Toyota Finance Australia Ltd v State Corporation Pty Ltd

1. [1]

   HER HONOUR: On 9 October 2020 on an application brought by the plaintiff, Toyota Finance Australia Limited (Toyota Finance), by notice of motion filed on 29 July 2020, I made orders that the defence filed on 21 April 2020 by the second defendant to these proceedings (Ms Pamela Murphy) be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). I entered judgment for the plaintiff against the second defendant with damages to be assessed pursuant to r 30.1 of the UCPR (see my reasons in Toyota Finance Australia Ltd v State Corporation Pty Ltd [2020] NSWSC 1398). The present application is now the application by the plaintiff for the assessment of damages payable pursuant to the judgment entered on 9 October 2020.

2. [2]

   I should note that the first defendant, State Corporation Pty Ltd, is now in liquidation and leave was not sought to proceed against it. I should also note that there has been no appearance on this assessment of damages hearing for or on behalf of the second defendant; nor did the second defendant appear at the liability hearing. On the previous occasion, the second defendant had communicated with my Associate and with the plaintiff’s solicitors to the effect she was no longer able to defend the proceedings. I have no reason to believe that the position is any different on this occasion. The proceedings were set down on 24 November 2020 for hearing for assessment of damages this afternoon. The plaintiff, through its lawyers, notified Ms Murphy by email and letter on 24 November 2020 of the listing of the application for the assessment of damages, and receipt of that email and letter was acknowledged by Ms Murphy. I am satisfied that it is appropriate to proceed in the absence of the second defendant.

3. [3]

   In support of its application for damages, Toyota Finance relies upon the following affidavits: an affidavit sworn on 29 May 2020 by Geoff Noble, the Hardship Manager employed by Toyota Finance, who is authorised to swear the affidavit on its behalf (which affidavit was read on the last occasion), together with the exhibits to that affidavit; a further affidavit of Geoffrey Noble sworn on 18 November 2020; an affidavit sworn on 18 November 2020 by Mr Sherwyn Lee, solicitor; and an affidavit sworn on 26 November 2020 by the plaintiff’s solicitor Mr David Matthew Farrer.

Background

1. [4]

   The background to the present application was set out in my last judgment in the matter. By amended statement of claim filed on 3 April 2020 the plaintiff pleaded reliance on a Master Fleet Facility Agreement entered into with a company now in liquidation, PJM Fleet Management Pty Ltd (PJM Fleet Management). The plaintiff sued on a large number of finance agreements that were entered into pursuant to the terms of the Master Fleet Facility Agreement.

2. [5]

   The claim against Ms Murphy is a claim brought against her in her capacity as a guarantor of PJM Fleet Management’s obligations; and as an indemnifier of the plaintiff.

3. [6]

   Pursuant to cl 39.1 of the Master Fleet Facility Agreement, Ms Murphy unconditionally and irrevocably guaranteed to the punctual payment to the plaintiff of moneys due from PJM Fleet Management. Pursuant to cl 39.2 of the Master Fleet Facility Agreement, Ms Murphy indemnified the plaintiff against all loss the plaintiff might suffer or incur as a result if for any reason it was unable to recover the guaranteed money from PJM Fleet Management or Ms Murphy under the guarantee clause, or if it was not paid to the plaintiff for any reason.

4. [7]

   The terms “guaranteed money” and “loss” are defined in cl 1 of the Master Fleet Facility Agreement, as is the reference to “transaction documents”.

5. [8]

   Pursuant to the Master Fleet Facility Agreement, there is provision for what might be called a “sufficient evidence certificate” to be issued. It is principally upon a sufficient evidence certificate in this case that the plaintiff now relies for the assessment of damages.

6. [9]

   Clause 36.4 of the Master Fleet Facility Agreement provides as follows:

7. [10]

   Insofar as reliance is placed on the sufficient evidence certificate, reference is made by the plaintiff to what was said by the High Court in Dobbs v The National Bank of Australasia Limited (1935) 53 CLR 643; [1935] HCA 49 (Dobbs) in relation to “conclusive evidence” certificates; and in Permanent Trustee Company Limited v Gulf Import and Export Company [2008] VSC 162 (Permanent Trustee), which was in the context of a “sufficient evidence” certificate.

8. [11]

   In Dobbs, the High Court said at 651:

9. [12]

   In Permanent Trustee the Court said at [85]:

10. [13]

    Reference is also made to the decision of the Victorian Supreme Court in Bank of Western Australia Ltd v Abdul [2012] VSC 222 at [27]:

11. [14]

    There is evidence (see annexure A to the affidavit sworn on 18 November 2020 by Geoff Noble) that on 11 November 2020 the plaintiff issued a sufficient evidence certificate, bearing that date; which was expressed to be pursuant to cl 36.4 of the Master Facility Agreement, certifying the amount due by PJM Fleet Management, and for which PJM Fleet Management and Ms Murphy were liable to Toyota as being $5,239,431.60, as at the date of the certificate. Mr Lee has deposed to the circumstances in which, on 13 and 16 November 2020, the certificate was served on Ms Murphy, and payment of the amount in the certificate was demanded. There is also evidence (see annexure B to the affidavit of Mr Lee sworn 18 November 2020) that on 16 November 2020 Ms Murphy by email acknowledged receipt of the certificate.

12. [15]

    Toyota Finance submits, and I accept, that by reason of the issue of the certificate the Court need not otherwise be satisfied in the usual way in relation to the quantum of damages; but Toyota Finance submits that in any event that there is more than sufficient evidence that justifies the amounts claimed by reference to the extensive material filed on the previous occasion (see the exhibits tendered on that occasion).

13. [16]

    It is submitted (and I accept) that, by reference to: the existence of the sufficient evidence certificate, the amount there certified, the acknowledgement of receipt by Ms Murphy of the sufficient evidence certificate, and the lack of any dispute by Ms Murphy on this application in relation to the amount claimed, Toyota Finance has established both the legal existence and the amount of Ms Murphy’s debt.

14. [17]

    It is noted, as I have said earlier, that Ms Murphy in these proceedings has not sought to dispute the existence or amount of the debt.

15. [18]

    I accept that, pursuant to cl 39.1 of the Master Fleet Facility Agreement, Ms Murphy unconditionally and irrevocably guaranteed to Toyota Finance payment of the guaranteed money and that the amount of the guaranteed money has been certified in the certificate in the sum of $5,239,431.60. In those circumstances it is appropriate that I make the orders sought by the plaintiff, namely:

    1. (1)

       Order that damages be assessed in the amount of $5,239,431.60 and that judgment be entered for that sum in favour of the plaintiff against the second defendant.

    2. (2)

       Order the second defendant to pay the plaintiff’s costs of the application for assessment of damages.