Hargraves Secured Investments Limited v Michael Slaven as Trustee of Bankrupt Estate of Roslyn Edwina Waller

Supreme Court of NSW|2013-05-10|Before: Hall J

Judgment 1HALL J: These proceedings between the plaintiff, Hargraves Secured Investments Limited and the first defendant as Trustee of the bankrupt estate of the second defendant, Roslyn Edwina Waller (a farmer) concern loan arrangements entered into between the plaintiff and Ms Waller in the years 2003 to 2006 inclusive. Earlier proceedings, to which I will shortly refer, raised questions arising under the Farm Debt Mediation Act 1994 ("the Farm Act"). Ms Waller has been permitted to appear by counsel and be heard upon the question as to whether or not she has an available defence to the plaintiff's proceedings notwithstanding that she has been declared bankrupt. To that end, written and oral submissions have been advanced on her behalf by Mr PJ Macarounas of counsel. 2For the purpose of understanding the submissions on behalf of Ms Waller it is necessary to refer to earlier proceedings brought by the plaintiff against the second defendant and which were ultimately determined by the High Court: Waller v Hargraves Secured Investments Ltd [2012] HCA 4. 3Before doing so, it is important to note that Ms Waller has been declared bankrupt since the decision of the High Court. The plaintiff has argued that by reason of her bankruptcy the Farm Act has no application in relation to the enforceability of the proceedings brought by the plaintiff by way of Amended Statement of Claim filed on 14 November 2012. 4Section 5(2) of the Farm Act provides: "This Act does not apply in respect of: (a) a farmer whose property is subject to control under Division 2 of Part X of the Bankruptcy Act 1966 of the Commonwealth, or (b) a farmer whose property is the subject of a bankruptcy petition presented by any person, or (c) [not relevant]..." 5The question of the standing of Ms Waller, the second defendant, is discussed later in this judgment.

Loan Transactions 13It is necessary to outline the relevant factual matters, including the transactions between the plaintiff and the second defendant, which were the subject of consideration by the High Court: (i) On 28 August 2003 Ms Waller borrowed $450,000 from the plaintiff. The loan was secured as an "all monies" first mortgage over her farm (this may be referred to as the "first loan agreement"). (ii) On 7 October 2004 the plaintiff gave notice under the Farm Act that the second defendant was in default. (iii) On 2 June 2005 a mediation took place. (iv) On or about 26 July 2005 a Deed of Settlement was made between the plaintiff and the second defendant. The plaintiff agreed to increase the amount of the loan to $640,000. The parties made a new Loan Agreement (the principal being repayable in September 2006 with interest). (v) On 28 July 2005, pursuant to the Deed of Settlement, the parties entered into "the second loan agreement". (vi) On 29 August 2006 the parties made a further loan agreement - the time for repayment of the principal sum of $640,000 was extended to 5 September 2009 ("the third loan agreement"). (vii) From October 2006, the second defendant failed to make interest payments when due. (viii) On 20 October 2006, a section 11 certificate was issued under the Farm Act. (ix) In November 2007, the plaintiff brought proceedings. The second defendant raised the issue of the Farm Act applying only to the first agreement.

CONSIDERATION 14In Waller v Hargraves Secured Investments Ltd [2012] HCA 4, the High Court determined that the Farm Act applied to the enforcement action taken under the farm mortgage that secured advances made as part of a settlement reached following the mediation. 15The Farm Act provides mechanisms which condition the enforceability of a farm loan. The bar to enforcement is lifted if a certificate is in force under s 11 of the Farm Act in respect of a relevant farm mortgage. 16In the proceedings determined by the High Court, the s 11 certificate had been given to the plaintiff as a creditor under s 11 following the mediated settlement. However, the primary question was whether the certificate lifted the bar on the enforceability of the mortgage as secured for the advances made under the third loan agreement. That question was answered in the negative. 17Accordingly, the third loan agreement entered into between the plaintiff and Ms Waller had extinguished the debts under the first and second loan agreements but it created new obligations which gave rise to a new "interest" or "power" over the farm property within the meaning of the definition of "farm mortgage" in the Farm Act.

