Muranna Park Pty Ltd v Southern Mortgages Ltd
[2017] VSC 522
•13 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S CI 2015 03325
| MURANNA PARK PTY LTD (ACN 086 934 045) & ORS (according to the schedule attached) | Appellants |
| v | |
| SOUTHERN MORTGAGES LIMITED (ACN 089 763 413) & ORS (according to the schedule attached) | Respondents |
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JUDGE: | CROFT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 July 2017 |
DATE OF JUDGMENT: | 13 September 2017 |
CASE MAY BE CITED AS: | Muranna Park Pty Ltd & ors v Southern Mortgages Ltd & ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 522 |
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PRACTICE AND PROCEDURE – Appeal from Associate Justice – Application by mortgagees for summary judgment – Whether claim has real prospect of success – Civil Procedure Act 2010, ss 63 and 64.
MORTGAGES AND SECURITIES – Application of Farm Debt Mediation Act 2011 – Enforcement and waiver – Capitalisation of interest, effect with respect to enforcement – Almond Land Pty Ltd v Geoffjoy Enterprises Pty Ltd [2014] VCC 196 – Silkdale Pty Ltd v Long Leys Pty Ltd (1995) 7 BRP 14,414; (1995) 2 ACCR 33 – Sibard Pty Ltd v AGC (Advances) Ltd (1992) 6 BPR 13,178 – Bank of New South Wales v Brown (1983) 151 CLR 514 – Farm Debt Mediation Act 2011, s 37(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Ms M Harris | Armytage Legal |
| For the Respondents | Mr S Rubenstein | Maddocks |
HIS HONOUR:
INTRODUCTION
This proceeding has been brought pursuant to s 17(3) of the Supreme Court Act 1986. The Appellants, Muranna Park and others, are seeking to appeal from the orders made in this proceeding by Gardiner AsJ on 3 May 2017 and 23 May 2017 respectively (“the dismissal proceeding”).[1]
[1]Muranna Park Pty Ltd v Southern Mortgages Ltd [2017] VSC 222.
By amended statement of claim dated 1 August 2016 (“ASOC”) the Appellants (Plaintiffs in the dismissal proceeding) made claims against the Respondents (Defendants in the dismissal proceeding) that relied upon the application of the Farm Debt Mediation Act 2011 (“FDMA”). By an application made 9 June 2016 to Gardiner AsJ, the Respondents sought, among other things:
(a) an order for summary dismissal of the entire proceeding pursuant to section 63 of the Civil Procedure Act 2010 (“CPA”) on the basis that the FDMA did not apply to enforcement action taken by the Second Respondent, DD & D Securities Limited (“DD & D”), to recover the loan and enforce the mortgage; and
(b) alternatively, such summary dismissal on the basis that the Third Respondent, Bendigo and Adelaide Bank Limited (“BEN”), was not a creditor of and did not take enforcement action under the FDMA against the Appellants and therefore the proceeding had no real prospects of success against BEN.
At the hearing of this proceeding, reliance was placed on material before Gardiner AsJ, including:
(a) affidavits of Ashley Collett King sworn 27 May 2016 and 1 July 2016;
(b) an affidavit of David Newman sworn 17 June 2016; and
(c) written submissions in support of the position or positions of the parties.
Counsel and the solicitors for the Appellants also had access to a complete and unredacted copy of the Asset Sale and Purchase Deed (“ASPD”).[2] This was subject to a confidentiality undertaking that they could not disclose the redacted portions to their clients or to third parties. Counsel for the Appellants used the unredacted ASPD to plead the ASOC.
[2]Confidential Exhibit AK-2 to the Affidavit of Ashley Collett King (27 May 2016) (“the First King Affidavit”).
Gardiner AsJ delivered judgment on 3 May 2017, holding that the FDMA did not apply to the enforcement action taken by the Respondents against Muranna Park. His Honour further determined that BEN was not a creditor of Muranna Park and took no enforcement action against it within the meaning of the FDMA. On 23 May 2017, the Court ordered, among other things, that the proceedings against the Defendants be dismissed.
