Mercedes-Benz Financial Services Australia Pty Ltd v RPO Pty Ltd

(C) THE RESPONDENT WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT; AND

(D) ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS THE RESPONDENT TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

1. The applicant holds a security interest for the purposes of the Personal Property Securities Act 2009 (Cth) (PPS Act) over the Collateral as identified in Schedule 1 (Remaining Collateral).
2. The respondent is in default of its obligations pursuant to each of the Loan Agreements as defined and identified in Schedule 2 to the Originating Application filed 21 February 2025.

1. The applicant is entitled to seize the Remaining Collateral pursuant to s 123(1) of the PPS Act and/or clause 13.1(a) of a Master Loan Agreement between the applicant and the respondent as incorporated into each of the Loan Agreements.

1. The respondent, within seven days of coming into possession of any of the Remaining Collateral, deliver, surrender and/or provide the location of that item of Remaining Collateral to the applicant and/or its duly authorised agents.
2. Any party in possession of any item of Remaining Collateral identified in Schedule 1 as comprising "Remaining Australian Collateral", being the collateral which has not yet been repossessed by the applicant and which is, to the knowledge of the applicant, currently located in Australia (Remaining Australian Collateral) immediately deliver, surrender and/or provide the location of that item of Remaining Australian Collateral to the applicant and/or its duly authorised agents.
3. The respondent, by its liquidator Andrew James Heard (Liquidator) shall:

(a) within seven days, inform the applicant of any third parties who are, to the knowledge of the Liquidator, claiming to have an interest in any of the Remaining Collateral; and

(b) at any time thereafter, if he becomes aware of any third parties who are claiming to have an interest in any of the Remaining Collateral, inform the applicant of that fact within 48 hours,

and in each such case, the Liquidator shall provide to the applicant the contact details of the third party, the Remaining Collateral over which the third party claims an interest, the nature of the interest claimed and any documents which are said to support, or are relevant to, the claimed interest (to the extent that such information and documents are in his possession).

1. The applicant and/or its duly authorised agents, are permitted to take reasonable step(s) in order to take possession of the Remaining Australian Collateral from any public place, business premises, or residential premises in Australia at which the Remaining Australian Collateral is reasonably believed to be located.
2. Upon seizure of any of the Remaining Australian Collateral, the applicant shall:

(a) inform the police of the State or Territory in which the Remaining Australian Collateral was seized that the Remaining Australian Collateral has been seized pursuant to a court order and of the contact details by which the applicant and/or its solicitors can be contacted by or on behalf of any affected person;

(b) affix a copy of a Notice in the form set out at Schedule 2 with the applicable Remaining Australian Collateral details completed, and to which is attached a copy of these orders (excluding Schedules) and the reasons for judgment delivered by the Court in relation to these orders (collectively, Notice), to a prominent location in the immediate vicinity of the location from which the item of Remaining Australian Collateral was seized;

(c) deliver a copy of the Notice by hand to any person appearing to the applicant and/or applicant's duly authorised agent at the time of seizure of the Remaining Australian Collateral to be interested in the Collateral, to be objecting to seizure, or to be in possession or control of the land or premises from which the Collateral is seized; and

(d) within 48 hours of the seizure of any Remaining Australian Collateral, send a copy of the Notice by registered post to the address from which the Remaining Australian Collateral was seized (if it was seized from private property), and to the address of any person identified by the Liquidator as being potentially interested in the Remaining Australian Collateral and the land or premises from which the Remaining Australian Collateral was seized.

