Volkswagen Financial Services Australia Pty Limited v Pogue
[2024] FedCFamC2G 898
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Volkswagen Financial Services Australia Pty Limited v Pogue [2024] FedCFamC2G 898
File number(s): SYG 555 of 2024 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 13 September 2024 Catchwords: CONSUMER LAW – application for an order under s 100 of the National Credit Code authorising entry into residential premises for the purposes of taking possession of mortgaged goods – whether it is necessary for the applicant creditor to identify the particular residential premises in relation to which the applicant creditor seeks an order authorising entry – necessary to identify such residential premises – application for an order under s 101 of the National Credit Code for the delivery of mortgaged goods – whether necessary to prove that the person against whom such order is made has possession of the mortgaged goods – necessary to so prove – order made against respondent for delivery of mortgaged goods subject to respondent having liberty to apply to prove he no longer has possession of the mortgaged goods. Legislation: National Consumer Credit Protection Act 2009 (Cth) Sch 1, ss 3(1), 4, 5(1), 88(1), 99(1), 100, 101, 204(1)
Personal Property Securities Act 2009 (Cth) s 12
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 6.04
Cases cited: BMW Australia Finance Limited v Rodrigues [2021] FCCA 1393
Volkswagen Financial Services Australia Pty Ltd v Adra [2024] FedCFamC2G 653
Volkswagen Financial Services Australia Pty Limited v Tate [2024] FedCFamC2G 491
Volkswagen Financial Services Australia Pty Ltd v Victorian Inspection Testing and Compliancing Services Pty Ltd [2024] FedCFamC2G 641
Volkswagen Financial Services Pty Ltd v Glass Shop Perth Pty Ltd [2024] FedCFamC2G 537
Division: General Number of paragraphs: 40 Date of hearing: 14 June 2024 Place: Sydney Solicitor for the Applicant: Mr B O’Sullivan of Celtic Legal, by video The Respondent: No appearance, by or on behalf of, the respondent ORDERS
SYG 555 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VOLKSWAGEN FINANCIAL SERVICES AUSTRALIA PTY LIMITED (ABN 20 097 071 460)
Applicant
AND: MALCOLM ANTHONY ROBERT POGUE
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to r 6.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2011 (Cth), the application is to be taken to have been served on the respondent on 15 April 2024 by email sent on 15 April 2024.
THE COURT DECLARES THAT:
2.The applicant is entitled to the possession of the following vehicle (Vehicle) together with all keys to the Vehicle:
Type:2017 Audi S3
VIN:WAUZZZ8V6JA058124
Engine No: DJH037720
Reg. No: DSY29L
THE COURT ORDERS THAT:
3.Subject to order 4, pursuant to s 101(1) of Schedule 1 (Code) to the National Consumer Credit Protection Act 2009 (Cth), the respondent deliver the Vehicle and keys to the Vehicle to the applicant at a time, date, and place the applicant nominates and communicates to the respondent, being a time and date that is no earlier than 14 days after these orders are personally served on the respondent.
4.The respondent have liberty to apply within 14 days after he is personally served with these orders to discharge order 3 on the ground he no longer is in possession of the Vehicle, such application to be supported by an affidavit (together with supporting documents) in which the respondent deposes to when and the circumstances in which the respondent parted with possession of the Vehicle, and also in which he deposes to the knowledge the respondent has of what has become of the Vehicle.
5.The respondent pay the applicant’s costs set in the amount of $3,277.
THE COURT NOTES THAT:
6.Subsection 101(3) of the Code provides that a person who contravenes an order made under s 101 of the Code commits an offence.
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
INTRODUCTION
The applicant (VFSA) seeks an order pursuant to s 101 of Schedule 1 (Code) to the National Consumer Credit Protection Act 2009 (Cth) that the respondent, Mr Pogue, deliver to VFSA’s agents a 2017 Audi S3 (Vehicle) and, if he fails to do so, an order pursuant to s 100 of the Code that VFSA have access to residential premises for the purpose of enabling it to repossess the Vehicle.
