Toyota Finance Australia Limited v THA Group Pty Ltd
[2025] FedCFamC2G 1072
•4 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Toyota Finance Australia Limited v THA Group Pty Ltd [2025] FedCFamC2G 1072
File number: MLG 1763 of 2025 Judgment of: JUDGE CHAMPION Date of judgment: 4 July 2025 Catchwords: CONSUMER LAW – Practice and Procedure – Where the Applicant has made an application for orders under s. 123 of the Personal Property and Securities Act 2009 (Cth) – Where the Applicant sought an urgent interlocutory order on an ex parte basis to seize the vehicle pending a final hearing – Orders for seizure and storage of Vehicle – Undertaking as to damages Legislation: Federal Circuit and Family Court of Australia 2021 (Cth) s. 140
Personal Property and Securities Act 2009 (Cth) ss. 21, 32, 43, 79, 111, 123, 206, 207
Cases cited: CBSUnited Kingdom Ltd v Lambert [1983] Ch 37
Jackson v Stirling industries Ltd (1987) 162 CLR 612
Mercedes-Benz Financial Services Australia Pty Ltd v Kas Smash Repairs Pty Ltd [2024] FedCFamC2G 778
Mercedes-Benz Financial Services Australia Pty Ltd v RPOPty Ltd (in liq) [2025] FCA 714
Biscoe, P Freezing and Search Orders: Mareva and Anton Piller Orders (2nd ed, Lexis Nexis)
Duggan, A Australian Personal Property Securities Law (4th ed, LexisNexis, 2024)
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 4 July 2025 Date of hearing: 4 July 2025 Solicitor for the Applicant: Mr Foster of Sinisgalli Foster Respondents: No appearance ORDERS
MLG 1763 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TOYOTA FINANCE AUSTRALIA LIMITED
Applicant
AND: THA GROUP PTY LTD
First Respondent
JACQUES ADIB JOUMAA
Second Respondent
KARDAN ALI
Third Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
4 JULY 2025
TO: KARDAN ALI
This is an order made against you on 4 July 2025 by Judge Champion at a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order.
THE COURT ORDERS THAT:
1.The Applicant and/or its duly authorised agents, are permitted to take reasonable steps in order to take possession of the black 2024 Ford Ranger Raptor 3.0 with the Registration Number FFZ36N (now CAP06K), Engine Number DD2SRX574788, and Vehicle Identification Number MPBCMFE10RX574788 (the Vehicle), from any public place, business premises, or residential premises in Australia at which the Vehicle is reasonably believed to be located.
2.The Third Respondent and/or his agents are be restrained from interfering or otherwise impeding the Applicant from taking possession of the Vehicle from any public place, business premises, or residential premises in Australia at which the Vehicle is reasonably believed to be located.
3.That immediately after taking possession of the Vehicle, the Applicant serve the documents listed below on the Third Respondent by placing copies of the following documents at the front door of XX Ortolan Avenue, Broadmeadows VIC:
(a)the originating application filed 27 May 2025;
(b)the affidavit of Tarryn Joy Mackenzie made 27 May 2025;
(c)the affidavit of Tarryn Joy Mackenzie made 23 June 2025;
(d)the Applicant’s Submissions filed 3 July 2025; and
(e)a copy of these orders, made 4 July 2025.
4.The Applicant shall, at its own expense, store and preserve, and shall take no steps to dispose of the Vehicle until further order of the Court.
5.Liberty is granted to the Third Respondent on short notice to apply to stay, vary or discharge the order.
6.The matter is listed for further hearing on 17 July 2025 at 2:15 PM.
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).
Schedule A
UPON THE APPLICANT, by its solicitors, making the following undertaking to the Court:
(a)to submit to such Order (if any) as the Court may consider to be just for the payment of compensation, (to be assessed by the Court or as it may direct), to any person (whether or not that person is a party), affected by the operation of the order of undertaking or any continuation (with or without variation) of the order or undertaking; and
(b)to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking.
AND UPON THE APPLICANT further undertaking to the Court that after securing and safely storing the Vehicle it will not otherwise deal with the Vehicle pending further Order of the Court.