1. The applicant is to pay any such fee(s) or charge(s) as have accrued in respect of parking and/or reasonable storage costs so levied at the point of surrender/collection to secure the release of any Remaining Australian Collateral, or as otherwise agreed between the applicant and the person in possession of the Remaining Australian Collateral and/or operator of any car park or storage facility at or in which the Remaining Australian Collateral is or has been stored.
2. The applicant shall, at its own expense, store and preserve, and shall take no steps to dispose of, any seized Remaining Australian Collateral, for a period of 28 days from the date of seizure.
3. If no person or party has exercised the liberty to apply conferred by paragraph 12 within 21 days of the date of seizure in accordance with the terms of the Notice, the applicant shall, after the expiry of 28 days from the date of seizure, be at liberty to treat the Remaining Australian Collateral as seized property pursuant to s 123(1) of the PPS Act and to sell or otherwise dispose of such Remaining Australian Collateral in accordance with its rights as holder of a perfected security interest in the Remaining Australian Collateral.
4. Nothing in these orders shall prohibit any third party claiming an interest in any Remaining Australian Collateral from making any claim in relation to such collateral, including in relation to any proceeds of sale of such Remaining Australian Collateral, after the expiry of 21 days from the date of seizure.
5. The applicant is:

(a) with effect on and from the date of this order, released from its undertaking noted by the Court in the orders made in the proceeding on 24 February 2025;

(b) with effect on and from the date of this order, released from its undertaking noted by the Court at Note B in the orders made in the proceeding on 24 March 2025; and

(c) released from its obligation pursuant to paragraph 5 of the orders made in the proceeding on 24 March 2025 to preserve and maintain the 2020 Mercedes-Benz C63 AMG Motor Vehicle VIN: W1N4632762X370576, Engine Number: 17798060164270 and Registration Number: CCL000 (VIC).

1. The respondent shall pay the applicant's costs of and incidental to the proceeding on an indemnity basis (to be taxed if not agreed) pursuant to clause 18.1 and/or 21.1 of the Master Loan Agreement, the applicant's claim for such amounts to be provable pursuant to s 553(1) of the Corporations Act 2001 (Cth).
2. Subject to paragraph 8, the applicant and any other person asserting an interest affected by these orders has liberty to apply at short notice.
3. Unless the Court orders otherwise, upon the expiry of six months from the date of these orders the proceeding shall be finalised forthwith on the basis that, in respect of any relief sought in the Originating Application that is not the subject of these orders, such relief is not pressed by the applicant and no orders are made in respect of it.
4. The parties have liberty to apply.

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

The vehicle described above (Vehicle) has been seized by Mercedes-Benz Financial Services Australia Pty Ltd ACN 074 134 517 (MBFSA) pursuant to the attached Order of the Federal Court of Australia dated 30 June 2025 in proceeding SAD21 of 2025 (the Orders).

The Orders require that MBFSA store the Vehicle for a period of at least 28 days from the date of seizure, during which any person or party who claims to have an interest in the Vehicle may take steps to assert their interest or challenge MBFSA's entitlement to seize the Vehicle.

Any person claiming to have an interest in the Vehicle or wishing to challenge MBFSA's entitlement to seize or sell the vehicle may file an application in the Federal Court of Australia Proceeding SAD21 of 2025 within 21 days of the Date of Seizure.

For further information please contact MBFSA's solicitors at the following address:

Email: shane.sankey@wallmans.com.au

MBFSA is entitled to proceed to sell or otherwise dispose of the Vehicle if no person or party asserts an interest in the Vehicle in the manner prescribed by the Orders within 21 days of seizure.

1. Mercedes-Benz Financial Services Australia Pty Ltd (ACN 074 134 517) commenced this action to facilitate the exercise of its rights as the holder of securities over 40 motor vehicles. It seeks declarations and orders to facilitate the seizure and sale of some of the motor vehicles, presently believed to be in the possession of non-parties.
2. Before the conclusion of this proceeding, the respondent, RPO Pty Ltd (in liquidation) (ACN 621 280 457), was placed into liquidation on the application of Mercedes-Benz. Mercedes-Benz was granted leave under s 471B of the Corporations Act 2001 (Cth) to continue this action against RPO.
3. The liquidator of RPO is a non-lawyer and RPO has been granted leave to be represented by him. In that capacity, the liquidator has consented to two of the orders sought by Mercedes-Benz and has otherwise taken no position in connection with the remaining claims for relief.
4. Given the absence of a substantive defence advanced by RPO, the Court makes findings in favour of Mercedes-Benz as set out in these reasons in the final resolution of the controversy as between the parties. It is necessary to consider whether the Court has the power to make the balance of the orders sought by Mercedes-Benz potentially affecting the rights of non-parties who may assert interests not only in the motor vehicles but in land on which they may presently be situated.

