Waller v Hargraves Secured Investments Limited [2012] HCA 4

HIGH COURT OF AUSTRALIA

FRENCH CJ,

HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

ROSLYN EDWINA WALLER APPELLANT

AND

HARGRAVES SECURED INVESTMENTS LIMITED RESPONDENT

Waller v Hargraves Secured Investments Limited [2012] HCA 4

29 February 2012

S223/2011

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of New South Wales dated 11 November 2010 and in its place order that:

(a) the appeal to that Court be allowed with costs; and

(b) the orders of the Supreme Court of New South Wales dated 12 November 2009 be set aside and in their place order that:

(i) the proceedings be dismissed; and

(ii) the respondent, Hargraves Secured Investments Limited, pay the costs of the appellant, Roslyn Edwina Waller, in that Court.

3. The respondent pay the appellant's costs in this Court.

On appeal from the Supreme Court of New South Wales

Representation

D J Higgs SC with J B King for the appellant (instructed by Jackson Lalic Lawyers)

D M Loewenstein with A R A Kuklik for the respondent (instructed by Hargraves Solicitors)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Waller v Hargraves Secured Investments Limited

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.