Toyota Finance Australia Limited v Chaudhry Transport Services Pty Ltd
[2021] FedCFamC2G 256
•11 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Toyota Finance Australia Limited v Chaudhry Transport Services Pty Ltd [2021] FedCFamC2G 256
File number(s): BRG 353 of 2021 Judgment of: JUDGE EGAN Date of judgment: 11 November 2021 Catchwords: CONSUMER LAW – CONSUMER PROTECTION – Application for recovery of goods – essential elements of claim established – orders accordingly. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(e).
National Consumer Credit Protection Act 2009 (Cth), Sch 1, s 100.
Division: Division 2 General Federal Law Number of paragraphs: 10 Date of last submission/s: 9 November 2021 Date of hearing: 9 November 2021 Solicitor for the Applicant: Mr Foley of Celtic Legal Respondent: By its director, Mr Nafees ORDERS
BRG 353 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TOYOTA FINANCE AUSTRALIA LIMITED (ABN 48 002 435 181)
Applicant
AND: CHAUDHRY TRANSPORT SERVICES PTY LTD (ACN 163 895 547)
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
11 NOVEMBER 2021
IT IS ORDERED THAT:
1.Pursuant to s. 100 of the National Credit Code (Code), the Applicant, or its lawfully appointed agent, may enter residential premises for the purpose of taking possession of the 2017 Toyota Camry, bearing the below identifiers (First Vehicle) and any keys to the First Vehicle:
(a) VIN: 6T1BD3FK00X154982
(b) Engine Number: 2ARU413848
(c) Variant: Altise Hybrid
2.Pursuant to s. 100 of the National Credit Code, the Applicant, or its lawfully appointed agent, may enter residential premises for the purpose of taking possession of the 2017 Toyota Camry, bearing the below identifiers (Second Vehicle) and any keys to the Second Vehicle:
(a) VIN: 6T1BD3FK60X154985
(b) Engine Number: 2ARU413936
(c) Variant: Altise Hybrid
3.The Applicant and/or its duly authorised agent be permitted to enter and remain on any residential premises/land and is further authorised to take any and all reasonable and necessary steps in order to take possession of the First Vehicle and the Second Vehicle from the following premises:
(a) 45 Stubbs Street, Auburn NSW 2144; and
(b) any other residential premises in Australia at which the First Vehicle and the Second Vehicle is reasonably believed to be located.
4.The Respondent pay the Applicant’s costs of and incidental to the Originating Application fixed in the amount of $3,250.00.
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 EGAN
Introduction
On 17 August 2021, the applicant filed an Originating Application which sought the following Orders:
“Final orders sought by applicant/s
1. An Order, pursuant to section 100 of the National Credit Code (Code), authorising the Applicant, or its lawfully appointed agent, to enter residential premises for the purpose of taking possession of the 2017 Toyota Camry, bearing the below identifiers (First Vehicle) and any keys to the First Vehicle:
(a) VIN: 6T1BD3FK00X154982
(b) Engine Number: 2ARU413848
(c) Variant: Altise Hybrid
(First Vehicle)
2. An Order, pursuant to section 100 of the National Credit Code (Code), authorising the Applicant, or its lawfully appointed agent, to enter residential premises for the purpose of taking possession of the 2017 Toyota Camry, bearing the below identifiers (Second Vehicle) and any keys to the Second Vehicle:
(a) VIN: 6T1BD3FK60X154985
(b) Engine Number: 2ARU413936
(c) Variant: Altise Hybrid
(Second Vehicle)
3. An Order, pursuant to section 100 of the National Credit Code (Code), authorising the Applicant, or its lawfully appointed agent, to enter residential premises for the purpose of taking possession of the 2018 Toyota Landcruiser, bearing the below identifiers (Third Vehicle) and any keys to the Third Vehicle:
(a) VIN: JTEBR3FJ40K120528
(b) Engine Number: 1 GD8363111
(c) Variant: Prado Kakadu (4x4)
(Third Vehicle)
4. Further and/or in the alternative, an Order pursuant to section 101 of the Code requiring the Respondent to deliver the First Vehicle, Second Vehicle and Third Vehicle (and any keys to the First Vehicle, Second Vehicle and Third Vehicle) to the Applicant, or its lawfully appointed agent, at such time and at an address nominated by the Applicant.
