BMW Australia Finance Ltd v Mehajer Vision Pty Ltd (No2) [2021] NSWSC 1379

Supreme Court New South Wales

Medium Neutral Citation: BMW Australia Finance Ltd v Mehajer Vision Pty Ltd (No2) [2021] NSWSC 1379 Hearing dates: 26 October 2021 Date of orders: 27 October 2021 Decision date: 27 October 2021 Jurisdiction: Common Law Before: Schmidt AJ Decision: 1. The orders made by consent were: (a) the Plaintiff is entitled to possession of a motor vehicle better described as a 2011 Ferrari 458 ITA Coupe motor vehicle (Engine No. XXXXXXXXXXXXXXXXXXX, VIN No. XXXXXXXXXXXXXXXXX); (b) the Plaintiff is entitled to sell the Vehicle; and (c) the amendment demand given by the Plaintiff to the First Defendant in respect of Personal Property Securities Register registration numbered XXXXXXXXXXXXXXX, by letter dated 17 July 2020, is and was authorised under section 178 of the Personal Property Securities Act 2009 (Cth). 2. Pursuant to section 182(4)(a) of the PPSA, the Second Defendant shall remove from the PPSR the registration numbered XXXXXXXXXXXXXXX. 3. The First Defendant be restrained from registering further interests in respect of the Vehicle on the PPSR until the conclusion of the Sale referred to in paragraph 1 of the notations to this Order. 4. The Plaintiff's costs of the Proceeding (including the costs order made by Schmidt AJ on 24 August 2021) be fixed on a full indemnity basis in the sum of $58,708.95, payable: (a) in the first instance, out of the proceeds of the Sale referred to in paragraph 1 of the notations to this Order; and (b) in the second instance, by the First Defendant. Catchwords: PROPERTY — Priority of Interests — Personal Property Securities Act 2009 (NSW) — s 55(3) — s 55(4) — Evidentiary basis for priority given to plaintiff under the chattel mortgage agreement — Declaratory relief granted MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — Security interest — Interest in personal property — Where party claiming an interest in the property is bankrupt — Where party has not taken any steps to advance a claim in the proceedings or register a security interest — Where trustee in bankruptcy has not exercised any right to be joined in the proceedings and has not asserted any interest in the property MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — Possession Legislation Cited: Bankruptcy Act 1966 (Cth) s 58(1), 116(a) Personal Property Securities Act 2009 (NSW) s 182, 55(3), 55(4), 177, 178, 182 Cases Cited: Australasian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119; [1958] HCA 51 BMW Australia Finance Ltd v Mehajer Vision Pty Ltd [2021] NSWSC 1057 Capital Finance Australia Limited v Clough [2015] NSWSC 1327 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 National Australia Bank Ltd v Garett (2016) 340 ALR 532; [2016] FCA 714 Repatriation Commission v Tsouranakis (2007) 239 ALR 491; [2007] FCAFC 29 Category: Principal judgment Parties: BMW Australia Finance (Pty Ltd) (Plaintiff) Mehajer Vision Pty Ltd (First Defendant) Registrar of Personal Property Securities (Second Defendant) Representation: Counsel: Mr M Gunning (Plaintiff)