FACTS
On 18 January 2018 Mr Pogue signed a document headed “Consumer Loan Contract – Secured Loan Schedule” (Loan Schedule), under which the following appears:
This is an offer by you, the Borrower/s named below, to us, Volkswagen Financial Services (“we”, “us”). You have asked us to lend you money under the terms and conditions of the Consumer Loan Contract, which is made up of this Loan Schedule (“Loan Schedule”) and the Terms and Conditions (“Terms and Conditions”). If we accept your offer it will automatically form a binding contract between us (“Contract”). As security for your obligations under this Contract this Contract creates a mortgage over the Goods described below.
The Loan Schedule then sets out details which include identifying Mr Pogue as the borrower, Mr Pogue’s address (Waverton Address), and the amount of credit ($71,148), $70,000 of which was to be applied towards the purchase price of the Vehicle, and $750 for payment of a “Dealer Administration Fee”.
In a section headed “Repayments” the Loan Schedule provides that the loan is to be repaid over a period of 49 months by Mr Pogue making 60 monthly loan instalments, 59 of which would each be in the amount of $1,021.32, and the final payment would be $22,021.55. The Loan Schedule further provides that:
All monthly repayments are due on the same date each month, commencing one month after the date you sign this offer. If a month does not have the same date (e.g. 31st of the month), the payment is due on the last business day of that month. If the due date falls on a day which is not a business day, the payment must be made on the next business day.
Section 8 of the Loan Schedule provides that a “mortgage is given to secure your obligations under this Contract over the Goods described below”, the “Goods” being the Vehicle.
The copy of the Loan Schedule that is in evidence does not record a signature by any person on behalf of VFSA. The Loan Schedule provides, however, that VFSA “may accept this offer by an authorised and identified person acting on our behalf causing notations to be made in our electronic systems that this offer is accepted on the date specified there”. There is no evidence that any such notation has been made; but it is reasonable to infer, and I find, that such a notation has been made.
There is in evidence a document titled “Terms and Conditions Consumer” which contains two sets of terms, one of which is titled “Consumer Loan Contract – Secured Terms & Conditions” (Loan Terms). Clause 1.1 provides that VFSA will lend Mr Pogue the “total amount of credit as set out in the Loan Schedule”, noting that “[t]his is the loan which you must repay”. Clause 3.1 provides that Mr Pogue must pay the loan in full by the end of the repayment period, and cl 3.2 provides that Mr Pogue must make the repayments as specified in the Loan Schedule. Clause 6 provides that Mr Pogue “gives us a legal mortgage over the Goods specified in the Loan Schedule”, the “Goods” being the Vehicle.
Clause 11 of the Loan Terms deals with default. Clause 11:
(a)defines when default occurs, and this includes Mr Pogue’s failing to pay VFSA on time any money due (cl 11.1(a));
(b)if default occurs, obliges VFSA to give a written default notice requiring Mr Pogue to correct the default, at least where the law would require VFSA to give such notice (cl 11.2); and
(c)requires Mr Pogue to pay the full amount owing under the loan agreement if he does not comply with the default notice (cl 11.3).
Further, cl 11.6 provides that if Mr Pogue does not or cannot fix the default VFSA will be entitled to take possession of the Vehicle.
On 24 January 2018 VFSA registered a security interest against the Vehicle with the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth) (PPS Act).
VFSA issued a document titled “Default Notice” dated 7 January 2023 addressed to Mr Pogue at the Waverton Address. The Default Notice states that Mr Pogue is “currently in default of the Credit Contract” because VFSA had not received $926.64; demanded that Mr Pogue remedy the default by paying this amount by 13 February 2023; and stated that if the default is not remedied by 13 February 2023, the total amount outstanding “under the Credit Contract and Mortgage” would become outstanding, VFSA may begin enforcement proceedings, and VFSA may begin repossession of the “Mortgaged Goods” (these being the Vehicle).
There is no evidence of how VFSA conveyed the Default Notice to Mr Pogue. Mr Long only annexes a copy of the Default Notice; and that copy does not suggest the Default Notice was sent by email. The inference that may be drawn is that VFSA posted the Default Notice on 7 January 2023 to the Waverton Address, and that the Default Notice reached the Waverton Address on the seventh working day after the day on which it was posted.[1]
[1] Section 160 Evidence Act 1995 (Cth)
PROCEEDING IN THIS COURT
The matter came before me on a first court date on 24 April 2024. Mr Lee, lawyer, appeared for VFSA, and Mr Pogue appeared in person. Mr Pogue informed me that he had received the application and the affidavit that was filed with the application, being the affidavit Mr Brendan Long made on 2 April 2024; and Mr Pogue said he understood what he had read. Mr Pogue further said that he had sold the Vehicle three or four years ago, but he was “scammed”, having sold the Vehicle to a person whose name he does not know. Mr Lee informed me that this was the first occasion he had heard from Mr Pogue. I ordered that the matter be listed for a directions hearing at 9:30 am on 8 May 2024.
