Toyota Finance Australia Limited v THA Group Pty Ltd (No 2)
[2025] FedCFamC2G 1190
•28 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Toyota Finance Australia Limited v THA Group Pty Ltd (No 2) [2025] FedCFamC2G 1190
File number: MLG 1763 of 2025 Judgment of: JUDGE CHAMPION Date of judgment: 28 July 2025 Catchwords: PRACTICE AND PROCEDURE – Hearing in default of appearance of a party – Where the Applicant made an application to proceed with the hearing generally under r. 13.06(1)(e) where the First Respondent was absent from the hearing – Where the Applicant made application under r.13.10(2) to dispose of the proceeding summarily – Court gave judgment on the claim
CONSUMER LAW – Where the Applicant and the First Respondent made a security agreement - Where Applicant has registered security interest in a vehicle under s. 21 of the Personal Property Securities Act 2009 – Where the First Respondent debtor is in default under the security agreement – Whether orders should be made facilitating the exercise of the Applicant’s right of seizure of the vehicle under s. 123 of the Personal Property Securities Act 2009 (Cth) – Orders having effect of permitting Applicant to enter on to private land for purposes of seizure – Where orders may affect the interests of parties not served or non-parties in relation to the vehicle – Where orders may affect the interests of non-parties in relation to land on which the vehicles may be situated – Orders facilitating interested persons to apply for relief – Orders restraining the sale of seized vehicle pending the exercise of liberty to apply
by persons claiming an interest in the vehicleLegislation: Corporations Act 2001 (Cth) s. 109X
Federal Circuit Court and Family Court of Australia Act (Cth) s. 141
Personal Properties Securities Act 2009 (Cth) ss. 21, 32, 43, 79, 111, 123, 206, 207
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth), rr. 4.03, 13.06, 13.10, 17.05
Federal Court Rules 2011 r. 41.06
Cases cited: Mercedes-Benz Financial Services Australia Pty Ltd v RPO Pty Ltd (in liq) [2025] FCA 714
Toyota Finance Australia Limited v THA Group Pty Ltd [2025] FedCFamC2G 1072
Duggan, A, Australian Personal Property Securities Law (4th ed, LexisNexis, 2024)
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of last submissions: 25 July 2025 Date of hearing: 25 July 2025 Counsel for the Applicant: Mr Foster of Singalli Foster Counsel for the 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:
28 JULY 2025
THE COURT DECLARES UNDER THAT:
A.The Applicant holds a security interest for the purposes of the Personal Property Securities Act 2009 (Cth) (PPS Act) over the Vehicle as identified in Order 1 below (the Vehicle).
B.The Applicant is entitled to seize the Vehicle pursuant to s. 123(1) of the PPS Act and/or clause 10.2 of the Business Vehicle Loan Terms and Conditions between the Applicant and THA Group Pty Ltd.
THE COURT ORDERS THAT:
1.The Applicant is entitled to possession of the black 2024 Ford Ranger Raptor 3.0 with the Registration Number CAP06k or DOA600, Engine Number DD2SRX574788, and Vehicle Identification Number MPBCMFE10RX574788 (the Vehicle).
2.The First Respondent is in default of its obligations pursuant to the Loan Agreement dated 14 December 2024.
3.The Applicant is entitled to seize the Vehicle pursuant to s. 123(1) of the PPS Act and/or clause 11(b) of the Loan Agreement between the Applicant and the First Respondent.
4.The First Respondent, within seven days of coming into possession of the Vehicle, deliver, surrender and/or provide the location of the Vehicle to the Applicant and/or its duly authorised agents.
5.The Applicant and/or its duly authorised agents, are permitted to take reasonable step(s) in order to take 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.
