Yamaha Motor Finance Australia Pty Ltd v Powell

[2021] FCCA 974

FEDERAL CIRCUIT COURT OF AUSTRALIA

Yamaha Motor Finance Australia Pty Ltd v Powell [2021] FCCA 974

File number(s):	BRG 657 of 2020
Judgment of:	JUDGE EGAN
Date of judgment:	6 May 2021
Catchwords:	CONSUMER LAW – Application for liquidated sum and the return of goods – ordered accordingly.
Legislation:	National Consumer Credit Protection Act 2009 (Cth), Schedule 1 National Credit Code, s 100.
Number of paragraphs:	2
Date of last submission/s:	6 May 2021
Date of hearing:	6 May 2021
Place:	Brisbane
Solicitor for the Applicant:	Mr Foley of Celtic Legal
Respondent:	There being no appearance either by or on behalf of the Respondent

ORDERS

BRG 657 of 2020

BETWEEN:

YAMAHA MOTOR FINANCE AUSTRALIA PTY LTD

Applicant

AND:

ADAM POWELL

Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	6 MAY 2021

IT IS ORDERED THAT:

1.The Respondent pay to the Applicant the sum of $15,020.58.

2.Pursuant to s.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 2018 Yamaha Waverunner bearing the below identifiers (Watercraft) and any keys to the Watercraft:

a. HIN: USYAMA2865J718

b. Registration Number: UA602

3.Pursuant to s.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 2018 Dunbier Trailer bearing the below identifiers (Trailer) and any keys to the Trailer:

a. VIN: 6FJDDD333J2219616

b. Registration Number: X86877

4.For the purpose of the enforcement of Orders 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 Watercraft and Trailer from the following premises:

a. 8 Burgess Street, Mernda VIC 3754; and

b. any other residential premises in Australia at which the Watercraft and Trailer is reasonably believed to be located.

5.The Respondent to pay the Applicant’s costs fixed in the sum of $3,392.00.

EX-TEMPORE REASONS FOR JUDGMENT

JUDGE EGAN:

1. Having read the submissions, filed on behalf of the applicant on 8 April 2021, together with the affidavit of Keira Foley filed on 16 December 2020, and the affidavit of service filed on 8 April 2021, and the further affidavit of notice of hearing filed on 4 May 2021, the Court is satisfied that there has been due service of the documentation required to support the applicant’s claims.

2. The Court is further satisfied that the respondent has been given due notice of today’s hearing.  It seems from a reading of the material before the Court that it would be most unlikely that the respondent would be co-operative in relation to the return of the goods, the subject of the application, by reason of his exhibited past conduct. The Court makes orders accordingly.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate: SW

Dated:       6 May 2021