At the directions hearing of 8 May 2024 Mr O’Sullivan appeared for VFSA, and Mr Pogue appeared for himself. The matter had not been resolved between the parties, so I made directions that Mr Pogue file all affidavits on which he intended to rely by 29 May 2024, that VFSA file and serve affidavits in reply, if any, by 11 June 2024; and that the application be listed for hearing before me at 10.15 am on 14 June 2024.
Mr Pogue did not file any affidavits; and he did not appear at the hearing on 14 June 2024. Mr O’Sullivan, who appeared on behalf of VFSA, applied to proceed with the hearing and read an affidavit made on 2 April 2024 by Mr Long, VFSA’s lawyer, annexing the Loan Schedule, the Loan Terms, an extract from the PPS Act Register, and the Default Notice. Mr O’Sullivan also read four affidavits of service. None of the deponents of the affidavits of service deposes to the application having been personally served on Mr Pogue. As I have already noted, however, Mr Pogue was in possession of the application and Mr Long’s affidavit. I infer Mr Pogue received the documents by email on 15 April 2024, as deposed by Mathumika Delurks Pragash Kumar in her affidavit made on 15 April 2024; and I will make an order that Mr Pogue shall be taken to have been served by email on 15 April 2024.
DETERMINATION
In its application VFSA seeks the following orders:
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 Audi S3, bearing the below identifiers (Vehicle) and any keys to the Vehicle:
. . . .
2. Further and/or in the alternative, an Order pursuant to section 101 of the Code requiring the Respondent to deliver the Vehicle (and any keys to the Vehicle) to the Applicant, or its lawfully appointed agent, at such time and at an address nominated by the Applicant.
3. The Applicant and/or its duly authorised agent be permitted to enter and remain on any premises/land and is further authorised to take any and all steps reasonable and necessary in order to take possession of the Vehicle from the following premises:
(a) . . . ; or
(b) any other premises in Australia at which the Vehicle is reasonably believed to be located.
4. That the Applicant be provided with a current extract from the register of information about the Vehicle’s current registered operator, including the name and address of the registered operator.
5. The Respondent to pay the Applicant’s costs of and incidental to this application.
It would be convenient to begin with the statutory provisions on which VFSA relies.
Section 100 of the Code
Section 100 of the Code provides:
The court may, on the application of a credit provider that is entitled to take possession of mortgaged goods, authorise the credit provider to enter residential premises for the purpose of taking possession of mortgaged goods.
Thus, to be entitled to an order under s 100, VFSA must show it is a “credit provider”; the Vehicle is a “mortgaged good”; and that VFSA is entitled to take possession of the Vehicle.
“Credit provider”
The starting point in identifying the meaning of a “credit provider” is the definition of “credit contract” given by s 4 of the Code: a “credit contract” means “a contract under which credit is or may be provided, being the provision of credit to which this Code applies”. This definition directs attention to s 3(1) of the Code, which specifies when credit is provided, and to s 5(1), which identifies the provision of credit to which the Code applies. Subsection 3(1) provides:
For the purposes of this Code, credit is provided if under a contract:
(a)payment of a debt owed by one person (the debtor) to another (the credit provider) is deferred; or
(b)one person (the debtor) incurs a deferred debt to another (the credit provider).
And s 5(1) of the Code provides:
This Code applies to the provision of credit (and to the credit contract and related matters) if when the credit contract is entered into or (in the case of precontractual obligations) is proposed to be entered into:
(a) the debtor is a natural person or a strata corporation; and
(b) the credit is provided or intended to be provided wholly or predominantly:
(i)for personal, domestic or household purposes; or
(ii)to purchase, renovate or improve residential property for investment purposes; or
(iii)to refinance credit that has been provided wholly or predominantly to purchase, renovate or improve residential property for investment purposes; and
(c) a charge is or may be made for providing the credit; and
(d)the credit provider provides the credit in the course of a business of providing credit carried on in this jurisdiction or as part of or incidentally to any other business of the credit provider carried on in this jurisdiction.
