Underwood & Ors v Commonwealth Bank of Australia & Ors [1995] FCA 91

Underwood & Ors v Commonwealth Bank of Australia & Ors [1995] FCA 91

The cross-claim by Dalgetys seeks a money judgment and does not constitute enforcement action in respect of a farm mortgage under the Farm Debt Mediation Act 1994 (NSW), and the Stock Mortgage does not satisfy the statutory definition of a farm mortgage as it does not confer an interest in, or power over, the farm itself securing obligations of the farmer.

Parties
First Applicant: Frank Underwood; Second Applicant: Shirley Elizabeth Underwood; Third Applicant: Harry Noel Carroll; Fourth Applicant: Ethel Olive Carroll; Fifth Applicant: Shelagan Pty Limited; Sixth Applicant: Roto Pastoral Company Pty Limited; First Respondent: Commonwealth Bank of Australia; Second Respondent: Dalgety Rural Finance Limited; Third Respondent: Dalgety Farmers Limited
Jurisdiction
Australia
Judgment Date
02 March 1995
Procedural Posture
Application / Interlocutory Motion to Vacate Hearing Dates
Outcome
Application dismissed
Legal Topics
Farm Debt Mediation Act 1994 (nsw), Definition of 'farm Mortgage', Enforcement Action Under Farm Mortgages
Statutory Interpretation Banking and Finance Law Agriculture Law Farm Debt Mediation Act 1994 (nsw) Definition of 'farm Mortgage' Enforcement Action Under Farm Mortgages

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Parties

Frank Underwood

First Applicant

Shirley Elizabeth Underwood

Second Applicant

Harry Noel Carroll

Third Applicant

Ethel Olive Carroll

Fourth Applicant

Shelagan Pty Limited

Fifth Applicant

Roto Pastoral Company Pty Limited

Sixth Applicant

Commonwealth Bank of Australia

First Respondent

Dalgety Rural Finance Limited

Second Respondent

Dalgety Farmers Limited

Third Respondent

Procedural Posture

Application / Interlocutory Motion to Vacate Hearing Dates

Legal Issues

  1. 1 Does the Farm Debt Mediation Act 1994 (NSW) prohibit the respondents from pursuing their cross-claim prior to mediation?
  2. 2 Is a stock mortgage a 'farm mortgage' under the Act?
  3. 3 Does pursuing a money judgment constitute 'enforcement action' under the Act?

Ratio Decidendi

The cross-claim by Dalgetys seeks a money judgment and does not constitute enforcement action in respect of a farm mortgage under the Farm Debt Mediation Act 1994 (NSW), and the Stock Mortgage does not satisfy the statutory definition of a farm mortgage as it does not confer an interest in, or power over, the farm itself securing obligations of the farmer.

Court Disposition

Application dismissed

Orders

  • The applicants' application for the vacation of the hearing dates is dismissed.
  • The applicants are ordered to pay the respondents' costs of the application.