BMW Australia Finance Limited v Nguyen and Anor. [2019] NSWSC 1223

Supreme Court New South Wales

Medium Neutral Citation: BMW Australia Finance Limited v Nguyen and Anor. [2019] NSWSC 1223 Hearing dates: 16 September 2019 Date of orders: 16 September 2019 Decision date: 16 September 2019 Jurisdiction: Common Law Before: Campbell J Decision: Notice of Motion of 28 August 2019 is dismissed for want of appearance on behalf of the moving party. Catchwords: CIVIL PROCEDURE – Orders seeking Declaration enforcing judgment for possession – nonappearance of moving party – notice of motion dismissed. Category: Procedural and other rulings Parties: BMW Australia Finance Limited (Plaintiff) John Dang Huy Nguyen (First Defendant) Omar Elmasri (Second Defendant) Representation: Counsel: No appearances

Solicitors: No appearances File Number(s): 2019/97548

Judgment 1. The plaintiff in these proceedings, now the judgment creditor, filed a notice of motion on 28 August 2019 seeking additional relief by way of a declaration and an order as to costs. 2. The matter first came before Lonergan J as duty judge on Wednesday, 11 September 2019 when a Ms Venegas appeared for the plaintiff and there was no appearance for either defendant. Her Honour, after some discussion, stood the matter over for hearing before me as duty judge today. 3. When the matter was called there was no appearance for any party. In accordance with usual practice, the matter was again called three times outside Court and there was no appearance. The Court did not sit until 10.30am today because of the swearing-in ceremony for Cavanagh J. That later start was advertised to the public and the profession by publication of the daily court list on Friday afternoon at about 3.30pm. 4. I have already dealt with other business in the duty list which consisted of another notice of motion and it remains that there is no appearance for any party. In the circumstances, I think it appropriate that I should dismiss the plaintiff's notice of motion filed on 28 August 2019. 5. I should say in relation to the matter, additionally it did not seem to me that the relief sought was well thought out. The proceedings related to a commercial chattel mortgage agreement between the plaintiff and the first defendant. The plaintiff has obtained default judgment in respect of the debt due and also judgment for possession of the vehicle against the second defendant. That judgment for possession was entered on 31 July 2019. It seems that possession has not been delivered up to the plaintiff. I would have thought seeking a declaration was an ineffective way of enforcing the judgment for possession and that some other procedure was likely to be more appropriate. 6. In any event, given the nonappearance of the moving party, who was present in court when the matter was fixed, I think the appropriate order to make is that the notice of motion of 28 August 2019 is dismissed for want of appearance on behalf of the moving party.