is satisfied that those Federal Court rules are picked up by this Court in relation to the preliminary discovery orders of the kind sought by the applicant in the present case in order for steps to be taken to enforce the security interest of the applicant against the intended respondent.

2. The Court is satisfied on the affidavit material filed that this is an appropriate manner in which to exercise the Court’s powers to make a preliminary discovery order in the circumstances where the vehicle cannot otherwise be located by the applicant, and it is apparent the applicant has taken steps, unsuccessfully, to identify the vehicle. 

3. It would seem to me to have been appropriate that there is at least something identifying that the Transport for New South Wales records have been updated if the vehicle is successfully recovered, but that’s the only other potential issue.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       27 November 2023