Volkswagen Financial Services Australia Pty Limited v Stepup Group Pty Ltd

1. Leave is granted to the applicant to orally amend his application filed 24 February 2025 such that the orders expressed to be sought on an interlocutory basis are instead sought on a final basis.
2. Pursuant to s 123(1) of the PPS Act, the respondent and/or the Guarantor and/or HAS are to deliver, surrender and/or provide the location of the Vehicle to the applicant and/or its agent.
3. Pursuant to s 123(1) of the PPS Act, the applicant and/or its agent is permitted to enter onto and remain at, and to take all reasonable steps to locate and take possession of the Vehicle from:

(a) XX XXXXXXX XXXXXX, XXXXXXXX XXXXX XXXXXXXX XXXX; or

(b) any other premises in Australia over which the respondent and/or the Guarantor and/or HAS apparently controls and at which the Vehicle is reasonably believed to be located.

1. By not later than 5:00pm on 1 December 2025, the applicant is to serve of a copy of these orders and reasons for judgment on:

(a) the respondent by posting to the registered address by way of pre-paid post;

(b) the Guarantor to Unit X, XX XXXXX XXXX, XXXXXXXX XXX XXXX by way of pre-paid post;

(c) HAS by:

(i) posting to the registered address by way of pre-paid post; and

(ii) if such address is different from its registered address, posting to XX XXXXXXX XXXXXX, XXXXXXXX XXXXX XXXXXXXX XXXX by way of pre-paid post.

1. Service of the documents required by Order 4 above will be deemed to have occurred five business days after the documents are posted.
2. The applicant must promptly provide a copy of these Orders and Reasons for Judgment to any non-party of which it becomes aware asserts an interest in the Vehicle.

Liberty to apply and preservation of jurisdiction

1. If HAS, or any other non-party to which Order 7 applies, wishes to assert an interest in the Vehicle, it may do so by filing an Application in a Proceeding and affidavit evidence within 49 days of the Vehicle's seizure.
2. If the applicant and/or its agent seizes the Vehicle, it must securely store the Vehicle and take no steps to affect its sale for 56 days from the date of seizure or as otherwise ordered by the court.
3. The applicant has liberty to apply.

1. Pursuant to s 207 of the PPS Act, and in enforcement of clause 9.4 of the Contract, the respondent and/or the Guarantor is liable to pay to the applicant all its costs of and incidental to the enforcement of the Contract including but not limited to:

(a) the costs of taking possession, attempting to take possession, and storage of the Vehicle;

(b) all agent's fees, commissions and disbursements; and

(c) all legal fees and disbursements, including court fees and counsel's fees.

1. The applicant holds a first-in-time security interest in the Vehicle pursuant to the provisions of the PPS Act.
2. The respondent and guarantor are in default of their obligations under the Contract.

1. The applicant is entitled to seize the Vehicle pursuant to s 123(1) of the PPS Act.

1. The respondent may seek to vary or set aside these orders pursuant to r 24.04 of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2025 (Cth) (Rules).

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 typographic, clerical or grammatical errors **(**r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04 of the Rules.

(a) Contract means a Chattel Loan and Mortgage between the applicant and Stepup Group Pty Ltd (respondent) and Ms Sangitaben Patel (guarantor) dated 21 September 2023 comprising its Schedule (Schedule) and Terms and Conditions (Terms).

(b) PPS Act means the Personal Property Securities Act 2009 (Cth).

(c) Vehicle means a 2021 Audi RS F1 Wagon Motor Vehicle with VIN WUAZZZF13MD043458; Engine No DHU023762; and previous Registration NCJ01T (NSW).

1. The applicant seeks orders pursuant to s 123(1) of the PPS Act to seize the Vehicle and to enter premises for that purpose, both as against the respondent and any non-party who is in possession of the Vehicle, and costs.

1. The applicant relies on its application filed on 24 February 2025 (application), the affidavit of Ms Vicki Janelle Coombe filed on 24 February 2025, the affidavits of Mr Seamus Brand filed 6 June 2025 and 11 August 2025, the affidavits of Ms Sarah Debattista filed 19 August 2025 and 23 October 2025, and its written submissions filed 23 October 2025.
2. The respondent has not filed any documents nor participated in the proceedings.

1. The application expressed the relief sought as interlocutory orders. However, its legal representative clarified that the relief is sought on a final basis. No prejudice is occasioned on the respondent as the nature of the relief was characteristically a final order. Specifically, the applicant seeks the following orders as set out in the Draft Minute of Orders filed with its written outline:
   1. An order pursuant to Rule 1.07 of the of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules) dispensing with the requirement to serve this Application and its supporting documents and that the application be listed for hearing in the absence of the Respondent.
   2. An Order pursuant to Section 123( 1) of the Personal Property Securities Act 2009 that the Respondent and/or any party in possession of the Collateral, being a blue 2021 Audi RS F1 Wagon Motor Vehicle VIN: WUAZZZF13MD043458, Engine Number: DHU023762 and Registration Number: Unknown (previously NCJ01T) (NSW) (hereafter the Collateral), deliver, surrender and/or provide the location of the Collateral to the Applicant and/or its Agent.
   3. The Applicant and/or its duly authorised agent be permitted to enter onto, and remain at, any premises and to take any and all reasonable step(s) in order to locate and take possession of the Collateral, from either of the following premises:

3.1 XX XXXXXXX XXXXXX, XXXXXXXX XXXXX XXXXXXXX XXXX; or

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

1. The Respondent to pay the Applicant its costs fixed in the sum of $2,200.00 and court filing fee disbursement(s).

1. The following background is based on the affidavit evidence of the applicant. The evidence is unchallenged, for which reason it is accepted.
2. The respondent is an Australian corporation. The company extract for the respondent accessed on 20 January 2025 records that:

(a) since October 2021, its registered address is Unit X, XX XXXXX XXXX, XXXXXXXX XXX XXXX (X Street address);

(b) the guarantor is the sole director and shareholder of the respondent; and

(c) its contact address for the period 18 October 2021 to 24 April 2023 was XXXX XXXXX XXXX XXXXXXXXX XXXXXXXX (XX Road address).