Schedule B
(1)Affidavit of Tarryn Joy Mackenzie, made 27 May 2025;
(2)Affidavit of Tarryn Joy Mackenzie, made 26 June 2025.
EX TEMPORE REASONS FOR JUDGMENT
Revised from transcriptJUDGE CHAMPION:
THE APPLICATION
The Applicant is Toyota Finance Australia Limited. The First Respondent is THA Group Pty Ltd. The Second Respondent is Mr Jacques Joumaa. The Third Respondent is Mr Kardan Ali.
By its application made on 27 May 2025, Toyota Finance seeks final orders against the Respondents that it is entitled to possession of a black 2024 Ford Ranger Raptor (Vehicle) by dint of a security interest it holds in the Vehicle registered on the Personal Property Securities Register (PPSR) maintained under the Personal Property Securities Act 2009 (Cth) (PPS Act). The Vehicle’s identifiers are set out in the orders which accompany these reasons.
SERVICE
The matter came before me today, 4 July 2025, on the first return date. The originating application has been served on the First Respondent by ordinary post to its registered office. The First Respondent has not filed a response.
Neither of the Second Respondent nor the Third Respondent has been personally served in accordance with the rules or are otherwise on notice of the proceeding.
URGENT INTERLOCUTORY RELIEF
When the matter was called on for hearing, the Applicant made an application for urgent ex parte interlocutory relief as against the Third Respondent as to the seizure of the Vehicle and its subsequent storage until further order.
The substance of the interlocutory orders that the Applicant seeks are orders that:
(a)it is entitled to take reasonable steps to recover the Vehicle from the Third Respondent (including by entering premises at XX Ortolan Avenue, Broadmeadows under s. 123 of the PPS Act); and
(b)that the Third Respondent or his agents are restrained from impeding the Applicant's access to the Broadmeadows Address for the purposes of taking possession of the Vehicle.
As the orders are drafted, Toyota Finance will be permitted to repossess the Vehicle from any public place, business premises or residential premises at which the Vehicle in reasonably believed to be located.
As a condition for the making of these orders, Toyota Finance proffers an undertaking as to damages and an undertaking not to deal with the Vehicle pending further order.
The Applicant read affidavits of Ms Tarryn McKenzie made on 27 May 2025 (First Mackenzie affidavit) and 23 June 2025 (Second Mackenzie affidavit) in support of its application.
THE FACTS
Ms Mackenzie deposed (First Mackenzie affidavit, [7]), that on or about 14 December 2024, the Applicant agreed to lend to the First Respondent the sum of $93,080.00 at a fixed annual interest rate of 9.45%, for a term of 59 months, a final balloon payment of $39,207.62, and with total interest charges of $32,155.78 (Loan) to facilitate the First Respondent's purchase of the Vehicle.
On 13 December 2024 the Applicant registered its security interest in the Vehicle on the PPSR, thereby perfecting its security interest pursuant to s. 21(1) of the PPS Act (First Mackenzie affidavit, [11]).
THE LOAN AGREEMENT
Under cl. 7(a)(i), the Loan is secured by a first ranking security interest over the vehicle in favour of the Applicant (Security Interest).
There are further terms of the Agreement that:
(a)under clauses 4.l(a) and 4.2(a) of the Terms and Conditions and the Loan Schedule, the First Respondent must pay 59 equal monthly instalments of $1,466.24 (Repayments) by the same day of each month as the commencement date (Repayment Dates) and a final balloon payment of $39,207.62;
(b)the Second Respondent guarantees the First Respondent's obligations under the Agreement;
(c)the First Respondent is in default of the Agreement if:
(i)under cl. 10.1(a) of the Terms and Conditions, the First Respondent fails to make any repayment;
(ii)under cl. 10.1(2), the First Respondent does anything it has agreed not to do under the Agreement, including transferring possession or control of the Vehicle without the Applicant’s written consent under cl. 8.3(a); and
(d)under cl. 11(b), the Applicant may enter any premises at which it believes the Vehicle is located to take possession of the Vehicle, provided that the Applicant has a relevant court order or the consent of the occupier of the premises, and the First Respondent must pay the costs of any liability thereby accruing to the Applicant.
