Bradley v Ashton [1999] NSWSC 782

New South Wales Supreme Court CITATION : Bradley v Ashton [1999] NSWSC 782 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3287/99 HEARING DATE(S) : 22/07/99 JUDGMENT DATE : 22 July 1999

PARTIES : Robert Harold Bradley and Norah Catherine Bradley (P) Wallace Mackenzie Ashton (D) JUDGMENT OF : Young J

COUNSEL : I Harrison SC (P) C Freeman (D) SOLICITORS : Jack C Herrald (P) Lamond Howard & Associates (D) CATCHWORDS : Equity [325]- Injunction- Plaintiff in breach of undertaking to court- Injunction denied. Estoppel [35]- Estoppel in face of a statute- Farm Debt Mediation Act- Act means to estoppel or res judicata can have effect. Landlord & Tenant [77]- Termination- Farm debt- No estoppel or res judicata may outflank right to mediation. Procedure [748]- Declaration- Whether equitable remedy- Discretion. Words & Phrases- "Seeks". ACTS CITED : Farm Debt Mediation Act 1994, ss 6, 8(1), 20 Barilla v James (1964) 81 WN (Pt 1) (NSW) 457 Chapman v Michaelson [1909] 1 Ch 238 CASES CITED : J & F Stone Lighting and Radio Ltd v Levitt [1947] AC 209 Lodge v National Union Investment Co Ltd [1907] 1 Ch 300 Plier v Trumble (1873) 4 AJR 26 DECISION : Injunction denied

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG, J

THURSDAY 22 JULY 1999

3287/99 - BRADLEY V ASHTON

JUDGMENT

1 HIS HONOUR: This is the final hearing of a suit that was commenced earlier this afternoon whereby mortgagors seek declarations that their mortgagee is intending to take enforcement action to auction their properties tomorrow, contrary to s 6 of the Farm Debt Mediation Act 1994. 2 The properties involved are in the Braidwood area upon which the plaintiffs run cattle. They have been doing so for some time. They borrowed money from the defendant, the amount of the debt is not clear, but it would seem to be over one million dollars. 3 The plaintiffs previously made an application in proceedings 2276/99 for much the same relief as is presently sought in respect of previous enforcement action involving an earlier auction. Those proceedings came on before Austin J on 12 May 1999. The proceedings were settled. His Honour ordered in accordance with the short minutes that the summons be dismissed and that the plaintiffs pay the defendant's costs agreed at $6,000. The court then noted an agreement between the parties, essentially being that the plaintiffs would pay, and the defendant would accept, one million dollars on or before 4pm, 9 July 1999 in full satisfaction of all that was owing to him. If that money was not paid then the plaintiffs would give the defendant vacant possession of the properties before 9am on the next day and they undertook to the court that they would do so. They also undertook to the court that they would not make any further application in a court for a stay or injunction preventing the defendant exercising any enforcement action. 4 The orders that were sought in the previous proceedings were in accordance with paras 1 and 2 of the summons that the relevant debt was a farm debt within the meaning of the Farm Debt Mediation Act 1994 and that the defendant had failed to comply with s 8(1) of that Act. The rest of the orders were consequential injunctions. 5 Today the plaintiffs ask for the same orders, plus an order that they be released from their former undertaking, together with a declaration that the agreement in the short minutes of order of 12 May constitutes an agreement which contracts out of the Farm Debt Mediation Act contrary to s 20 of that Act. 6 The plaintiffs seek injunctions preventing the auction tomorrow, plus declarations that the debt is a farm debt and the defendant has failed to comply with the provisions of s 8. 7 Mr Harrison SC who appears for the plaintiffs candidly put that there is no argument that if the Act and in particular ss 6 and 20 did not apply that there would be an estoppel. However, he said that there could be no estoppel in the face of the statute, particularly ss 6 and 20, which evinced a firm intention by the legislature that the mediation provisions of the Act could not be outflanked. 8 This submission is certainly correct. There are judgments of high authority in cases where people sought to use estoppels to make life easier for landlords under the local and overseas equivalent of the Landlord and Tenant (Amendment) Act 1948, which were completely unsuccessful. In J & F Stone Lighting and Radio Ltd v Levitt [1947] AC 209, 216 Lord Thankerton said that: