BMW Australia Finance Limited v Youngman [2009] NSWSC 960

New South Wales Supreme Court

CITATION : BMW Australia Finance Limited v Youngman [2009] NSWSC 960

HEARING DATE(S) : 7 August 2009

JUDGMENT DATE : 16 September 2009

JURISDICTION : Common Law

JUDGMENT OF : McCallum J

DECISION : (1) The appeal is dismissed. (2) The plaintiff is to pay the defendants' costs of the appeal.

CATCHWORDS : COMMON LAW - appeal from decision of Local Court Magistrate - whether findings made open to Magistrate - appeal dismissed

LEGISLATION CITED : Local Courts Act 1982 Local Court Act 2007

CATEGORY : Principal judgment

CASES CITED : Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 BMW Australia Finance Limited v John Paul Youngman & Anor [2007] NSWSC 624

BMW Australia Finance Limited (Plaintiff) PARTIES : John Paul Youngman (1st Defendant) Martha Youngman (2nd Defendant)

FILE NUMBER(S) : SC 15502/08

COUNSEL : Mr R Beasley (Plaintiff) Mr G Sirtes SC (Defendants)

SOLICITORS : Bartier Perry Solicitors (Plaintiff) Landerer & Company (Defendants)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 115/08

LOWER COURT JUDICIAL OFFICER : Magistrate Norton

LOWER COURT DATE OF DECISION : 22 September 2008

- 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCALLUM J

16 SEPTEMBER 2009

15502/08 BMW AUSTRALIA FINANCE LIMITED v JOHN PAUL YOUNGMAN & ANOR

JUDGMENT 1 HER HONOUR: This is an appeal against the judgment of a Magistrate given in the Local Court at Manly in proceedings commenced by BMW Australia Finance Limited following its repossession of a leased car. It is the second appeal brought by BMW in relation to those proceedings. 2 The car had been leased to a company, Veritage Press Pty Limited, under a hire-purchase agreement entered into on 10 May 2000. Veritage's obligations under the hire-purchase agreement were guaranteed by its directors, Mr and Mrs Youngman. 3 Veritage was placed into voluntary administration on 14 October 2003 and subsequently fell into default of hire instalment payments due under the agreement. On 19 December 2003, Mr Youngman made an offer to purchase the car for $52,000. That offer was refused by Mr Brian Siew on behalf of BMW. Mr Siew told Mr Youngman that BMW required him either to take over the lease or to return the car, in which case BMW would pursue a claim against Mr and Mrs Youngman as guarantors. 4 On 6 January 2004, Mr Paul O'Halloran wrote to Mr Youngman on behalf of BMW in the following terms (as written in original): "There are currently 2 options available to you in respect of this contract. They are: 1) Continue the agreement under current terms and conditions (which include provision for early payout – your current payout value valid to 9/1/04 is $62,014.72), or 2) Reassign the current agreement under it's (sic) current terms and conditions to another party. Whilst i appreciate your position & the suggestion of a fair and reasonable offer for the vehicle, i also ask that you understand the vehicle is subject to, and bound by, the parameters of a contractual agreement."