Waller v. Hargraves Secured Investments Limited
Lower Court Judgment
11/11/2010 Supreme Court of New South Wales (Court of Appeal)
(Tobias JA, Macfarlan JA, Sackville AJA)
Mortgages — Primary industry — Farm debt mediation — Mortgagee's remedies — Possession — Clause entitling mortgagee to possession upon default of mortgagor — Farm Debt Mediation Act 1994 (NSW) ("Act") provides no enforcement action to be taken until creditor gives notice of availability of mediation ("Notice") and enforcement action taken by creditor other than in compliance with Act is void — Applicant mortgaged land in favour of respondent to secure all moneys owed under loan agreement — Applicant breached terms of loan agreement and respondent gave Notice — Parties subsequently executed further loan agreements which discharged previous debts and created new farm debts — Applicant defaulted in making interest payments due under third loan agreement — Respondent commenced proceedings for possession of property and judgment debt — Whether each pairing of mortgage and farm debt gave rise to separate farm mortgages — Whether further Notice required for enforcement action pursuant to third loan agreement — Whether there was a certificate "in respect of the farm mortgage concerned" within meaning of s 8(3) of Act — Whether certificate issued by Rural Assistance Authority under s 11 of Act void — Whether proceeding for possession and judgment debt should have been dismissed pursuant to s 6 of Act — Act, ss 6, 8 and 11.
Words and phrases — "enforcement action", "farm debt", "farm mortgage", "in respect of the farm mortgage concerned".
10/06/2011 Hearing (SLA, Sydney)
24/06/2011 Notice of appeal
08/07/2011 Written submissions (Appellant)
08/07/2011 Chronology (Appellant)
02/08/2011 Written submissions (Respondent)
06/10/2011 Hearing (Full Court, Canberra)