6.Upon seizure of the Vehicle, the Applicant shall:
(a)inform the police of the State or Territory in which the Vehicle was seized that the Vehicle has been seized pursuant to a Court Order and of the contact details by which the Applicant and/or its solicitors can be contacted by or on behalf of any affected person;
(b)affix a copy of a Notice in the form set out at Schedule 1, with the applicable Vehicle details completed, and to which is attached a copy of these orders (Notice), to a prominent location in the immediate vicinity of the location from which the Vehicle was seized;
(c)deliver a copy of the Notice by hand to any person appearing to the Applicant and/or Applicant's duly authorised agent at the time of seizure of the Vehicle to be interested in the Vehicle, to be objecting to seizure, or to be in possession or control of the land or premises from which the Vehicle is seized; and
(d)within 48 hours of the seizure of the Vehicle, send a copy of the Notice and a copy of these Orders by registered post to the address from which the Vehicle was seized (if it was seized from private property).
7.The Applicant is to pay any such fee(s) or charge(s) as have accrued in respect of parking and/or reasonable storage costs so levied at the point of surrender/collection to secure the release of the Vehicle, or as otherwise agreed between the Applicant and the person in possession of the Vehicle and/or operator of any car park or storage facility at or in which the Vehicle is or has been stored.
8.The Applicant shall, at its own expense, store and preserve, and shall take no steps to dispose of, the Vehicle, for a period of 28 days from the date of seizure.
9.If no person or party has exercised the liberty to apply conferred by paragraph 12 within 21 days of the date of seizure in accordance with the terms of the Notice, the Applicant shall, after the expiry of 28 days from the date of seizure, be at liberty to treat the Vehicle as seized property pursuant to s 123(1) of the PPS Act and to sell or otherwise dispose of such Vehicle in accordance with its rights as holder of a perfected security interest in the Vehicle.
10.Nothing in these Orders shall prohibit any third party or the Second or Third Respondent claiming an interest in any the Vehicle from making any claim in relation to such collateral, including in relation to any proceeds of sale of such Vehicle, after the expiry of 21 days from the date of seizure.
11.The Court discharges orders 1 and 2 it made on 4 July 2025 and the Applicant is released from its undertakings set out in Schedule A to the orders made in the proceeding on 4 July 2025.
12.Subject to paragraph 6, the Applicant and any other person asserting an interest in the vehicle affected by these orders has liberty to apply at short notice.
13.Unless the Court orders otherwise, upon the expiry of six months from the date of these orders the proceeding shall be finalized forthwith on the basis that, in respect of any relief sought in the Amended Originating Application that is not the subject of these orders, such relief is not pressed by the Applicant and no orders are made in respect of it.
14.The Applicant will forthwith forward by prepaid express post a copy of these orders to the First, Second and Third Respondents.
15.The parties have liberty to apply.
AND THE COURT NOTES
A.This order was made in the absence of the First Respondent.
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 1
Notice to Interested Persons
Seizure of VehicleMake/model: 2024 Ford Ranger Raptor
Colour: Black
Vehicle Identity Number: MPBCMFE10RX57488
Date of seizure:The vehicle described above (Vehicle) has been seized by Toyota Finance Australia Limited, ACN 002 435 181 (Toyota Finance) pursuant to the attached Order of the Federal Circuit and Family Court of Australia dated 24 July 2025 in proceeding MLG1763/2025 (the Orders).
The Orders require that Toyota Finance store the Vehicle for a period of at least 21 days from the date of seizure, during which any person or party who claims to have an interest in the Vehicle may take steps to assert their interest or challenge Toyota Finance's entitlement to seize the Vehicle.
Any person claiming to have an interest in the Vehicle or wishing to challenge Toyota Finance's entitlement to seize or sell the vehicle may file an application in the Federal Circuit and Family Court of Australia Proceeding MLG1763 of 2025 within 21 days of the Date of Seizure.
For further information please contact Toyota Finance's solicitors at the following address:
Sinisgalli Foster Legal
Level 7/224 Queen Street
Melbourne VIC 3000
Attention: Alan James Foster
Phone: (03) 9133 3033
Email: [email protected]Toyota Finance is entitled to proceed to sell or otherwise dispose of the Vehicle if no person or party asserts an interest in the Vehicle in the manner prescribed by the Orders within 21 days of seizure.
