Ciavarella v Hargraves Secured Investments Ltd [2016] NSWCA 304

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ciavarella v Hargraves Secured Investments Ltd [2016] NSWCA 304 Hearing dates: 12 October 2016 Decision date: 07 November 2016 Before: Meagher JA at [1]; Leeming JA at [69]; Payne JA at [70] Decision: 1. The applicants' summonses for leave to appeal in proceedings 2016/262213 and 2016/202914 be dismissed with costs. 2. The applicants' notice of appeal in proceedings 2016/202913 be dismissed as incompetent. 3. The stay order made on 22 August 2016 be discharged at 5pm on 14 November 2016. 4. The applicants pay the respondent's costs of these proceedings, including the costs of their notice of motion filed on 12 August 2016 Catchwords: APPEAL – application for leave to appeal from summary judgment for possession of farm properties and money judgment – where respondent creditor advanced monies to first applicant farmer, guaranteed by second and third applicants and secured by mortgage over properties and charge over water entitlement – where respondent served s 8 notice under Farm Debt Mediation Act 1994 (NSW) and subsequent mediation resulted in execution of Heads of Agreement by which applicants acknowledged indebtedness and released existing claims – where respondent later commenced possession proceedings and applicants claimed equitable set-offs by way of defence – where accepted that any set-off arose only if arguable that Heads of Agreement and release not binding – where primary judge found no arguable case that Heads of Agreement not valid or enforceable – whether primary judge erred in holding that it was not arguable that Agreement should be set aside for unconscionable conduct contrary to ss 12CA or 12CB of the Australian Securities and Investment Commission Act 2001 (Cth) or as "unjust" within s 7 Contracts Review Act 1980 (NSW) Legislation Cited: Australian Consumer Law (Cth), ss 20, 21 Australian Securities and Investment Commission Act 2001 (Cth), ss 12CA, 12CB, 12BAB Competition and Consumer Act 2010 (Cth), Sch 2 Contracts Review Act 1980 (NSW), ss 7, 9 Conveyancing Act 1919 (NSW), s 111(2)(b) Real Property Act 1900 (NSW), s 57(2)(b) Farm Debt Mediation Act 1994 (NSW), ss 3, 4(1), 6, 8, 9(1), 11, 11A Uniform Civil Procedure Rules 2005 (NSW), r 13.1 Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 26 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 McMahon v Permanent Custodians Ltd [2013] NSWCA 275 Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Waller v Hargraves Secured Investments Ltd (2012) 245 CLR 311; [2012] HCA 4 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Category: Principal judgment Parties: Darren John Ciavarella (First Applicant) Shirley Lynette Ciavarella (Second Applicant) Louis Mark Ciavarella (Third Applicant) Hargraves Secured Investments Ltd (Respondent) Representation: Counsel: S Wawn (Solicitor) (Applicants) A L Avery-Williams (Respondent)