1. On 21 September 2023, the applicant and the respondent entered the Contract.
2. The "Borrower Information" in the Schedule stated the X Street address. The total credit amount was $176,425. Item 4 of the Schedule recorded that interest was fixed at 11.99% per annum, that the Contract was for a term of 60 months, with 59 consecutive monthly payments of $2,821.29 and a final payment of $92,821.23.
3. Clause 9 of the Schedule records the guarantor's address as the X Street address.
4. Clause 2 of the Terms addressed payments. Clause 2.1 obliged the respondent to pay the credit and interest in accordance with the Schedule. Clause 2.6 obliged the respondent to pay all costs and expenses incurred by the applicant in exercising its rights under the Contract, including any amount paid to release a lien claimed over the Vehicle or to remedy a breach of the respondent's obligations.
5. Clause 4.1, 4.3 and 4.4 of the Terms created a "security interest" in the Vehicle and all "proceeds" of sale, and that the Contract is a "security agreement". Clause 4.5 prohibited the respondent from assigning the Contract or granting a security interest in the Vehicle without the applicant's permission. Clause 17.2 defined "security interest", "security agreement" and "proceeds" within the same meaning as in the PPS Act.
6. Clause 5.1 of the Terms obliged the respondent to keep the Vehicle in its possession and control and kept at the address specified in the Schedule or as otherwise agreed by the applicant. Clause 6.2 obliged the respondent to pay for repairs to the Vehicle immediately to avoid the creation of a repairer's lien.
7. Clause 9 of the Terms addressed default. Clause 9.1 provided that the respondent will be in default if an "Event of Default" occurs. An "Event of Default" was defined in clause 17 to include when the respondent does not pay any amount payable under the Contract on the due date and/or when the respondent creates or allows another security interest over the Vehicle without the applicant's consent.
8. Clause 9.2 required that, on default, the respondent was to pay the applicant the full amount owing under the Contract including the outstanding balance, arrears, interest, fees and charges, enforcement expenses and costs.
9. Clause 9.3 set out the options available to the applicant in the event of a default, namely:

9.3 On default, we may do any one or more of the following (subject to any overriding "ipso facto provision" restrictions mandated by insolvency laws):

(a) exercise any right, power or privilege conferred by law, equity, this Agreement or any other collateral document;

(b) perform any of your obligations under this Agreement;

(c) sue you for the full amount owing under this Agreement;

(d) enforce the Guarantee;

(e) enter any premises and take possession of the Goods;

(f) sell or otherwise deal with the Goods.

