BOQ Credit Pty Ltd v Chatah [2017] NSWSC 1444

Supreme Court New South Wales

Medium Neutral Citation: BOQ Credit Pty Ltd v Chatah [2017] NSWSC 1444 Hearing dates: 10 October 2017 Decision date: 10 October 2017 Jurisdiction: Common Law Before: McCallum J Decision: That the defendant deliver up possession of the vehicle to the plaintiff immediately; further or alternatively, that the plaintiff is entitled to possession of the vehicle and may seize the vehicle from the defendant; defendant to pay the plaintiff's costs of the application fixed in the sum of $4114. Catchwords: SECURITY – personal property – application for possession of a motor vehicle – defendant in breach of a credit contract giving security over the vehicle Legislation Cited: National Consumer Credit Protection Regulations 2010 (Cth), reg 86 National Credit Code (Cth), s 88, Personal Property Securities Act 2009 (Cth), s 119, 123 Category: Procedural and other rulings Parties: BOQ Credit Pty Ltd (plaintiff) Mohamed Chatah (defendant) Representation: Counsel: S Jones (solicitor for the plaintiff)

Solicitors: JHK Legal (plaintiff) File Number(s): 2017/287072 Publication restriction: None

Judgment – EX TEMPORE 1. HER HONOUR: By summons filed 21 September 2017, BOQ Credit Pty Ltd seeks an order for possession of a motor vehicle. 2. The proceedings are brought under the Personal Property Securities Act 2009 (Cth). The need to bring proceedings under that Act is due to the fact that, according to the evidence before me, the defendant Mr Chatah, notwithstanding a failure to make any repayments at all for the vehicle as required under the credit contract, has flatly refused to surrender it, telling a process server that BOQ would have to "take him to court". BOQ has done just that. 3. Noting the unusual nature of the application Ms Jones, solicitor for BOQ, has provided a helpful written outline of submissions, together with copies of the relevant legislation. The material provided establishes that the defendant entered into a credit contract with the plaintiff in the form of a consumer loan agreement dated 11 January 2017 pursuant to which he obtained a 14 Ford PX Ranger Wildtrak. The loan agreement, among other things, granted a legal mortgage to BOQ over the vehicle to secure Mr Chatah's obligations. Pursuant to the agreement the sum of almost $90,000 was repayable to BOQ. 4. On 16 February 2017 Mr Chatah failed to make the first payment due under the loan agreement. On 16 March 2017, he again failed to make payment. On 30 March 2017, BOQ issued a default notice under s 88 of the National Credit Code demanding repayment of those two sums in the total amount of $2,155.44. 5. Ms Jones submits that the action to recover possession of the vehicle is within the authority of the Court by force of the application of s 119 of the Personal Property Securities Act, which provides that ch 4 of that Act applies in relation to a security interest in collateral to which the National Credit Code (Cth) applies. 6. Section 123 of the Personal Property Securities Act provides that "a secured party may seize collateral, by any method permitted by law, if the debtor is in default under the security agreement". 7. Section 88 of the National Credit Code imposes certain constraints on a credit provider's entitlement to begin enforcement proceedings against a debtor. In particular, such proceedings may not be commenced unless the debtor is in default under the credit contract and the credit provider has given a default notice that complies with the section allowing the debtor a period of at least 30 days from the date of the notice to remedy the default and the default has not been remedied within that period. 8. Ms Jones' affidavit annexes a copy of the default notice served on behalf of BOQ. I am satisfied that that notice complies with the requirements of s 88 including the default notice requirements under s 88(3). The requirements of that subsection include a requirement that the default notice must specify the information prescribed by the regulations about the approved external dispute resolution scheme of which the creditor provider is a member and the debtor's rights under that scheme. Ms Jones has provided me with a copy of reg 86 of the National Consumer Credit Protection Regulations 2010 (Cth) which sets out the prescribed information. It is plain from Ms Jones' affidavit that the default notice served on Mr Chatah included that information. 9. For those reasons, I am satisfied that BOQ is entitled to the relief sought in the summons. I should note that the proceedings first came before Beech-Jones J last Tuesday, 3 October 2017. On that occasion, there was no appearance for the defendant and the plaintiff sought an order for substituted service. Evidence before the Court today establishes that the summons and supporting affidavit were served in accordance with his Honour's orders made on that date. Those orders included a requirement that a text message be sent to the defendant at a telephone number through which a process server had been in contact with the defendant and that also occurred. 10. When the proceedings came before Beech-Jones J, his Honour considered the form of the orders sought in the summons and suggested an appropriate form of order. That has been provided in engrossed form today. I make orders 1, 2 and 3 in the short minutes handed up.