DEFAULT UNDER THE AGREEMENT
Ms Mackenzie deposed that (Second Mackenzie affidavit, [4]):
The Applicant has learned that, unknown to the Applicant at the time of the formation of the loan agreement, the person with whom the Applicant had contracted was not the Second Respondent, but rather a third party unknown to the Applicant (the Fraudulent Party) who purported to be the Second Respondent and Director of the First Respondent and provided the Applicant with falsified identification and financial documents (the Fraud).
Ms Mackenzie further deposed at [5] that:
The Applicant has undertaken an investigation into the Loan Agreement and discovered after possession of the Vehicle had been given, that:
a.payslips provided by the Fraudulent Party were fake; and
b.bank statements provided by the Fraudulent Party were fake and confirmed by the respective bank to be false.
Toyota Finance does not make any allegations at this point in time about the identity of the third party who provided falsified identification and financial documents to it. In particular, it does not allege that the Third Respondent is the fraudulent third party.
Toyota Finance’s allegations of falsified identification documents and falsified back statements prima facie have substance as follows. It is Toyota’s business practice to require a direct debit facility so as to ensure that payments are made as and when they fall due under the Agreement. In the case of the Loan Agreement in this matter, however, all attempts to make a direct debit have been unsuccessful. This fact, in a real sense, supports Toyota Finance’s allegation that it was provided with false bank documents at the outset. At this point, however, further details of any fraud are not available to the Court and I do not wish to be misunderstood as making any definitive findings of fraudulent conduct in circumstances in which I have heard this application ex parte.
In those circumstances set out above, and in which no payments at all had been made under the Loan Agreement, Toyota Finance engaged a recovery agent to seek to repossess the Vehicle. The agent was unable to locate the Second Respondent or the Vehicle at the Second Respondent’s residential address as provided to the Applicant at the time of the making of the Loan in Elridge Road, Bankstown, NSW. Indeed, the inquiries of the agent were that the Second Respondent did not live, and had never lived, at the Bankstown address. That evidence lends some further support to the Applicant’s allegation that there was fraudulent activity underlying the initial transaction.
On or about 7 February 2025, Toyota Finance’s agent conducted a PPSR search and discovered the Vehicle was registered under the new Registration Number CAP06K (First McKenzie affidavit, [16]).
On or about 21 March 2025, the agent discovered the Vehicle was now registered to the Third Respondent. Toyota knows the residential address of the Third Respondent to be the address in Broadmeadows, Victoria.
POSSESSION OF THE VEHICLE
In order to attempt to recover the Vehicle itself, Toyota Finance’s agent has made five visits to the Third Respondent's residential address in Broadmeadows. It appears the Third Respondent is in possession of the Vehicle. The Vehicle has been sighted on numerous occasions, however the recovery attempts have proved unsuccessful.
Ms Mackenzie deposes at [11] (Second Mackenzie affidavit):
The Applicant's Repossession Agents attempted to repossess the Vehicle on 1 April 2025, however, the Vehicle was parked between two other vehicles (blocked in) and two individuals entered the Vehicle and sat inside and did not drive off. The tow truck that had been arranged was unable to gain access to the Vehicle. After the tow truck drove off, the individuals in the Vehicle drove off.
Ms Mackenzie further deposes at [15] that:
…the premises at which the Vehicle is being kept is an address from which the Applicant has previously sought to recover vehicles but, after notification of the relevant proceedings, and before repossession of the previous vehicles could occur, the vehicles disappeared and not been sighted again.
Recently, on 10 April 2025 (Second Mackenzie affidavit, [13]):
…the repossession agent sighted the vehicle parked in the driveway of the premises, and whilst waiting, the vehicle was noted to exit the property and drive off, heading towards Broadmeadows.
I must treat these statements about attempts to repossess the Vehicle on previous occasions from the Broadmeadows Address with circumspection, given that Ms Mackenzie does not identify the person at Toyota Finance who informed her of these matters and on which her information and belief is based. I note that Toyota Finance has elected not to disclose the details of any previous incidents where it has sought to recover vehicles from the Broadmeadows address.
