Nissan Financial Services Pty Ltd v Jones
[2025] FedCFamC2G 730
•20 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nissan Financial Services Pty Ltd v Jones [2025] FedCFamC2G 730
File number: MLG 470 of 2025 Judgment of: JUDGE SYMONS Date of judgment: 20 May 2025 Catchwords: CONSUMER LAW – where applicant seeks declaration and orders under s 123 of the Personal Property Securitys Act 2009 (Cth) and s 100 of the National Credit Code – where respondent has failed to meet vehicle loan repayments – where applicant seeks to enter property to seize vehicle – where respondent did not participate in the proceedings – where application for substituted service was granted previously – order made requiring the respondent to deliver vehicle within 7 days – order made that applicant can enter the respondent’s residential property or any other property he has apparent control over for the purposes of repossessing the vehicle – respondent to pay applicant’s costs in a fixed amount Legislation: National Consumer Credit Protection Act 2009 (Cth) s 187; Sch 1, s 100
Personal Property Securities Act 2009 (Cth), ss 21, 123, 207
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth), rr 6.14, 13.06; Sch 2
Cases cited: Volkswagen Financial Services Australia Pty Ltd v Glass Shop Perth Pty Ltd [2024] FedCFamC2G 537
Volkswagen Financial Services Australia Pty Limited v Tate [2024] FedCFamC2G 491
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of last submissions: 20 May 2025 Date of hearing: 20 May 2025 Place: Melbourne Solicitor for the application: Mr A Foster, solicitor advocate, Sinisgalli Foster Legal Solicitor for the respondent: There was no appearance by or on behalf of the respondent ORDERS
MLG470 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NISSAN FINANCIAL SERVICES PTY LTD
Applicant
AND: DAVID FRANK JONES
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
20 MAY 2025
THE COURT DECLARES THAT:
1.The applicant is entitled to take possession of the 2018 Ford Ranger with the registration number 492BJ2, the Vehicle Identification Number MPBUMFFSOJX154319 and Engine Number P5AT2587474 (the Vehicle), pursuant to section 100 of the National Credit Code and section 123 of the Personal Property Securities Act 2009 (Cth).
THE COURT ORDERS THAT:
2.The respondent (including by their agent) deliver up, surrender and/or provide the location of the Vehicle to the applicant or its duly authorised agent within seven (7) days of making this order.
3.If the respondent does not comply with order 2 within the time specified, the applicant, or its duly authorised agent, be entitled to take reasonable steps to recover the Vehicle including entering into the respondent’s residential address at XX Street, XXX QLD, including in either case any garage or carports, or any other premises in Australia over which the respondent has apparent control and at which the Vehicle is reasonably believed to be located for the purpose of taking possession of the Vehicle pursuant to section 100 of the National Credit Code contained in Schedule 1 of the Act and/or section 123 of the Personal Property Securities Act 2009 (Cth) and/or section 99 of the Consumer Credit Code contained in Schedule 1 of the National Consumer Credit Protection Act 2009 (Cth).
4.The respondent pay the applicant’s costs fixed in the amount of $4,341.81.
THE COURT NOTES THAT:
A.Pursuant to r 13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the Court proceeded with the hearing of this matter in the absence of the respondent.
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 SYMONS:
INTRODUCTION
Before the Court is an application under section 187 of the National Consumer Credit Protection Act 2009 (Cth) (Credit Code) and section 207 of the Personal Property Securities Act 2009 (Cth) (PPSA). The applicant relies principally on the affidavit of Indika Egan filed on 17 February 2025 (Egan affidavit) to establish matters of jurisdiction and entitlement to the relief and orders sought. The applicant has also filed and relied upon other affidavits (which I will identify later in these reasons) to support applications made to amend the application and to serve the application (as amended) on the respondent by substituted service.
In addition, the applicant relies on written submissions filed on 15 April 2025 which address the application generally and the question particularly of whether the Court has power to make an order that would authorise the entry of the applicant (or its agent) to “any other premises in Australia over which the respondent has apparent control and at which the Vehicle is reasonably believed to be located” to take possession of the Vehicle. The Court had indicated to the applicant’s representative at a mention hearing held on 3 April 2025 that it would require assistance about this proposed form of order given that there has been a lack of judicial consensus as to whether an order in this form can and should be made.
The Vehicle at the heart of this application is identified as being a:
·2018 Ford Ranger – Registration No. 492 BJ2, Vehicle Identification No (VIN) MPBUMFF50JX154319 and Engine Number P5AT2587474.
BACKGROUND
The following background is taken from the Egan affidavit in circumstance where the respondent, Mr Jones, has not participated in the proceedings, despite steps being taken to put him on notice of the proceedings and the specific orders and relief sought by the applicant.
The applicant is a provider of financial services to individuals and business purchasing a motor vehicle, including by way of consumer loans.
On or about 18 June 2021, the applicant entered into a written agreement with the respondent to lend him the sum of $62,769.31 at a fixed interest rate of 9.30% for a term of 60 months to facilitate the respondent’s purchase of the Vehicle (Loan Agreement). The Loan Agreement comprised a “Consumer Loan Contract – Loan Schedule” and “Terms and Conditions of Your Consumer Loan” documents. The Loan Agreement was secured by a first-ranking security interest over the Vehicle in favour of the applicant (Security Interest).
The Loan Agreement contained various relevant terms including that:
·the respondent make 60 equal monthly instalments of $1,319.15;
·the respondent pay all the fees and charges specified in the Loan Schedule, including any fee reasonably incurred in the event of the respondent’s default under the Loan Agreement;
·the respondent would be in default under the Loan Agreement if he failed to carry out an obligation under the Agreement, including the obligation to make a repayment by the applicable repayment date (which, recurred on the 18th of each month).
Clauses 14.1, 16.1 and 17.1 of the Terms and Conditions provided that the applicant may take enforcement action, including enforcing the Security Interest by way of taking possession of the Vehicle if the respondent failed to rectify any default within a period specified in a default notice.
Clause 18.3 of the Terms and Conditions provided that the applicant may enter any premises to gain access to the Vehicle for any purpose permitted under the Loan Agreement and to pay the cost of any liability associated with the entry.
On or about 21 June 2021, the applicant registered the Security Interest over the Vehicle on the Personal Property Securities Register and the following day, advanced the sum of $62,769.31 to the respondent which money was used to purchase the Vehicle.
As at 27 October 2023, the respondent was indebted to the applicant under the Loan Agreement in the amount of $18,416.71, comprising outstanding repayment amounts plus fees and charges and enforcement expenses (overdue amount).
On 27 October 2023, the applicant issued the respondent a Notice of Default which requested payment of the overdue amount within 38 days, namely, by 4 December 2023.
The respondent did not remedy the default.
The applicant asserts that by reason of the default, the balance of the loan and all monies payable under the Loan Agreement, which as at 17 February 2025 was $57,415.18, became due and payable by the respondent.
In her affidavit, Ms Egan deposed to the steps taken prior to initiating these proceedings to recover the outstanding amounts and/or to recover the Vehicle. In that regard, the applicant engaged agents who made four visits to the respondent’s (then) residential address in Allenstown, Queensland and made several phone calls to the respondent. The Vehicle was sighted at the Allenstown address but efforts to recover it were not successful. The applicant incurred expenses of $1,364 when it engaged the agent and says that liability for this amount falls on the respondent, with the result that he is now indebted to the applicant in the amount of $58,779.18.
Substituted Service
The applicant was unsuccessful in its attempts to personally serve the respondent with the documents that commenced this proceeding.
Reflecting this, on 3 April 2025 I made an order pursuant to rule 6.14 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (Rules) that the applicant have leave to serve the application (as amended to properly record the title of the applicant) by email to the respondent’s known email address and by SMS to the respondent on his recently used mobile number with a message that brought to his attention the nature of the proceeding and its file number.
On 4 April 2025, lawyer Alan Foster (who also represented the applicant in this proceeding) made an affidavit in which he deposed to serving – using the methods of substituted service identified above – the application, copies of the Egan affidavit (as well as the affidavits relied upon in support of the substituted service application) and copies of orders made by the Court on 20 March 2025 and 3 April 2025. The last order listed the proceeding for mention before me on 20 May 2025.