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
On 27 May 2025 Toyota Finance Australia Limited (Applicant) commenced a proceeding under s. 207 of the Personal Property Security Act 2009 (PPS Act) with respect to a “PPS matter” against THA Group Pty Ltd (First Respondent), Mr Jacques Joumaa (Second Respondent) and Mr Kardan Ali (Third Respondent).
The Applicant holds a security interest granted by the First Respondent attached to a vehicle in favour of the Applicant under a loan agreement made on or about 14 December 2024 between the Applicant and the First Respondent. The Applicant has registered its security interest under the PPS Act. The loan agreement is a “security agreement” as defined in the PPS Act and the Applicant wishes to seize the “collateral”, namely the Vehicle to which the security interest is attached, because of the default of the First Respondent to make payments under the security agreement.
The subject matter of the proceeding concerns whether the court should make orders in aid of the Applicant’s statutory rights to seize the Vehicle under s. 123 of the PPS Act.
The Second Respondent is the guarantor of the First Respondent’s obligations under the Loan Agreement. The Third Respondent is a party the Applicant believed to have come into possession of the vehicle on a date after the Loan Agreement was made and on a date after the date on which the Applicant registered its security interest under the PPS Act.
APPLICATION TO PROCEED IN DEFAULT OF APPEARANCE OF THE FIRST RESPONDENT AND FOR SUMMARY JUDGMENT
The matter came before me on 4 July 2025, on the first return date. The originating application had before 4 July 2025 been served on the First Respondent in late May 2025 by ordinary post to its registered office. The First Respondent had not filed a response within 28 days as is required under r. 4.03 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021. The matter did not progress on 4 July 2025 as between the Applicant and the First Respondent.
On 4 July 2025, on the Applicant’s oral application, I made an ex parte interlocutory order as to the seizure of the Vehicle as against the Third Respondent who was then believed to be in possession of the Vehicle. I have returned to the circumstances of that order and my proposed discharge of that order below.
I made further orders on 17 July 2025 when the matter was back before me on a return date scheduled as to the ex parte order. On 17 July 2025 the Applicant indicated that it intended to seek summary judgment on the next available date in circumstances in which the First Respondent was not participating in the proceeding. I indicated that I would be in a position to hear the application on 25 July 2025. I made orders that the Applicant had leave to file an amended application setting out the orders sought, listing the matter for hearing on 25 July 2025 and made orders that the Applicant should serve its amended application on the First Respondent.
On 25 July 2025 the Applicant sought both to proceed with the hearing generally in default of the First Respondent’s appearance [r. 13.06] and to obtain summary judgment against the First Respondent under r. 13.10 in circumstances in which the First Respondent had still not filed and served a response in accordance with r. 4.03 and did not appear at the hearing.
I proceeded to hear the Applicant’s application.
THE EVIDENCE
On the application for summary judgment, I received into evidence each of the following affidavits on which the Applicant relies:
(a)the first affidavit of Ms Tarryn Mackenzie as to the underlying issues made on 27 May 2025 (and its attachments) (Ex A1);
(b)an affidavit of service of Ms Tarryn Mackenzie also made on 27 May 2025 as to the service of the originating application on the First Respondent (Ex A2);
(c)the second affidavit of Ms Tarryn Mackenzie as to the Loan Agreement and the First Respondent’s default under the Loan Agreement made on 23 June 2025 (and its attachments) (Ex A3);
(d)an affidavit of Mr Alan Foster made on 16 July 2025 which updated me as to developments since 4 July 2025 (Ex A4); and
(e)an affidavit of service of Ms Indika Egan made on 18 July 2025 as to the service of the amended application on the First Respondent and my orders of 17 July 2025 which detailed that the applicant intended to seek summary judgment today (25 July 2025) (Ex A5).
I also received into evidence a tax invoice dated 13 December 2024 as to the delivery of the vehicle to the First Respondent (Ex A6).
I marked the Applicant’s proposed orders on its summary judgment application (Ex A7).
I note at the outset that the approach I intend to adopt is substantially informed by the recent decision of Charlesworth J in Mercedes-Benz Financial Services Australia Pty Ltd v RPO Pty Ltd (in liq) [2025] FCA 714.