1. Clause 9.4 obliged the respondent to pay all costs of and incidental to enforcement of the Contract, including any costs of taking possession, attempting to take possession, and storage of the Vehicle.
2. On 23 September 2023, the applicant registered a security interest relating to the Vehicle.
3. The loan account statement relating to the Contract recorded that a payment of $651.07 was made by the respondent on 2 November 2023. All subsequent direct debit payments were dishonoured.
4. On 12 December 2023, the applicant served the respondent and the guarantor with default notices (the Notices) under the Contract. The Notices were served by pre-paid post addressed to the X Street address; stated that the respondent and guarantor were in default of the Contract; and payment was 21 days overdue with an outstanding balance of $1,260.09. The Notices identified that the default could be remedied by paying the outstanding balance in fourteen days, failing which the Vehicle may be repossessed.
5. The respondent and guarantor failed to comply with the Notices, after which the applicant instructed an agent to repossess the Vehicle.
6. On 14 February 2024, the agent attended the X Street address and spoke with the occupant who confirmed the guarantor was not there. The agent attempted to telephone the guarantor using the number on file, but the number was disconnected.
7. On 4 March 2024, the agent attempted to contact the guarantor's two referees. In both instances, the referee was unknown at the address on file, and the telephone number was permanently switched off.
8. On 20 March 2024, the agent sent an email to the guarantor but there was no response.
9. On 10 April 2024, the agent attended the XX Road address. The Vehicle was not seen, and no one was present at the address. The agent spoke to a neighbour who said that the occupant was away. The agent left a card with his contact details. On 15 April 2024, the agent received a telephone call from a man who identified himself as the occupant of the XX Road address asking what the card was for, stating he did not know the guarantor, and had been at the address for four years.
10. On 30 April 2024, the agent attended a vehicle repair business at Five Dock whereupon he was advised that the Vehicle was in that business's yard at Silverwater. The agent attended the Silverwater premises and was informed by the receptionist that the Vehicle had been at the premises in December 2023 for an insurance claim, however the claim had been cancelled by a Mr Heasman, and the Vehicle was taken away with no further details.
11. On 13 June 2024, 21 June 2024 and 10 July 2024, the agent attended an address at Baulkham Hills. On each occasion, the agent searched the car park but did not see the Vehicle. It is not clear why this address is relevant save to note that the agent's records at Exhibit VJC-8 of Ms Coombe's affidavit includes "Hi Team, We obtain information for agent to attend address: apartment block ([...] Baulkham Hills)".
12. On 10 October 2024, Directwise Consulting Group Pty Ltd (DCG) registered a security interest relating to the Vehicle, with Higrade Auto Services (HAS) as the grantor.
13. On 30 October 2024, the applicant received an email from DCG advising that it acted for HAS, and that on 23 May 2024, the Vehicle was delivered to HAS for repairs. The email identified that the authority to repair the Vehicle was signed by an "Ashley King", but that all attempts to contact Mr/s King following the completion of the repairs had been unsuccessful. DCG asserted that, if the applicant did not pay the repair costs promptly, the applicant would be charged legal costs, and the Vehicle and its debt would be sold. The invoice stated a total sum payable as $79,200 including GST. The address of HAS which was stated on the invoice was XX XXXXXXX XXXXXX, XXXXXXXX XXXXX XXXXXXXX XXXX (X address).
14. On five occasions between 7 November 2024 and 10 December 2024, the agent attended the X address and, on each occasion, found the premises to be locked and unattended. The agent observed some vehicles at the premises but did not see the Vehicle. On some of these occasions, the agent left his card wedged in the chain link of the access gate requesting urgent contact. The agent did not receive a response to these requests.
15. As at 7 January 2025, the arrears under the Contract were $197,081.26.
16. On 10 April 2025, DCG's security interest was discharged.
17. On 3 June 2025, the applicant's legal representative caused a letter to be sent to DCG by pre-paid post to the registered address. The letter stated that the applicant registered a security interest relating to the Vehicle on 23 September 2023 and further:
    1. It is unclear to us how Higrade purported to grant an AIIPAAP to Directwise in circumstances where Higrade was not the owner of the Collateral, nor why the AIIPAAP was granted to Directwise. We consider it very likely that the registration of the All PAAP on the PPSR was applied for without reasonable belief that Directwise was, or would become, a secured party in relation to the Collateral, in breach of s 151 of the Personal Property Securities Act 2009 (Cth) (PPSA).
    2. It is similarly unclear on what basis Higrade would be entitled to seek its costs of selling the Collateral from VWFSA. Unless you can provide some basis for such a claim, we invite you to withdraw it immediately.
    3. Regardless of the providence of the AIIPAAP, VWFSA's PMSI was registered over 12 months prior to Directwise's claimed AIIPMP. VWFSA's PMSI therefore takes priority and VWFSA is entitled to possession of the Collateral ahead of Directwise and any other purported creditors without registered security interests.
    4. We expect that Higrade and/or Directwise sold the Collateral and that the AIIPAAP was discharged from the PPSR upon that sale. It should go without saying that such a sale was not authorised by VWFSA and VWFSA have not received any of the proceeds of that sale, despite plainly being entitled to those proceeds by its PMSI pursuant to s 140 of the PPSA.
    5. Accordingly, we demand that Directwise and/or Higrade immediately, and in any event before midday Tuesday 10 June 2025:

8.1 confirm whether the Collateral has been sold to a third party;

8.2 if so, provide the details of that sale, including the third party's contact details, the sum received by Directwise and/or Higrade and whether that sum is still held by Directwise and/or Higrade; or

8.3 if the Collateral has not been sold to a third party, to immediately surrender possession of the Collateral to VWFSA.

1. The 3 June letter to DCG enclosed the application, affidavit of Ms Coombe, orders made on 16 April 2025, a draft minute of orders, and notified DCG of the details of the next court event. The applicant's legal representative did not receive a response to this letter.
2. On 11 June 2025, the proceedings were listed for directions, at which time the applicant's legal representative appeared. There was no appearance by or on behalf of the respondent. On 18 June 2025, the proceedings were listed for directions on 11 August 2025.
3. On 7 August 2025, the applicant's legal representative served on the respondent a copy of the application, the affidavit of Ms Coombe, the first affidavit of Mr Brand and the orders dated 18 June 2025 at the X Street and XX Road addresses.
4. On 11 August 2025, the applicant's legal representative appeared at court. There was again no appearance by the respondent. The proceedings were listed for final hearing on 28 October 2025.
5. On 15 August 2025, the applicant's legal representative served on the respondent a copy of the orders made on 11 August 2025 by express post to the X Street and XX Road addresses.
6. By letter dated 23 October 2025, the applicant's legal representative served on the respondent a copy of its written submissions and proposed orders for hearing on 28 October 2025 by express post to the X Street and XX Road addresses.
7. The respondent and the guarantor have failed to comply with the requirements of the Notices. The agent has been unable to locate or repossess the Vehicle.

1. The applicant submitted at [19] and [20] of its written outline:
   1. By the [application], the applicant sought orders dispensing with the requirement to serve the application and for the application to be listed for hearing in the absence of the respondent.

20. The applicant no longer seeks those orders and served:

1. I understand this submission to mean only that the order for dispensation with the requirement for service is not pressed but that the applicant seeks that the application be heard in the absence of the respondent. I must be satisfied that the respondent has been placed on notice of the proceedings.
2. As to service on a corporation, r 10.02 of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2025 (Cth) (Rules) provides:

10.02 Service on corporation

A document that is to be served personally on a corporation, or on the liquidator or administrator of a corporation, must be served in accordance with subsection 109X(1) of the Corporations Act 2001.

1. Section 109X(1)(a) of the Corporations Act 2001 (Cth) (Corporations Act) provides:

(1) For the purpose of any law, a document may be served on a company by:

(a) Leaving it at, or posting it to, the company's registered office;

[...]

1. The evidence demonstrates the application, affidavit of Ms Coombe, orders of 16 April 2025 and 11 August 2025, and minute of orders sought by the applicant were served in accordance with s 109X of the Corporations Act, and thus r 10.02 of the Rules, at the X Street address.
2. I am thus satisfied that:

(a) the application and affidavits were served on the respondent at the X Street address. The court's orders, including the order setting the matter down for final hearing, were also served by this means; and

(b) the respondent is on notice of the proceedings and the fixture for hearing.

