Toyota Finance Australia Limited v Peppercorn Residential Pty Limited (No 2)

File Number(s): 2023/00320859

Publication restriction: Nil.

Judgment

1. HIS HONOUR: By statement of claim filed on 10 October 2023, the plaintiff, Toyota Finance Australia Limited, sought from two defendants, Peppercorn Residential Pty Ltd and Hannan Elgammal, the following principal order:

“An order pursuant to s 93 of the Civil Procedure Act 2005, that there be judgment for the plaintiff, Toyota Finance Australia Limited, against the defendants, requiring that the defendants forthwith deliver up to the plaintiff a 2021 Ferrari two door coupe with vehicle identification number ZFF92LMD000270215, bearing registration number DGG65N.”

2. A number of other orders were also sought. The matter came before me on 30 May 2024, when I made the following notations and orders:

3. Noted that the defendants failed to comply with orders made by the Judicial Registrar on 28 March 2024.

4. Noted, that there is currently no evidence available to explain why the defendants failed to comply with the orders, if it were possible to do so.

5. Noted, second defendant and director of first defendant, Hannan Elgammal, was taken to St George Hospital this morning, and a patient armband bears the time of 9.03am, but no diagnosis has been provided.

6. On the defendants’ application, opposed by the plaintiff, adjourned to Friday, 31 May 2024 at 10.30am before me. A further adjournment will not be granted without the second defendant (1) being able to persuade the Court that she has a true disability which renders her unable to attend court, and (2) an explanation, if one can be provided, as to why the defendants failed to comply with orders made by the Judicial Registrar on 28 March 2024.

7. Costs of today reserved.

8. For reasons which I gave on 31 May, which have been transcribed but not yet uploaded onto CaseLaw, on the following day, Friday, 31 May 2024, I made these orders:

9. I order pursuant to s 93 of the Civil Procedure Act 2005, that there be judgment for the plaintiff, Toyota Finance Australia Limited, against the defendants, requiring the defendants to forthwith deliver up to the plaintiff a 2021 Ferrari coupe with vehicle identification number ZFF92LMD000270215, bearing registration DGG65N.

10. I order that, in default of compliance by the defendants with the first order, that the plaintiff, by its servants or agents, be authorised to enter into real property owned and occupied by the defendants to collect the vehicle.

11. I order that the defendants pay the plaintiff’s costs, on the indemnity basis, pursuant to the agreement pleaded in paragraph four of the statement of claim filed in these proceedings on 10 October 2023, as agreed or assessed.

12. The defendant filed and served a motion which came before me on 11 March 2025. There was then no appearance by or on behalf of either of the defendants. I made an order requiring the plaintiff to file and serve an amended notice of motion, deleting the first and second prayers, requiring the amended notice of motion to be served upon Hannan Elgammal, and I listed the motion for hearing on Wednesday, 2 April 2025. On 13 March 2025, the plaintiff complied with the order requiring the filing of an amended notice of motion. The relief sought in the amended notice of motion is this:

13. An order pursuant to s 203 of the District Court Act 1973 that the matter of the plaintiff’s application for contempt against the defendants in relation to the orders made on 31 May 2024 be referred to the Supreme Court of New South Wales for determination.

14. The defendants pay the plaintiff’s costs of this motion.

15. Such further or other orders [as to the Court may seem fit].

16. That amended notice of motion is now before me. Again, there is no formal appearance by either of the defendants. Mr Ayman Elgammal appears on behalf of his mother, albeit that the solicitors who initially were instructed by the defendants are still on the record. Still, Mr Ayman Elgammal seeks a further adjournment in order to continue to try to resolve differences between the plaintiff and his mother. However, much time has been spent in trying to reach such a resolution, so far unsuccessfully, and time is clearly of moment. Nothing, in my view, would be further advanced by delaying granting the plaintiff the relief which it seeks.

17. Accordingly, pursuant to s 203 of the District Court Act 1973, I order that the plaintiff’s application for contempt against the defendants be referred to the Supreme Court of New South Wales for determination. I order the defendants to pay the plaintiff’s costs of the amended notice of motion filed on 13 March 2025.

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