Thus, in relation to any “credit contract”, a person will be a “credit provider” if four things are satisfied.
(a)the person is a party to a contract to whom the other party to the contract (debtor) owes or incurs a debt, and it is a term of the contract that payment of the debt would be deferred;
(b)the debtor is a natural person or strata corporation;
(c)the deferment of the payment of the debt is wholly or predominantly for the purposes stated in s 5(1)(b) of the Code; and
(d)the person enters into the credit contract in the course of a business of providing credit.
“Mortgaged goods”
The Code does not define the expression “mortgaged goods”. It does, however, define “mortgage” in s 204(1) to include
(a)any interest in, or power over, property securing obligations of a debtor or guarantor; or
(b)a credit provider’s title to land or goods subject to a sale by instalments; or
(c)a mortgage taken to have been entered into under subsection 9(3);
but does not include a consumer lease to which Part 11 applies.
Subsection 204(1) of the Code also defines “debtor”, “guarantor”, and “goods”. A “debtor” is “a person (other than a guarantor) who is liable to pay for (or to repay) credit”, and includes a prospective debtor”; a “guarantor” is defined to include a prospective guarantor; and “goods” is defined to include, among other things, “ships, aircraft or other vehicles”. Thus “mortgaged goods” include “vehicles” in relation to which a debtor or guarantor creates or confers an interest or power to secure a liability to pay or repay “credit”. Subsection 204(1) defines “credit” by directing the reader to s 3(1) of the Code.
The Code does not define “interest in, or power over, property securing obligations of a debtor or guarantor”; but is it plain that this expression covers the full range of transactions by which a person (debtor or guarantor) who owes or will owe an obligation (usually an obligation to pay a debt) to another person (creditor) transfers or confers on the creditor an interest in, or a power over property, which empowers the creditor to take or retain possession of property if the debtor or guarantor fail to comply with their obligation for the purpose of selling the property and applying the proceeds of sale towards the discharge of the obligation the debtor and guarantor owe the creditor. In short, “interest in, or power over, property securing obligations of a debtor or guarantor” in s 204(1) falls within the meaning that s 12(1) of the PPS Act gives to “security interest”, namely, “an interest in personal property provided for by a transaction that, in substance, secures payment of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property)”. That is confirmed by s 12(2) of the PPS Act, which gives examples of transactions that provide a security interest in personal property. These include a “fixed charge”, a “chattel mortgage”, and a “pledge”.
“Entitled to take possession of mortgaged goods”
This expression points to two matters. The first are the terms of the contract by which the debtor or guarantor confers a security interest over goods. The second are any legal rules that regulate the parties’ rights under the contract. Relevant to s 100 of the Code are provisions that are contained in Part 5 of the Code, the principal provision of which is s 88(2), which is as follows:
A credit provider must not begin enforcement proceedings against a mortgagor to recover payment of money due or take possession of, sell, appoint a receiver for or foreclose in relation to property subject to a mortgage, unless:
(a) the mortgagor is in default under the mortgage; and
(b)the credit provider has given the mortgagor a default notice, complying with this section, allowing the mortgagor a period of at least 30 days from the date of the notice to remedy the default; and
(c)the default has not been remedied within that period.
(d)if the mortgage secures an obligation under a credit contract for a reverse mortgage, the credit provider has spoken to one of the following persons by telephone or in person in that period and has thus both confirmed that the mortgagor received the default notice and informed the person of the consequences of failure to remedy the default, or has made reasonable efforts to do so:
(i) the mortgagor;
(ii) a practising lawyer representing the mortgagor;
(iii) a person with a power of attorney relating to the mortgagor’s financial affairs.
The requirements of the “default notice” with which the credit provider must comply are set out in s 88(3) of the Code, which provides:
A default notice must contain a prominent heading at its top stating that it is a default notice and specify:
(a) the default; and
(b) the action necessary to remedy the default; and
(c) a period for remedying the default; and
(d)the date after which enforcement proceedings in relation to the default, and, if relevant, repossession of mortgaged property may begin if the default has not been remedied; and
(e)that repossession and sale of mortgaged property may not extinguish the debtor’s liability; and
(f)the information prescribed by the regulations about the debtor’s right to:
(i) give a hardship notice under section 72; or
(ii) give a postponement request under section 94; or
(iii) make an application to the court under sections 74 and 96; and
(g)the information prescribed by the regulations about:
(i) the AFCA scheme; and
(ii) the debtor’s rights under that scheme; and
(h)that a subsequent default of the same kind that occurs during the period specified for remedying the original default may be the subject of enforcement proceedings without further notice if it is not remedied within the period; and
(i)that, under the Privacy Act 1988, a credit reporting body (within the meaning of that Act) may collect and hold default information (within the meaning of that Act) in relation to the default; and
(j)any other information prescribed by the regulations.