1. The matter proceeded on affidavits. The narrative set out here constitutes my findings based on an affidavit of Ms Sarah-Jane Mills (Mercedes-Benz Company Secretary) affirmed on 19 February 2025, three affidavits of Mr Alan Lynch (a Fraud Analyst and Financial Crimes Specialist employed by Mercedes-Benz) sworn on 19 February 2025, 24 March 2025 and 23 June 2025 and portions of an affidavit of Mr Tianhe Zhang (RPO's sole director) affirmed on 20 March 2025 as confirmed by Mercedes-Benz's solicitor.
2. By a series of loan agreements incorporating the terms of a Master Loan Agreement, Mercedes-Benz extended finance to RPO for the purchase of 40 motor vehicles. The loan agreements are those listed in Schedule 2 to the originating application. The money advanced to RPO under those agreements totals $6,607,295.49.
3. At the time of entering into the Master Loan Agreement, Mercedes-Benz was aware that RPO carried on a business by which it leased motor vehicles to high net worth individuals, including Chinese students.
4. Clause 6 of the Master Loan Agreement is as follows:

6. Mortgage

6.1 To secure the due and punctual payment of the Money, the Purchase/Owner, as beneficial owner, mortgages (hereafter referred to as the 'Mortgage' in favour of the Lender:

a) the Goods; and

b) proceeds derived from the Goods including through any dealing in the Goods or any insurance claim relating to the Goods or the entire rentals or other rights relating to the Goods; and

c) all policies and contracts for which are taken out or entered into in respect of Goods; and

d) its rights and interests in all contracts, agreements and deeds entered into with respect to the Goods, including without limitation any Leases.

1. Charges over vehicles securing the loans advanced by Mercedes-Benz are registered on the Personal Property Securities Register (PPSR) maintained under the Personal Property Securities Act 2009 (Cth) (PPS Act). The registered interests are searchable by reference to the vehicle's identification number. In the circumstances described, Mercedes-Benz holds a security interest in 40 motor vehicles described in Schedule 1 to the originating application, within the meaning of s 12(1) of the PPS Act. I will now refer to the motor vehicles collectively as Collateral.
2. By reason of RPO's defaults in repayment, all of the money owing under the loans (as defined in the Master Loan Agreement) is immediately due and payable. The money has not been paid.
3. Under s 123(1) of the PPS Act, Mercedes-Benz is entitled to seize the Collateral and RPO has an obligation to return or deliver up the Collateral to Mercedes-Benz or its agents. A contractual right of seizure also arises under and clause 13.1(a) of the Master Loan Agreement. Notices of Termination have been issued to RPO under the Master Loan Agreement and Mercedes-Benz has appointed an agent to locate and repossess the Collateral.
4. At the time that this proceeding was commenced RPO had not responded to requests to identify the location of the vehicles that were said to be in its possession. Nor had RPO provided details of the last known addresses of most of the operators of the vehicles. It happens that Mr Zhang holds a licence to sell second-hand motor vehicles. Prior to the commencement of this action, he had informed Mercedes-Benz of his intention to sell some of the Collateral.
5. On 24 February 2024, the Court made orders on an urgent basis restraining RPO from selling the Collateral, and requiring it to file and serve an affidavit deposing to the current or last known whereabouts of each of the Collateral and exhibiting documents in its possession recording or evidencing the persons in whose possession each of the Collateral was currently held or last known to be held. An affidavit filed by Mr Zhang provided some information about the existence of leases, the names of lessees and the "best idea" of the whereabouts of the Collateral. Only two leases are exhibited. They each contain terms confirming that RPO is the owner of the Collateral and that the lessee has no rights in the nature of ownership. RPO has not suggested that there exists any person having a higher priority to that of Mercedez-Benz in respect of any of the Collateral and no such higher priorities have otherwise been brought to the attention of the Court.
6. Locating the Collateral has proven difficult, particularly those vehicles that are not fitted with a GPS tracking system or (in some cases) the GPS tracking system has been disabled. The agents of Mercedes-Benz has made enquiries of registration authorities, vehicle service centres and the police.
7. Since the commencement of the proceeding, some of the Collateral has been seized and Mercedes-Benz has exercised its power of sale in respect of them. Others have been located in Singapore, Thailand or Indonesia, and at least one has been reported stolen. Others are known to be in the possession of third parties and Mercedes-Benz is engaged in discussions with those third parties with a view to recovering them. The location of others remains a mystery.