Nature of an appeal from an Associate Judge
The nature of appeals of this nature has been considered in a number of decisions of this Court; particularly since the commencement of the Supreme Court (General Civil Procedure) Rules 2015 which contains Rule 77.06 in its present form. Briefly summarising the position in Raptis v City of Melbourne, I said:[3]
11.… Such appeals are re-hearings rather than de-novo hearings and guidance may be drawn from the approach of the Court of Appeal to appeals from the Trial Division.[4] While it once seemed, on the basis of the just cited authorities, that it was necessary for an appellant to demonstrate error on the part of the Associate Justice, this is no longer clear. In Weber v Deakin University,[5] Zammit J made reference to the decisions of Mainstream Construction (Aust) Pty Ltd v Carr Electrical Pty Ltd[6] and Freeman v Rabinov,[7] and noted suggestions that an appeal may succeed in the absence of the demonstration of error by the appellant where the impugned Order works injustice.[8] In the present circumstances, it is unnecessary to decide this issue due to the subject matter of this appeal, namely costs, which, on the basis of the following paragraph of these reasons, is a ground of distinction from Weber v Deakin University and the authorities cited therein, and also due to the distinction which may be drawn on the basis of the requirement that leave be granted before an appeal against an Associate Justice’s decision on costs be heard.
[3][2017] VSC 488, [11].
[4]Neely v Southern Cross Feeds Pty Ltd (No 2) [2013] VSC 238, [5]; Oswal v Carson [2013] VSC 355, [11]; and see generally regarding the nature of such appeals Re Ascot Vale Self-Storage Centre Pty Ltd (in liquidation) (2014) 98 ACSR 243 at 245–9 [8]–[18].
[5]Weber v Deakin University [2016] VSC 147.
[6][2014] VSC 317.
[7][1981] VR 539.
[8]Weber v Deakin University [2016] VSC 147, [26]–[31], but see [25].
The ambit of the appeal process itself is the subject of specific provisions in Rule 77.06. Of particular relevance in the present context is Rule 77.06.9, which provides for the powers of a judge hearing such an appeal:
77.06.9 Powers of Judge of the Court hearing appeal
(1)On an appeal referred to in Rule 77.06, a Judge of the Court shall have all the powers of the Court constituted by an Associate Judge.
(2)The Judge of the Court shall have power to—
(a)receive further evidence upon questions of fact, whether by oral examination in court, by affidavit, or by deposition taken before an examiner;
(b)draw inferences of fact;
(c)give any judgment and make any order which ought to have been given or made; and
(d)make any further or other order as the case may require.
(3)The powers of a Judge of the Court under this Rule may be exercised notwithstanding—
(a)that no notice of appeal has been given in respect of any particular part of the judgment or order of the Associate Judge which is the subject of the appeal or by any particular party to the proceeding before the Associate Judge; or
(b)that any ground for allowing the appeal or for affirming or varying the judgment or order of the Associate Judge is not specified in the notice of appeal.
Grounds of appeal
By Amended Notice of Appeal filed 5 July 2017, the Appellants appeal against the Orders of Gardiner AsJ made 23 May 2017. The Amended Notice of Appeal identifies the grounds of appeal and the orders sought, in the following terms:
GROUNDS OF APPEAL
Ground 1
…
His Honour erred as a matter of law:
(a) in holding that on the proper construction section 37 of the Farm Debt Mediation Act 2011 (“FDMA”), the FDMA did not apply to any farm debt incurred prior to 1 December 2011 if any enforcement action had already commenced in relation to that farm debt.
Ground 2
…
His Honour erred as a matter of law:
(a) In holding that the Appellants were required to lead subjective and objective evidence relevant to waiver to show there was a real prospect of success of proving waiver, when opposing an application for summary judgment;
(b) His Honour failed to take into account the First Appellant’s evidence as to waiver of the first and second notices in the form of a Further Amended Defence to the County Court proceedings for possession of the First Appellant’s farm, which was exhibited to Respondents’ affidavit evidence in support of the application for summary judgment.
Ground 3
…
His Honour erred as a matter of law in finding:
(a) there was no real prospect of success that the Third Respondent could be a ‘creditor’ within the meaning of that term in section 3 of the FDMA;
(b) that the Second Respondent had received the proceeds of sale of the First Appellant’s farm.
Ground 4
…
His Honour erred as a matter of law:
(a) In failing to provide natural justice and/or procedural fairness to the Appellants in respect of their application.
ORDERS SOUGHT IN THIS APPEAL
1. This Appeal be allowed.
2. The whole of the judgment of Associate Justice Gardiner handed down on 3 May 2017 be set aside.
3. The Orders made on 23 May 2017, as amended on 22 June 2017, be set aside and in lieu thereof the following orders be made:
1. Pursuant to the Appellants’ summons filed 3 June 2016;
a. The Respondents produce a copy of a complete and unredacted copy of the document titled “Asset Sale and Purchase Deed” dated 21 December 2011 to the Appellants within 7 days;
b. Peter Cawthorne QC of counsel, Margo Harris of counsel and Samuel Armytage of Armytage Lawyers be released from their respective written undertakings given in relation to the document titled “Asset Sale and Purchase Deed” dated 21 December 2011;
c. The Respondents pay the Appellants’ costs forthwith.