PROCEDURAL MATTERS – PROOF OF SERVICE ON THE FIRST RESPONDENT
I am satisfied that the originating application was served on the First Respondent because of the affidavit of service of Ms Tarryn Mackenzie made on 27 May 2025 in which she deposed that she had served the originating application on the First Respondent by posting it to the company’s registered office under s. 109X of the Corporations Act 2001 (Ex A22).
Noting the passage of time since 27 May 2025, the First Respondent is in default of its obligation to file a response within 28 days after service of the originating application in accordance with r. 4.03 of the rules.
Under the orders I made on 17 July 2025 the Applicant had to serve a copy of its Amended Originating Application and the orders it proposed to seek on its default judgment application as against the First Respondent on the registered office of THA Group Pty Ltd forthwith. I received an affidavit of service into evidence of Ms Indika Egan made on 18 July 2025 that she had served the Amended Application and the orders made on 17 July 2025 on the First Respondent by posting them (by express post) to the company’s registered office under s. 109X of the Corporations Act 2001.
When the matter was called on for hearing on 25 July 2025, there was no appearance for the First Respondent.
THE POSITION OF THE SECOND AND THIRD RESPONDENTS
As of the hearing on 25 July 2025, the Applicant had not served either its originating application, or the application as amended, on the Second and Third Respondents. As a result, I will not make any orders as against the Second and Third Respondents
THE FACTS
As to the relevant facts which underpin the Applicant’s application for summary judgment, I note the following.
The Loan Agreement
The Applicant is a vehicle financier.
Ms Mackenzie deposed that on 14 December 2024 the Applicant entered into a loan agreement the terms of which provided for Applicant 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 a black 2024 Ford Ranger Raptor 3.0 (First Mackenzie affidavit, [7]; Ex A1). The vehicle’s identifiers as to its registration number engine number and vehicle identification number (VIN) are set out in the orders I will make.
Under cl. 7(a)(i), the Loan is secured by the First Respondent’s granting 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 its obligations under the Agreement if:
(i)under cl. 10.1(a) of the Terms and Conditions, the First Respondent fails to make any repayment by the respective Repayment Date;
(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.
Security interest
As noted, under cl. 7(a) of the Loan Agreement the First respondent granted a first ranking security interest to the applicant over the vehicle.
The Applicant registered its security interest in the Vehicle on the PPSR, thereby perfecting its security interest under s. 21(1) of the PPS Act (Ex A1, [11]).
Default under the agreement
Ms Mackenzie deposed that (Ex A3, [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 that (EX A3, [5]):
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.
The Applicant does not make any allegations about the identity of the third party who provided falsified identification and financial documents to it.
All attempts to make a direct debit as to payments due to the Applicant have been unsuccessful.
In circumstances in which no payments at all had been made under the Loan Agreement, the Applicant 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 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.
On or about 7 February 2025, the Applicant’s agent conducted a PPSR search and discovered the Vehicle was registered under a different registration number (Ex A1, [16]).
On or about 21 March 2025, the Applicant’s agent discovered the Vehicle was registered to the Third Respondent. The Applicant knew the residential address of the Third Respondent to be in Broadmeadows, Victoria.
Possession of the vehicle
In order to attempt to recover the vehicle itself under its statutory and contractual rights, the Applicant’s agent made five visits to the Third Respondent's residential address in Broadmeadows. The Vehicle was sighted on numerous occasions, but recovery attempts proved unsuccessful.
Ms Mackenzie deposed (Ex A3, [11]):
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.
On 10 April 2025 Ms Mackenzie deposed (Ex A3, [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.
Since I made the orders on 4 July 2025 Mr Foster has made an affidavit which updated me as to the Applicant’s attempts to repossess the Vehicle since 4 July 2025. Mr Foster deposed that the Applicant’s agents attempted to recover the Vehicle from the Broadmeadows address on each of 8 July 2025, 9 July 2025, 10 July 2025 and 12 July 2025 (Ex A4, [6]). It appears that the Vehicle is no longer located at the Broadmeadows address.