SUBMISSIONS 18Mr Macarounas provided written submissions dated 8 May 2013. These were supplemented with oral submissions at the hearing on 10 May 2013. 19It was observed in the submissions that the orders sought by the plaintiff related to breaches of the loan agreement made on 29 August 2006 (the third loan agreement). The second defendant, Ms Waller, relied upon the following matters as constituting a basis for a defence to the plaintiff's proceedings: "(a) That the plaintiff was not entitled to the relief sought by reason of s 91 of the Civil Procedure Act 2005 as the plaintiff's cause of action has already been dismissed after a hearing on the merits. (b) Cause of action estoppel at common law." 20It was submitted that each of the above defences, if proved, was capable of establishing a defence to the present proceedings. 21The primary submission accordingly was that the provisions of s 91 of the Civil Procedure Act 2005 ("the CPA") operated to preclude the plaintiff from obtaining any relief in the present proceedings. Part 7 of the CPA was said to incorporate previous provisions of the Supreme Court Act 1970 and the Supreme Court Rules. It was submitted that in interpreting s 91 the Court ought to give effect to the overriding purpose of the CPA. 22Underlying the submissions for Ms Waller was the proposition that there had been a previous determination on the merits including a determination by the Court of Appeal and the High Court and that accordingly the present proceedings were not maintainable. 23Reference was made to relevant authorities as to the meaning of the expression "a determination on the merits". 24Support, it was submitted, was found in the analysis in Tawil v Public Trustee of NSW [2009] NSWSC 256. 25Reliance was placed on observations in Tawil in which Brereton J referred to the fact that the merits of a claim involved its legal merits as well as its factual merits. Additionally reliance was placed upon the observations in Bridie v Messina (1965) 66 SR (NSW) 446 at 453 per Sugerman J who observed: "A hearing on the merits is one in which the issues in fact or law, or both, between the parties are fought out to a final conclusion binding on the parties - a decision 'upon the merits'. It does not seem to matter that the determination of one or some only of the issues may suffice to decide the whole controversy, or that the issues may be decided on facts which are the subject of admission and not of dispute or even evidence. Without purporting to make an exhaustive enumeration, or to state all the qualifications which may be necessary, a hearing may be said not to have been on the merits if it resulted in a decision which was final but not analogous rather to a non-suit, or it, for some reason as withdrawal, want of jurisdiction, non-compliance with some preliminary requirement, defect in the information, or other technical or procedural informality or irregularity, it did not result, or could not have resulted in a decision on the merits, final in nature..." 26The contention advanced for Ms Waller was that it is at least arguable that there has been a hearing on the merits. It was noted that the previous proceedings were heard and determined by a member of this Court (Harrison J) on 26 and 27 October 2007, and then by the Court of Appeal and subsequently by the High Court. 27It was argued that the matter as a whole had been considered and determined and an order made whereby the proceedings were dismissed. That, so the argument ran, required an assessment of the respective parties' submissions and a determination by the Court of the rights between the parties. The fact that only one issue formed the basis of the ultimate determination of the proceedings did not alter the fact, it was submitted, that the dismissal has been one made on the merits. 28It was also argued that the dismissal of the proceedings was not merely based on procedural grounds. Compliance with the Farm Act was a precondition to the entitlement for relief that the plaintiff sought. 29Further submissions were put upon the basis of issue estoppel. 30Reliance was also placed upon the fact that the present cause of action is the same cause of action as previously litigated. The factual matrix was said to be common to both proceedings, namely, that the plaintiff and Ms Waller entered into a loan agreement on 29 August 2006, Ms Waller allegedly defaulted on the agreement and the plaintiff sought relief in the form of possession, leave to issue a Writ of Possession and judgment for the amount outstanding under the loan. It was submitted: "... while the issues in the defence may differ, the core elements of the cause of action are, in substance, the same. Further, the evidence that is used, or is likely to be used to prove the cause of action in both proceedings is substantially the same": Submissions for the second defendant at [8.1].