LEGAL PRINCIPLES
Toyota Finance submits that because it did not expressly or impliedly authorise the transfer of the vehicle to Mr Ali (the Third Respondent), the Third Respondent did not take the Vehicle free of the Applicant’s security interest which may be enforced as against the Third Respondent (see, PPS Act ss. 32(1)(a), 43(1) and 79(2); see also, Anthony Duggan, Australian Personal Property Securities Law (4th ed, LexisNexis, 2024), 330–331).
I have jurisdiction as to a matter arising under the PPS Act by reference to ss. 206 and 207 of the Act. Section 123(1) of the PPS Act provides that:
A secured party may seize collateral, by any method permitted by law, if the debtor is in default, under the security agreement.
I note that s. 111 of the PPS Act requires that all rights, duties and obligations that arise under Chapter 4 of the Act must be exercised or discharged honestly and in a commercially sensible manner.
In Mercedes-Benz Financial Services Australia Pty Ltd v RPOPty Ltd (in liq) [2025] FCA 714 Charlesworth J examined the power of the courts under the PPS Act (see [28]–[33]). Charlesworth J made orders having the effect of permitting an applicant to enter on to private land for the purposes of seizure, relying on s. 123 of the Act. Charlesworth J said at [22] of her judgment that her orders:
…would put beyond doubt that the entry onto land for the purpose of seizing [the vehicle] would constitute a “method permitted by law” for the purposes of s 123 of the PPS Act, notwithstanding that entry for that (or any other) purpose may not otherwise have been authorised under the general law.
I am satisfied that I have power to make the orders Toyota Finance seeks, including that I make interlocutory orders that it take reasonable steps in accordance with ss. 111 and 123 of the PPS Act to repossess the Vehicle from any public place, business premises or residential premises in Australia at which the Vehicle is reasonably believed to be located.
I am also satisfied that I have the power necessary to make appropriate interlocutory orders under s. 140 of the Federal Circuit and Family Court of Australia 2021 (Cth).
SHOULD I PROCEED EX PARTE?
I turn now to consider whether I ought to proceed ex parte and whether, in the exercise of my discretion, it is appropriate that I should make these orders.
As Judge Brown said in Mercedes-Benz Financial Services Australia Pty Ltd v Kas Smash Repairs Pty Ltd [2024] FedCFamC2G 778 at [52]:
It is a fundamental principle of civil justice that, before a person can be affected by an order of the court, he or she is given an opportunity to be heard in respect of any application concerning him or her.
In this case, however, the gravamen of the ex parte application is the Applicant’s apprehension that, if I do not make urgent interlocutory orders on an ex parte basis to preserve the property of the dispute, steps may be taken to conceal the Vehicle or make the Vehicle irrecoverable, such that Toyota cannot repossess the Vehicle in pursuance of its security interest, or otherwise the Vehicle will be put out of the reach of the Court before a final hearing.
In summary, Ms Mackenzie’s (admittedly untested) evidence on the application for ex parte interlocutory relief includes the following:
(a)a third party — identity unknown — recently — in December 2024 — acted fraudulently to obtain a loan and provided false bank account details and false payslips to Toyota Finance, apparently in order to secure the Loan;
(b)despite Toyota Finance having handed over possession of the Vehicle no payments at all have been made under the Loan;
(c)Toyota is currently unable to locate the Second Respondent, the natural person guarantor of the corporate First Respondent, THA Group Pty Ltd, the entity with which Toyota Finance entered into the Loan Agreement;
(d)the Second Respondent apparently never lived at the residential address notified to Toyota;
(e)in about March 2025, the Third Respondent has become the registered owner of the Vehicle and is (arguably) fixed with notice of Toyota’s prior registration of its security interest under the PPS Act;
(f)the circumstances in which the Third Respondent became the registered owner of the Vehicle in March 2025 are presently unknown;
(g)Toyota Finance knows the Vehicle to be located in or adjacent to the Third Respondent’s residential address in Broadmeadows and infers that the Third Respondent is in possession of the Vehicle;
(h)Toyota Finance has on five occasions tried itself to repossess the Vehicle from the Broadmeadows address, but has been unsuccessful in its attempts to do so;
(i)active steps have been taken by individuals unknown to Toyota to impede its repossession of the Vehicle from the Broadmeadows address; and
(j)there is evidence — albeit only on an information and belief basis — of previous conduct at the Broadmeadows address which has impeded the recovery of vehicles from that address, with those vehicles subsequently becoming irrecoverable once it has become known that court proceedings have been commenced for the recovery of the vehicles.
