Toyota Finance Australia Ltd v A.C.N 662 446 997 Pty Ltd
[2025] FedCFamC2G 1217
•28 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Toyota Finance Australia Ltd v A.C.N 662 446 997 Pty Ltd [2025] FedCFamC2G 1217
File number(s): MLG 570 of 2025 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 28 July 2025 Catchwords: CONSUMER PROTECTION – RECOVERY ACTION – where the applicant seeks a declaration for recovery of a vehicle in respect of which it loaned moneys to the first respondent – where the applicant seeks an order to enter the fourth respondent’s home and any other premises over which the respondents have apparent control where the vehicle is reasonably believed to be located – declarations and orders made – costs orders made as against the first and fourth respondents. Legislation: Personal Property Securities Act 2009 (Cth), ss 123, 207 Cases cited: Riseley v Toyota Finance Australia Limited [2021] FCA 1566
Volkswagen Financial Services Australia Proprietary Limited v Pairama [2024] FedCFamC2G 1395
Volkswagen Financial Services Australia Proprietary Limited v Pairama [2024] FedCFamC2G 1395
Division: Division 2 General Federal Law Number of paragraphs: 10 Date of hearing: 28 July 2025 Place: Melbourne Counsel for the Applicant: Mr A Richardson Solicitor for the Applicant: Celtic Legal Counsel for the Respondents: There was no appearance by or on behalf of the first, second, third or fourth respondents ORDERS
MLG 570 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TOYOTA FINANCE AUSTRALIA LTD
Applicant
AND: A.C.N. 662 446 997 PTY LTD
First Respondent
JOHNSON KOKOZIAN
Second Respondent
TIANA SAVIGNANO (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
28 JULY 2025
THE COURT DECLARES THAT:
1.The court declares the applicant is entitled to possession of the vehicle (vehicle) bearing identification:
(a)VIN: MR0HA3CD900396866
(b)Engine No: 1GD4286327
(c)Registration No: DNH93K
THE COURT ORDERS THAT:
2.The fourth respondent is required to deliver to the applicant, or its lawfully appointed agent, at such time and at such address nominated by the applicant, any keys to the vehicle held by him.
3.The applicant or its lawfully appointed representatives may enter:
(a)3 Ellis Crescent, MILLER NSW 2168; and
(b)any other premises in Australia over which the respondents have apparent control and at which the vehicle is reasonably believed to be located
for the purpose of taking possession of the vehicle.
4.The first respondent and fourth respondent to pay the applicant’s costs fixed in the sum of $5,656.89.
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).
EX TEMPORE REASONS FOR JUDGMENT
Revised from transcriptThese reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
DEPUTY CHIEF JUDGE MERCURI:
Before the Court is an application in which the applicant seeks a declaration that it is entitled to the possession of a 2017 Toyota HiLux, registration number DNH 93K, engine number 1GD4286327 and vehicle identification number MR0HA3CD900396866, which I will refer to as “the vehicle”. At the hearing before me, counsel for the applicant advised the court that notwithstanding the orders sought in the amended application filed on 23 May 2025, the applicant now only sought a declaration that it was entitled to possession of the vehicle and orders that the fourth respondent is required to deliver to the applicant the keys to the vehicle and that the applicant may enter the fourth respondents’ premises as identified and any other premises in Australia over which the respondents have control at which the vehicle is reasonably believed to be located for the purposes of taking possession the vehicle. The applicant also seeks costs fixed in the sum of $5,656.89.
The applicant relies on the affidavits filed by Mr Alan James Foster, on 24 February 2025 and on 4 April 2025, and the following recitation of facts is taken from that affidavit material in circumstances where the respondents have not participated in these proceedings. On 25 July 2023, the applicant entered into a loan agreement with the first respondent for the sum of $77,370 to finance the purchase of the vehicle. Also on that day, the applicant advanced those moneys to the first respondent, and the applicant also registered its security interest over the vehicle on the Personal Property Securities Register, thereby perfecting its interest pursuant to section 123, subsection (1) of the Personal Property Securities Register Act 2009 (Cth) (‘PPSA’).
