High Court of Australia

Waller v Hargraves Secured Investments Limited [2012] HCA 4

245 CLR 311; 86 ALJR 229; 285 ALR 41

29 Feb 2012

Case Number: S223/2011


French CJ, Hayne, Heydon, Crennan, Kiefel JJ


Mortgages – Mortgagee's remedies – Farm Debt Mediation Act 1994 (NSW) ("Act") – Creditor must provide notice of intention to take "enforcement action" under "farm mortgage" ("Notice") – Notice must specify availability of mediation regarding farm debts – Creditor unable to take enforcement action until NSW Rural Assistance Authority ("Authority") issues certificate that Act does not apply because satisfactory mediation has occurred – Borrower mortgaged land to secure all monies owed under loan agreement – Borrower defaulted and lender provided Notice – Borrower requested mediation under Act – Following mediation parties executed second and third loan agreements, discharged previous debts and created new farm debts – Authority satisfied of successful mediation and issued certificate certifying that Act did not apply to farm mortgage – Borrower defaulted in making interest payments due under third loan agreement – Whether successive farm debts created new "farm mortgage" requiring satisfactory mediation before creditor could pursue enforcement action – Whether separate Notice required for enforcement action under subsequent loan agreements – Whether certificate issued by Authority void – Whether lender's entitlement to possession of secured land and outstanding monies barred.

Words and phrases – "enforcement action", "farm debt", "farm mortgage", "in respect of the farm debt involved", "in respect of the farm mortgage concerned".

Farm Debt Mediation Act 1994 (NSW) – ss 3, 4(1), 5(1), 6, 8, 9, 10(1), 11(1), 14, 17.

Real Property Act 1900 (NSW) – s 3(1).

Interpretation Act 1987 (NSW) – s 34.

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