1. At the commencement of the hearing, Mercedes-Benz sought orders facilitating the enforcement of its rights under the PPS Act in respect of the Collateral that had not to date been repossessed. Those vehicles are listed in a schedule to the proposed orders and may be referred to as the Remaining Collateral. The term Remaining Australian Collateral is used in the proposed orders to exclude any vehicles that are presently known to be situated overseas.
2. It is convenient to begin with the claims for declaratory relief.

1. Mercedes-Benz seeks declarations to the effect that:

(1) Mercedes-Benz holds a security interest for the purposes of the PPS Act over the Remaining Collateral;

(2) RPO is in default of its obligations pursuant to the loan agreements described in Schedule 2 to the originating application; and

(3) Mercedes-Benz is entitled to seize the Remaining Collateral pursuant to s 123(1) of the PPS Act and/or clause 13.1(a) of the Master Loan Agreement as incorporated into each loan agreement.

1. The proposed declarations correctly describe the legal rights and obligations between the parties to the action and the rights of Mercedes-Benz in relation to specified personal property. Whilst there was no substantive defence put forward by RPO in connection with the rights of Mercedes-Benz, there has been a past failure by RPO to act consistently with those rights and in accordance with its own obligations. I consider the declarations are appropriate and that they will assist Mercedes-Benz in the exercise of the declared rights.

1. The proposed orders relating to seizure are limited to the Remaining Australian Collateral.
2. Considered collectively, the orders would authorise Mercedes-Benz to enter into public or private property where the Remaining Australian Collateral is located for the purpose of seizure. Provision is then made for the giving of notices to persons who may assert an interest in the Remaining Australian Collateral to make an application for relief to this Court. The proposed orders restrain Mercedes-Benz from selling any seized Remaining Australian Collateral before the expiry of 28 days from seizure.
3. The orders potentially affect the rights of those third parties who may assert an interest in the Remaining Australian Collateral, as well as those persons who might have an interest in land from which the Remaining Australian Collateral may be seized. The orders would put beyond doubt that the entry onto land for the purpose of seizing the Remaining Australian Collateral would constitute a "method permitted by law" for the purposes of s 123 of the PPS Act, notwithstanding that entry for that (or any other) purpose may not otherwise have been authorised under the general law.
4. Section 111 of the PPS Act requires that all rights, duties and obligations that arise under Ch 4 must be exercised or discharged honestly and in a commercially sensible manner.
5. Section 206 of the PPS Act confers jurisdiction on this Court with respect to (among other things) a matter arising under the statute, or otherwise arising under a security agreement or a security interest (as those terms are defined). There are no specified limits on that jurisdiction: PPS Act, s 207.
6. In Riseley v Toyota Finance Australia Ltd [2021] FCA 1566, Besanko J dismissed an application for a stay of orders made by the then-named Federal Circuit Court of Australia. The orders had the effect of permitting a person to take reasonable steps in order to take possession of collateral by entering on to specifically identified premises or any other premises in Australia at which the collateral was reasonably believed to be located. Justice Besanko said that the orders in question would have followed from declarations of right that could have been made had they been sought (at [22]) in that they facilitated the rights of the security holder under the PPS Act. His Honour did not draw any distinction between the order specifying the land that could be entered and the further order authorising entry to unspecified land where the collateral was believed to be located. However, it is implicit in the reasons for judgment that his Honour refused to grant a stay of any part of the orders having been satisfied that they were within the power of the Federal Circuit Court to make.
7. In Re Empire Plant Hire Pty Ltd (in liq) [2021] VSC 549; (2021) 64 VR 1, Gardiner AsJ (at [41]) made orders giving powers to a receiver to "enter any land or do any other thing or the purpose of obtaining access to, and taking possession of" personal property.
8. The order was made on the basis that s 123 of the PPS Act did not in terms supply the right to enter property located on sites owned by third parties such that a secured creditor may be at risk of committing trespass when entering such sites to seize collateral. Associate Justice Gardiner accepted that entry to land owned by third parties would not be a method of seizure "permitted by law" in the absence of an order authorising that entry. In that case there was some evidence that the secured party would not otherwise be granted access to places where the collateral was situated.
9. Counsel for Mercedes-Benz properly drew the Court's attention to Senworth Capital Pty Ltd v Galleria SUV Pty Ltd [2022] NSWSC 1513 in which Fagan J refused to make orders of a similar kind to those sought in the present case. Justice Fagan observed that Besanko J in Riseley had called upon authorities that involved entry on to land owned or occupied by a party to the proceeding and said that those authorities did not involve the making of orders affecting the rights of non-parties. His Honour went on to disagree with the reasoning of Gardiner AsJ in Empire Plant Hire, concluding that the Court did not have the power to make the orders sought. His Honour said that even if there was power to make orders of that nature, it should not be exercised ex parte in a proceeding in which the third parties had not been joined, adding that no evidence had been adduced of the circumstances or transactions whereby those third parties obtained their possession.
10. Two discrete questions arise. The first is whether the Court has the discretionary power to make the order sought by Mercedes-Benz to the extent that it would authorise it or its agents to enter on to property owned by non-parties to this proceeding for the purpose of exercising the right of seizure it possesses under s 123 of the PPS Act. The second is how that discretion should be exercised having regard to all of the facts and circumstances.
11. On the question of power, I will not follow Senworth Capital for two reasons.
12. First, there is an important imperative in the consistent construction and application of Commonwealth laws by courts conferred with jurisdiction under them: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485. I do not consider Fagan J to have correctly distinguished the judgment in Riseley, given Besanko J's refusal to stay any part of the order sought to be appealed from in that case, including the part of the order authorising entry to any unspecified land in Australia. Second, the rejection of the reasoning in Empire Plant Hire is expressed at the level of disagreement without any reference to the principle that superior courts should act in conformity in construing and applying statutes of the Commonwealth Parliament, unless satisfied that a prior authority of another superior court is plainly wrong. To follow Senworth Capital would exacerbate the divergence in authority in a way that does not accord with established principle.
13. I accept that the authorities to which Besanko J and Gardiner AsJ referred were not precisely to the point. However, in neither case were those authorities erected as absolute authority for the course taken. I do not consider the judgments in Riseley and Empire Plant Hire to be relevantly distinguishable, nor do I consider them to be plainly wrong. It is appropriate that I follow them to the extent that they inform the nature and limits of the broadly stated jurisdiction conferred under s 206 of the PPS Act.
14. If I am incorrect in invoking the conformity principle, I would independently arrive at the same result in any event. The source of the power to make the order resides in s 206 of the PPS Act, its subject matter plainly referable to the PPS Act and to the security interests forming the subject matter of the proceeding, being interests that are registered on the PPSR by reference to the identification number of each vehicle. The circumstance that the orders are sought on an ex parte basis vis-a-vis non-parties is a matter going to the exercise of the discretion and I afford it considerable weight.
15. I have had regard to all of the facts and circumstances deposed to in the affidavits, and highlight the following:

(1) There is a strong likelihood that some of the Remaining Australian Collateral is in the possession of persons who entered into a lease with RPO.

(2) Mercedes-Benz was aware that RPO operated a business for the lease of vehicles and I take into account that it has apparently acquiesced in that state of affairs without enforcing its contractual right to require RPO to obtain written consent for each respective lease.