In my assessment, the issue, at this interlocutory stage, is the preservation of the subject matter of the litigation. Sometimes that is done by a freezing order and ancillary orders. In Jackson v Stirling Industries Ltd (1987) 162 CLR 612 at 622–3, Deane J indicated that there was a jurisdiction to make a delivery up order, citing CBSUnited Kingdom Ltd v Lambert [1983] Ch 37 (referred to in Peter Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders (2nd ed, Lexis Nexis) [3.38]). In CBS United Kingdom Ltd the Court said at 44:
… there should be clear evidence that the defendant is likely, unless restrained by order, to dispose of or otherwise deal with his chattels in order to deprive the plaintiff of the fruits of any judgment he may obtain. Moreover, the court should be slow to order the delivery up of property belonging to the defendant unless there is some evidence or inference that the property has been acquired by the defendant as a result of his alleged wrong-doing.
It has caused me some concern that the chattel to be seized is a motor vehicle likely to be used by the Third Respondent in his day-to-day life or, perhaps, in day-to-day business. I have no evidence as to these matters at this time.
Nonetheless, in my assessment, having regard to the course of the evidence I have outlined above, it is appropriate to proceed in an exceptional way in this case, and on an ex parte basis, because the evidence I have demonstrated that there is an unjustifiable risk that if the Third Respondent is put on prior notice of this proceeding, action might be taken to interfere with the administration of justice by taking steps to put the Vehicle beyond the reach of the court.
RIGHTS OF THE THIRD RESPONDENT AND ANY OTHER THIRD PARTIES
I will take steps to preserve the underlying rights of the Third Respondent, such as they may be, by making the orders I make today on a short-term, interim basis. I will bring the matter back before the court promptly on 17 July 2025 at 2.15 pm. Liberty is granted to the Third Respondent to apply on short notice to apply to stay, vary or discharge the order.
Further, and importantly, Toyota Finance has proffered an undertaking as to damages and an undertaking that it will secure and safely store the Vehicle once it has possession of it pending further order. These undertakings appear to me a sufficient measure to preserve and maintain the underlying substantive rights of the Third Respondent and any other affected persons, notwithstanding the interim seizure order I will make on this occasion.
I am satisfied that there is a sufficient probability that Toyota Finance will obtain a favourable judgment at a final hearing having regard to its registered security interest as to the Vehicle and the evidence as to the non-payment of any amounts under the Loan Agreement to make the interlocutory seizure order appropriate in the exercise of my discretion. In this regard, I refer to the observations of Charlesworth J in Mercedes-Benz at [34(4)] that any person taking possession of the Vehicle took possession subject to exercise of Toyota’s security interests under the PPS Act.
I am also satisfied that if I do not make an order of the kind sought the Vehicle which is apparently in the Third Respondent’s possession might be dealt with in a way which puts it beyond the reach of the court which would render nugatory the subject matter of the litigation.
Therefore, as a matter of discretion, I am satisfied that the seizure orders ought to be made. In this exceptional case, the balance of convenience favours preserving the asset so that the process of justice is not undermined. I am conscious in making the order that my orders will deprive the current possessor of the vehicle of its use at least until the matter returns to court. Given that I will order that the matter returns to court within a fortnight, that loss of use of the Vehicle is outweighed by the risk that the property will be made irrecoverable if I do not make the orders sought.
I will make orders accordingly.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Champion. Associate:
Dated: 4 July 2025
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