Submissions for the Plaintiff 31Mr Mulquiney on behalf of the plaintiff, relied upon the decision in National Australia Bank Limited v Strik [2009] NSWSC 184 for the proposition that Ms Waller, by reason of her bankruptcy, had no more than a bare legal interest in the subject property and that she held that interest for the benefit of the Trustee. Accordingly, it was contended that she had no interest in the proceedings brought against her for possession of the property and had no standing to be heard in defence of the plaintiff's case. Reliance was placed in this respect upon the decisions in Bendigo Bank Limited v Demaria [2001] VSC 218 and Re-Engine Pty Ltd (in liq) v Fergusson [2007] VSC 57. 32In relation to the issue raised on behalf of Ms Waller, it was submitted, whether supported by res judicata or issue estoppel principles, the key issue is the meaning to be given to the concept of a determination of the merits of proceedings in the context of the history of the earlier proceedings between the plaintiff and Ms Waller and the present proceedings. 33Mr Mulquiney observed that what the High Court determined was that the Farm Act applied, that the plaintiff required a valid s 11 certificate in order to enforce its mortgage and the High Court determined that the plaintiff did not hold such a certificate and that accordingly enforcement action taken by the plaintiff was void by reason of the provisions of the Farm Act (s 6). 34Since the decision in the High Court, it was noted, intervening steps have arisen (in particular the bankruptcy of Ms Waller) and that it had been acknowledged or conceded during the hearing of these proceedings that in those circumstances the Farm Act no longer applied. In this latter respect, reliance was placed upon the provisions of s 5 of the Farm Act which is in the following terms: "5 Application of Act (1) This Act applies in respect of creditors only in so far as they are creditors under a farm debt. (2) This Act does not apply in respect of: (a) a farmer whose property is subject to control under Division 2 of Part x of the Bankruptcy Act 1966 of the Commonwealth, or (b) a farmer whose property is the subject of a bankruptcy petition presented by any person, or (c) ... [not relevant]" 35Accordingly, it was submitted for the plaintiff that the Farm Act no longer has any application to the relevant agreement between it and Ms Waller. In those circumstances, it was submitted, the decision or the determination of the High Court is not relevant to the issues raised in the current proceedings which no longer involve the provisions or the application of the Farm Act. 36It was accordingly submitted that in these circumstances the plaintiff in the present proceedings seeks enforcement, but in circumstances in which the issues do not include statutory conditions that apply under the Farm Act. 37It was observed that the decision in the High Court turned on the plaintiff's failure to comply with the statutory precondition before taking enforcement action. No other issue in those proceedings was the subject of the Court's determination. The High Court's decision did not, it was submitted, involve a determination on the merits of (a) a legal obligation in Ms Waller to repay the loan monies advanced by the plaintiff (together with interest as prescribed), (b) Ms Waller's default in failing to repay the loan and pay interest due and owing, or (c) the plaintiff's entitlement under the mortgage to seek an order for possession and an order for the issue of a Writ of Possession. The present proceedings, in other words, it was submitted, are based on issues that were previously not in dispute and which now arise free of the statutory preconditions that previously applied before Ms Waller was declared bankrupt in July 2012. 38Accordingly, in the circumstances it was submitted, in effect, that the submissions advanced on behalf of Ms Waller were built upon a false premise, in particular, that there had been a prior determination on the merits when in fact that had not occurred and where it is now common ground that the Farm Act has no application to the present proceedings.