1. The respondent has not participated in the proceedings. In circumstances where the respondent is on notice of them, such failure to participate is taken to be its choice.
2. In exercising my power under the Rules, I must have regard to the overarching purpose of the court as set out in s 190(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) which provides:

(1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

1. The proceedings have been before the court since February 2025. It is appropriate that the matter be determined. Any unfair prejudice to the respondent (if there be any) is mitigated by the fact that it retains its right to apply to vary or discharge orders made in its absence pursuant to r 24.04 of the Rules.
2. In all the circumstances, I am satisfied that it is appropriate to determine the application in the absence of the respondent.

(a) it has a security interest in the Vehicle within the meaning of s 12(1) of the PPS Act, which has been perfected for the purpose of s 21 of the PPS Act, in that its security interest is registered;

(b) the respondent is in default of the Terms and Conditions by:

(i) failing to make payments since 2 November 2023 in breach of clause 2.1;

(ii) permitting or otherwise causing HAS to exercise possession and control of the Vehicle in breach of clauses 5.1 and 5.3;

(iii) allowing a repairer's lien to arise over the Vehicle in breach of clause 6.2; and

(iv) allowing or otherwise causing the DCG secured interest to be registered in breach of clause 4.5.

(collectively, the Breaches).

(c) by reason of the Breaches, it has an immediate right of possession of the Vehicle pursuant to s 123(1) of the PPS Act and a contractual right of entry pursuant to clause 9.3(e) of the Terms and Conditions; and

(d) it is entitled to claim all its costs of and incidental to the enforcement.

1. The applicant seeks to access the X address, being the address noted on HAS's invoice, as the last likely location for the Vehicle. However, the agent was unable to see the Vehicle at that address without gaining entry past the locked gate. For this reason, it seeks Order 2 of its minute of order to enter and remain upon that address to take possession of the Vehicle.
2. The applicant submitted:
   1. However, as the Applicant's attempts to contact Higrade (via its agent, Directwise) regarding the Collateral were fruitless and the Applicant has been unable to determine whether Higrade retain possession of the Collateral or whether it has been sold to a third party, the relief sought by the Applicant by those orders would be immediately frustrated if the Collateral is no longer located at XX XXXXXXX XXXXXX, XXXXXXXX XXXXX XXXXXXXX XXXX.
3. For this reason, the applicant seeks order 3 of its proposed orders. The applicant contends that such orders:
   1. ...are necessary to ensure the applicant can effectively enforce its rights to possess the Collateral and to prevent the frustration of the implementation or execution powers under s 123 of the [PPS] Act.
   2. The Applicant further submits that the orders sufficiently protect the rights and entitlements of the any party currently in possession of the Collateral, or in occupancy of the premises at which the Collateral is located, by requiring the Applicant to allow those parties 14 days to surrender possession of the Collateral or to apply to the Court on short notice before the Applicant is entitled to enter onto, and remain at, and to take any and all reasonable steps in order to locate and take possession of the Collateral.
   3. Further, the Applicant submits that the rights of other relevant parties are sufficiently protected by the qualification that the Applicant is only entitled to enter, remain and take steps to locate and take possession of the Collateral where its actions to do so are reasonable. If such a party is aggrieved by or suffers some loss due to the Applicant's actions, it is open to that party to seek relief against the Applicant on the basis that the Applicant's actions weren't reasonable and accordingly were not sanctioned by Court order.
4. In his oral submissions, the applicant's legal representative drew the court's attention to Mercedes-Benz Financial Services Australia Pty Ltd v RPO Pty Ltd (in liq) [2025] FCA 714 per Charlesworth J (30 June 2025) (MBFS v RPO) in which the Federal Court made orders for the seizure of Vehicle from non-parties.
5. The applicant's legal representative submitted that the court's powers under s 123 of the PPS Act are not fettered such that it is not necessary to join HAS to make orders permitting the applicant to enter onto and remain at HAS premises. He submitted that making such orders would be an appropriate use of judicial resources to avoid successive applications being made if the Vehicle is not at the X address. Such an order must be exercised honestly and in a commercially reasonable manner consistent with s 111 of the PPS Act. As such, the proposed orders are not unreasonable in their scope. The effect of the order would be that a non-party who is affected by the order can bring an application to resist the order, but that it saves disinterested non-parties from being compelled to participate as a responding party to an application.
6. As to costs, the applicant submits:
   1. ...on its proper construction, the expression "all costs of and incidental to the enforcement of [the Contract by the Applicant], including any costs of taking possession, attempting to take possession ... of [the Collateral]" in clause 9.4 of the Terms and Conditions includes legal costs on a solicitor and client or indemnity basis. The Applicant accordingly seeks an order for its costs on that basis.

1. The applicant seeks relief pursuant to s 123(1) of the PPS Act which provides:

A secured party may seize Vehicle, by any method permitted by law, if the debtor is in default of the security agreement.

(Emphasis added)

1. Section 10 of the PPS Act contains definitions. "Secured party" is defined as:

(a) means a person who holds a security interest for the person's own benefit or for the benefit of another person (or both); and

(b) if the holders of the obligations issued, guaranteed or provided for under a security agreement are represented by a trustee as the holder of the security interest - includes the trustee; and

(c) in relation to a registration with respect to a security interest - includes a person registered as a secured party in the registration.

(a) means personal property to which a security interest is attached; and

(b) in relation to a registration with respect to a security interest - includes personal property described by the registration (whether or not a security interest is attached to the property).