2. In respect of the Respondents’ summons filed 9 June 2016;
a. The summons is dismissed;
b. The Respondents pay the Appellants’ costs.
3. The Appellants have leave to file and serve their proposed Further Amended Statement of Claim.
4. The Respondents pay the Appellants’ costs of this appeal.
Ground 1
The primary issue that Gardiner AsJ considered was whether the claim against the Defendants in the dismissal proceeding should obtain summary judgment by reason that the Plaintiffs’ claim in that proceeding did not have a real prospect of succeeding. This would be the case if the FDMA had no application to the action taken to enforce the mortgage.
His Honour considered the test to be applied in such an application under s 63 of the Civil Procedure Act 2010 and the observations of the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[9] in this respect. It is not necessary to repeat the observations of the Court of Appeal here, save to recall the statement of the test in general terms:[10]
… [T]he test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a “real” as opposed to a “fanciful” chance of success.
Emphasis of the generality of the test does not, however, detract from the further considerations flowing from this position as articulated by the Court of Appeal—and referred to by Gardiner AsJ.[11] It follows, applying this test, that it is critical for the Appellants’ position to establish that Gardiner AsJ was in error in finding that the FDMA did not apply in the present circumstances. It is to this issue that I now turn.
[9](2013) 42 VR 27 at 40 [32], [35]; set out by Gardiner AsJ at [2017] VSC 222, [36].
[10]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 at 40 [35(a)].
[11]See Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 at 40 [35(b)–(d)]; and see [2017] VSC 222 (Gardiner AsJ).
Critical in this respect are the transitional provisions of s 37 of the FDMA, which provide as follows:
37 Transitional provision
This Act applies to—
(a)a farm debt that is outstanding on the commencement day irrespective of when the farm debt was incurred and in respect of which enforcement action has not commenced; and
(b)a farm debt that is incurred on or after the commencement day.
The commencement day of the FDMA was 1 December 2011.
These transitional provisions must be read with the definition provisions of s 3 of the FDMA, principally:
3 Definitions
In this Act—
…
creditor means a person to whom a farm debt is for the time being owed by a farmer;
default, in relation to a farm mortgage, means failure to perform an obligation that, under the terms of the mortgage, is a ground for enforcement action;
Examples
1. Failure to pay the principal, interest or other money the payment of which is secured by a farm mortgage.
2. Failure to keep the property subject to the farm mortgage insured.
3. Failure to submit financial statements required by the creditor.
…
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 day; or
(b)the enforcement of a judgment that was obtained before the commencement day;
…
farm debt means a debt incurred by a farmer for the purposes of the conduct of a farming operation that is secured wholly or partly by a farm mortgage;
…
farm mortgage includes any interest in, or power over, any farm property securing obligations of the farmer whether as a debtor or guarantor, including any interest in, or power arising from, a hire purchase agreement relating to farm machinery, but does not include—
(a) any stock mortgage or any crop or wool lien; or
(b) the interest of the lessor of any farm machinery that is leased; or
(c) a security interest, within the meaning of section 12 of the Personal Property Securities Act 2009 of the Commonwealth, in stock, crops or wool;
…
farmer means a person (whether an individual person or a corporation) who is solely or principally engaged in a farming operation and includes a person who owns land cultivated under a share-farming agreement and the personal representatives of a deceased farmer;
In broad terms, the FDMA requires, in the circumstances in which it is applicable, compliance with the provisions of Part 2 which require a creditor to give notice to a “farmer” under a “farm mortgage” of its intention to take “enforcement action” under the “farm mortgage” and the availability of mediation under this legislation. Non-compliance with these provisions by the creditor results in the “enforcement action” being rendered void under s 6 of the FDMA.
The approach of the Appellants with respect to the construction of s 37(a) of the FDMA is, in effect, to insert the definitions of the defined terms for the purpose of interpreting its provisions and thus understanding the extent of its operation. Whilst this approach is not controversial, the difference between the parties arises with respect to the proper construction of those defined terms as applied to the provisions of s 37(a).
Applying this methodology, the Appellants submit that the term “enforcement action” should be construed as:[12]
[12]Appellants’ Submissions (14 July 2017), [13].
in relation to a farm mortgage, means:
· taking possession of property under the mortgage or
· any other action to enforce the mortgage, including:
o the giving of any statutory enforcement notice or
o the continuation of any action to that end already commenced.[13]
[13]Waller v Hargraves Secured Investments Ltd (2012) 245 CLR 311 at 335–6 [66].
