Secure Funding Pty Ltd v Ali (No 2)
[2025] FedCFamC2G 1650
•10 October 2025
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 the applicant as follows:
(a)Within 14 days after being served with a sealed copy of these orders AMY VUONG must contact the person or, if more than one person, any one of the persons (Applicant’s Agent) specified in the document referred to in order 3 (Order 3 Document) by sending an SMS text message to the Applicant’s Agent to his or her mobile telephone number specified in the Order 3 Document, in which AMY VUONG nominates:
(i)the location at which; and
(ii)a time between 8.00 am and 6.00 pm at which; and
(iii)the date on which, not being more than 48 hours after AMY VUONG sends the SMS text message to the Applicant’s Agent, on which;
AMY VUONG will deliver the Vehicle and the Keys to the Applicant’s Agent.
(b)AMY VUONG must deliver the Vehicle and Keys to the Applicant’s Agent at the location, time, and on the date AMY VUONG nominates in the SMS text message she sends pursuant to (a), or at such other location, or at such other time and date, as AMY VUONG and the Applicant’s Agent may agree.
3.When serving AMY VUONG with a sealed copy of these orders, the applicant must also serve on AMY VUONG a document signed on behalf of the applicant which:
(a)specifies the name of the person or, if more than one person, the names of the persons, whom the applicant appoints as an Applicant’s Agent for the purpose of order 2;
(b)specifies the mobile telephone number of each person referred to in (a); and
(c)states that the person or, if more than one person, each of the persons, the document identifies has been appointed by the applicant as the Applicant’s Agent for the purposes of the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 10 October 2025.
4.AMY VUONG may within 10 days after the time at which she is served with these Orders apply to the Court to discharge or vary order 2 of these orders stating the grounds on which AMY VUONG relies for wishing to discharge or vary order 2.
5.AMY VUONG may apply to the Court pursuant to order 4 by sending an email (marked urgent) to the Court’s email address, [email protected], and copied to Judge Laing’s Associate at [email protected], which sets out the grounds on which AMY VUONG relies for wishing to discharge or vary order 2, and requesting that the matter be listed before Judge Laing if possible, or otherwise before the Duty Judge.
6.The parties otherwise have liberty to apply on such notice as the circumstances warrant.
7.Costs of the proceeding to date be reserved.
THE COURT NOTES THAT: these Orders are to be served upon the respondents by the applicant pursuant to Orders made in these proceedings dated 6 August 2025.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant, Secure Funding Pty Ltd (Secure Funding), seeks orders facilitating its taking of possession of a 2019 Toyota Hilux vehicle (Vehicle). The purchase of the Vehicle by the first respondent (Mr Ali) was funded through a loan agreement (Agreement) with Secure Funding. A certificate issued under s 257 of the Road Transport Act 2013 (NSW) (257 Certificate) indicates that registration of the Vehicle has been transferred to the second respondent (Ms Vuong).
For the following reasons, I have decided to grant certain relief sought by Secure Funding, albeit in altered terms to the relief that had been sought.
NON-APPEARANCE BY THE RESPONDENTS
There was no appearance for the respondents at the hearing last week on 30 September 2025.
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]).
Section 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides:
140 Making of orders and issue of writs
The Federal Circuit and Family Court of Australia (Division 2) has power, in relation to matters in which it has jurisdiction, to:
(a)make orders of such kinds, including interlocutory orders, as the Court considers appropriate; and
(b)issue, or direct the issue of, writs of such kinds as the Court considers appropriate.
BACKGROUND
The following background is largely derived from the affidavit of Robert Walter Foster sworn on 25 November 2024 (Foster Affidavit) and its exhibit (RWF-1).
On or about 14 March 2023, Mr Ali entered into the Agreement with Secure Funding to finance Mr Ali’s purchase of the Vehicle. The amount of credit provided pursuant to the Agreement was $46,416.10. The Agreement required Mr Ali to make 60 monthly payments of $1,051.68, over the five-year loan term, totalling $63,100.80.
Clause 8.1 of the Agreement provided that Mr Ali would be “in default” if, inter alia, he did “not pay on time all amounts due” under the Agreement. Clause 8.2 provided:
8.2 If you are in default, we may give you a notice stating that you are in default.
If you do not, or cannot, correct the default within any period given in the notice or required by law (or if you are in default again for a similar reason at the end of that period), then, at the end of that period and without further notice to you, the total amount owing becomes immediately due for payment (to the extent it is not already due for payment).
We may then sue you for the total amount owing, or enforce any security, or do both.