(a) a person who owes payment or performance of an obligation that is secured by a security interest in personal property (whether or not the person is also the grantor of the security interest); or

(b) a transferee of, or successor to, an obligation mentioned in paragraph (a).

(a) an agreement or act by which a security interest is created, arises or is provided for; or

(b) writing evidencing such an agreement or act.

1. A "security interest" is defined by s 12 of the PPS Act as:

(1) A security interest means an interest in personal property provided for by a transaction that, in substance, secures payment or performance of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property).

(2) For example, a security interest includes an interest in personal property provided by any of the following transactions, if the transaction, in substance, secures payment or performance of an obligation:

(a) a fixed charge;

(b) a floating charge;

(c) a chattel mortgage;

(d) a conditional sale agreement (including an agreement to sell subject to retention of title);

(e) a hire purchase agreement;

(f) a pledge;

(g) a trust receipt;

(h) a consignment (whether or not a commercial consignment);

(i) a lease of goods (whether or not a PPS lease);

(j) an assignment;

(k) a transfer of title;

(l) a flawed asset arrangement.

(3) A security interest also includes the following interests, whether or not the transaction concerned, in substance, secures payment or performance of an obligation:

(a) the interest of a transferee under a transfer of an account or chattel paper;

(b) the interest of a consignor who delivers goods to a consignee under a commercial consignment;

(c) the interest of a lessor or bailor of goods under a PPS lease.

(3A) A person who owes payment or performance of an obligation to another person may take a security interest in the other person's right to require the payment or the performance of the obligation.

(4) Without limiting subsection (3A):

(a) an account debtor, in relation to an account or chattel paper, may take a security interest in the account or chattel paper; and

(b) an ADI may take a security interest in an ADI account that is kept with the ADI.

(5) A security interest does not include:

(a) a licence; or

(b) an interest of a kind prescribed by the regulations for the purposes of this section.

(6) A security interest is not created only by an agreement or undertaking to do either of the following:

(a) to postpone or subordinate a person's right to payment or performance of all or any part of a debtor's obligation to another person's right to payment or performance of all or any part of another of the debtor's obligations;

(b) to postpone or subordinate all or any part of a secured party's rights under a security agreement to all or any part of another secured party's rights under another security agreement with the same grantor.

1. The applicant's right to act under s 123(1) requires an affirmative answer with respect to five issues, as well as requiring that such action be a method permitted by law. The issues are (a) whether the applicant is a "secured party", (b) whether the Vehicle is "collateral", (c) whether the respondent is a "debtor", (d) whether the Contract is a "security agreement", and (e) whether the debtor is in "default".
2. Each of these questions can be answered in the affirmative:

(a) The applicant is a secured party because it holds a registered security interest. The security interest is the first-in-time interest on the record of its registration.

(b) The vehicle is "collateral" because it is personal property to which a security interest, as created under clauses 4.1, 4.3 and 4.4 of the Contract, is attached.

(c) The respondent is a "debtor" because it owes payment or performance of an obligation under the Contract. Such obligation included the obligation created by clause 2 of the Terms and Conditions to pay the credit and interest in accordance with the Schedule, and all costs and expenses incurred by the applicant in exercising its rights under the Contract; and other obligations as recorded in clauses 5.1, 6.2 and 9.2 of the Terms and Conditions.

(d) The Contract is a "security agreement" because it is an agreement over which a security interest has been created as demonstrated by clauses 4.1, 4.3 and 4.4 of the Terms and Conditions.

(e) I am satisfied that the respondent is in default of the Contract. The evidence, which is outlined at paragraphs [19], [26], [28] and [29] demonstrates that it has committed the Breaches described at paragraph [52] of these reasons.

1. Next, the method of seizure must be permitted by law. Section 207 of the PPS Act confers jurisdiction on the Federal Circuit and Family Court of Australia (Division 2) to make orders with respect to a "PPS matter" subject to the monetary limit on jurisdiction to award an amount for loss or damage that exceeds $750,000 or some other amount as prescribed by the regulations.
2. "PPS matter" is defined by s 206 of the PPS Act to mean:

(1) This Part deals with the jurisdiction of a court with respect to a matter (a PPS matter):

(a) arising under a provision of this Act authorising an application to be made to a court; or

(b) otherwise arising in relation to this Act, other than a matter in respect of which the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) has jurisdiction under the Administrative Decisions (Judicial Review) Act 1977; or

(c) otherwise arising in relation to a security agreement or a security interest.

1. An application pursuant to s 123(1) of the PPS Act is a PPS matter for the purpose of s 206(1)(a). The application for costs, which relies upon clause 9 of the Contract, is a PPS matter within the meaning of s 206(1)(c). The arrears owing to the applicant as of 5 January 2025 were $197,081.26. While there is no evidence of the costs of and incidental to enforcement it would be fanciful to imagine that they would cause the quantum of the claim to exceed the jurisdictional limit.
2. In Bank of Queensland v Star Trek [2019] NSWSC 1712, Adamson J said at [16]:
   1. In order to enforce its right under s 123 of the Act to seize the Secured Property, it will be necessary for the Bank to enter onto the Matraville Property, which is owned by the Trustee and, potentially, disturb the operation of Star Trek and the business conducted on the Matraville Property. The Bank has taken the view that it ought obtain authority from this Court for this course so that its methods are unquestionably "permitted by law" within the meaning of s 123. There is support for the Bank's approach in the following passage from Anthony Duggan, David Brown, Australian Personal Property Securities Law (2nd ed, 2016, LexisNexis Butterworths) at 12.36:

"According to subs 123(1), the secured party may seize the collateral 'by any method permitted by law'. At general law the main limitations are to be found in the laws governing breach of the peace and trespass. The secured party or its agent may not use unlawful force to seize the collateral. For example, if the grantor is present and resists the seizure, the secured party may not resort to violence. The appropriate response is to back down and obtain a court order for seizure of the collateral."

1. In Senworth Capital Pty Ltd v Galleria SUV Pty Ltd [2022] NSWSC 1513 (Senworth Capital), Fagan J cautioned against the making of orders that may interfere with third party rights or amount to trespass without joining the third parties as defendants. At [25] to [30], his Honour said:
   1. I do not consider that this Court has power to order a unilateral licence to enter upon private lands such as that granted by Gardiner AsJ [in Re Empire Plant Hire], as opposed to making an order directed to the occupier of specified land to permit and not to impede the entry of a plaintiff claiming and seeking to repossess secured goods. Even if the plaintiff in the present proceedings were to join as defendants the occupiers of the properties where the vehicles are now kept and the persons presently in possession of those vehicles, if they be different, I would not, on the material before me, make ex parte orders in the nature of a permission for the plaintiff to enter the lands and seize the property. I would consider an order of that type to carry with it a very high risk that a breach of the peace would result and an equally high risk that rights of position would be interfered with, where such possession may, after hearing, prove to be defensible on the part of the third parties concerned.
   2. Not having heard any of those parties who presently hold the six vehicles in question, I do not know if any of them have good grounds for contesting that the vehicles have been properly substituted as security under the Facility Agreement and General Security Agreement. I do not know if any of those persons have any other ground upon which they may contest the efficacy of the plaintiff's security or the registration of the security.
   3. To make orders of the type sought ex parte would potentially lead to a very aggravated contest over rights of quiet enjoyment of real property and physical possession of movable property, all of this on the basis of a hearing in which the affected parties are not joined, let alone given an opportunity to be heard.
   4. In order to avert the risk perceived by the plaintiff that the vehicles may be relocated and disposed of if the plaintiff should signal in advance its attempt to recover them, it appears to me that the plaintiff could take the following steps:
      1. Identify the persons in possession of the vehicles and the occupiers of the relevant premises by means of the inquiries that I have earlier referred to.
      2. Commence a proceeding against each of those persons, which could be done by joining them all as defendants to the summons herein. That joinder could be effected without notice to those persons, prior to service of the Court process.
      3. Claim against those persons in the summons delivery up of the vehicles and/or damages in an action in detinue or conversion. On the material before me, it would appear that either of those causes of action would prima facie be viable.
      4. Before serving the summons, with those persons joined as defendants, upon any of them: apply ex parte for an assets freezing order, separately in respect of each vehicle against each relevant person in possession.
      5. Apply for an order for abridgement of time for service and serve the originating process together with the ex parte asset freezing orders jointly upon each of the persons in possession of a vehicle.
      6. Upon early return of that originating process, within a day or two after service, seek orders similar to those that were made by Adamson J in Bank of Queensland Ltd v Star Trek Pty Ltd requiring that the defendants permit seizure of the vehicles without impediment and permit entry onto their premises for the purpose.
   5. I have outlined that alternative course because the availability of it to the plaintiff is another significant factor, in my view, against the Court exercising a discretion to make ex parte orders of the type sought in the summons. However, in my view, even before one comes to the question of discretion, on the authorities that have been cited it does not appear that there is power to make orders in the nature of a unilateral licence to the plaintiff, as opposed to orders against individual possessors of property directed to facilitating the implementation or execution of powers under s 123 of the PPS Act.
   6. The authorities cited by Ms Keynes of counsel for the plaintiff appear to be all of the decisions in Australian jurisdictions that have considered these provisions of the PPS Act. Ms Keynes' researches have been thorough and I have found nothing further that would throw any light on the position. Everything that could be said in favour of the orders that the plaintiff seeks has been put before the Court on the application but I am not satisfied that relief of the type that is sought can properly be granted in the proceedings as presently constituted. For that reason the interlocutory application for orders 4-6 in the summons, as claimed ex parte, is dismissed.
2. In Volkswagen Financial Services Pty Ltd v Glass Shop Perth Pty Ltd [2024] FedCFamC2G 537 per Judge Ladhams (VWFS v Glass Shop), the applicants sought relief under s 123(1) of the PSS Act to enter two specified premises for the purpose of taking possession of the vehicle and "any other premises in Australia at which the vehicle is reasonably believed to be located" (see [30]). Her Honour was satisfied that there was an evidentiary basis for making the order with respect to the two specified premises. Of the order relating to premises at large, her Honour said at [34]-[36]:
   1. The question of whether the applicant should be allowed to enter any other premises is more complex. In Senworth Capital Pty Ltd v Galleria SUV Pty Ltd [2022] NSWSC 1513 (Senworth Capital), Fagan J cautioned against the making of orders that may interfere with third parties' rights or amount to trespass without joining the third parties as defendants.
   2. The applicant in the present case submitted that the orders sought do not relate to any third party. This submission appears to be inconsistent with the breadth of the relief sought to be able to enter any other premises. When I expressed concern to the applicant's lawyer about the breadth of the order allowing entry to 'any other premises in Australia at which the Vehicle is reasonably believed to be located', the applicant's lawyer acknowledged the Court's concern and suggested that it could be modified to replace the words 'any other premises in Australia' with 'any other premises in Australia owned by the respondents'.
   3. Given the concerns raised in Senworth Capital regarding the possible interference with third party rights, the order sought by the applicant to allow it to enter 'any other premises in Australia at which the Vehicle is reasonably believed to be located' is too broad. I note that in the recent judgment of Judge Cameron in Volkswagen Financial Services Australia Pty Limited v Tate [2024] FedCFamC2G 491, his Honour made a declaration that the applicant may enter 'any other premises in Australia over which the respondent has apparent control and at which the Vehicle is reasonably believed to be located'. I am satisfied that similar wording would be appropriate in the present case.
3. MBFS v RPO post-dates VWFS v Glass Shop. In that case, Charlesworth J considered whether to make orders pursuant to s 123(1) of the PPS Act which affected non-parties. In so doing, her Honour reconsidered Senworth Capital and determined not to follow that approach. As such, the conclusion in VWFS v Glass Shop, which applied Senworth Capital being the most recent authority at the time, may now be less applicable considering MBFS v RPO.
4. In MBFS v RPO, the applicant commenced an action under s 123(1) of the PPS Act as the holder of registered security interests over forty vehicles. It sought declarations and orders to facilitate the seizure of some of the vehicles which were believed to be in the possession of non-parties. At the time of the underlying loan agreements, MBFS was aware that RPO carried on a business that leased motor vehicles. RPO defaulted on the agreement and failed to respond to any request by MBFS to identify the location of the vehicles. RPO was in liquidation at the time of the proceedings. The director of RPO had informed MBFS of his intention to sell some of the vehicles and was known to hold a license to sell second hand motor vehicles. At [12] to [14], Charlesworth J said:
   1. 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.
   2. 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.
   3. 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.
5. As to the issue of making an order that affected non-parties, at [23] to [33], her Honour said:
   1. 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.
   2. 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.
   3. 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.
   4. 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.
   5. 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.
   6. Counsel for Mercedes-Benz properly drew the Court's attention to 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 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 , 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 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.