5. The Applicant and/or its duly authorised agent be permitted to enter and remain on any residential premises/land and is further authorised to take any and all steps reasonable and necessary in order to take possession of the First Vehicle, Second Vehicle and Third Vehicle from the following premises:
(a) 45 Stubbs Street, Auburn NSW 2144; and
(b) any other residential premises in Australia at which the First Vehicle, Second Vehicle and Third Vehicle is reasonably believed to be located.
6. The Respondent to pay the Applicant's costs of and incidental to this application.
7. Such further order as the Court considers appropriate.”
The Grounds of such Application were as follows:
“1. On 6 April 2017, the Applicant and the Respondent entered into a business vehicle loan agreement (First Agreement) with respect to the purchase of the First Vehicle;
2. In or around May 2020, the Respondent defaulted on its obligations under the First Agreement (First Default);
3. On 13 January 2021, the Applicant issued a notice of default to the Respondent;
4. Despite request the Respondent has failed, neglected and/or refused to remedy the First Default.
5. On 6 April 2017, the Applicant and the Respondent entered into a business vehicle loan agreement (Second Agreement) with respect to the purchase of the Second Vehicle;
6. In or around April 2020, the Respondent defaulted on its obligations under the Second Agreement (Second Default);
7. On 1 January 2021, the Applicant issued a notice of default to the Respondent;
8. Despite request the Respondent has failed, neglected and/or refused to remedy the Second Default.
9. On 30 December 2018, the Applicant and the Respondent entered into a business vehicle loan agreement (Third Agreement) with respect to the purchase of the Third Vehicle;
10. In or around April 2020, the Respondent defaulted on its obligations under the Third Agreement (Third Default);
11. On 16 January 2021, the Applicant issued a notice of default to the Respondent;
12. Despite request the Respondent has failed, neglected and/or refused to remedy the Third Default.”
On 20 August 2021, the respondent was served with the Application and the supporting affidavit filed in these proceedings. [1]
[1] Paragraphs 4 and 5 of the Affidavit of Leahra McKendrick filed on 27 September 2021.
On 12 October 2021, the Court adjourned the directions hearing to 9:45am AEST on 9 November 2021 so as to allow the parties to confer and possibly resolve the proceedings. Such adjournment order was made in the light of Judge’s Chambers having, on the morning of 12 October 2021, received an email from a person who purported to be a director of the respondent company. That email in part indicated that payments due by the respondent to the applicant were in arrears.
In written submissions filed on behalf of the applicant, the claim made by the Applicant in respect of the Third Vehicle was abandoned.
At the hearing of the matter before the Court, Mr Foley on behalf of the applicant indicated that there had been no resolution of the dispute between the parties. A director of the respondent made submissions to the effect that he would abide by Orders of the Court. Such submissions were made in circumstances where:
(a)The respondent had failed to respond to any of the default notices given to it.
(b)The respondent had not, after service of the Originating Application and supporting affidavit material, filed any Notice of Address for Service. [2]
(c)No evidence was put before the Court indicating that any default on the part of the respondent had been remedied.
(d)The Court was not satisfied that the respondent was in a position to remedy any default in the near future.
(e)The applicant has been unable to recover possession of the goods the subject of the loan agreements.
[2] Rule 13.06 (1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal
The Court is satisfied that the provisions of the National Credit Code as to the giving of notice of default to the respondent have been complied with. The Court is further satisfied that the evidence before the Court has established that the respondent was in default in respect of repayment obligations under two (2) relevant loan agreements, and that there has been default on the part of the respondent in respect of each such agreement. [3]
[3] Affidavit of Brendan Long filed on 17 August 2021 and affidavit of Leahra McKendrick filed on 27
In circumstances where the respondent has failed to file a response or otherwise enter an appearance, the applicant is entitled to the relief as claimed.
The applicant is further entitled to the costs of and incidental to this application. Based upon submissions made to the Court in written submissions filed on 8 November 2021, the Court orders that the respondent pay the applicant’s costs of and incidental to this application, fixed in the amount of $3, 250.00.
And it is so ordered.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 11 November 2021
Law) Rules 2021 (Cth).
September 2021.
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