Clause 8.4 stated:
8.4In enforcing any security interest under clause 11, we may do one or more of the following (subject to any applicable laws):
(a)Sue you for the total amount owing; or
(b)take possession of the goods; or
(c)remove personal possessions from the goods and either abandon them or store them without being liable to you (if we store them and you do not reclaim the possessions within one month after we notify you that we intend to sell them, we may dispose of them and use the proceeds towards paying the total amount owing); or
(d)do anything an owner of the goods could do, including selling or leasing them on terms we choose;
(e)do anything else the law allows us to do as holder or grantee of the security; or
(f)enter any place we believe the goods are held, in order to do any of the above; or
(g)give valid discharges for purchase money or other consideration relating to the disposal of goods; or
(h)execute any transfer or other document we consider useful in exercising our rights under any security; or
(i)appoint a receiver to do any of those things.
Clause 11 of the Agreement relevantly provided under the heading “Security interest in the Goods”:
11.1 This clause applies if the Security box in the schedule is completed.
11.2 You acknowledge that:
(a)You grant us a security interest in the goods; and
(b)that security interest secures the payment of all money and the performance of all obligations owing or assumed by you under this agreement.
11.3The security interest granted under this agreement extends to all proceeds of the goods.
11.4Each security interest granted under this agreement is effective and attaches to the goods:
(a)When you sign this agreement; or
(b)immediately after you acquire any right or interest in the goods, if you have not acquired the goods when you sign this agreement.
11.5By giving us this security you undertake certain obligations. You also give us rights concerning you and the goods.
11.6 You declare that:
(a)You are or will be entitled to grant a security interest in the goods;
(b)there are no existing or proposed security interests affecting the goods (unless it is created under this agreement);
(c)a security granted in favour of us will have priority over any other security (that is not in our favour); and
(d)that all the information you, or another person acting on your behalf, have given in connection with this agreement (including any security) is correct and not misleading.
11.7We may, at your expense, take all steps as we consider advisable to register, amend or remove the registration of, protect, perfect or record any security, or to better secure our position in respect of this agreement under the PPS law.
11.8If we ask, you must deposit with us any documents of title relating to the goods or other documents which evidence your rights in the goods.
11.9You must procure the removal of any registration in relation to any security interest (other than in favour of us) that affects the priority of any security.
11.10You must give us at least 7 days prior written notice if you or any guarantor change name and must provide to us, immediately upon it becoming available, your new name.
11.11You must immediately notify us if you become aware of any person taking steps to register, or registering, a financing statement in relation to the goods.
The relevant Security box in the Agreement described security in the form of the Vehicle.
On 20 March 2023, Secure Funding registered a security interest on the PPSR against the Vehicle pursuant to the PPSA.
Mr Ali made some repayments. However, in June 2023, Mr Ali defaulted on his obligations under the Agreement by failing to pay the monthly instalment then due. On 4 August 2023, Secure Funding issued a Default Notice (Notice) to Mr Ali requiring him to pay the default amount within 31 days from the date of service of the Notice. Mr Ali failed to comply with the Notice.
Attempts were made by Secure Funding and its agents to contact Mr Ali. Contact was made in July 2023, at which time Mr Ali advised by telephone that he was overseas.
Secure Funding commenced the present proceeding through an application filed on 25 November 2024. Some delay occurred, which I understand may have been attributable to difficulties in serving Mr Ali. Although orders dispensing with service by hand had been sought at the first court date in the matter, no detailed attempt was made on that occasion to explain why such orders would be appropriate having regard to the relevant legal principles. Adjournment was sought of the next listing to allow Secure Funding to attempt personal service upon Mr Ali.
At the listing on 28 April 2025, Secure Funding indicated that leave would be sought to join a third party (Ms Vuong) after transfer of registration of the Vehicle. A timetable was set in this regard. At the next listing, on 20 May 2025, leave was granted permitting Secure Funding to file and serve a proposed amended application joining Ms Vuong. An amended application to this effect was filed on 3 June 2025.
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.
Secure Funding also sought an order permitting it to report the Vehicle as stolen and entering the action on the PPSR should Ms Vuong, or any person in possession of the Vehicle, following service of the orders, “fail to surrender or divulge such information regarding the whereabouts of the Vehicle, so as to enable possession to be taken of the Vehicle”. I have not been persuaded that such an order is necessary or appropriate. In this regard, I share the concerns raised by Judge Champion in Volkswagen Financial Services Australia Pty Ltd v Howard [2024] FedCFamC2G 1047 at [36], considering the significance of issues that arise in criminal law in relation to the serious allegation of theft.
Secure Funding sought costs, quantified in the amount of $10,566, against both respondents. However, limited submissions were made in support of this. Questions remain regarding the appropriateness of ordering costs regarding the entire scale item sought in relation to the initiating application, in circumstances where the balance of that application remains undetermined. I also have questions regarding the appropriateness of the costs sought in relation to Ms Vuong for actions taken prior to her involvement in this proceeding. Those questions can await determination on another date, after the parties have had an opportunity to address these issues. I will therefore order that the question of costs of the proceeding to date be reserved.
CONCLUSION
For the foregoing reasons, I will make orders in accordance with the above. Further procedural orders will be made timetabling the matter for hearing in relation to the balance of the relief sought by Secure Funding.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 10 October 2025
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