(3) The leases under which those persons may possess the vehicles are more likely than not to be in the terms of the leases exhibited to Mr Zhang's affidavit, such that they do not purport to confer rights of ownership on the lessee.

(4) The security interests in respect of each of the Remaining Australian Collateral are registered on the PPSR and searchable by identification number. Accordingly, persons taking possession of Collateral under a lease subsequent to the purchase of the vehicle by RPO took that possession subject to the exercise of Mercedes-Benz's rights under s 123 of the PPS Act. The right of seizure arises irrespective of whether the lessees had actual knowledge of the relevant security interests.

(5) The orders expressly provide that they do not prohibit any third party claiming an interest in any Remaining Australian Collateral from making any claim in relation to it (or in relation to any proceeds of the sale), including after the expiry of the time to apply for more urgent relief. That is an important preservation given the nature of the Collateral being other than real property.

(6) It is also possible that the Remaining Australian Collateral is situated on land in which persons other than RPO have interests, incorporating not only the lessees but other strangers to the action. Insofar as those persons are owed money related to storage, the orders require that money to be paid by Mercedes-Benz.

(7) The circumstance that some of the Remaining Australian Collateral has been unable to be located has frustrated the exercise of Mercedes-Benz's contractual and statutory rights. The circumstances are highly unusual. The most expedient course is that Mercedes-Benz moves promptly to secure possession of each Remaining Australian Collateral immediately upon becoming aware of its whereabouts without further recourse to the Court, provided that there are sufficient measures in place to preserve and maintain the interests of affected persons. The orders provide a desirable level of certainty to third party land owners. In the ordinary course can be expected to be both disinterested and uninterested in the subject matter of the proceeding. However, there may be cases where Collateral is held by a non-party as bailee and in those circumstances the declaration and orders provide sufficient certainty as to Mercedes-Benz's rights of seizure. Together with s 123 of the PPS Act, the orders have the effect that entry onto private land for the purpose of seizing the remaining Australian Collateral is a method permitted by law.

(8) The proposed orders require that there be information provided by the liquidator of RPO on a regular basis, so that Mercedes-Benz is best placed to identify the existence of any person who may assert a right of possession in any Collateral before attempts at seizure are made.

(9) The proposed orders also make sufficient provision for notices to be sent to (or come to the attention of) potentially affected persons at and around the time of the seizure of the Remaining Australian Collateral.

(10) Entry onto land or premises for the purpose of seizing Remaining Australian Collateral is unlikely to cause irreparable damage or undue inconvenience to strangers to the action, provided that Mercedes-Benz exercises its powers in a reasonable and commercially sensible manner, as it is obliged to do. Mercedes-Benz has liberty to apply if clarity is required as to what conduct is reasonable and commercially sensible in the facts and circumstances of a particular attempted seizure, including if entry to land or premises is resisted.

(11) The affidavits demonstrate that where Merecedes-Benz has become aware of the identity of any person in possession of Collateral it has taken reasonable steps to enter into discussions with that person with a view to recovering possession and that practice should continue in accordance with its obligations under s 111 of the PPS Act.

1. There are factors weighing against the exercise of the discretion, including the circumstance that the identity of interested non-parties and the nature of the interests they may assert is presently unknown. In addition, I have taken into account that there is more that Mercedes-Benz could have done to avoid a circumstance in which the location of some of the Collateral has become seemingly undetectable and the identity of persons in possession of them unknown. I have had regard to alternative procedures of the kind favoured by Fagan J in Senworth Capital but on balance I do not consider it sensible to require Mercedes-Benz to make what could amount to 28 separate applications in connection with persons who may not seek to assert any interest at all in the subject matter of this proceeding and who have no desire to be joined as a party. Such a course would not be the most appropriate use of the judicial and administrative resources of this Court.

1. It is appropriate that RPO pay Mercedes-Benz's costs of the action and that those costs be provable in the liquidation. Mercedes-Benz will be relieved of undertakings as to damages given in connection with earlier restraints ordered at earlier stages of the proceeding, but not in such a way as to operate retrospectively.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.