Hargraves Secured Investments Limited v Waller [2009] NSWSC 1210

New South Wales Supreme Court

CITATION : Hargraves Secured Investments Limited v Waller [2009] NSWSC 1210

HEARING DATE(S) : 26 and 27 October 2009

JUDGMENT DATE : 12 November 2009

JUDGMENT OF : Harrison J

1. Order that the defendant give possession to the plaintiff of the property known as "Merryangledre" otherwise described and identified in the amended statement of claim filed 28 March 2008. 2. Grant leave to the plaintiff forthwith to apply for the issue of a writ of possession. DECISION : 3. Postpone execution of the writ until a day no earlier than 31 January 2010, or such later day as the plaintiff and the defendant may otherwise agree. 4. Direct the entry of judgment for the plaintiff for $906,667.93, or such adjusted sum as the parties may otherwise agree. 5. Grant liberty to the parties to apply on 3 days' notice to vary or amend these orders in accordance with any agreement that may be reached as contemplated in orders (3) and (4) above. 6. Order the defendant to pay the plaintiff's costs of the proceedings.

CATCHWORDS : MORTGAGE –farm mortgage and farm debt - Farm Debt Mediation Act 1994 – proceedings for recovery of possession by mortgagee – where farmer and mortgagee enter into three successive loan agreements all secured by the farm mortgage – where mediation occurs following default under first loan agreement and where Deed of Settlement executed to resolve the dispute - where second loan agreement and third loan agreement entered after mediation – where certificate under s 11 of the Act issues with respect to the farm mortgage after mediation – subsequent defaults by farmer under second and third loan agreements - whether enforcement action pursuant to the mortgage void unless further mediation takes place after defaults under the subsequent loan agreements – certificate held to apply to the mortgage and not the farm debts so that proceedings not void under s 6 – UNJUST CONTRACTS – Contracts Review Act 1980 – "asset lending" – where farmer agrees to subdivide and sell farm or refinance following mediation - where farmer refinances debt secured on farm when no prospect of repaying debt from farm income or of retaining the farm even before the third loan agreement is executed – whether contract unjust –contract held not to be unjust in the circumstances – plaintiff entitled to order for possession