30 On the question of power, I will not follow Senworth Capital for two reasons.

1. 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.
2. 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.
3. 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.

1. As identified in MBFS v RPO, two questions arise, being:

(a) whether the court has power to make the orders sought by the applicant to the extent it would authorise it or its agents to enter on to property owned by non-parties for the purpose of exercising its right of seizure pursuant to s 123(1) of the PPS Act; and

(b) how that discretion should be exercised in the circumstances of the case.

1. The question of whether this court has the power to make the order sought is answered in the affirmative for the reasons identified in paragraphs 31 and 32 of MBFS v RPO. As to the reasoning at paragraph 33 of MBFS v RPO, the jurisdiction of the Federal Court is different to that of the Federal Circuit and Family Court of Australia (Division 2) in that there is no specified limit to the powers of the former but a monetary limit in relation to the latter. In this case, the applicant seeks to seize the Vehicle in specie and recover its costs which are within the monetary jurisdiction. The first of the two questions is answered in the affirmative.
2. The next question is how I should exercise my discretion in the circumstances of the case. The applicant's legal representative likened this case to MBFS v RPO in that both cases presented factual scenarios in which the location of the vehicle(s) was unknown and had entered the possession of non-parties. He submitted that the order would obviate the need for the applicant to return to court on successive applications to obtain orders to enter third party premises which better accommodated principles of the efficient use of judicial resources.
3. At [34] and [35] of the MBFS v RPO, Charlesworth J set out the facts and circumstances that bore on her discretion as follows:
   1. 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. As to the facts and circumstances that weigh in favour of my discretion to make the orders in this case:

(a) I accept that applicant holds a registered and thus searchable security interest over the relevant vehicle and had a right to seize such vehicle pursuant to s 123(1) of the PPS Act.

(b) The orders of the applicant propose that any occupier of other premises in Australia be at liberty to apply to be joined to the proceedings at short notice. If no such application is made, then the applicant or its agent would be permitted to enter the premises.

(c) The applicant did not acquiesce or otherwise consent to the Vehicle entering the possession of a non-party to the Contract. On the contrary, the Contract prohibited such an occurrence.

(d) On 3 June 2025, DCG was served with a copy of the application, affidavit of Ms Coombe and a copy of the orders made on 16 April 2025. The applicant set out its contentions as to the security in its letter of that date and demanded that DCG confirm whether the Vehicle was sold to a third party and other particulars but received no reply to its demand nor has DCG engaged with the proceedings. As DCG had described itself as "acting on behalf of" HAS, it is reasonable to infer that HAS is also on notice of the demand and the proceedings but has chosen not to engage.

(e) The breach of clauses 5.1, 5.3 and 6.2 by the respondent have frustrated the exercise of the applicant's statutory and contractual rights. This was exacerbated by the failure of DCG to respond to the applicant's letter of 3 June 2025.

(f) The applicant must conduct itself in a reasonable and commercially sensible manner.

(g) By making the order sought, there may be no need for any further judicial resources to be allocated to the matter if strangers to the action, who assert no interest in the Vehicle, choose not to relist the proceedings. Further, it would contain the costs of and incidental to enforcement which both insulates the respondent from such liability and mitigates against the uncertain recoverability of such costs by the applicant.

(h) Clause 9.3 of the Terms and Conditions identifies a range of options to the applicant in the event of a default, not limited to entering premises to take possession of the Vehicle. That said, I accept that the measures in clause 9.3(a) to (d) are of no utility in circumstances where extensive efforts by the applicant's agent to locate and contact the respondent, the guarantor and the guarantor's two referees have been fruitless.