“Authorise the credit provider to enter residential premises”
The last thing to consider is the order a court may make under s 100 of the Code; it is an order authorising “the credit provider to enter residential premises for the purpose of taking possession of mortgaged goods”. The absence of “the” before “residential premises” might suggest that s 100 of the Code empowers a court to authorise a credit provider to enter residential premises without the court identifying the residential premises the court may authorise the credit provider to enter into. That suggestion would be incorrect; and that is because s 100 must be viewed in the context of s 99(1) of the Code, which provides:
A credit provider, or an agent of a credit provider, must not enter any part of premises used for residential purposes for the purpose of taking possession of mortgaged goods under a goods mortgage unless:
(a) the court has authorised the entry; or
(b)the occupier of the premises has, after being informed in writing of the provisions of this section, consented in writing to the entry.
As can be seen, s 99(1) of the Code prohibits a credit provider from entering residential premises for the purpose of taking possession of mortgage goods unless either of two things occurs: a court has so authorised the credit provider, or the occupier of the residential premises on which the mortgaged goods are located has consented in writing after the credit provider has informed the occupier of “the provisions of this section”. This shows that s 100 of the Code contemplates that before a credit provider will apply for an order under s 100 of the Code, the credit provider will have identified residential premises on which there are located mortgaged goods; the credit provider will have sought, but not have obtained the consent of the person who occupies those premises for the credit provider to enter the residential premises for the purpose of taking possession of the mortgaged goods; or there are circumstances in which the credit provider has reasonable grounds for apprehending that the occupier will deal with the mortgaged goods to the prejudice of the credit provider if the credit provider were to give the occupier notice of its intention to apply to a court for an order under s 100 of the Code.[2]
[2] As was the case in BMW Australia Finance Limited v Rodrigues [2021] FCCA 1393
On its proper construction, therefore, s 100 of the Code empowers a court with jurisdiction to make an order authorising entry into residential premises only where the credit provider proves that mortgaged goods (that is, goods in which or in relation to which the credit provider has an interest or a power to secure obligations a debtor of guarantor owes to the creditor) are located on particular residential premises.
In Volkswagen Financial Services Australia Pty Ltd v Adra,[3] I made an order, purportedly pursuant to s 100 of the Code, authorising the credit provider in that case not only to enter the particular residential premises I identified in the orders, but also “any other premises in Australia over which the [the mortgagor] has apparent control and at which the Vehicle is reasonably believed to be located”. I made that order on the basis of the judgment of Judge Cameron in Volkswagen Financial Services Australia Pty Limited v Tate;[4] which has been followed by other judges in this Court.[5] In the light of my construction of s 100 of the Code, however, I am satisfied that s 100 does not confer power to make an order authorising entry into any residential premises other than residential premises on which the Court is satisfied mortgaged goods are located.
[3] Volkswagen Financial Services Australia Pty Ltd v Adra [2024] FedCFamC2G 653
[4] Volkswagen Financial Services Australia Pty Limited v Tate [2024] FedCFamC2G 491
[5] Volkswagen Financial Services Pty Ltd v Glass Shop Perth Pty Ltd [2024] FedCFamC2G 537 (Judge Ladhams); Volkswagen Financial Services Australia Pty Ltd v Victorian Inspection Testing and Compliancing Services Pty Ltd [2024] FedCFamC2G 641 (Judge Champion)
Section 101 of the Code
Section 101 of the Code provides:
(1)The court may, on the application of a credit provider that is entitled to take possession of mortgaged goods, order a person who has possession of the goods to deliver them to the credit provider at a specified time or place or within a specified period.
(2)The court may, on the application of a credit provider or other person required to deliver goods to a credit provider, by order vary the place at which or time or period within which goods must be delivered to the credit provider.
