Farm Debt Mediation Amendment Act 1996 (NSW)
New South Wales
Farm Debt Mediation Amendment
Act 1996 No 106
Contents
Page
1 Name of Act 2
2 Commencement 2 3 Amendment of Farm Debt Mediation Act 1994 No 91 2
Schedule 1 Amendments 3
New South Wales
Farm Debt Mediation Amendment
Act 1996 No 106
Act No 106, 1996
An Act to amend the Farm Debt Mediation Act 1994 to extend the period of operation of that Act and to make further provision with respect to mediation between farm debtors and their creditors. [Assented to 2 December 1996]
| Section 1 | Farm Debt Mediation Amendment Act 1996 No 106 |
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Farm Debt Mediation Amendment Act 1996.
2 Commencement
(1) This Act commences on a day or days to be appointed by
proclamation, except as provided by subsection (2).(2) Schedule 1 [10] commences on the date of assent to this Act. 3 Amendment of Farm Debt Mediation Act 1994 No 91
The Farm Debt Mediation Act 1994 is amended as set out in
Schedule 1.Farm Debt Mediation Amendment Act 1996 No 106
Amendments Schedule 1 Schedule 1 Amendments
(Section 3)
[1] Section 4 Definitions
Omit the definitions of creditor, enforcement action and farm
mortgage from section 4 ( 1).
Insert in alphabetical order:
creditor means a person to whom a farm debt is for the
time being owed by a farmer.
enforcement action, in relation to a farm mortgage,
means taking possession of property under the mortgage or any other action to enforce the mortgage, including the giving of any statutory enforcement notice, or the continuation of any action to that end already commenced, but does not include:
(a)
the completion of the sale of property held under the mortgage in respect of which contracts were exchanged before the commencement of this Act, or
(b)
the enforcement of a judgment that was obtained before the commencement of this Act.
farm mortgage includes any interest in, or power over,
any farm property securing obligations of the farmer (whether as a debtor or guarantor), but does not include:
(a) any stock mortgage or any crop or wool lien, or (b) the interest of
(i)
the lessor of any farm machinery that is leased, or
(ii)
the owner of any farm machinery that is subject to a hire-purchase agreement.
farm property means:
(a) a farm or part of a farm, or (b) farm machinery used by a farmer in connection with a farming operation.
Farm Debt Mediation Amendment Act 1996 No 106
| Schedule 1 | Amendments |
statutory enforcement notice means:
(a) a notice under section 57 (2) (b) of the Real Property Act 1900, or (b) a notice under section 111 (2) (b) of the Conveyancing Act 1919 , or
(c) a notice, given under any Act or statutory instrument, that is prescribed by the regulations as being within the scope of this definition.
Section 8 No enforcement action until notice of availability of mediation given
Omit “the Authority has given a certificate” from section 8 (3).
Insert instead “a certificate is in force”.
Section 10 Enforcement action postponed to allow for mediation
Omit “and until the Authority has given a certificate”.
Insert instead “a certificate is in force”.[4] Section 10 (2)
Insert at the end of section 10:
(2) This section does not invalidate any statutory enforcement notice or other process given, served or executed in order to fulfil a condition precedent to the taking of any enforcement action, but operates to prohibit the taking of the action concerned, or the enforcement by a court or tribunal of any such process, except as provided by section 11 (6).
Farm Debt Mediation Amendment Act 1996 No 106
Amendments Schedule 1 [5] Section 11 Certificate that Act does not apply to farm mortgage
Insert after section 11 (1):
(1A) If the creditor has (in whatever terms employed) agreed in writing to extend the period that will be available to the farmer for the conclusion of mediation between the parties to beyond 3 months, the reference in subsection (1) (c) to a period of 3 months is taken to be a reference to the extended period. (1B) For the purposes of subsection ( 1) (c), a failure by a creditor to agree to reduce or forgive any debt does not, of itself, demonstrate a lack of good faith on the part of a creditor in attempting to mediate.
[6] Section 11 (2) (c)
Omit the paragraph. Insert instead:
(c) the farmer has failed to respond in writing, within 28 days, to an invitation that:
(i) is made in writing by the creditor and is identified as an invitation under this paragraph, and (ii) invites the farmer to attend a mediation session at a specific time and place, and (iii) indicates that a failure of the farmer to respond in writing to the invitation might be taken to be an indication that the farmer declines to mediate in respect of the farm debt.
[7] Section 11 (5)–(7)
Insert after section 11 (4):
(5)
A certificate under this section remains in force for a period of 3 years from the date of its issue, and expires at the end of that period.
Farm Debt Mediation Amendment Act 1996 No 106
| Schedule 1 | Amendments |
(6) The expiry of a certificate under this section does not affect any proceedings for recovery of a farm debt, or for the exercise or enforcement of any right of the creditor, already taken or commenced by a creditor while the certificate was in force, and any such proceedings may be continued and concluded as if the certificate were still in force. (7) The reference in subsection (6) to the commencement of proceedings does not include a reference to the giving of any statutory enforcement notice or other action taken in order to fulfil a condition precedent to the enforcement of a right otherwise than through proceedings in a court or tribunal.
Section 14 Conduct of mediation sessions
Omit section 14 (4). Insert instead:
(4) A mediation session is not open to the public. (5) Persons who are not parties to a mediation session:
(a) may be present at or participate in the session in an advisory or representative capacity if authorised to do so under section 17, or (b) may otherwise be present at or participate in the session with the permission of the mediator.
Section 17 Representation and assistance during mediation
Omit section 17 (4). Insert instead:
(4)
A farmer who is a party to mediation is entitled to have present at any mediation session an advisor, who may but need not be legally or otherwise professionally qualified, and is entitled to call upon that advisor for advice and counsel during the session.
(5) Nothing in subsection (4) affects the operation of section
14 (1)–(3).(6) A contravention of this section does not invalidate a
mediation.
Farm Debt Mediation Amendment Act 1996 No 106
Amendments Schedule 1 [ 1 0 ] Section 31 and Schedule 1
Omit the section. Insert instead:
31 Savings and transitional provisions
Schedule 1 has effect.
Schedule 1 Savings and transitional provisions
(Section 31 )
1 Regulations
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of:
the Farm Debt Mediation Amendment Act 1996.
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication. 2 Certificates under section 11
(1)
A certificate under section 11 that was issued earlier than 3 years before the amendments made to that section by the Farm Debt Mediation Amendment Act 1996 took effect is of no force or effect, and any other certificate under that section expires as provided by section 11 (5).
Farm Debt Mediation Amendment Act 1996 No 106
| Schedule 1 | Amendments |
(2)
Section 11 (1A) and (1B) apply to the issue of a certificate under section 11 regardless of whether application was made for the certificate before or after the commencement of those subsections. Those subsections do not, however, operate to invalidate a certificate that was issued before their commencement.
3 Conduct of mediation sessions
The amendment made to section 17 by the Farm Debt Mediation Amendment Act 1996 has no effect in relation to mediation sessions that commenced before that amendment took effect.
[Minister’s second reading speech made in-
Legislative Assembly on 30 October 1996
Legislative Council on 20 November 1996]
0
0
0