McMahon v Permanent Custodians Ltd

Case [2013] NSWCA 275

Court of Appeal

New South Wales
Case Title: McMahon v Permanent Custodians Ltd
Medium Neutral Citation: [2013] NSWCA 275
Hearing Date(s): 8 August 2013
Decision Date: 28 August 2013
Before: Meagher JA at [1]; Barrett JA at [2]; Ward JA at [3]
Decision:

Summons seeking leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: STATUTES - acts of parliament - interpretation - whether "default under the farm mortgage" in s 11(1)(a) of the Farm Debt Mediation Act 1994 (NSW) is to be construed as meaning "default under the farm mortgage as affected by any agreement reached at a mediation pursuant to the Act"
Legislation Cited: Farm Debt Mediation Act 1994
Real Property Act 1900
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Workplace Relations Act 1996 (Cth)
Cases Cited: James Hardie & Co Pty Ltd v Seltsam (1998) 196 CLR 5
Kavalee v Burbidge (1998) 43 NSWLR 422
Minister of Employment and Workplace Relations v Cribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Myross (NSW) Pty Ltd v Kahlefeldt Securities Pty Ltd [2003] NSWSC 138
Permanent Custodians Ltd v McMahon [2013] NSWSC 769
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Rail Corporation of New South Wales v Brown [2012] NSWCA 296, (2012) 82 NSWLR 318
Sharpe v Heywood [2013] NSWCA 192
Thompson v Goold & Co [1910] AC 409
Waller v Hargraves Secured Investments Ltd [2012] HCA 4; (2012) 245 CLR 311
Texts Cited: F Bennion, Statutory Interpretation 3rd Ed (1997)
Category: Principal judgment
Parties: John Terence Michael McMahon (First Applicant)
Robyn Sandra McMahon (Second Applicant)
Permanent Custodians Ltd (Respondent)
Representation
- Counsel: Counsel:
G Boskovitz (Solicitor) (Applicants)
R A Dick SC with D J Barnett (Respondent)
- Solicitors: Solicitors:
Boskovitz & Associates (Applicants)
Gillis Delaney Lawyers (Respondent)
File Number(s): CA 13/197359
Decision Under Appeal
- Court / Tribunal: Supreme Court
- Before: Davies J
- Date of Decision:  28 June 2013
- Citation: Permanent Custodians Ltd v McMahon [2013] NSWSC 769
- Court File Number(s): SC 11/400305

JUDGMENT

  1. MEAGHER JA: I agree with Ward JA.

  2. BARRETT JA: I agree with Ward JA.

  3. WARD JA: By Summons filed on 28 June 2013, Mr and Mrs McMahon seek leave to appeal from an interlocutory judgment of Davies J (Permanent Custodians Ltd v McMahon [2013] NSWSC 769) in which his Honour dismissed an application by them for declaratory relief and dissolved an injunction that had been granted by Button J on 27 March 2013, restraining the respondent, Permanent Custodians Ltd, from, inter alia, disposing of…

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AGLC
McMahon v Permanent Custodians Ltd [2013] NSWCA 275
Case
[2013] NSWCA 275
Decision Date

CaseChat Overview and Summary

McMahon (the appellant) sought leave to appeal from a decision of the primary judge concerning a dispute with Permanent Custodians Ltd (the respondent). The core of the dispute involved the interpretation of the *Farm Debt Mediation Act 1994* (NSW), specifically whether a default under a farm mortgage should be considered as it stood at the time of mediation or as it was affected by any agreement reached during that mediation. The appeal was heard by Meagher, Barrett and Ward JJA of the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was the proper construction of the phrase "default under the farm mortgage" as it appeared in section 11(1)(a) of the *Farm Debt Mediation Act 1994* (NSW). The appellant contended that this phrase should be interpreted to mean the default as it existed after any mediation agreement had been reached, whereas the respondent argued for a construction that focused on the default prior to or independent of any mediation outcome.

The Court of Appeal dismissed the appellant's summons seeking leave to appeal. While the specific reasoning is not detailed in the provided text, the outcome indicates that the Court did not find sufficient merit in the appellant's argument regarding the interpretation of the statutory provision. The Court’s decision to dismiss the appeal suggests it likely favoured an interpretation of "default under the farm mortgage" that did not encompass subsequent agreements reached during mediation, or that the appellant failed to demonstrate an arguable error in the primary judge's decision. The summons seeking leave to appeal was dismissed with costs.

Orders

Orders of the court

Summons seeking leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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