In Mr Foster’s affidavit dated 3 April 2025 (made in support of the orders for substituted service) he deposed to a phone conversation with the respondent on 19 March 2025 during which Mr Foster explained that he acted for the applicant, that the respondent was in default under the Loan Agreement and that the applicant wanted to recover the Vehicle from him. The respondent had informed Mr Foster that “he would not be cooperative”, that he was “on hard times” and that he no longer resided at the address in Allenstown. The respondent refused to disclose to Mr Foster where he was living or working and was not willing to make any arrangements for the return of the Vehicle.
When the matter was called on for hearing on 20 May 2025 there was no appearance by or on behalf of the respondent. Neither was there a response to the phone call made by my associate to the phone number identified in the orders for substituted service.
Having regard to the circumstances and events described above as well as the failure of the respondent to participate in the proceeding, to file a notice of address for service or any responsive material, I was satisfied that the respondent was on notice of the proceeding and the nature of the relief sought by the applicant and decided to determine the matter in the respondent’s absence under rule 13.06(1)(e) of the Rules.
LEGISLATION
National Credit Code
In circumstances where the Loan Agreement was entered into with the respondent (a natural person) for the purposes of purchasing a vehicle which was apparently for personal use, I am satisfied that the National Credit Code applies to this transaction.
The National Credit Code identifies the circumstances in which a credit provider (such as the applicant) may commence enforcement proceedings where a debtor is in default.
Section 100 of the National Credit Code provides:
100.The court may, on 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 the mortgaged good.
The applicant seeks an order under this provision.
PPSA
In addition, the applicant relies upon the Court’s powers under the PPSA in circumstances where the applicant registered the Security Interest it held over the Vehicle on 21 June 2021, thereby perfecting its Security Interest for the purpose of s 21 of the PPSA.
Section 123 of the PPSA relevantly provides:
123.Secured Party may seize collateral
a. A secured party may seize collateral, by any method permitted by law, if the debtor is in default under the security agreement.
Breadth of orders sought
The applicant seeks orders that would authorise its (or its agent’s) entry into the respondent’s residential address in Allenstown or “any other premises in Australia over which the respondent has apparent control and at which the Vehicle is reasonable believed to be located”.
As earlier noted, I raised with Mr Foster at the mention hearing held on 3 April 2025, whether an order cast in these broad terms and authorising entry onto an unidentified premises, could and should be made by the Court.
In his written submissions filed on 15 April 2025, Mr Foster addressed this question by referring the Court to the decision of Judge Ladhams in Volkswagen Financial Services Australia Pty Ltd v Glass Shop Perth Pty Ltd [2024] FedCFamC2G 537.
In Glass Shop Perth, her Honour expressed some initial misgivings as to whether orders should be made that would allow the applicant in that case to enter any other premises, beyond the premises which had been identified as the addresses for the respondents. The concern primarily was that the making of orders that authorised entry onto “any other premises” might interfere with the rights of third parties and/or authorise a trespass. Judge Ladhams was satisfied however (including because an order in similar terms had been made in Volkswagen Financial Services Australia Pty Limited v Tate [2024] FedCFamC2G 491) that it was appropriate to make an order that the applicant may enter “any other premises in Australia over which the respondent has apparent control and at which the Vehicle is reasonably believed to be located”. I am likewise satisfied that it is appropriate, including in the circumstances of this case, where there is evidence that the respondent has either moved from his recorded residential address and/or has relocated the Vehicle and where the proposed form of order maintains a connection with the respondent, that an order for entry and recovery in these terms can be made.
I am otherwise satisfied, for the avoidance of doubt, that the pre-conditions for the making of orders under the National Credit Code and the PPSA, have been established by the applicant. In particular, I am satisfied that:
(a)The applicant is a “credit provider” and the Vehicle is “mortgaged goods” for the purposes of s 100 of the National Credit Code;
(b)The applicant is a “secured party” for the purposes of s 123 of the PPSA;
(c)The Vehicle is “collateral” for the purposes of s 123 of the PPSA;
(d)The Loan Agreement is a “security agreement” for the purposes of s 123 of the PPSA; and
(e)The respondent is in default under the Loan Agreement.
Costs
The applicant seeks an order that the respondent pay its costs and disbursements in the amount of $4,341.81 comprising an issuing fee of $1,906 and the amounts of $341.19 and $2,093.62 being referable to items 9 (short mention) and 3 (summary hearing) of Schedule 2 to the Rules, respectively. I consider, having regard to the events and work done associated with the proceeding, that such an amount is appropriate.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 20 May 2025
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