McMahon v Permanent Custodians Ltd - [2013] NSWCA 201

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McMahon v Permanent Custodians Ltd [2013] NSWCA 201
Hearing dates: 28 June 2013
Decision date: 28 June 2013
Before: Basten JA
Decision:
(1) Permanent Custodians Ltd by itself, its servants and agents, be restrained from auctioning, selling, alienating, leasing or otherwise disposing of the property known as "Wyrallah" 498 Coraki Road, South Gundurimba via Lismore NSW 2480 until 5pm on Tuesday 2 July 2013;
(2) Permanent Custodians Ltd by itself, its servants and agents, be restrained from auctioning, selling, alienating, leasing or otherwise disposing of the property known as "Summerdowns" Reynolds Road, Casino 2471 until 5pm on Tuesday 2 July 2013;
(3) Direct that these orders be taken out as soon as convenient and served upon Permanent Custodians Ltd and that in any event a form of order be served by email this evening;
(4) Reserve liberty to the parties to apply at any time,
(5) Direct that the matter be listed before me at a time to be fixed with my associate on Tuesday 2 July, at which time, convenient to the legal representatives of both parties, I will consider the motion further.
[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: PROCEDURE - interlocutory issues - injunctions - ex parte - whether applicants should receive interim injunctive relief to prevent respondent from disposing of properties owned by applicants - where applicants defaulted on loans in respect of properties - defaults subject to Farm Debt Mediation Act 1994 (NSW) - primary judge found that valid certificate issued allowing respondent to proceed with enforcement action - applicants filed summons seeking leave to challenge decision
Legislation Cited: Farm Debt Mediation Act 1994 (NSW), ss 10, 11
Category: Procedural and other rulings
Parties: John Terence Michael McMahon (First Applicant)
Robyn Sandra McMahon (Second Applicant)
Permanent Custodians Limited (Respondent)
Representation:
Counsel:

G Boskovitz (Solicitor) - Applicants
Solicitors:
Boskovitz & Associates - Applicants

File Number(s): CA 2013/197359
Decision under appeal

Jurisdiction:

9111

Citation:

Permanent Custodians Ltd v McMahon [2013] NSWSC 769

Date of Decision:

2013-06-28 00:00:00

Before:

Davies J

File Number(s):

SC 2011/400305

Judgment

BASTEN JA: The matter comes before me ex parte on Friday afternoon in circumstances where the applicants seek interim injunctive relief to prevent the respondent from disposing of two properties owned by one or both of the applicants. The proceedings have a lengthy history which I do not propose to recount. Some of that history is set out in a judgment of Davies J in the Common Law Division, handed down this morning: Permanent Custodians Ltd v McMahon [2013] NSWSC 769.

Briefly, the two properties the subject…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McMahon v Permanent Custodians Ltd

Details

AGLC: McMahon v Permanent Custodians Ltd [2013] NSWCA 201
Case: [2013] NSWCA 201
Decision Date: 28 June 2013

CaseChat Overview and Summary

The applicants, McMahon, sought interim injunctive relief from the Supreme Court of New South Wales to prevent the respondent, Permanent Custodians Ltd, from disposing of two properties. The dispute arose from the applicants' default on loans secured by these properties, which were subject to the *Farm Debt Mediation Act 1994* (NSW). The primary judge had previously found that a valid certificate had been issued, permitting the respondent to proceed with enforcement action. The applicants subsequently filed a summons seeking leave to challenge this decision.

The central legal issue before the court was whether the applicants should be granted interim injunctive relief to restrain the sale of their properties pending the determination of their challenge to the validity of the certificate issued under the *Farm Debt Mediation Act 1994* (NSW). This involved considering the applicants' prospects of success in their challenge and whether the balance of convenience favoured granting the injunction.

Basten JA considered the applicants' arguments that the certificate was invalid. While acknowledging that the applicants had raised arguable points regarding the validity of the certificate, the court noted that the applicants had not yet demonstrated a strong prima facie case. However, the court found that the balance of convenience favoured granting interim relief. The potential prejudice to the applicants if the properties were sold before their challenge was heard was significant, whereas the prejudice to the respondent was limited to a short delay in exercising its enforcement rights.

Consequently, the court ordered that Permanent Custodians Ltd be restrained from auctioning, selling, alienating, leasing, or otherwise disposing of the properties known as "Wyrallah" and "Summerdowns" until 5pm on Tuesday, 2 July 2013. The matter was listed for further consideration on that date.

Orders

Orders of the court

(1) Permanent Custodians Ltd by itself, its servants and agents, be restrained from auctioning, selling, alienating, leasing or otherwise disposing of the property known as "Wyrallah" 498 Coraki Road, South Gundurimba via Lismore NSW 2480 until 5pm on Tuesday 2 July 2013;

(2) Permanent Custodians Ltd by itself, its servants and agents, be restrained from auctioning, selling, alienating, leasing or otherwise disposing of the property known as "Summerdowns" Reynolds Road, Casino 2471 until 5pm on Tuesday 2 July 2013;

(3) Direct that these orders be taken out as soon as convenient and served upon Permanent Custodians Ltd and that in any event a form of order be served by email this evening;

(4) Reserve liberty to the parties to apply at any time,

(5) Direct that the matter be listed before me at a time to be fixed with my associate on Tuesday 2 July, at which time, convenient to the legal representatives of both parties, I will consider the motion further.

[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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Medium Neutral Citation:	McMahon v Permanent Custodians Ltd [2013] NSWCA 201
Hearing dates:	28 June 2013
Decision date:	28 June 2013
Before:	Basten JA
Decision:	(1) Permanent Custodians Ltd by itself, its servants and agents, be restrained from auctioning, selling, alienating, leasing or otherwise disposing of the property known as "Wyrallah" 498 Coraki Road, South Gundurimba via Lismore NSW 2480 until 5pm on Tuesday 2 July 2013; (2) Permanent Custodians Ltd by itself, its servants and agents, be restrained from auctioning, selling, alienating, leasing or otherwise disposing of the property known as "Summerdowns" Reynolds Road, Casino 2471 until 5pm on Tuesday 2 July 2013; (3) Direct that these orders be taken out as soon as convenient and served upon Permanent Custodians Ltd and that in any event a form of order be served by email this evening; (4) Reserve liberty to the parties to apply at any time, (5) Direct that the matter be listed before me at a time to be fixed with my associate on Tuesday 2 July, at which time, convenient to the legal representatives of both parties, I will consider the motion further. [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:	PROCEDURE - interlocutory issues - injunctions - ex parte - whether applicants should receive interim injunctive relief to prevent respondent from disposing of properties owned by applicants - where applicants defaulted on loans in respect of properties - defaults subject to Farm Debt Mediation Act 1994 (NSW) - primary judge found that valid certificate issued allowing respondent to proceed with enforcement action - applicants filed summons seeking leave to challenge decision
Legislation Cited:	Farm Debt Mediation Act 1994 (NSW), ss 10, 11
Category:	Procedural and other rulings
Parties:	John Terence Michael McMahon (First Applicant) Robyn Sandra McMahon (Second Applicant) Permanent Custodians Limited (Respondent)
Representation:	Counsel: G Boskovitz (Solicitor) - Applicants Solicitors: Boskovitz & Associates - Applicants
File Number(s):	CA 2013/197359
Decision under appeal	Jurisdiction: 9111 Citation: Permanent Custodians Ltd v McMahon [2013] NSWSC 769 Date of Decision: 2013-06-28 00:00:00 Before: Davies J File Number(s): SC 2011/400305