(3)A person who contravenes an order under this section commits an offence.
Section 101 is predicated on there being a person who has possession of the mortgaged goods. Before a court may make an order under s 101 of the Code, therefore, it must be satisfied that the person against whom an order under s 101 is sought does have possession of the mortgaged goods.
Is VFSA entitled to possession of the Vehicle?
I am satisfied that:
(a)VFSA is a “credit provider”.
(b)By executing the Loan Schedule Mr Pogue granted VFSA an interest in, or a power over, the Vehicle to secure Mr Pogue’s obligations to make the loan repayments as provided for in the Loan Schedule. More particularly, by executing the Loan Schedule Mr Pogue gave to VFSA a mortgage over the Vehicle on terms that, if Mr Pogue were in default and, after being given notice to remedy the default, failed to remedy the default, VFSA would be entitled to take possession of the Vehicle.
(c)Mr Pogue defaulted under the Loan Schedule by failing to pay by 7 January 2023 an amount of $926.64 that by then had become payable under the Loan Schedule.
(d)On 7 January 2023 VFSA issued the Default Notice to Mr Pogue requiring that he remedy the default by 13 February 2023. That is at least 30 days after 7 January 2023, being the date of the Default Notice.
(e)Mr Pogue failed to remedy the default identified in the Default Notice within the time provided by the Default Notice, or at all.
(f)The Default Notice complies with s 88(3) of the Code.
Should an order under s 100 of the Code be made?
On the basis of these findings, VFSA would be entitled to an order under s 100 of the Code if VFSA is in a position to prove that the Vehicle is located on particular residential premises. VFSA, however, has adduced no evidence on the basis of which it may be found that the Vehicle is located at any particular premises. In those circumstances, given my construction of s 100 of the Code, it would not be open to me to make an order under s 100 of the Code.
Should an order under s 101 of the Code be made?
As I have noted s 101 of the Code is predicated on there being a person who has possession of the mortgaged goods. Thus, before I can make an order under s 101 against Mr Pogue in relation to the Vehicle, I must be satisfied that he is in possession of the Vehicle.
As I have also noted, at the first court date Mr Pogue asserted that he had sold the Vehicle three or four years ago, but he was “scammed”, having sold the Vehicle to a person whose name he does not know. Mr Pogue, however, failed to file any affidavits which, at the directions hearing on 8 May 2024, I ordered him to file. In the absence of Mr Pogue having filed any evidence, including evidence to support the assertions he made at the first court date that he sold the vehicle three years ago, I am satisfied from the fact that he had taken possession of the Vehicle when he signed the Loan Schedule that he is still in possession of the Vehicle. I am therefore satisfied that it would be appropriate for me to order Mr Pogue to deliver the Vehicle to an authorised agent of VFSA within 14 days of his being served with the order that he do so. I propose, however, to reserve to Mr Pogue liberty to apply within those 14 days for an order discharging the order I propose to make under s 101 of the Code on the ground that he no longer is in possession of the Vehicle, with such application to be supported by evidence.
Should an order be made requiring information about current owner?
VFSA also seeks an order that it be “provided with a current extract from the register of information about the Vehicle’s current registered operator, including the name and address of the registered operator”. That order appears to assume that Mr Pogue does not currently possess the Vehicle. Given I propose to order that Mr Pogue deliver the Vehicle to VFSA, I do not consider it appropriate to order that Mr Pogue provide a current extract from the register of information about the Vehicle’s current registered operator.
DISPOSITION
I propose to make:
(a)an order under r 6.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2011 (Cth) that the application is to be taken to have been served on Mr Pogue by email sent on 15 April 2024;
(b)a declaration that VFSA is entitled to the possession of the Vehicle; and
(c)an order that Mr Pogue deliver the Vehicle to VFSA within 14 days after I pronounce these orders, subject to Mr Pogue being granted liberty to apply to vary or discharge that order on proof that he no longer possesses the Vehicle.
VFSA also claims costs in the amount of $2,992 together with the filing fee of $285. I am satisfied it is appropriate to order that Mr Pogue pay VFSA’s costs, and that the sum of these amounts, namely, $3,277, represent a fair indemnity of the costs VFSA has incurred in successfully pursuing this proceeding. I will therefore also order that Mr Pogue pay VFSA’s costs set in the amount of $3,277.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 13 September 2024
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