Charlton v National Australia Bank Limited [2021] NSWCA 111

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Charlton v National Australia Bank Limited [2021] NSWCA 111 Hearing dates: 24 March 2021; 25 March 2021 Date of orders: 28 May 2021 Decision date: 28 May 2021 Before: Basten JA at [1]; Macfarlan JA at [14]; Emmett AJA at [78] Decision: (1) Order that Order 1 made on 23 March 2020 and entered on 24 March 2020 be varied by inserting the words "possession of" after the words "Judgment for NAB against Ms Charlton for" at the commencement of the order. (2) Dismiss Ms Charlton's appeal. (3) Order Ms Charlton to pay the respondents' costs of the appeal. Catchwords: ADMINISTRATIVE LAW – judicial review – certificate under s 11 of Farm Debt Mediation Act 1994 (NSW) – whether judicial review available CONTRACT – construction and interpretation of trust deed – express and implied terms – whether trust deed had an express power of unilateral retirement – whether trust deed had a lacuna to be filled by implying a power of unilateral retirement MORTGAGES AND SECURITIES – debt owed under financial facilities – when liability for debt incurred – whether liability for debt only arises once debt becomes payable MORTGAGES AND SECURITIES – proceedings for recovery of a debt secured by a mortgage – Farm Debt Mediation Act 1994 (NSW) – whether mortgagor was the only relevant "farmer" – whether a "satisfactory mediation" was undertaken for the purpose of s 11 MORTGAGES AND SECURITIES – proceedings for recovery of a debt secured by a mortgage – Farm Debt Mediation Act 1994 (NSW) – what constitutes "enforcement action" under s 10 – whether bank enforcing debt owed under financial facilities constituted "enforcement action" Legislation Cited: Farm Debt Mediation Act 1994 (NSW), ss 4, 6, 8, 9, 9A, 10, 11, 15 Real Property Act 1900 (NSW), ss 57, 82 Trustee Act 1958 (Vic), s 44 Uniform Civil Procedure Rules 2005 (NSW), r 59.10 Cases Cited: ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209; [2014] NSWCA 402 Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57 Bunten v Muir (1894) 21 R 370 Carr v Finance Corporation of Australia Limited [No 2] (1982) 150 CLR 139; [1982] HCA 43 Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 93 ALJR 807; [2019] HCA 20 Gain v Commonwealth Bank of Australia (1997) 42 NSWLR 252 Hawkins v Bank of China (1992) 26 NSWLR 562 Helvetic Investment Corporation Pty Ltd v Knight (1984) 9 ACLR 773 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 The Queen v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 Turnbull v National Mutual Royal Bank Ltd (1991) 26 NSWLR 361 Waller v Hargraves Secured Investments Ltd (2012) 245 CLR 311; [2012] HCA 4 Category: Principal judgment Parties: Josephine Joan Charlton (First Appellant) Kevin Michael O'Brien (Second Appellant) National Australia Bank Limited (First Respondent) Rural Assistance Authority of New South Wales (Second Respondent) Representation: Counsel: P E King (Appellants) J Burnett (First Respondent) Submitting Appearance (Second Respondent)