The Appellants then submit that when this methodology is applied to s 37(a) of the FDMA, those provisions are to be read as follows:[14]
[14]Appellants’ Submissions (14 July 2017), [14].
This Act applies to-
· a farm debt
· that is outstanding on 1 December 2011 irrespective of when the farm debt was incurred and
· in respect of which, in relation to a farm mortgage, means:
otaking possession of property under the mortgage or
oany 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,
(that, sic) has not commenced.
[Appellants’ emphasis]
The Appellants then make submissions in relation to the elements of s 37(a) of the FDMA with the provisions of the defined terms inserted, focusing on the passages emphasised in the immediately preceding paragraph, namely, “taking possession of the farm” and “any other action to enforce the mortgage”.
In relation to the first, the Appellants submit that “taking possession of the farm” under the mortgage does not require “action”. It is said that is because s 77 of the Transfer of Land Act 1958 (“TLA”) permits the taking of possession of the farm pursuant to the terms of the farm mortgage without the need for a court order. Thus it is said that if the taking of possession of the farm had not commenced before 1 December 2011, then the FDMA would apply to any outstanding farm debt as at 1 December 2011. In the present circumstances, it is submitted that whilst it is a question of fact whether the taking of possession had commenced, the Respondents have not asserted that they had commenced taking possession of the farm before 1 December 2011.
As to the second, the Appellants submit that “any other action to enforce the mortgage” other than taking possession of the farm pursuant to the mortgage, must have commenced before 1 December 2011 for the FDMA not to apply. In this respect, the Appellants submit that the phrase “any other action” means court action. It is conceded that the term “action” is not defined by the FDMA, but reference is made to s 7(b) of the FDMA which provides that nothing in that legislation affects the operation of the Limitation of Actions Act 1958 (“LAA”). Section 3 of the LAA defines “action” to include any proceeding in a court of law. The Appellants then submit that the cause of action, breach of mortgage, must be enforced within the six year limitation period, subject to any exceptions. Thus it is said that to that extent the phrase “any other action” under the FDMA and the term “action” under the LAA require coherence and consistency within those Acts: a finding that “action” means court proceedings provides that coherence and consistency. Thus it is said that merely giving any statutory enforcement notice is insufficient to defeat the application of s 37(a) of the FDMA. It is contended that its enforcement by “any other action” must have commenced by 1 December 2011, which means the court proceedings must have commenced as at 1 December 2011 to either (a) recover the outstanding farm debt secured by the farm mortgage; or (b) to take possession of the property in exercise of the security provided by the farm mortgage. On this basis, it is submitted that as no court action had commenced in respect of either the First Notice or the Second Notice to enforce the debt of security by 1 December 2011, then no other action to enforce the mortgage had commenced. Consequently, it is said that s 37(a) of the FDMA applies to each of the First and Second Notices.
The Appellants also offer an alternative construction of s 37(a) with respect to the words “the continuation of any action to that end already commenced” [Appellants’ emphasis]. The Appellants submit that in the construction of this part of the provisions, the words “to that end” must give effect to the substantive requirement “any other action” with respect “to that end”.
The Appellants submit, on this basis, that to give meaning to the phrase “to that end” in s 37(a) of the FDMA without causing ambiguity, that phrase must be treated as: [15]
[15]See Appellants’ Submissions (14 July 2017), [20].
(a) disclosing the relationship between the expression “the continuation of any action” to the expression “any other action to enforce”;
(b) showing that the continuation of any action already commenced in respect of a statutory enforcement notice is permissible. Consequently, if court proceedings have been initiated to obtain an order for possession, but not completed, then such proceedings continue “to that end” of achieving possession, by application of the ordinary meaning of that term. Consequently, if court proceedings have not commenced, then there can be no continuation to that end; and
(c) providing a useful reference to show that for transitional purposes, “action” is required to enforce a statutory enforcement notice that has already been given. Such a construction is said to be consistent with the approach taken by the plurality in WorkCover Queensland v Seltsam Pty Ltd[16] where the phrase “to that end” was held to qualify WorkCover Queensland’s right to indemnity by providing a limited subrogation. It was, however, noted that in that decision, the connection was “and” not “or” as occurs in s 37 of the FDMA.
[16](2001) 53 NSWLR 518.
Further and alternatively on this basis, the Appellants submit that as “no other action” had occurred with either the First Notice or the Second Notice—that is that no court proceedings had commenced—there was no continuation of any action already commenced.
The Respondents, on the other hand, submit that the approach to construction advocated by the Appellants is, in summary, selective in the phrases chosen and emphasized and, that this reading the provisions of s 37(a) and the defined terms provisions is at odds with a proper construction of those provisions.