CONSIDERATION 39The Amended Statement of Claim filed on 14 November 2012 particularises the basis for the relief claimed. This includes: The loan agreement made on 29 August 2006. The mortgage provided as security for the loan. The default of Ms Waller under the loan. The particulars of the default in failing to make payments of interest: paragraph [5] of the Amended Statement of Claim. The fact that Ms Waller had been declared bankrupt on 16 July 2012 with a Trustee in Bankruptcy appointed. That the Farm Act, by reason of s 5, has no application to the relevant debt. Notice of Default had been served pursuant to s 111(2)(b) of the Conveyancing Act 1919 and s 57(2)(b) of the Real Property Act 1900. 40In relation to the first proceedings, initially determined by this Court (Harrison J), it was confirmed in the course of the present proceedings that no issues were raised in relation to the making of the loan, the failure by Ms Waller to repay the loan monies and interest in accordance with the terms of the loan or the issue of default by her in those respects. The only issues raised were a claim under the Contracts Review Act 1980 and the issue of the statutory condition associated with the s 11 certificate. 41Accordingly, the plaintiff in those proceedings adduced evidence to support the essential facts concerning the loan and the default, and there was no other disputed issue other than the s 11 certificate: T 10 May 2013 at p 32. 42A copy of the Second Further Amended Defence in proceedings No 15600/2007 in which Ms Waller made certain admissions as to failure to pay under the third loan agreement, and paragraph 25 of that defence, establishes the nature of the defence litigated, namely, the failure by the plaintiff to have complied with s 11 of the Farm Act (which defence was ultimately successful in the High Court): see annexure OS-2 to the affidavit of Mr Suchowersky sworn 9 May 2013. 43It is clear from the history of the proceedings and from the matters raised in the present proceedings, that the plaintiff has, since the commencement of the default by Ms Waller under the loan agreement, had an entitlement under the loan and mortgage security. The judgment of the High Court did not determine otherwise, the decision of the High Court having been directed to the issue of compliance with the statutory precondition. In other words, whilst the plaintiff's rights under the loan and mortgage existed undiminished, its rights could not be enforced without a s 11 certificate being issued in respect of the agreement of 29 August 2006. In fact, and as a matter of law, the only issue determined "on the merits" was whether the enforcement proceedings were valid or not, no other issue or question of legal entitlement in the plaintiff was determined by the High Court. 44Subsequent to the decision of the High Court, there has been continuing default by Ms Waller (failure to repay any of the loan monies and failure to pay any interest). In the unfortunate circumstances of continuing default it remains open for the plaintiff to bring proceedings to enforce its rights under the loan and mortgage without there being any requirement to satisfy a precondition under the Farm Act by reason of the combination of the declaration of bankruptcy and the provisions of s 5 of the Farm Act. 45Reference has been made above to the dicta of Sugerman J in Bridie v Messina. His Honour's observations in that case to the effect that the determination on one or some only of issues in proceedings may suffice to decide the whole controversy is, in my opinion, relevant to the issue raised on behalf of Ms Waller in terms of the submission that there has been a determination on the merits. As his Honour there observed, a hearing may be said not to have been on the merits if it resulted in a decision which was final but not analogous, for example, to a non-suit or where there has been non-compliance with a preliminary requirement. 46Accordingly, I have concluded that there has not been a hearing and determination on the merits such as to give rise to an issue estoppel or res judicata as contended for Ms Waller. 47In relation to the question of standing having regard to Ms Waller's bankruptcy, it is clear that Ms Waller holds a bare legal interest only on behalf of the Trustee. In National Australia Bank Limited v Strik, supra, the Court (Johnson J) dealt with proceedings for possession of land based upon alleged default under a mortgage with respect to certain property. The defendant had become bankrupt following the filing of a debtor's petition. 48The defendant purported to file a defence which was described as "self-evidently bad" at [3]. It was said not to raise any issue that could operate as a viable defence. His Honour noted that the defence was filed after the defendant had become bankrupt. There was evidence on affidavit that clearly established the history of the loan arrangement, the default by the defendant under the loan arrangement and otherwise demonstrated an entitlement by the plaintiff to judgment. In those respects, the proceedings were similar to the present case. 49On the issue of the standing of the defendant to appear and defend the proceedings, his Honour noted: "9 I am satisfied that the Defendant has no more than a bare legal interest in the Wollongong property which he holds for the benefit of the Official Trustee, and that he has no interest in the proceedings brought against him for possession of the property and has no standing to be heard in defence of the plaintiff's claim: Farrow Mortgage Services Pty Ltd v Winfield (1992) 2 Qd R 282 at 285; Bendigo Bank Limited v Demaria [2001] VSC 218 at [18]. ... Re-Engine Pty Ltd v Fergusson [2007] VSC 57; (2007) 209 FLR 1 at 9-12 [50]-[68]." 50I am satisfied that Ms Waller, as second defendant, has not established the basis for an arguable defence. By reason of the bankruptcy she has no standing to appear in the proceedings for the purpose of making submissions or tendering evidence. The Trustee in Bankruptcy has made it clear that he does not wish to be heard in the proceedings. 51In this latter respect, I note that the proceedings initially came before me on 11 April 2013. On that occasion Mr Mulquiney, on behalf of the plaintiff, drew attention to the affidavit of Andrew Wayne Stuart Macpherson sworn on 10 April 2013 to which was attached handwritten terms of a settlement entered into between the plaintiff and the first defendant, the Trustee of Ms Waller's estate, which resolved outstanding questions as to costs of the prior proceedings. Mr Mulquiney drew attention to cl 5 of the handwritten agreement, a copy of which was attached to the lastmentioned affidavit, in the following terms: "The first defendant is to inform the Court (if required) that he does not wish to be heard and that the orders to be made are a matter for the Court, subject to any order to the contrary by the Court." (T 11 April 2013 at p10).

