National Australia Bank Limited v Landy Chen-Conway & Anor [2008] NSWSC 448

New South Wales Supreme Court

CITATION : National Australia Bank Limited v Landy Chen-Conway & Anor [2008] NSWSC 448

HEARING DATE(S) : 08/05/08

JUDGMENT DATE : 9 May 2008

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

DECISION : Plaintiff to have judgment for possession

CATCHWORDS : Farm Debt Mediation Act (1994) NSW - Proper Construction of particular provisions - Whether any certificate was 'issued' under section 11

Farm Debt Mediation Act 1994 (NSW) LEGISLATION CITED : Real Property Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW)

CATEGORY : Principal judgment

Cassegrain v Commonwealth Development Bank of Australia Ltd [2003] NSWCA 260 CASES CITED : CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 Gain v Commonwealth Bank of Australia (1997) 42 NSWLR 252 Myross (NSW) Pty Limited v Kahlefeldt Securities Pty Limited [2003] NSWSC 138

National Australia Bank Limited (Plaintiff) PARTIES : Landy Chen-Conway (First Defendant) David Conway (Second Defendant)

FILE NUMBER(S) : SC 50174/07

COUNSEL : Mr J Stoljar (Plaintiff) Mr M Thompson (Defendants)

SOLICITORS : Minter Ellison (Plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Friday 9 May 2008

50174/07 National Australia Bank Limited v Landy Chen-Conway & Anor

JUDGMENT The proceedings 1 These are proceedings in which the National Australia Bank Ltd seeks judgment for possession of the land referred to in Certificate of Title Folio Identifier 61/755418, known as "Linden", Henry Lawson Drive, Mudgee, NSW (the Linden Property). 2 The defendants, Landy Chen-Conway and David Conway, by mortgage dated 22 December 2003 registered number AA337790 mortgaged the Linden Property to the plaintiff (the Linden Mortgage) (1/17). 3 There is no controversy in these proceedings that the plaintiff and a company of which the defendants were the sole directors and shareholders, and through which they carried on their business, Mudgee Wines Pty Limited (Mudgee Wines), entered into the facilities set out below; that the plaintiff provided to Mudgee Wines the funds contemplated by those facilities; that Mudgee Wines has failed to repay to the plaintiff the amounts owing by it under those facilities; and that Mudgee Wines is thereby seriously in default under those facilities. 4 It follows there could be no serious controversy that the defendants are liable to the plaintiff under a guarantee and indemnity entered into by them on 21 July 2004 in respect of the obligations of Mudgee Wines to the plaintiff (the Guarantee), and also pursuant to the Linden Mortgage. No challenge has been raised by the defendants in these proceedings as to the efficacy of either the Guarantee or the Linden Mortgage. 5 The only substantive issues which the defendants seek to agitate is that a mediation is required, pursuant to the Farm Debt Mediation Act 1994 (NSW) (the Act), as a precondition to the commencement or continuation of these proceedings, or that a certificate issued on 5 December 2005 by the Rural Assistance Authority of New South Wales (the Authority) under section 11 of the Act, certifying that the Act does not apply to the Linden Mortgage (the section 11 Certificate) (2/50) is invalid or ineffective. Factual background 6 The factual background contended for by the Bank is made out on the materials before the court. That background was as follows: