Toyota Finance Australia Limited v Antonia Suntsova & Ors

By Notice of Motion dated 19 November 2024 the Plaintiff seeks default judgment against the Second Defendant.

There was no appearance on this application by the Second Defendant.

The proceedings were commenced by Summons dated 23 October 2023. A Statement of Claim was filed on 23 July 2024. On 14 August 2024 the Court gave directions requiring the Defendants to file and serve defences to the Statement of Claim by 11 October 2024. No defence has been filed by the Second Defendant. Nor has a notice of appearance been filed for the Second Defendant.

In very broad terms, by the Statement of Claim the Plaintiff alleges that it was the victim of a serious fraud perpetrated by the First Defendant. It is alleged that the First Defendant was employed by McCarroll's of Moss Vale and that she engaged in a practice by which applications were made for business vehicle loans on behalf of customers which, if approved, would result in the Plaintiff providing a loan to the customer for the purchase of the nominated vehicle. Representations were allegedly made to the Plaintiff that McCarroll's was in possession of relevant motor vehicles and was able to grant a security interest to the Plaintiff when in fact McCarroll's was not in possession of the relevant motor vehicles, did not own any of the relevant motor vehicles and McCarroll's could not pass any title to the relevant motor vehicles to the Plaintiff.

During the first half of 2023, the Plaintiff paid well in excess of $3 million to McCarroll's pursuant to these allegedly fraudulent applications. It is alleged that immediately after those funds were transferred from the Plaintiff to McCarroll's the First Defendant transferred funds from McCarroll's bank account to the Second Defendant's bank account. It is alleged that the amount of $3,260,798 was transferred to the Second Defendant in this way.

The Plaintiff by the Statement of Claim brings a claim against the Second Defendant for restitution, the Second Defendant allegedly having been unjustly enriched at the expense of the Plaintiff. The Plaintiff seeks judgment in the sum of $3,260,798, being the amount that was allegedly paid into the Second Defendant's bank account at the direction of the First Defendant.

Part 16 of the Uniform Civil Procedure Rules concerns default judgment. It only applies to proceedings commenced by Statement of Claim. These proceedings were commenced by Summons and accordingly Part 16 does not apply. However, the Court has power under s 61(3)(g) of the Civil Procedure Act 2005 NSW to give such order as it considers appropriate. That section gives the Court power to give judgment in circumstances of default: see Sinopec International Australia Pty Ltd v Wenwu Su [2019] NSWSC 269 per Hammerschlag J at [38] to [40]. The Plaintiff asks me to apply Part 16 by analogy, noting that this was particularly appropriate in circumstances where, although commenced by Summons, a Statement of Claim was filed. I am satisfied that it is appropriate for the Court to apply Part 16 by analogy in this case.

The Plaintiff relies on the following affidavits:

I am satisfied that together, these affidavits address the matters identified in r 16.6(2). In particular:

I am satisfied that the Plaintiff's claim is a claim for debt or liquidated claim; see Albanis v Eleftheriou [2014] NSWSC 416 at [27] to [28] per Beech-Jones J.

If the matter had run to trial some interesting questions may have arisen about the interplay of equitable principles and the application of common law principles associated with the law of restitution, however, it is unnecessary for me to consider those matters for present purposes. The fact is that the Plaintiff makes a claim in restitution and it is properly described as a claim "debt or liquidated claim".

The Second Defendant has never disputed the receipt of the $3,260,798. Its failure to file a defence may be taken as an acceptance of the allegations; see Wily v King [2010] NSWSC 352 at [16] per Barrett J.

I am satisfied that this is a matter where default judgment is appropriate.

The Plaintiff also seeks an order dismissing a Notice of Motion dated 1 August 2024 filed by the Fifth Defendant. By that Notice of Motion the Fifth Defendant sought orders varying a penal notice that was addressed to the Fifth Defendant. The Fifth Defendant has taken no steps to progress that Notice of Motion. The Fifth Defendant was on notice that the Plaintiff would seek orders dismissing the Notice of Motion with costs when the matter came before me this morning. The Fifth Defendant did not appear at the hearing this morning.

There is no evidence of any intention on the part of the Fifth Defendant to prosecute its Notice of Motion.

It is appropriate that it be dismissed with costs.

I make the following orders: