Riseley v Toyota Finance Australia Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 13 December 2021
• Neutral Citation: [2021] FCA 1566
• Court: Federal Court
• Date: 13 December 2021

Federal Court of Australia

Riseley v Toyota Finance Australia Ltd [2021] FCA 1566

Appeal from:	Toyota Finance Australia Ltd v Riseley (Federal Circuit and Family Court of Australia (Division 2)), No. ADG 222/2021, OOrder of Judge Brown 26 November 2021)
File number:	SAD 214 of 2021
Judgment of:	BESANKO J
Date of judgment:	13 December 2021
Date of publication of reasons:	15 December 2021
Catchwords:	PRACTICE AND PROCEDURE — application for stay of orders made by Federal Circuit Court of Australia — where respondent instituted proceeding against appellants seeking orders pursuant to s 123 of Personal Property Securities Act 2009 (Cth) for delivery, surrender and/or provision of location of a Toyota Hilux by appellants and that respondent and/or its agent be permitted to take reasonable steps to take possession of Toyota Hilux — where respondent had entered into loan agreement with company controlled by appellants taking Toyota Hilux as collateral for loan — where security interest in Toyota Hilux registered under Personal Property Securities Act — where appellants guaranteed repayment of loan — where default in repayment of loan — where Federal Circuit Court made orders sought by respondent — where appellants purport to appeal from orders made by Federal Circuit Court — whether appropriate to grant stay of orders pending determination of appeal — application refused ; HIGH COURT AND FEDERAL COURT — where order made by Federal Circuit Court pursuant to s 123 of Personal Property Securities Act — where s 123 of Personal Property Securities Act provides that secured party may seize collateral by any method permitted by law if debtor is in default under security agreement — whether ss 123, 206 and 207 of the Personal Property Securities Act conferred power or jurisdiction on the Federal Circuit Court to make the order
Legislation:	Federal Court of Australia Act 1976 (Cth) s 24 Personal Property Securities Act 2009 (Cth) ss 10, 123, 206, 207 Federal Court Rules 2011 (Cth) r 36.08
Cases cited:	Bank of Queensland Limited v Star Trek Pty Ltd [2019] NSWSC 1712 BOQ Credit Pty Ltd v Chatah [2017] NSWSC 1444 Mitolo Wines Aust Pty Ltd v Vito Mitolo & Son Pty Ltd (No 3) [2019] FCA 2116 Porter Equipment Australia Pty Ltd & anor v Barton Ventures Pty Ltd & anor; Porter Equipment Australia Pty Ltd v Tyremil Pty Ltd & ors [2018] QDC 87 ; Duggan A and Brown D, Australian Personal Property Securities Law (2nd ed, 2016, LexisNexis Butterworths)
Division:	General Division
Registry:	South Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	24
Dates of hearing:	3, 10 & 13 December 2021
Counsel for the Appellants:	Mr J Riseley appeared in person on behalf of both appellants
Counsel for the Respondent:	Mr S Sankey
Solicitor for the Respondent:	Wallmans Lawyers

ORDERS

		SAD 214 of 2021
BETWEEN:	JOHN RANDLE RISELEY First Appellant ; COLLEEN ROBYN RISELEY Second Appellant
AND:	TOYOTA FINANCE AUSTRALIA LTD ACN 002 435 181 Respondent

order made by:	BESANKO J
DATE OF ORDER:	13 DECEMBER 2021

THE COURT ORDERS THAT:

1. The appellants’ application for a stay of the orders made by the Federal Circuit Court of Australia on 26 November 2021 be refused.

