National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority (No 4) [2019] NSWSC 1477

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority (No 4) [2019] NSWSC 1477 Hearing dates: 24 November 2017; 14-16 March, 24 April, 4 June, 26 June and 3 September 2018; 2 and 22 October 2018 (written submissions) Date of orders: 29 October 2019 Decision date: 29 October 2019 Jurisdiction: Common Law Before: Walton J Decision: The Court makes the following directions:

(1) NAB should file and serve short minutes of order reflecting this judgment within 14 days of its publication together with a submission in support of the orders proposed in the event of any dispute as to the proposed orders.

(2) In the event as to any dispute as to the short minutes of order reflecting the terms of this judgment, Ms Charlton and Mr O'Brien shall file and serve submissions as to that issue within 14 days of the receipt of NAB's short minutes of order and submissions in support thereof.

(3) The Court will make orders administratively in Chambers upon the receipt of consent short minutes of order or, in the event of any dispute as to the form of the orders, after consideration of the submissions advanced by the parties. Catchwords: REAL PROPERTY – farm debt – possession of land –default under farm mortgage – Farm Debt Mediation Act – MEDIATION – whether s 11 certificate valid – whether satisfactory mediation – construction of s 4(1A) – was mediation in good faith – did mediator provide summary of mediation at end of mediation – was notice provided by bank that it had agreed to a mediation – was bank required to mediate with farmer in personal capacity and in capacity as trustee – whether subsequent mediation invalid –ENFORCEMENT ACTION – whether proceedings void pursuant to s 6 of the Farm Debt Mediation Act – whether enforcement action prior to mediation – scope of enforcement action under the Farm Debt Mediation Act – was notice of cancellation of overdraft a farm mortgage – whether bank entitled to withdraw reliance on default notices – whether bank engaged in continuation of enforcement action – TRUST LAW – was property held by trust – is trust liable to pay the loans rather than individual – whether joint trustee – whether individual validly resigned as trustee – whether individual indemnified under trust deed – SERVICE – was cancellation notice required to be served – was cancellation notice served – was default notice served – CONSUMER LAW – misleading or deceptive conduct – whether representation made by bank that facilities would be extended – ADMINISTRATIVE LAW – judicial review – error of law – procedural fairness – application for extension of time to bring proceedings – application dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Crimes Act 1900 (NSW) Crimes Act 1958 (Vic) Farm Debt Mediation Act 1994 (NSW) Farm Debt Mediation Amendment Act 2018 (NSW) Oaths Act 1900 (NSW) Real Property Act 1900 (NSW) Supreme Court Act 1970 (NSW) Trustee Act 1925 (NSW) Trustee Act 1958 (Vic) Uniform Civil Procedure Rules 2005 (NSW) Water Management Act 2000 (NSW) Cases Cited: Aiton v Transfield (1999) 153 FLR 236; [1999] NSWSC 996 ALYK (HK) Ltd v Caprock Commodities Trading Pty Ltd [2015] NSWSC 1006 Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 Australian Innovation Ltd v Dean-Willcocks (2001) 166 FLR 360; [2001] NSWSC 1204 Bendigo and Adelaide Bank Ltd v Tombs [2010] NSWSC 1427 Boz One Pty Ltd v McLellan (2015) 105 ACSR 325; [2015] VSCA 68 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Carr v Finance Corporation of Australia Ltd (No 2) (1982) 150 CLR 139; [1982] HCA 43 Cherryop Pty Ltd v Commonwealth Bank of Australia (1996) 39 NSWLR 337 Dewhirst v Edwards [1983] 1 NSWLR 34 Director of Public Prosecutions (SA) v District Court of South Australia and Lawrie (2005) 92 SASR 94; [2005] SASC 260 Dobbie v Department of Social Security [1995] FCA 1191 Escobar v Spindaleri (1986) 7 NSWLR 51 Gain v Commonwealth Bank of Australia (1997) 42 NSWLR 252 Gooley v NSW Rural Assistance Authority (No 2) [2017] NSWSC 1336 Kiriwina Investment Company Pty Ltd v Green Lees Developments Pty Ltd [2017] NSWSC 1727 Kirkham Estate Wines Pty Ltd v General Manager, NSW Rural Assistance Authority [2004] NSWADTAP 24 MacarthurCook Fund Management Ltd v Zhaofeng Funds Ltd [2012] NSWSC 911 Mayes v Mayes [1971] 2 All ER 397 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 National Australia Bank Limited v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority [2018] NSWSC 157 National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority (No 2) [2018] NSWSC 969 National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority (No 3) [2018] NSWSC 970 Photios v Cussen [2015] NSWSC 336 R v Medical Practitioners Professional Conduct Tribunal; Ex parte Medical Board (1985) 40 SASR 84 R v Windridge; Ex parte Pacific Coal Pty Ltd [1992] 2 Qd R 180 Re Bluenergy Group Ltd (2015) 300 FLR 155; [2015] NSWSC 977 Re Maria's Farm Veggies Pty Ltd [2016] NSWSC 1770 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 Roxo v Normandie Farm (Dairy) Pty Ltd [2012] NSWSC 765 State Bank of New South Wales v Topfelt Pty Ltd (Unreported, Supreme Court of New South Wales, Brownie J, 11 March 1993) State Bank of NSW v Freeman (Unreported, Supreme Court of New South Wales, Badgery-Parker J, 31 January 1996) Suncorp Insurance and Finance v Commissioner of Stamp Duties (1997) 36 ATR 514; [1998] 2 Qd R 285 Suncorp-Metway Ltd v Nam Property Holdings Pty Ltd (2010) 16 BPR 30,859; [2010] NSWSC 1078 Thai v Deputy Federal Commissioner of Taxation (1994) 53 FCR 252 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Van Stappen v Mackenzie (2008) 14 BPR 26,387 Varga v Commonwealth Bank of Australia (1996) BPR 97,617 Waller v Hargraves Secured Investments Ltd (2012) 245 CLR 31; [2012] HCA 4 Texts Cited: Australian Law Dictionary (Oxford University Press, 2nd ed, 2013) D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) Encyclopaedic Australian Legal Dictionary (LexisNexis, online edition) Thomson Reuters, Ford and Lee: The Law of Trusts (at August 2019) Category: Principal judgment Parties: 2015/27843 National Australia Bank Ltd (Plaintiff / Cross-Defendant) Josephine Joan Charlton in her own capacity and as trustee for the Phoenix Trust (Defendant / First Cross-Claimant) Kevin Michael O'Brien (Second Cross-claimant)