Further, inquiries since 4 July 2025 have disclosed that the Vehicle’s registration plates have been changed again: that is, since the loan agreement was made it has been registered under three different registration numbers. As a result, it is not clear who has possession of the Vehicle.
PROCEEDING IN THE DEFAULT OF APPEARANCE OF A PARTY AND SUMMARY JUDGMENT
The First Respondent has not filed a response in accordance with r. 4.03, did not appear on the first return date on 4 July 2025 and did not appear on 25 July 2025, even though it has been served with the amended application and the orders of 17 July 2025 which detailed the hearing date of 25 July 2025 and the Applicant’s intention to seek summary judgment. In all of those circumstances, I infer that the Applicant does not intend actively to participate in the proceeding.
In those circumstances, on 25 July 2025, I proceeded with the hearing generally in the absence of the First Respondent under r. 13.06(1)(e).
The next question is as to whether it is appropriate for me to give summary judgment on the Applicant’s claim under r. 13.10.
Rule 13.10 is as follows:
13.10 Disposal by summary judgment
(1) This rule applies if, in a proceeding:
(a) in relation to the whole or a part of a party’s claim there is evidence of the facts on which the claim or part is based; and
(b) either:
(i) there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or the part of the claim; or
(ii) the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or the part of the claim.
(2) The Court may give judgment on that claim or part of the claim and make any orders or directions that the Court considers appropriate.
For reasons traversed below, there is evidence of the facts in which the claim is based under r. 13.10(1)(a).
Also, for reasons traversed below, I am satisfied that the First Respondent has no reasonable prospect of successfully defending the claim under r.13.10(1)(b)(ii).
I am satisfied that it is appropriate in the exercise of my discretion to give judgment on the claim and make appropriate orders under r. 13.10(2).
THE CURRENT CASE
I have jurisdiction and powers “with respect to a PPS matter” under ss. 206 and 207 of the PPS 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.
Matters relevant to the orders I might make are set out in the terms of s. 123(1) of the PPS Act. In circumstances in which the court’s jurisdiction is regularly invoked, there appears - at least in this case - no cogent reason that the court ought not to lend its assistance by court orders to assist the Applicant to enforce its legal rights.
There is a “security agreement” made by the Applicant and the First Respondent within the meaning of s. 123. A security agreement means an agreement by which a security interest is created (PPS Act, Dictionary, s. 10). Toyota is “secured party” and that the First Respondent is the “debtor” under s. 123. The First Respondent as the debtor is in “default under the security agreement” because no payments have been made as an when they fell due under the security agreement, and, in fact, in this case on the material before me the First Respondent has made no payments at all under the security agreement.
For the purposes of r. 13.10(1), the Applicant has adduced “the evidence of the facts on which the claim …is based” namely the claim by which it seeks declarations as of right and orders that it is entitled to seize the vehicle under s. 123 of the PPS all against the First Respondent.
The Applicant further submits that because it did not expressly or impliedly authorise the First Applicant to transfer the vehicle to any other person, any person now in possession of the vehicle – that is a person who took possession of it after the registration of the Applicant’s security interest under the PPS Act – took the Vehicle fixed with notice of the Applicant’s security interest (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). In this regard, I also refer to the observations of Charlesworth J in Mercedes-Benz v RPO at [34(4)] that any person taking possession of the vehicle took possession subject to exercise of the Applicant’s security interests under the PPS Act.
For that reason, each of the elements of s. 123(1) appear to be satisfied such that the Applicant as the secured party “may seize collateral, by any method permitted by law”.
I am satisfied by reference to the matters set out above that on the material before me the opposing party, namely the First Respondent, for the purposes of r. 13.10(b)(ii) “has no reasonable prospect of successfully defending the claim” in circumstances in which the Applicant’s security interest has been registered and no payments have been made under the security agreement.
RELIEF
I have a discretion as to the making of a declaration under s. 141 of the Federal Circuit And Family Court of Australia Act 2021.