Annexed to Mr Foster’s affidavit of 24 February 2025 is a copy of the search results of the PPSR dated 28 March 2024. The loan agreement sets out the terms on which the loan was provided. It required the first respondent to repay the loan by 84 monthly instalments of $1300.44. The first respondent defaulted on that loan, and, by letter dated 7 December 2023, the applicant served on the first respondent a default notice requesting payment of the overdue amounts by 11 January 2024. The first respondent did not make the payment by that date and was, therefore, in default of the loan agreement.
As a result, the balance of the loan amount, including all amounts payable under the loan agreement, became due and payable. Mr Foster has deposed to the steps taken by the applicant to locate and recover the vehicle to date. I don’t propose to set those matters out in detail but note that it appears that the vehicle is no longer in the possession of the first, second or third respondents but is now in the possession of the fourth respondent. It was on that basis that orders were made at the applicant’s request joining the fourth respondent to these proceedings. The respondents have each been served with applications in these matters, and as I have indicated, they have not filed any material or attended the hearing to date.
The applicant relies upon the PPSA as the basis for the orders sought today. Relevantly, section 123 of that Act provides:
A secured party may seize collateral, by any method permitted by law, if the debtor is in default under the security agreement.
I am satisfied that this Court has jurisdiction to deal with the claim under section 123 of the PPSA, and I refer to the comments made by Besanko J in Riseley v Toyota Finance Australia Ltd [2021] FCA 1566 (‘Riseley’) at [20]. As noted by Cameron J in Volkswagen Financial Services Australia Proprietary Limited v Pairama [2024] FedCFamC2G 1395 at [12]:
12.… Authority holds that s 123 of the PPSA permits a person in the applicant’s position to seize collateral security as long as that step is undertaken by a method permitted by law:…
His Honour refers there to the decision in Bank of Queensland Limited v Star Trek [2019] NSWSC 1712 (‘Star Trek’) and Riseley. I am satisfied that the first respondent is in default under the loan agreement. Notwithstanding having been given notice of default, I am satisfied that the first respondent did not remedy that default within the time specified in the loan agreement or at all, and, in those circumstances, I am satisfied that the applicant is entitled to possession of the vehicle, and it is appropriate that a declaration be made to that effect.
Turning now to the proposed orders for the seizure of the vehicle. As stated, although broader orders were sought in its initial application and its amended application, applicant’s counsel confirmed today that the applicant seeks orders permitting it to enter the fourth respondent’s address or the other premises controlled by the respondents for the purpose of seizing the vehicle. I have had regard to the comments made by Adamson J in Star Trek at [16] where her Honour said:
16.In order to enforce its rights under section 123 of the Act to seize the Secured Property, it will be necessary for the bank to enter onto the Matraville property, which is owned by the trustee, and, potentially, disturb the operations of Star Trek and the business conducted on Matraville property. The bank has taken the view that it ought obtain authority from this court for this course so that its methods are unquestionably permitted by law within the meaning of s 123. There is support for the bank’s approach in the following passage from Anthony Duggan, David Brown, Australian Personal Property Law … at 12.36:
“According to subs 123(1), the secured party may seize the collateral ‘by any method permitted by law’. At general law the main limitations are to be found in the laws governing breach of the peace and trespass. The secured party may not unlawfully force to seize the collateral. For example, if the grantor is present and resists the seizure, the secured party may not resort to violence. The appropriate response is to back down and obtain court order for seizure of the collateral.”
In this instance, the applicant seeks an order to be able to enter the fourth respondent’s home address and any other premises over which the respondents have apparent control and where the vehicle is reasonably believed to be located. In circumstances where the respondents have been put on notice of this application, I am satisfied that it is appropriate to make orders for the seizure in the terms sought.
As to costs, the applicant also seeks costs on scale against the first respondent and the fourth respondent only. In circumstances where the first respondent is in default of the loan agreement and the fourth respondent is in possession of the vehicle and has been put on notice of these proceedings, and in circumstances where I’ve indicated, for the reasons given, that I have proposed making orders as sought by the applicant, I am satisfied that it is appropriate to make a costs order in the terms sought and in the amount sought by the applicant.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Ex-Tempore Judgment of Deputy Chief Judge Mercuri. Associate: C.N
Dated: 31 July 2025
SCHEDULE OF PARTIES
MLG 570 of 2025 Respondents
Fourth Respondent:
BILAL AJAJ
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