Volkswagen Financial Services Australia Pty Limited v Ruggiero [2025] FedCFamC2G 1286

IF YOU NEGLECT OR REFUSE TO DO THE ACT ORDER 4 OF THESE ORDERS REQUIRES YOU TO DO WITHIN THE TIME SPECIFIED BY ORDER 4 FOR THE DOING OF THAT ACT,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY, OR PUNISHMENT FOR CONTEMPT.

1. Pursuant to r 31.04(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), the applicant has leave to be represented by a lawyer.
2. Pursuant to r 6.14(3) of the GFL Rules the respondent, Mr Russell Peter Ruggiero, is taken to have been served on 21 July 2025 with the application and with the affidavit of Ms Vicki Janelle Coombe made on 26 June 2025.
3. Pursuant to s 100 of Schedule 1 (Code) to the National Consumer Credit Protection Act 2009 (Cth) the applicant, by its officers, employees, or agents, is authorised to enter the common property and car park situated at or associated with 1103/106 Epsom Road Zetland, Building A1, New South Wales, for the purpose of taking possession of the following vehicle (Vehicle):

2019 Audi A3

MYTHOS 8V MY19 35 TFSI Sportback 5dr S tronic 7sp 1.4T

1. Subject to order 5, pursuant to s 101 of the Code the respondent, Mr Russell Peter Ruggiero, deliver possession of the Vehicle to an agent of the applicant at a time and date to be specified by the applicant's agent, such time and date to be no earlier than 48 hours after the time at which Mr Russell Peter Ruggiero is notified of these orders in the manner referred to in order 6.
2. Order 4 will be discharged if the applicant obtains possession of the Vehicle pursuant to order 3, or through some other means, such discharge to occur when the applicant obtains possession of the Vehicle.
3. The applicant notify the respondent, Mr Russell Peter Ruggiero of the effect of these orders by sending a short message service (sms) to the mobile number 0412 661 287 and, if feasible, by sending by multimedia messaging service (mms) a sealed copy of these orders in portable document format or in some other format.
4. The matter be listed for directions at 9.30 am on 9 September 2025.
5. The parties have liberty to apply on such notice as the circumstances warrant.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicant (VFSA) seeks an order pursuant to s 100 of Schedule 1 (Code) to the National Consumer Credit Protection Act 2009 (Cth) that VFSA have access to residential premises for the purpose of enabling it to repossess a black 2019 Audi A3 Sedan Motor Vehicle (Vehicle), and an order pursuant to s 101 of the Code that the respondent, Mr Ruggiero, deliver the Vehicle to VFSA's agent.

1. VFSA commenced this proceeding on 27 June 2025, electing that it be dealt with under this Court's small claims procedures. The matter came before me on a first court date on 5 August 2025. Mr Sankey, a lawyer, appeared for VFSA. Mr Ruggiero did not appear. In those circumstances Mr Sankey applied for an order pursuant to r 6.14(3) of the Federal Circuit and Family Court of Australia Act 2001 (Cth) (GFL Rules) that the application and the affidavit of Ms Vicki Janelle Coombe (a paralegal employed by VFSA's lawyers) made on 26 June 2025 be taken to have been served on Mr Ruggiero.

1. VFSA has not personally served the application on Mr Ruggiero; it instead sent the application by email to the email address "....@optusnet.com.au". In an affidavit of service made on 28 July 2025, Ms Coombe deposes that on 24 July 2025 she served the application and her affidavit of 26 June 2025 "to the Respondent's email address of ....@optusnet.com as noted in the Agent's Notes exhibited at VCJ4" to the affidavit Ms Coombe made on 26 June 2025. That is a reference to notes a collecting agent made of his attempts to secure the repossession of the Vehicle. The agent's notes record the following:

(a) On 26 February 2025 the agent attended the Castlecrag address, where the current tenants advised the agent that they had moved into the property three weeks before.

(b) At 5.15 pm on 26 February 2025 the agent called a mobile number (287 number) which was not answered; after which a text message was sent requesting that Mr Ruggiero contact the agent. The text message was read, but not responded to.

(c) On 6 March 2025 the agent sent an email to the "....@optusnet.com.au". It appears the agent obtained the email address from a "VEDA" search.[1] In his email the agent said that "we have been attempting contact in relation to your Volkswagen Financial Services Account - Audi A3. Please make urgent contact to discuss the matter, thank you".

(d) On 6 March 2025 the agent called the 287 number. The call was answered, but the person who answered did not speak. The agent sent a text message requesting Mr Ruggiero immediately contact the agent in relation to the Vehicle, noting that "Searches will be commencing to locate the vehicle and these costs will be applied to your loan". This text message, too, was read, but not responded to.

(e) The agent made further enquiries and ascertained Mr Ruggiero's place of employment. On 29 April 2025 the agent met with Mr Ruggiero at his place of employment. Mr Ruggiero informed the agent that he is not discussing the matter; advised the agent not to attend his workplace; and said that he will not be surrendering the car. Mr Ruggiero told the agent that he lived in Port Macquarie. Mr Ruggiero confirmed the 287 number was his mobile number.

(f) On 1 May 2025 "The SKIP agent [redacted] after extensive discreet enquiries has located a very new current address current since 27 March 2025"; and the agent identifies the address (Zetland Property). On 15 May 2025 the agent attended a modern block of apartments in Zetland, and he sighted the Vehicle within the secured car park (Zetland Car Park).

1. The email address "....@optusnet.com.au" includes the letters "rusrug", which is a basis for inferring that these are short for "Russell" and "Ruggiero". I am satisfied, therefore, that "....@optusnet.com.au" is an email address Mr Ruggiero uses.
2. There is evidence the VFSA attempted to serve Mr Ruggiero at the Zetland Property; and it is contained in an affidavit made by Mr Thurbon, a licensed process server. Mr Thurbon says that he attempted to serve Mr Ruggiero at the Zetland Property with the application and Ms Coombe's affidavit made on 26 June 2025. Mr Thurbon deposes as follows:

On 8 July 2025 at 12:00pm I attended [the Zetland Property]. I approached and buzzed the intercom where I spoke with a male who advised Russell Ruggiero is not currently home. I left the address.

On 17 July 2025 at 12:07pm I attended [the Zetland Property]. I approached and buzzed the intercom however found no one in attendance. I left the address.

On 21 July 2025 at 1:54pm I attended [the Zetland Property]. I approached the intercom and spoke with a person who identified themselves as Russell Ruggiero. I asked Russell if they could come downstairs however, Russell advised they were unable to at this time. I asked Russell if they could open the Lobby door so I could leave some documents in the letterbox in which Russell advised "Yeah sure". Russell Ruggiero ended the call and did not open the Lobby door. I returned to the intercom and again called unit 1103 however the intercom was not answered. I was unable to leave the documents at the address as a KEY FOB is required to enter the building/letterbox. I waited at the address for a few minutes in attempt to ask someone to open the Lobby door however no persons arrived. Russell is aware of who I am and is not cooperative.

1. Mr Thurbon did not expressly inform Mr Ruggiero that he wished to give him court documents. I am satisfied, however, that Mr Ruggiero would have considered it very likely that the documents Mr Thurbon was seeking to give to Mr Ruggiero were court documents.
2. In these circumstances, I am satisfied that it would be appropriate to make an order pursuant to r 6.14(3) of the GFL Rules that Mr Ruggiero be taken to have been served on 21 July 2025 with the application and with Ms Coombe's affidavit.
3. I now turn to consider whether I should make the orders VFSA claims; and it will be necessary to set out the facts as revealed by the evidence contained in Ms Coombe's affidavit.

1. On 26 July 2019 Mr Ruggiero signed a document headed "Consumer Loan Contract - Secured Loan Schedule" (Loan Schedule), under which the following appears:

This is an offer by you, the Borrower/s named below, to us, Audi [sic] Financial Services ("we", "us"). You have asked us to lend you money under the terms and conditions of the Consumer Loan Contract, which is made up of this Loan Schedule ("Loan Schedule") and the Terms and Conditions ("Terms and Conditions"). If we accept your offer it will automatically form a binding contract between us ("Contract"). As security for your obligations under this Contract, this Contract creates a mortgage over the Goods described below.