As to the form of the orders I will make, in Mercedes-Benz v RPO Charlesworth J examined the power of the Courts vested with federal jurisdiction under the PPS Act (see [28]–[33]) as to how a party may seize collateral “by any method permitted by law”. Charlesworth J was satisfied that the court had discretionary power to make orders which authorised the Applicant or its agents 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 it is appropriate that I make the orders the Applicant seeks in its amended application including that I make orders under s. 123 of the PPS Act that the Applicant may seize the vehicle from any public place, business premises or residential premises in Australia at which the vehicle is reasonably believed to be located.
I note that s. 111 of the PPS Act requires that all rights, duties and obligations that arise under Chapter 4 of the Act of which s. 123 forms a part must be exercised or discharged honestly and in a commercially sensible manner. Section 111 will apply to the Applicant’s exercise of its rights to seize the vehicle.
Adopting the same approach that Charlesworth J took in Mercedes-Benz v RPO I note that a consequence of the orders I will make today is that interested parties (which may or may not include the Second and Third Respondents) may still assert an interest in the vehicle. In Mercedes-Benz v RPO Charlesworth J said at [35] that “the identity of interested non-parties and the nature of the interests they may assert is presently unknown”. Charlesworth J’s observations apply with equal force in this case.
As Charlesworth J did in Mercedes-Benz v RPO, I will make an order [order 6(b)] that a notice be fixed to a prominent location in the immediate vicinity of any location from which the Vehicle may be seized. The notice will be in the form of Schedule 1 to the orders which will inform interested persons of the seizure of the vehicle and that:
Any person claiming to have an interest in the Vehicle or wishing to challenge Toyota Finance's entitlement to seize or sell the vehicle may file an application in the Federal Circuit and Family Court of Australia Proceeding MLG1763 of 2025 within 21 days of the Date of Seizure.
The Applicant proposed order 13 that upon the expiry of 6 months from the date of these orders the proceeding shall be finalised forthwith and in respect of any relief sought in the amended originating application that is not the subject of these orders such relief is not pressed by the applicant and no orders are made in respect to it. Subject to that six-month period, my orders will serve to finalise the proceedings as against the Second and Third Respondents.
I note that Charlesworth J order made an endorsement on the order in Merecedes Benz v RPO under r. 41.06 of the Federal Court Rules 2011. It is appropriate that I adopt the same approach in this case.
THE DISCHARGE OF A PREVIOUS EX PARTE INTERLOCUTORY ORDER MADE AS AGAINST THE THIRD RESPONDENT
On 4 July 2025 I had made an ex parte interlocutory order permitting the Applicant to seize the vehicle from the Third Respondent and for the Applicant to store the vehicle pending a final hearing. The Applicant proffered and I required an undertaking as to damages. I published my reasons in Toyota Finance Australia Limited v THA Group Pty Ltd [2025] FedCFamC2G 1072.
The orders I made on 4 July 2025 have not been able to be executed as against the Third Respondent because it appears that the Vehicle is no longer located at the Broadmeadows address where it was located when I made the orders. The Applicant has not been able to seize the vehicle and store it pending a final hearing under my interlocutory orders.
I repeat that as of 4 July 2025, the Applicant believed the vehicle to be located at an address in Broadmeadows, Victoria. Mr Foster in his affidavit made on 16 July 2025 (Ex A4), as to the actions the Applicant had taken on the basis of the interlocutory ex parte orders made on 4 July 2025, deposed that the Applicant’s repossession agents had several times since 4 July 2025 visited that Broadmeadows address but the vehicle was no longer located at that address. Further, the vehicle’s registration plates had changed again.
The Applicant submitted - and I agree - that it is appropriate that I discharge the orders I made on 4 July 2025 as against the Third Respondent - because they were interlocutory orders and I am now disposing of this matter on a final basis subject to certain orders preserving the rights of interested persons. I will also make an order (order 11) releasing the Applicant from its undertaking noted by the court in its orders on 4 July 2025, consistent with the approach Charlesworth J adopted in Mercedes-Benz v RPO.
ORDERS MADE IN THE ABSENCE OF A PARTY
Finally, I will make a note to the orders that for the purposes of r. 17.05(2)(a) the judgment was made in the absence of the First Respondent.
CONCLUSION
I will make orders accordingly.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 28 July 2025
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