Charlton v National Australia Bank Limited

The appeal concerned a dispute between Ms Charlton and National Australia Bank Limited (NAB) regarding a debt secured by a mortgage. Ms Charlton sought to challenge a judgment for possession of property granted to NAB. The primary legal question was whether a certificate issued under section 11 of the *Farm Debt Mediation Act 1994* (NSW) precluded judicial review of the underlying debt recovery proceedings.

The court was required to determine several key issues. Firstly, it had to consider whether the *Farm Debt Mediation Act 1994* (NSW) limited the availability of judicial review in circumstances where a certificate under section 11 had been issued. Secondly, the court examined the construction of a trust deed to ascertain whether it contained an express power for unilateral retirement or a lacuna that would permit the implication of such a power. Thirdly, the court considered when liability for a debt incurred under financial facilities arises, specifically whether it only arises once the debt becomes payable. Finally, the court had to determine whether Ms Charlton was the sole relevant "farmer" for the purposes of the Act and whether a "satisfactory mediation" had been undertaken, as well as what constituted "enforcement action" under section 10 of the Act.

The court reasoned that the certificate issued under section 11 of the *Farm Debt Mediation Act 1994* (NSW) did not prevent the court from reviewing the underlying debt recovery proceedings. It found that the Act's provisions did not oust the supervisory jurisdiction of the court. Regarding the trust deed, the court concluded that it did not contain an express power of unilateral retirement and that there was no basis to imply such a power. The court also determined that liability for the debt arose when it was incurred, not solely when it became payable. Furthermore, the court found that Ms Charlton was not the only relevant farmer and that a satisfactory mediation had not been undertaken. The court held that NAB's actions constituted enforcement action under section 10 of the Act.

Consequently, the court varied the earlier order by inserting the words "possession of" after "Judgment for NAB against Ms Charlton for", dismissed Ms Charlton's appeal, and ordered Ms Charlton to pay the respondents' costs of the appeal.