Yamaha Motor Finance Australia Pty Ltd v Allmond
[2024] FedCFamC2G 185
•23 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yamaha Motor Finance Australia Pty Ltd v Allmond [2024] FedCFamC2G 185
File number(s): BRG 503 of 2023 Judgment of: JUDGE EGAN Date of judgment: 23 February 2024 Catchwords: CONSUMER LAW – Default by borrower under facility agreement – where a further adjournment of the hearing was requested – where no reasonable prospect of arrears being paid in the near future – judgment entered accordingly. Legislation: s. 100 of the National Credit Code Division: Division 2 General Federal Law Number of paragraphs: 13 Date of last submission/s: 23 February 2024 Date of hearing: 24 January 2024, 8 February 2024 and 23 February 2024 Place: Brisbane Solicitor for the Applicant: Mr B Lavery Respondent: Self-represented ORDERS
<BRG 503 of 2023> FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YAMAHA MOTOR FINANCE
Applicant
AND: KIMBERLY ALLMOND
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
23 FEBRUARY 2024
IT IS ORDERED THAT:
1.Pursuant to section 100 of the National Credit Code, the applicant is authorised by itself, its servants or agents to enter residential premises for the purpose of taking possession of the 2022 Sea-Doo Wave Runner, bearing the below identifiers (first watercraft) and any keys to the first watercraft:
(a)HIN: CAYDV06200H122;
(b)Model: Spark (2Up 90 IBR) TRIXX (SS)
(c)Engine no: MP 132560.
(d)Registration no: QL207S.
2.Pursuant to section 100 of the National Credit Code, the applicant is authorised, by itself, its servants or agents, to enter residential premises for the purpose of taking possession of the 2022 Sea-Doo Wave Runner, bearing the below identifiers (second watercraft) and any keys to the second watercraft:
(a)HIN: CAYDV29787K122.
(b)Model: Spark TRIXX 3UP (SS).
(c)Engine no: MP 142986.
(d)Registration no: QL208S.
3.Pursuant to section 100 of the National Credit Code, the applicant is authorised, by itself, its servants or agents, to enter residential premises for the purpose of taking possession of the 2022 Dunbier trailer bearing the below identifiers (trailer) and any keys to the trailer:
(a)VIN: 6FJDDD333N2A28956.
(b)Model: DOUBLE ROLLER TRAILER.
(c)Registration no: S943THP.
4.For the purpose of the enforcement of orders 1, 2 and 3 hereof, the applicant and/or its duly authorised agent is permitted to enter and remain on any residential premises/land and is further authorised to take any and all steps which are reasonable and necessary in order to take possession of the first watercraft, second watercraft and trailer from the following premises:
(a)92 Dawkins Road, Lewiston, South Australia; and
(b)Any other residential or other premises in Australia at which the first watercraft, second watercraft and trailer is reasonably believed to be located.
5.The respondent pay the applicant’s costs fixed in the sum of $3277.
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
JUDGE EGAN
INTRODUCTION
In this matter, the applicant filed an application for recovery of goods on 16 October 2023. The goods were the subject of a facility agreement entered into between the respondent, Kimberly Allmond, and the applicant, on 11 December 2022.
Ms Allmond has appeared personally by Microsoft Teams on 24 January 2024 and 8 February 2004. On each of those occasions, Ms Allmond pleaded for time so as to enable her to bring the arrears under the facility agreement up to date so that she might, firstly, continue to retain possession of the goods in question and, secondly, to continue to pay ongoing monthly instalments under the agreement.
Though the applicant was not obliged to do so under the terms of the facility agreement, and with some encouragement from the Court as to the possible resolution of the matter, the applicant did agree to accept arrears outstanding under the facility agreement, should those arrears be paid before today’s hearing.
It has transpired that the respondent has not paid the arrears, notwithstanding that there has been a month within which she has had time to arrange her finances, with or without the assistance of family members.
When no correspondence had been received from the parties by yesterday indicating that there had been an agreement reached between them, correspondence was sent by Chambers to the parties seeking their advice as to what had transpired since the last hearing date. Mr Lavery, of the applicant’s lawyers, indicated that Ms Allmond had not contacted his office in the past two weeks to discuss the matter. As to the assertion by Ms Allmond that her father had had to sell off some land in order to assist her, and that he was awaiting funds to come into his bank, Mr Lavery advised that he had not been provided with any copy of any contract evidencing such endeavour. Had Mr Lavery been provided with a duly executed contract indicating that settlement was imminent, then perhaps the applicant might have, in such circumstances, agreed to a further short adjournment so as to allow the amount of arrears to be brought up to date and, otherwise, for the payment schedule to be regularised.
There was then an email sent by Chambers to Mr Lavery and Ms Allmond which provided as follows:
His Honour asks whether Ms Allmond has proof of the fact of the entry into of a contract by her father for the purpose of bringing the arrears (up to date).
It is usual in circumstances such as the present for relevant evidence to be put before the Court by, in this case, both Ms Allmond and her father. Is that intended to be done?
Further, has Ms Allmond contacted Mr Lavery to discuss the above?
Please respond by return email.
Kind regards,
Max Green,
Associate to his Honour, Judge Egan.
Chambers did not receive any response to that email correspondence from Ms Allmond.
When the matter was called on for hearing today, Ms Allmond eventually appeared by telephone after one or two failed attempts for her to connect by MS Teams, that being the means by which she had appeared on previous occasions.
During the course of the hearing before the Court, Mr Lavery relied upon the affidavit material filed on behalf of the applicant. That material indicated that there had been a facility agreement entered into between the applicant and the respondent, that the respondent was in arrears and had been in substantial arrears for a considerable period of time, and that he had not received any relevant contact from Ms Allmond, the respondent, in the last two weeks.
Ms Allmond pressed upon the Court an application for her to be given more time. She based that request upon the fact that she had asserted that her father was helping her out in this financial situation, and that he had entered into an agreement for sale and purchase of land in South Australia. When asked to provide copies of the contract for such alleged sale, Ms Allmond sent through page 3 of what purported to be a 23 page document. When she was advised that page 3 was of no assistance to the Court, and that the Court required at the least to sight page 1 of the contract, the respondent then caused to be emailed to the Court a copy of what she said was page 1 of her father’s contract for sale.
It transpired that Exhibit 2 (being both pages 1 and 3 of what was purported to be the contract of sale entered into by the respondent’s father), was in fact a document entitled “Agreement for Sale and Purchase of Land” where the vendor was recorded as being Kimberly Anne Allmond, rather than her father.
The Court was surprised that even at the eleventh hour, the respondent was unable to produce to the Court an executed contract, which provided for an imminent settlement date, where the vendor for the sale of land was the respondent’s father. The fact that what the Court received was a purported agreement for sale, unexecuted, in the name of the respondent as vendor, does not lead the Court to believe that the respondent was acting in a credible manner when asserting that it was her father that was to imminently settle on the sale of some land, rather than herself.
In all the circumstances, the respondent has been given more than enough time to come to some financial arrangement with the applicant. The applicant was not obliged to accept any part payment, and the Court accordingly makes the orders as submitted were appropriate by and on behalf of the applicant.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 29 February 2024
0
0
1