Orders and Directions 52Ms Waller having failed in the present application, subject to the matters to which I will now refer, it would be open to the plaintiff to proceed with its application for the making of orders as sought in the Amended Statement of Claim and in the plaintiff's Notice of Motion dated 17 January 2013. 53The issue which has been determined in this judgment was brought before the Court in the following way. 54When the proceedings came before Campbell J on 7 March 2013, his Honour made the following orders: "1. I direct the Registrar to refer Mrs Waller's case to a barrister on the pro bono panel for the provision of oral advice by that barrister to Mrs Waller of her prospects of successfully resisting the plaintiff's application for summary judgment such advice to be provided within 28 days. 2. If the condition I have imposed on order 1 cannot be fulfilled the Registrar is to re-refer the matter to me for further directions. 3. I order that the proceedings against the 1st defendant be stayed until further order of the court. I further order: 4. That the plaintiff's Notice of Motion for Summary Judgment be adjourned. 5. That the plaintiff has liberty to approach the Registrar forthwith for the fixing of a hearing date for the hearing of the motion after the expiration of 6 weeks from the 28th of February 2013." 55The proceedings subsequently were listed before me on 11 April 2013. On that occasion Mr Macarounas appeared for Ms Waller and he indicated that he had only been briefed the day before. Mr Macarounas sought an adjournment of the hearing of the plaintiff's Notice of Motion indicating that Ms Waller had advice that she had a reasonably arguable defence. 56On 11 April 2013, Mr Mulquiney indicated that the proceedings were re-listed on that date pursuant to an order that had been made by Campbell J. The proceedings were then adjourned until 10 May 2013. 57On the latter date, submissions on the issue, inter alia, of an arguable defence were heard and judgment reserved. This judgment having now been delivered, the plaintiff's Notice of Motion accordingly remains to be dealt with. That would require, inter alia, an order on the application of the plaintiff that the stay of proceedings ordered by Campbell J on 7 March 2013 be removed, upon which event the plaintiff's Notice of Motion would then proceed in the ordinary way. 58The only defence that has been filed in the present proceedings is one completed in the handwriting of Ms Waller dated 28 November 2012. It is not in proper form as it does not plead a defence but merely states: "To file Notice of Defence of Statement of Claim 2012/33290". That is not in substance a defence and is liable to a strike out order, although no such order has yet been sought. 59The question posed for my determination, namely, whether Ms Waller has an arguable defence to the plaintiff's proceedings, has been answered in the negative. I have further determined that by reason of Ms Waller's bankruptcy, she has no standing in the present proceedings. 60In those circumstances, I propose to provide the plaintiff with the opportunity of seeking consequential orders, including orders in respect of the stay of proceedings and an order for the hearing of the plaintiff's Notice of Motion.

Orders (1) Leave to the plaintiff to apply to the Registrar for a hearing date of its Notice of Motion dated 17 January 2013 and for the purpose of determining any directions or other orders sought by the plaintiff. (2) Leave to the plaintiff to apply for the proceedings which I have determined to be re-listed before me or the Duty Judge in relation to any consequential or ancillary orders as may be considered necessary.

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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2013

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