Ciavarella v Hargraves Secured Investments Ltd [2016] NSWCA 304

Ciavarella v Hargraves Secured Investments Ltd [2016] NSWCA 304

Leave to appeal was refused because the applicants had no realistic prospects of showing that the primary judge erred in finding no arguable case that the Heads of Agreement did not bind them. The alleged waiver of May and June principal repayments was at most conditional on interest being kept up, which was not satisfied when the payments fell due. The s 8 Farm Debt Mediation Act notice was not invalid, void or misleading; giving that notice was not enforcement action and Hargraves was entitled to invite mediation. Since the binding Heads of Agreement released the applicants' claims, the proposed equitable set-off and other grounds did not provide a defence to summary judgment.

Jurisdiction
Australia
Judgment Date
07 November 2016
Procedural Posture
Civil Application for Leave to Appeal and Notice of Appeal / Court of Appeal Hearing From Supreme Court of New South Wales Summary Judgment and Related Orders
Outcome
Applications for leave to appeal dismissed; notice of appeal dismissed as incompetent; stay discharged after a short continuation period; applicants ordered to pay costs.
Legal Topics
['leave to Appeal' 'summary Judgment' 'possession of Mortgaged Farm Properties' 'money Judgment' 'farm Debt Mediation Act Notice' 'heads of Agreement and Release' 'equitable Set Off' 'unconscionable Conduct' 'contracts Review Act Unjust Contract']
['civil Procedure' 'banking and Finance' 'mortgages' 'farm Debt Mediation' 'contract Law' 'equity' 'consumer Protection'] ['leave to Appeal' 'summary Judgment' 'possession of Mortgaged Farm Properties' 'money Judgment' 'farm Debt Mediation Act Notice' 'heads of Agreement and Release' 'equitable Set Off' 'unconscionable Conduct' 'contracts Review Act Unjust Contract']

Case Brief

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Procedural Posture

Civil Application for Leave to Appeal and Notice of Appeal / Court of Appeal Hearing From Supreme Court of New South Wales Summary Judgment and Related Orders

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from summary judgment for possession of farm properties and a money judgment.' 'Whether it was arguable that the Heads of Agreement and release executed after farm debt mediation were not binding or should be set aside.' "Whether Hargraves' conduct in withholding water entitlement sale proceeds, asserting default and serving a Farm Debt Mediation Act notice was arguably unconscionable under ss 12CA or 12CB of the Australian Securities and Investment Commission Act 2001 (Cth) or made the Heads of Agreement unjust under s 7 of the Contracts Review Act 1980 (NSW)." "Whether the applicants had an arguable equitable set-off against Hargraves' claim if the release in the Heads of Agreement bound them." 'Whether the s 8 notice under the Farm Debt Mediation Act 1994 (NSW) was invalid, void, or misleading because the applicants contended there was no actionable default.']

Ratio Decidendi

Leave to appeal was refused because the applicants had no realistic prospects of showing that the primary judge erred in finding no arguable case that the Heads of Agreement did not bind them. The alleged waiver of May and June principal repayments was at most conditional on interest being kept up, which was not satisfied when the payments fell due. The s 8 Farm Debt Mediation Act notice was not invalid, void or misleading; giving that notice was not enforcement action and Hargraves was entitled to invite mediation. Since the binding Heads of Agreement released the applicants' claims, the proposed equitable set-off and other grounds did not provide a defence to summary judgment.

Court Disposition

Applications for leave to appeal dismissed; notice of appeal dismissed as incompetent; stay discharged after a short continuation period; applicants ordered to pay costs.

Orders

  • ["The applicants' summonses for leave to appeal in proceedings 2016/262213 and 2016/202914 be dismissed with costs." "The applicants' notice of appeal in proceedings 2016/202913 be dismissed as incompetent." 'The stay order made on 22 August 2016 be discharged at 5pm on 14 November 2016.' "The applicants pay the...