Secure Funding Pty Ltd v Ali (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Secure Funding Pty Ltd v Ali (No 2) [2025] FedCFamC2G 1650

File number(s): SYG 3057 of 2024
Judgment of: JUDGE LAING
Date of judgment: 10 October 2025
Catchwords: CONSUMER LAW – application for orders requiring delivery of a vehicle subject to a security interest registered under the Personal Property Securities Act 2009 (Cth) – evidence that the vehicle was transferred to the second respondent, a non-party to the security agreement – orders made requiring delivery of the vehicle and keys by the second respondent according to a specified procedure – opportunity for the second respondent to seek discharge or variation of the orders within a specified period
Legislation:

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 22.04

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

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 140

National Consumer Credit Protection Act 2009 (Cth) Sch 1

Personal Property Securities Act 2009 (Cth) ss 10, 19, 20 & 123

Civil Procedure Act 2005 (NSW) s 93

Road Transport Act 2013 (NSW) s 257
Cases cited:

Secure Funding Pty Ltd v Ali [2025] FedCFamC2G 1264

Secure Funding Pty Ltd v Mei [2025] FedCFamC2G 1045

Volkswagen Financial Services Australia Pty Ltd v Howard [2024] FedCFamC2G 1047
Division: General
Number of paragraphs: 31
Date of hearing: 30 September 2025
Place: Sydney
Solicitor for the Applicant: Ms C Simonidis of Agility Law Group Pty Ltd
First Respondent: No appearance
Second Respondent: No appearance

ORDERS

SYG 3057 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

SECURE FUNDING PTY LTD ABN 25 081 982 872

Applicant
AND:

JABER ABDULLAH AL ALI

First Respondent

AMY VUONG

Second Respondent

ORDER MADE BY:

JUDGE LAING

DATE OF ORDER:

10 OCTOBER 2025

PENAL NOTICE

Endorsement pursuant to r 33.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)

TO THE SECOND RESPONDENT AMY VUONG:

IF YOU NEGLECT OR REFUSE TO DO ANY OF THE ACTS ORDER 2 OF THESE ORDERS REQUIRES YOU TO DO WITHIN THE TIME SPECIFIED BY ORDER 2 FOR THE DOING OF THOSE ACTS,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY, OR PUNISHMENT FOR CONTEMPT UNLESS YOU HAVE APPLIED TO DISCHARGE OR VARY ORDER 2 AND ORDER 2 HAS, BEFORE THE TIME FOR COMPLIANCE HAS EXPIRED, BEEN ACCORDINGLY DISCHARGED

THE COURT ORDERS THAT:

1.Subject to orders 4 and 5, pursuant to s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the second respondent (AMY VUONG) deliver to the applicant the following vehicle (Vehicle) together with all keys relating to the Vehicle (Keys) by the means specified in order 2:

2019 Toyota Hilux Utility

VIN Number: MR0HA3CD100442013

Engine Number: 1GDA334717

Registration Number: EYA35A

State of Registration: New South Wales

2.AMY VUONG must deliver the Vehicle and the Keys to…

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Details
Case
[2025] FedCFamC2G 1650
Decision Date

CaseChat Overview and Summary

Secure Funding Pty Ltd sought orders requiring the delivery of a vehicle subject to a security interest that it had registered under the Personal Property Securities Act 2009 (Cth). The respondents were the individuals who had been served with the originating application, but the vehicle had been transferred to a third party, Ms Vuong, who was not a party to the security agreement. The Federal Circuit and Family Court of Australia was required to determine whether Secure Funding was entitled to seize the vehicle from Ms Vuong and to determine the appropriate timeframes for compliance with and challenging the orders.

The court was required to decide whether Secure Funding had a right to seize the vehicle from Ms Vuong, given that she was not a party to the security agreement. The court considered the provisions of the Personal Property Securities Act 2009 (Cth) and relevant case law, particularly the decision of Judge Manousaridis in Secure Funding Pty Ltd v Mei. The court found that Secure Funding had a right to seize the vehicle from Ms Vuong, as it had a security interest that had attached to the vehicle and was perfected by registration. The court also considered the adequacy of alternative remedies, such as an order for possession or damages, and found them to be inadequate. Finally, the court considered the appropriate timeframes for compliance with and challenging the orders, extending them to account for the limited notice that Ms Vuong had of the orders proposed.

The court made orders requiring Ms Vuong to deliver the vehicle and keys to Secure Funding according to a specified procedure. The orders also provided Ms Vuong with an opportunity to seek discharge or variation of the orders within a specified period. The court extended the timeframes for compliance and any application to set aside the orders, following a discussion with Secure Funding at the hearing. The court found that Secure Funding had a right to seize the vehicle from Ms Vuong and that the orders made were appropriate remedies for Secure Funding's loss of security.

