Permanent Custodians Ltd v McMahon [2013] NSWSC 769

Permanent Custodians Ltd v McMahon [2013] NSWSC 769

The Heads of Agreement did not replace the farm mortgages or extinguish the existing debt; it merely gave the Defendants time to sell or refinance while they remained in default under the farm mortgages. The requirements of s 11 of the Farm Debt Mediation Act 1994 were satisfied when the Rural Assistance Authority issued the certificate on 11 August 2011, and the certificate was not ultra vires or void. Because no enforcement action was taken before 15 August 2011 and the first enforcement act occurred after a valid certificate was in place, the proceedings and consent judgment were not a nullity and there was no basis to set aside the judgment.

Jurisdiction
Australia
Judgment Date
28 June 2013
Procedural Posture
Interlocutory Applications / Defendants' Notice of Motion Seeking Declarations That the Rural Assistance Authority Certificate Was Ultra Vires and Void, That Enforcement Proceedings Were Prohibited, and That the Consent Judgment/order Be Set Aside
Outcome
Defendants' Notice of Motion dismissed; injunction dissolved; costs awarded to the Plaintiff.
Legal Topics
['possession Proceedings' 'farm Mortgages' 'farm Debt Mediation Act Certificate' 'default Under Farm Mortgage' 'enforcement Action' 'consent Judgment']
['real Property' 'mortgages' 'farm Debt Mediation'] ['possession Proceedings' 'farm Mortgages' 'farm Debt Mediation Act Certificate' 'default Under Farm Mortgage' 'enforcement Action' 'consent Judgment']

Case Brief

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Procedural Posture

Interlocutory Applications / Defendants' Notice of Motion Seeking Declarations That the Rural Assistance Authority Certificate Was Ultra Vires and Void, That Enforcement Proceedings Were Prohibited, and That the Consent Judgment/order Be Set Aside

Legal Issues

  1. 1 ['Whether the commencement of proceedings on 12 December 2011 was enforcement action under the Farm Debt Mediation Act 1994' 'Whether the Rural Assistance Authority certificate issued on 11 August 2011 under s 11 of the Farm Debt Mediation Act 1994 was void or ultra vires because it was issued before 15 August 2011' 'Whether the defendants were in default under the farm mortgages at the date of the certificate' 'Whether the consent judgment/order entered on 23 April 2012 should be set aside']

Ratio Decidendi

The Heads of Agreement did not replace the farm mortgages or extinguish the existing debt; it merely gave the Defendants time to sell or refinance while they remained in default under the farm mortgages. The requirements of s 11 of the Farm Debt Mediation Act 1994 were satisfied when the Rural Assistance Authority issued the certificate on 11 August 2011, and the certificate was not ultra vires or void. Because no enforcement action was taken before 15 August 2011 and the first enforcement act occurred after a valid certificate was in place, the proceedings and consent judgment were not a nullity and there was no basis to set aside the judgment.

Court Disposition

Defendants' Notice of Motion dismissed; injunction dissolved; costs awarded to the Plaintiff.

Orders

  • ['Dissolve the injunction granted by Button J on 27 March 2013.' "Dismiss the Defendants' Notice of Motion filed 27 March 2013." "The Defendants are to pay the Plaintiff's costs."]