2. The appellants pay the respondent’s costs of and incidental to the appellants’ application for a stay, to be taxed in default of agreement.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

1. Toyota Finance Australia Ltd (Toyota Finance) instituted a proceeding in the Federal Circuit Court of Australia against John Riseley and Colleen Riseley on 20 July 2021 in which it sought the following orders, relevantly:

1. An Order pursuant to Section 123(1) of the Personal Property Securities Act 2009 (Cth) (the Act) that the Respondent and/or any party in possession of the Collateral, being a white 2014 Toyota Hilux Utility Motor Vehicle VIN: MR0FZ29GX02554437, Engine Number: 1KDA555641, Registration Number: 1EPU461 (WA) (hereafter the Collateral), deliver, surrender and/or provide the location of the Collateral to the Applicant and/or its Agent.

2. The Applicant and/or its duly authorised agent be permitted to take reasonable step(s) in order to take possession of the Collateral, from either of the following premises:

(a) Unit 124, 597 Kalamunda Road, High Wycombe WA 6057; or

(b) any other premises in Australia at which the Collateral is reasonably believed to be located.

2. Toyota Finance’s application was supported by an affidavit sworn by its solicitor, Mr Shane Eamonn Sankey on 20 July 2021. That affidavit identified the relevant commercial transaction concerning the Toyota Hilux which is the subject of the orders as a loan of $57,611.64 by Toyota Finance to a company controlled by Mr and Mrs Riseley, Riverscape Investments Pty Ltd. That company was deregistered on 25 February 2017. The Toyota Hilux was taken as collateral for the loan and the security interest in it registered under the Personal Property Securities Act 2009 (Cth) (the Act). Mr and Mrs Riseley guaranteed the repayment of the loan. There has been default in the repayment of the loan.

3. Mr Riseley, purportedly on behalf of his wife and himself, filed a Genuine Steps Statement on 19 August 2021 and sent a letter to the “Federal Court of Australia” dated 4 August 2021. That letter should have been addressed to the Federal Circuit Court of Australia. The proceeding was given a hearing date of 15 September 2021. The matter came on before a judge of the Federal Circuit Court on that day. Toyota Finance’s solicitor appeared, but there was no appearance by the respondents. The matter came on again on 14 October 2021. Toyota Finance’s solicitor appeared and there was an appearance by Mr Riseley in person and apparently on behalf of his wife. The matter came on for hearing on 26 November 2021. Toyota Finance’s solicitor appeared and Mr Riseley appeared in person and again apparently on behalf of his wife. The two orders sought by Toyota Finance were made. There was also an order in relation to costs. No reasons for making the orders have been delivered.

4. Mr and Mrs Riseley have purported to appeal to this Court from the orders made by the Federal Circuit Court. Mr Riseley has signed the Notice of appeal, but both he and his wife are said to be appellants. The grounds of appeal are as follows:

1. Appellants contend Judge Brown errored in ruling Appellants had no standing in this matter, despite a Submission – a detailed Genuine steps statement clearly and directly linking Appellants to this matter emphatically.

2. Toyota by its actions, admissions, commitments to Appellant’s in eventually, successfully acquiring of this vehicle in question, there was no doubt Appellants had standing in this matter.

a. 13.07.2016 DISTRICT COURT GENERAL PROCEDURE CLAIM 11546/2016 $51,198.00 – Toyota confirmed Appellants standing in this matter,

b. In late 2016 – Toyota ceased action 11546/2016 and entered into negotiation with Arns & Assoc. Lawyers for Appellants partners undertaking the free issue of this vehicle to Appellants.

c. 26.06.2017 Mr. Sankey arranges pre-trial conference in the matter of 26.06.2017 - Toyota confirmed Appellants standing in this matter,

a. Furthermore, Mr. Sankey (Wallmans) Toyota Representative, produced consent orders in this matter setting out how Appellants would pay $38,000 for this vehicle over an interest-free 3 year period,

b. On or about 1^st August 2017, Mr. Sankey negotiates a sale of Vehicle in question to Arns & Assoc. on Appellants behalf, at $25,000 at that point, vehicle worth no more than 10-12k at auction,

c. 14.12.2017 Zurich Notification - Advises –...