The court made orders requiring Ms Vuong to deliver the vehicle and keys to Secure Funding and providing her with an opportunity to seek discharge or variation of the orders. The orders were made in accordance with the provisions of the Personal Property Securities Act 2009 (Cth) and relevant case law, and the court extended the timeframes for compliance and any application to set aside the orders to account for the limited notice that Ms Vuong had of the orders proposed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Orders for substituted service were made on 6 August 2025: Secure Funding Pty Ltd v Ali [2025] FedCFamC2G 1264 (Earlier Judgment). The evidence demonstrates that the respondents have been served in accordance with those orders: affidavit of Christina Simonidis affirmed on 29 September 2025. The material with which they have been served included notice of the hearing. I am satisfied that both respondents were appropriately notified of the hearing. In the above circumstances, I considered it appropriate to proceed with the hearing in the absence of the respondents: see r 22.04(1)(b)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).RELEVANT LAW Secure Funding originally sought broad ranging remedies under the National Credit Code (Code) contained in Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) and/or s 123 of the Personal Property Securities Act 2009 (Cth) (PPSA). By the time of the hearing, however, the focus was upon s 123 of the PPSA. Section 123 of the PPSA relevantly provides:123 Secured party may seize collateral(1)A secured party may seize collateral, by any method permitted by law, if the debtor is in default under the security agreement.… Section 10 of the PPSA defined “security agreement” as follows:"security agreement" means:(a)an agreement or act by which a security interest is created, arises or is provided for; or(b)writing evidencing such an agreement or act. In order to enforce a security interest against a third party, s 20 of the PPSA required that “the security interest has attached to the collateral”. The concept of attachment was explained in s 19, relevantly, by reference to the grantor having rights in the collateral and value being given for the security interest. The interest was, relevantly, also required under s 20 to have been relevantly perfected or to “cover” the collateral. Heavy reliance was placed by Secure Funding upon a recent decision of Judge Manousaridis in Secure Funding Pty Ltd v Mei [2025] FedCFamC2G 1045 (Mei). In that case, similar relief (in most respects) to that sought in the present case was granted. This followed determination by his Honour that:(a)Secure Funding had a right to seize the vehicle in that case against a non-party to the security agreement to whom the vehicle had been transferred (at [45]);(b)the non-party to the agreement was in possession of the vehicle, having acquired possession after registration of Secure Funding’s security interest with the Personal Property Securities Register (PPSR) (at [46]); and(c)it was appropriate for relief to be granted pursuant to s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). This followed findings that:(i)s 123(1) of the PPSA was not the source of the Court’s power to make orders in aid of a seizure right (at [36]-[37]);(ii)an order for possession under s 93(1) of the Civil Procedure Act 2005 (NSW) would be an inadequate remedy, in the absence of evidence regarding the location of the vehicle (at [48]); and(iii)damages would be an inadequate remedy, given (inter alia) that limitation to such a remedy would deprive Secure Funding of the security for which it contracted (at [49]).

Ratio Decidendi

Legal Principle Established

Difficulties were experienced in serving both respondents. Those difficulties culminated in a substituted service application being made. Orders permitting substituted service were made on 6 August 2025: Secure Funding Pty Ltd v Ali [2025] FedCFamC2G 1264.CONSIDERATION As observed above, Secure Funding largely sought orders similar to the orders made in the case of Mei. I am persuaded that it is appropriate to make orders that are substantially in the form that were made in that case. Similarly to in Mei, I am satisfied that Secure Funding has a right to seize the Vehicle against a non-party to the security agreement to whom the Vehicle has been transferred (Ms Vuong). The Agreement is a “security agreement” within the meaning of s 10 of the PPSA, for similar reasons to those given in Mei. Secure Funding gave value for the security interest, in the form of monies advanced, to Mr Ali, who had rights in the Vehicle, with the result that the security interest attached to the Vehicle. The security interest covered the Vehicle, with the Agreement meeting the requirements of s 20(2) of the PPSA. Secure Funding registered its interest on the PPSR on 20 March 2023. Mr Ali defaulted under the Agreement and failed to remedy this within the requisite period. In result, Secure Funding acquired the right under s 123(1) of the PPSA to seize the Vehicle from Mr Ali or from any other person who had taken possession after registration of the interest: see Mei at [45]. In a similar manner to in Mei, the evidence before the Court demonstrates, on the balance of probabilities, that Ms Vuong possesses the Vehicle. The 257 Certificate evidences transfer of registration to Ms Vuong on 22 July 2024, after registration of the security interest. Ms Vuong has not relied upon any evidence refuting her possession of the Vehicle, or otherwise engaged with the proceeding: see Mei at [46]. An order for possession requiring knowledge of the location of the Vehicle would provide an inadequate remedy, in circumstances where the location of the Vehicle is unknown: Mei at [48]. Damages would be an inadequate remedy, which would deprive Secure Funding the security for which it contracted: Mei at [49]. Having regard to the above, I am persuaded to make the orders sought by Secure Funding that are substantially in accordance with those made by Judge Manousaridis in Mei. However, the timeframes for compliance and any application to set aside the orders made will be extended. This follows from a discussion with Secure Funding at hearing, in which Secure Funding acknowledged that (for whatever reason) the orders proposed and the written submissions relied upon at hearing had not been served upon the respondents. In these circumstances, Secure Funding proposed a 2 week period for compliance (rather than a 3 day period) as being acceptable. A 3 day period for any application to set aside the orders was proposed. However, given the 2 week period proposed for compliance and the relatively limited notice Ms Vuong had of the orders proposed, I consider that a 10 day period would be more appropriate. In considering this, I have taken into account the order made at the hearing last week requiring the material to be served upon the respondents forthwith.