1. The Loan Schedule then sets out details which include identifying Mr Ruggiero as the borrower, Mr Ruggiero's address (Castlecrag Address), and the amount of credit ($51,595.14), $49,396 of which was to be applied towards the purchase price of the Vehicle, and $975 for the payment of a "Dealer Administration Fee".
2. In a section headed "Repayments" the Loan Schedule provides that the loan is to be repaid over a period of 60 months by Mr Ruggiero making 60 monthly loan instalments, 59 of which would each be in the amount of $779.66, and the final payment would be $18,279.83. The Loan Schedule further provides that:

All monthly repayments are due on the same date each month, commencing one month after the date you sign this offer. If a month does not have the same date (e.g. 31st of the month), the payment is due on the last business day of that month. If the due date falls on a day which is not a business day, the payment must be made on the next business day.

1. Section 8 of the Loan Schedule provides that a "mortgage is given to secure your obligations under this Contract over the Goods described below", the "Goods" being the Vehicle.
2. The copy of the Loan Schedule that is in evidence does not record a signature by any person on behalf of VFSA. The Loan Schedule provides, however, that VFSA "may accept this offer by an authorised and identified person acting on our behalf causing notations to be made in our electronic systems that this offer is accepted on the date specified there". There is no evidence that any such notation has been made; but it is reasonable to infer, and I find, that such a notation has been made.
3. After the hearing, I permitted the lawyers for VFSA to provide an affidavit annexing the "Terms and Conditions" the Loan Schedule identifies (Loan Terms). Clause 1.1 provides that VFSA will lend Mr Ruggiero the "total amount of credit as set out in the Loan Schedule", noting that "[t]his is the loan which you must repay". Clause 3.1 provides that Mr Ruggiero must pay the loan in full by the end of the repayment period, and cl 3.2 provides that Mr Ruggiero must make the repayments as specified in the Loan Schedule. Clause 6 provides that Mr Ruggiero "give[s] us a legal mortgage over the Goods specified in the Loan Schedule", the "Goods" being the Vehicle.
4. Clause 11 of the Loan Terms deals with default. Clause 11:

(a) defines when default occurs, and this includes Mr Ruggiero's failing to pay VFSA on time any money due (cl 11.1(a));

(b) if default occurs, obliges VFSA to give a written default notice requiring Mr Ruggiero to correct the default, at least where the law would require VFSA to give such notice (cl 11.2); and

(c) requires Mr Ruggiero to pay the full amount owing under the loan agreement if he does not comply with the default notice (cl 11.5).

1. Further, cl 11.6 provides that if Mr Ruggiero does not or cannot fix the default VFSA will be entitled to take possession of the Vehicle.
2. On 30 July 2019 VFSA registered a security interest against the Vehicle with the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth).
3. VFSA issued a document titled "Default Notice" dated 16 August 2024 addressed to Mr Ruggiero at the Castlecrag Address. The Default Notice states that Mr Ruggiero is "currently in default of the Credit Contract" because VFSA had not received $18,179.18; demanded that Mr Ruggiero remedy the default by paying this amount by 20 September 2024; and stated that if the default is not remedied by that date, the total amount outstanding "under the Credit Contract and Mortgage" would become outstanding, VFSA may begin enforcement proceedings, and VFSA may begin repossession of the "Mortgaged Goods" (these being the Vehicle).
4. It is apparent that VFSA issued the Default notice pursuant to s 88 of the Code, s 88(2) of which provides:

A credit provider must not begin enforcement proceedings against a mortgagor to recover payment of money due or take possession of, sell, appoint a receiver for or foreclose in relation to property subject to a mortgage, unless:

(a) the mortgagor is in default under the mortgage; and

(b) the credit provider has given the mortgagor a default notice, complying with this section, allowing the mortgagor a period of at least 30 days from the date of the notice to remedy the default; and

(c) the default has not been remedied within that period.

(d) if the mortgage secures an obligation under a credit contract for a reverse mortgage, the credit provider has spoken to one of the following persons by telephone or in person in that period and has thus both confirmed that the mortgagor received the default notice and informed the person of the consequences of failure to remedy the default, or has made reasonable efforts to do so:

(i) the mortgagor;

(ii) a practising lawyer representing the mortgagor;

(iii) a person with a power of attorney relating to the mortgagor's financial affairs.

1. The requirements of the "default notice" with which the credit provider must comply are set out in s 88(3) of the Code.
2. There is no evidence about how VFSA conveyed the Default Notice to Mr Ruggiero. A copy of the Default Notice is annexed to the affidavit of Ms Coombe; and that copy does not suggest the Default Notice was sent by email. The inference that may be drawn is that VFSA posted the Default Notice on 16 August 2024 to the Castlecrag Address, and that the Default Notice reached the Castlecrag Address on the seventh working day after the day on which it was posted.[2]
3. Mr Ruggiero did not remedy the default.

1. In Volkswagen Financial Services Australia Pty Limited v Pogue I identified the preconditions to a Court making an order pursuant to s 100 and s 101 of the Code, and I incorporate in these reasons what I said in that case.[3] I am satisfied that:

(a) VFSA is a "credit provider".

(b) By executing the Loan Schedule Mr Ruggiero granted VFSA an interest in, or a power over, the Vehicle to secure Mr Ruggiero's obligations to make the loan repayments as provided for in the Loan Schedule. More particularly, by executing the Loan Schedule Mr Ruggiero gave to VFSA a mortgage over the Vehicle on terms that, if Mr Ruggiero were in default and, after being given notice to remedy the default, failed to remedy the default, VFSA would be entitled to take possession of the Vehicle.

(c) Mr Ruggiero defaulted under the Loan Schedule by failing to pay VFSA by 16 August 2024 an amount of $18,179.18, being an amount which by then had become payable under the Loan Schedule.

(d) On 16 August 2024 VFSA issued the Default Notice to Mr Ruggiero requiring that he remedy the default by 20 September 2024. That is at least 30 days after 16 August 2024, being the date of the Default Notice.

(e) Mr Ruggiero failed to remedy the default identified in the Default Notice within the time provided by the Default Notice, or at all.

(f) VFSA complied with s 88(2) of the Code.

(g) Mr Ruggiero is in possession of the Vehicle.

(h) The Vehicle is located at the Zetland Carpark.

1. The preconditions for making an order under both s 100 and s 101 of the Code are therefore satisfied; and I am also satisfied that it is appropriate that I make orders pursuant to s 100 and s 101.

(a) An order pursuant to r 31.04(1) of the GFL Rules that VFSA be represented by a lawyer.

(b) An order pursuant to r 6.14(3) of the GFL Rules that Mr Ruggiero is taken to have been served with the application and with Ms Coombe's affidavit on 21 July 2025.

(c) An order pursuant to s 100 of the Code authorising VFSA, by its agent, to enter the Zetland Car Park for the purpose of taking possession of the Vehicle.

(d) An order under s 101 of the Code that Mr Ruggiero deliver possession of the Vehicle at a time and date to be specified by VFSA's agent, such time and date to be no earlier than 48 hours after the time at which Mr Ruggiero has been notified of the orders I propose to make.

(e) An order that the order for delivery of possession will be discharged if and when VFSA recovers possession of the Vehicle pursuant to the order I will make under s 100 of the Code or by any other means.

(f) An order that VFSA notify Mr Ruggiero of the orders I propose to make by sending a short message service (sms) and, if feasible, by multimedia messaging service (mms) to the 287 number.

(g) The matter be listed for directions at 9.30 am on 9 September 2025 to make directions for the final disposition of the proceeding.

(h) The parties have liberty to apply.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated: 12 August 2025

[1] According to Wikipedia, Veda was a credit reference agency which provides credit reporting.

[2] Section 160 Evidence Act 1995 (Cth).

[3] Volkswagen Financial Services Australia Pty Limited v Pogue [2024] FedCFamC2G 898, at [18]-[33].