Volkswagen Financial Services Australia Pty Limited v Pairama

In the Federal Circuit and Family Court of Australia, Volkswagen Financial Services Australia Pty Limited brought an application against Pairama for the seizure of a vehicle under a chattel mortgage. The dispute centred on whether the applicant was entitled to seize the vehicle, and whether the seizure could be carried out legally without contravening any laws, including those related to trespass. The court had to determine if the applicant was entitled to possession of the vehicle and if the seizure of the vehicle could be sanctioned under the Personal Property Securities Act 2009 (Cth).

The primary legal issue was whether the applicant, Volkswagen Financial Services Australia Pty Limited, was entitled to seize the vehicle under the Personal Property Securities Act 2009 (Cth) and if the method of seizure would be lawful. The applicant argued that it was entitled to seize the vehicle under section 123 of the Act, which allows a secured party to seize collateral by any method permitted by law. The respondent argued that the seizure would constitute a trespass. The court needed to balance the applicant's right to seize the vehicle against the respondent's right to peaceful possession of the property.

The court found that the applicant was entitled to possession of the vehicle based on the agreement and the respondent's default. It held that section 123 of the Personal Property Securities Act 2009 (Cth) permitted the seizure of the vehicle as long as it was carried out by a method permitted by law. The court referenced cases such as Bank of Queensland Limited v Star Trek and Riseley v Toyota Finance Australia Limited, which established that the seizure must not involve unlawful force or trespass. The court noted that the applicant had not sought to rely on its rights under the agreement for seizure and had instead relied on its common law ownership of the vehicle. The court concluded that an order should be made under section 123 of the Act authorising the seizure of the vehicle at premises over which the respondent had control or apparent control, to minimise the risk of trespassing.

The court made an order declaring that Volkswagen Financial Services Australia Pty Limited is entitled to possession of the vehicle. It also authorised the seizure of the vehicle at premises over which Pairama had control or apparent control, ensuring that the seizure was carried out in a manner permitted by law and did not constitute a trespass.