1. As to the facts and circumstances that weigh against my discretion to make the orders in this case:

(a) Unlike MBFS v RPO, wherein there was a "strong likelihood" that the vehicles were in the possession of the original lessees, in this case, if the Vehicle is not at the X address, the applicant "expects" that it has been sold. This expectation was expressed at point 7 of the applicant's legal representative's letter to DCG dated 3 June 2025. Two points flow from this:

(i) If, as the applicant expects, the Vehicle has been sold (an expectation that is rational in my view, having regard to the removal of the registered security on 10 April 2025), then the applicant may become entitled to the proceeds of sale (s 140(2) of the PPS Act), having regard to the relative priorities and enforceability of security interests against third parties including principles of attachment to proceeds (ss 20 and 32 PPS Act, see also Metal Manufacturers Pty Ltd (t/as TLE Electrical) v WesTract Pty Ltd [2024] NSWSC 144). That is to say that, if the Vehicle has been sold, entry onto non-party premises for the purpose of its seizure may be inappropriate.

(ii) By extension of (i) above, entry on to land for the purpose of seizing the Vehicle may cause undue inconvenience to strangers to the action, even if the applicant exercises its powers in a reasonable, commercial and sensible manner.

(b) There is no proposal that the applicant would store the vehicle and take no steps to sell it for a time after its seizure which is an important measure to preserving the rights of bona fide third parties. This can be remedied by an order to such an effect.

(c) The circumstances in MBFS v RPO were described as "exceptional" having regard to the matters set out in paragraph 34 of the reasons and noting the potential for 28 separate applications to be brought in connection with persons who may not seek to assert any interest in the subject matter of the proceedings and have no desire to be joined. By contrast, in this case, the matter involves one vehicle and HAS asserted an interest in the Vehicle (as demonstrated by the invoice for repair costs and the email from DCG dated 30 October 2024, and the prior registration of a security interest by DCG). While I accept that the circumstances of this case have prejudiced the applicant, I would not go so far as to the describe them as exceptional in the context of the court's work.

1. I turn to the application as it specifically relates to the X address and "any other premises in Australia".

1. I am satisfied that the evidence demonstrates a basis for an order permitting the applicant and/or its agent to enter onto the X address for the purpose of seizing the Vehicle. The applicant has, at all relevant times, held a registered security interest. It was open to HAS to inform itself of that searchable interest either for itself or with the assistance of DCG. Despite that searchable interest, HAS granted a security interest to DCG which was later removed. DCG, as the agent of HAS, was notified of the application and has not responded to the applicant's correspondence nor chosen to engage in the proceedings. The applicant's agent attended the X address multiple times and left his card with urgent contact details, to no avail. I infer that, were HAS acting in a reasonable manner in asserting an interest to the Vehicle (or granting the same), it would have engaged with the applicant itself or by its agent.

1. For the same reasons that apply to making the order for entry onto the X address, I am satisfied that it is appropriate to extend the order to any other premises controlled by HAS.
2. However, I do not consider it appropriate to extend the order more generally. While there are several protective and practical matters which weigh in favour of the discretion, the fact that:

(a) the applicant expects that the Vehicle has been sold (such that the ultimate remedy under the PPS Act may be the recovery of the sale proceeds) and the potential inconvenience that may be caused to such a purchaser; and

(b) this case involves the recovery of one vehicle, as opposed to a fleet, and does not give rise to anything like the same degree of demand on the court's resources as was the case in MBFS v RPO,

weighs strongly against the making of the order for general access. On balance, I consider that it is not appropriate to make such a wide-ranging order in the circumstances of this case.

Liberty to apply and preservation of jurisdiction

1. Having determined to make orders affecting the interests of a non-party, it is appropriate that I make further orders to provide a clear mechanism by which that non-party may access the court to assert an interest in the Vehicle and seek alternate relief. The applicant proposes through Order 3.2 that such a mechanism be invoked within 14 days of the service of the orders. I consider that a period of 49 days is appropriate as it would allow the non-party to obtain legal advice, prepare documents and approach the Court. I am also mindful that we are entering the Christmas period when access to legal services is likely to be confined.
2. I will make orders that apply specifically to HAS, as the known non-party, but for an abundance of caution, also extend an order to any other non-party who asserts an interest in the Vehicle. To give effect to this later order, I will require the applicant to provide a copy of the orders and reasons for judgment to any other non-party of which it becomes aware asserts an interest in the Vehicle. Such an order is intended to address happenstance in the execution of the orders, and not a requirement that the applicant ought to actively seek such unknown non-parties.
3. To preserve the jurisdiction of the court in the event that there is a real issue as to interests in the Vehicle, I will make an order requiring the applicant to store the Vehicle for a period of 56 days after its seizure. The cost of storage will be addressed in the costs orders.
4. If, as the applicant expects, the Vehicle has been sold and it wishes to pursue relief to secure the proceeds of sale, there will be an order permitting the applicant to relist the matter for that purpose.

1. The applicant seeks its costs of and incidental to the enforcement on an indemnity basis. The oral submissions made it clear that the power that the court is asked to exercise is in the enforcement of clause 9.4 of the Contract. Section 206(1)(c) of the PPS Act provides that the Court's jurisdiction includes matters in a PPS matter "otherwise arising in relation to the security agreement". I am satisfied that the enforcement of clause 9.4 of the Contract, being a security agreement" is a matter "otherwise arising" in relation to it. The power is itself located in s 207 of the PPS Act.
2. The Contract establishes an obligation for the respondent to pay all costs of and incidental to its enforcement including the costs of taking possession, attempting to take possession, and storage, of the Vehicle. I will make an order to give effect to that clause.
3. In my view, legal fees and disbursements, including filing fees, hearing setting down fees, counsel's fees, and agent's fees, also fall within the category of costs to which clause 9.4 is directed. The word "all" costs makes it clear that the costs are to be paid on a reimbursement basis. In this context, "reimbursement basis" has the same practical effect as "indemnity costs".

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw.