New South Wales Court of Appeal CITATION: Craigie & Anor v. Champion Mortgage Services Pty. Ltd. [2007] NSWCA 15 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 13 February 2007 JUDGMENT DATE: 13 February 2007 JUDGMENT OF: Hodgson JA at 1; Santow JA at 9; McColl JA at 10 EX TEMPORE JUDGMENT DATE: 13 February 2007 DECISION: Application for leave to appeal dismissed with costs. CATCHWORDS: REAL PROPERTY - Claim by mortgagee for possession of property used as a fish hatchery for supply of fish to pet shops and aquariums - Whether a farming operation within the Farm Debt Mediation Act. LEGISLATION CITED: Farm Debt Mediation Act 1994, s.4. PARTIES: Charles Menzies Craigie & Michael Charles Craigie - claimants Champion Mortgage Services Pty. Ltd. - opponent FILE NUMBER(S): CA 40611/06 COUNSEL: Mr. D. Allen for claimants Mr. B. Debuse for opponent SOLICITORS: Hancocks, Ultimo for claimants Champion Legal, Parramatta for opponent LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): CLD 12785/05 LOWER COURT JUDICIAL OFFICER: Johnson J LOWER COURT DATE OF DECISION: 30 August 2006 LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 869 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40611/06 CLD 12785/05 HODGSON JA SANTOW JA McCOLL JA Tuesday 13 February 2007 CRAIGIE & ANOR. V. CHAMPION MORTGAGE SERVICES PTY. LTD. Judgment 1 HODGSON JA: This is an application for leave to appeal from a decision of Johnson J, in which his Honour declined to grant relief claimed in a notice of motion which sought the stay of execution of a writ of possession in respect of a certain property, and also sought that a consent judgment be set aside. The basis of the application was that the property in question was claimed to be a farm property on which a farming operation was conducted by a farmer, and thus a farm within the meaning of the Farm Debt Mediation Act 1994, and that mediation had not been carried out as required by that Act as a condition precedent before a mortgagee can obtain possession. 2 The property in question has been used as a commercial fish hatchery, at which the claimants breed fish in ponds, both concrete ponds and earth bottom ponds, for the purpose of selling fish to pet shops and aquariums. The property is also used for herding goats, but the basis on which the claimants claim the property to be a farm is its use as a fish hatchery. 3 The question before the primary judge required consideration of a number of definitions in para 4 of the Farm Debt Mediation Act, in particular the definitions of farm, farmer and farming operation, and to a lesser extent the definition of farm machinery. Those definitions are as follows: farm means land on which a farmer engages in a farming operation. farmer means a person (whether an individual person or a corporation) who is solely or principally engaged in a farming operation and includes a person who owns land cultivated under a share-farming agreement and the personal representatives of a deceased farmer. farming operation means: (a) a farming (including dairy farming, poultry farming and bee farming), pastoral, horticultural or grazing operation, or (b) any other operation prescribed by the regulations for the purposes of this definition. farm machinery means: (a) a harvester, binder, tractor, plough or other agricultural implement, or (b) any other goods of a class commonly used for the purposes of a farming operation that are prescribed by the regulations as being farm machinery for the purposes of this Act, if the goods are acquired for the purposes of a farming operation. 4 The central basis of the primary judge's finding is set out in para 87 of his reasons for judgment as follows: 87 Insofar as a range of express terms are used in the definitions of "farm" , "farm machinery" and "farming operation" , the words used are directed towards the carrying out of traditional agricultural activities on land amplified by a number of specific additional activities. In each case, the definition (which uses the word "means" ) is conclusive and exhaustive: Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation (1976) 10 ALR 441 at 455; Pearce and Geddes, Statutory Interpretation in Australia , 2006, 6th edn, paragraph [6.56]. A conclusive and exhaustive definition of "farming operation" refers to farming (extended to include dairy farming, poultry farming and bee farming), pastoral, horticultural or grazing operations. The conclusive and exhaustive definition of "farm machinery" refers to a harvester, binder, tractor, plough or other agricultural implement. The term "farm" means land on which a farmer engages in a farming operation. There is provision within the definitions of "farming operation" and "farm machinery" for extension of these terms to other operations which are prescribed for the purposes of the definitions. No such other operations have been prescribed. In my view, these features lend powerful support to the Plaintiff's submission that the 'farming operations" covered by the FDM Act ought be confined to traditional agricultural pursuits extended only so far as the Act provides. 5 The basis on which leave to appeal is sought, as put by Mr Allen for the claimant, is that the primary judge erred in failing to find, on the basis of the facts of use of the property, that it was a farm (and farming operation) in the ordinary meaning of the words, and that the judge erred in narrowing the ordinary meaning of the words by reference to considerations associated with what are "traditional farming activities", and also by reference to considerations associated with the history of the legislation and its being based on legislation from the United States of America. 6 In my opinion, a ground is not made out for granting leave to appeal. In my view, the primary judge was correct in his approach, which in substance looked at what might be considered the core meaning of the concepts of farm and farming operation, and the question whether extensions to that core meaning are intended to be encompassed in the Act. In my opinion, in undertaking that exercise the primary judge did not inappropriately have regard to what might be regarded as traditional agricultural activities, and did not inappropriately have regard to considerations derived from the United States legislation. 7 In my opinion, insofar as the primary judge concluded that a fish hatchery operation for the purpose of supplying fish for pet shops and aquariums is not in the meaning of farming operation within the Act, his conclusion was correct. There may be more difficult questions in determining whether operations of the nature of raising fish for the purpose of human consumption fall within that meaning, but it would not be appropriate to grant leave in this case so that that matter could be considered. 8 For those reasons, in my opinion, the application for leave to appeal should be dismissed with costs. 9 SANTOW JA: I agree. 10 MCCOLL JA: I also agree. 11 HODGSON JA: The order of the court is: the application for leave to appeal is dismissed with costs. ********** 15/02/2007 - Spelling error - Paragraph(s) Heading on coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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