Secure Funding Pty Ltd v Mei - [2025] FedCFamC2G 1045

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Secure Funding Pty Ltd v Mei [2025] FedCFamC2G 1045

File number(s): SYG 3029 of 2024

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 8 July 2025

Catchwords: CONSUMER LAW – Personal property securities - application by a secured party to a security agreement within the meaning of s 10 of the Personal Properties Securities Act 2009 (Cth) (PPS Act) against a person (third person) who is not a party to the security agreement for an order of possession of a vehicle that is the subject of a security interest created by the security agreement – whether s 123(1) of the PPS Act is a source of power for making an order for possession against the third person – s 123(1) not a source of power – whether the Federal Circuit and Family Court of Australia (Division 2) (Court) otherwise has jurisdiction to make an order requiring the third person to deliver the vehicle to the secured party – as a court of law and equity and also pursuant to s 93 of the Civil Procedure Act 2005 (NSW) (CP Act) (as picked up by s 79 of the Judiciary Act 1903 (Cth)) the Court has jurisdiction to order possession on an action for detinue or to make an equitable order for specific delivery of the vehicle if the requirements for the making of such orders are otherwise established – whether the remedy provided by s 93 of the CP Act is inadequate in the circumstances of this case – such remedy is inadequate – order made in the exercise of the Court’s equitable jurisdiction requiring the third party to deliver the vehicle to the secured party.

Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 10, 140

Judiciary Act 1903 (Cth) s 79(1)

National Consumer Credit Protection Act 2009 (Cth) Sch 1, s 101

Personal Property Securities Act 2009 (Cth) s 12(1) ss 10, 19, 20, 21, 107, 123, 206

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 25.09

Civil Procedure Act 2005 (NSW) ss 93, 105

Road Transport Act 2013 (NSW) s 257

Uniform Civil Procedure Rules 2005 (NSW) r 39.2

Cases cited:
Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd & Ors [2014] VSCA 326

Ge Capital Asset Services and Trading Asia Pacific Pty Ltd v Rocks Excavations and Plant Hire Pty Ltd [2003] NSWSC 99

Pearson v Arcadia Stores Guyra Ltd (1935) 53 CLR 587

Reglon Pty Ltd v Federal Commissioner of Taxation [2011] FCA 805

Riseley v Toyota Finance Australia Ltd [2021] FCA 1566

Division: General

Number of paragraphs: 50

Date of hearing: 27 June 2025

Place: Sydney

Solicitor for the Applicant: Ms C. Simonidis, of Agility Law, by video

Solicitor for the Respondents: No appearance by, or on behalf, the respondents

Table of Corrections

8 July 2025 The words and numbers "orders 2 and 3"…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FedCFamC2G 1045
Decision Date: 8 July 2025

CaseChat Overview and Summary

Secure Funding Pty Ltd sought relief from Mei, a third party who was not a party to a security agreement, for the possession of a vehicle that was the subject of a security interest created by the security agreement. The primary dispute was whether the court had the authority to order Mei to deliver the vehicle to the secured party. The case was heard in the Federal Circuit and Family Court of Australia (Division 2).

The legal issues before the court were whether section 123(1) of the Personal Property Securities Act 2009 (Cth) (PPS Act) provided the necessary power to make an order for possession against Mei, and if not, whether the court had any other jurisdiction to require Mei to deliver the vehicle to the secured party. The court had to determine if the statutory remedy provided by section 93 of the Civil Procedure Act 2005 (NSW) (CP Act) was inadequate in the given circumstances.

The court held that section 123(1) of the PPS Act did not confer the requisite power to make an order for possession against Mei. However, as a court of law and equity and under section 93 of the CP Act, the court had the jurisdiction to order possession on an action for detinue or to make an equitable order for specific delivery of the vehicle if the necessary conditions were met. The court found that the statutory remedy provided by section 93 of the CP Act was inadequate in this case. Consequently, the court exercised its equitable jurisdiction to order Mei to deliver the vehicle to the secured party.

The court ordered Mei to deliver the vehicle to Secure Funding Pty Ltd. This decision underscored the court's ability to invoke its equitable powers to provide a remedy where the statutory provisions were deemed insufficient.

Orders