More particularly, the Respondents contend that s 37(a) of the FDMA relevantly provides that this legislation applies to “a farm debt that is outstanding on the commencement day irrespective of when the farm debt was incurred and in respect of which enforcement action has not commenced”. Section 3 of the FDMA provides that “enforcement action” means taking possession of property under a mortgage or “any other action to enforce the mortgage”. Thus it is said that the obvious corollary is that where a farm debt is outstanding on the commencement day of the FDMA, if enforcement action, including any action to enforce the mortgage, has already commenced, then the legislation does not apply. It is not disputed that the loan to Muranna Park was entered into before the commencement of the FDMA and fell into arrears and was in default from 15 November 2007. The evidence is that the default was never remedied.[17] DD & D served several notices pursuant to s 76 of the TLA, including a First Notice on 12 November 2009 and a Second Notice on 21 December 2010. Both notices were for arrears of interest that were never remedied, and both were served before the commencement of the FDMA.
[17]See the First King Affidavit (24 May 2016), [15], [16], [19]–[21], [29].
In relation to the construction of s 37(a) of the FDMA, the Respondents rely on the judgment of Judge Kennedy (as her Honour then was) in Almond Land Pty Ltd (in liquidation) v Geoffjoy Enterprises Pty Ltd.[18]In Almond Land, her Honour expressly considered the definition of “enforcement action” in s 3 of the FDMA and, in particular, whether the reference to the continuation of enforcement action already commenced extends the ambit of s 37(a). Her Honour held that:[19]
[18][2014] VCC 196 (“Almond Land”).
[19]Almond Land [2014] VCC 196, [79], [82].
79.…[T]he concept of “enforcement action” is broad, as elucidated in Waller. However, the fact that there may be other steps constituting “enforcement action” taken after the commencement date is not to the point. Provided there has already been enforcement action “in respect of the [same] farm debt” s37 does not extend the application of the Act.
…
82.The Act is clear as to the circumstances in which its provisions should be extended to farm debts incurred prior to its commencement. A statute ought generally not apply to events that have already occurred so as to affect rights unless the intention appears with reasonable certainty.[20] The ordinary meaning of s37(a) suggests that the Act does not apply to farm debts incurred prior to 1 December 2011 if any enforcement action had already commenced in relation to that debt. …
[emphasis added]
With respect, I am, for the reasons set out in my judgment in this proceeding, of the opinion that Judge Kennedy correctly states the position.
[20]Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ.
Thirdly, the Respondents submit that if the Appellants’ construction of s 37(a) of the FDMA were to be accepted, the second part of those provisions would be rendered redundant. It would mean that after 1 December 2011, any step taken in respect of enforcement action commenced before that date would mean that it would be regulated by the FDMA. In my view, this is clearly at odds with the ordinary meaning of the statute and would result in an effective negation of the transitional provisions with respect to the commencing day of the FDMA because any step taken by way of enforcement after that day would attract the operation of the legislation; regardless of whether such steps had been taken before that day. In my view, there is further support of the position that the Appellants’ submissions with respect to the construction of these provisions in this respect cannot be correct. This is provided by considering Part 2 of the FDMA, which requires a creditor “before taking enforcement action” to give the notice specified in s 8 of the Act and, depending upon the response of the farmer debtor, engage in a mediation process in accordance with the provisions of Part 2. When it is considered that mortgage enforcement may involve a number of steps, from the statutory notice under the provisions of the TLA through to a variety of possibilities by way of court action and otherwise, it must be the position that the legislature would not have intended that each of these steps would trigger the operation of s 8 of the FDMA. As indicated, for these reasons, this is a further matter in support of the Respondents’ submissions with respect to the proper construction of these provisions.
Fourthly, as contended by the Respondents, the construction of s 37(a) of the FDMA as submitted by the Appellants involves a rewriting, restructuring and reinterpreting of that section that is both artificial and nonsensical. It does, in my view, involve a deconstruction and parsing of only one part of the wider definition of ‘enforcement action’ to render, as indicated, s 37(a) itself effectively meaningless. Clearly, this is not consistent with general principles of statutory interpretation.
As indicated previously, the Appellants raised an alternative argument on the construction of s 37(a) to the effect that the phrase “any other action” in s 3 of the legislation should be construed as “court action only”. This argument was only raised on appeal and not at first instance before Gardiner AsJ. In this respect, I accept the Respondents’ submissions that there is no reason to confine the word “action” to court action. The word “action” in s 3 is used broadly and is preceded by the words “any other”. There is no reason, in my view, why it should not be given its ordinary meaning. In this respect, the online edition of the Macquarie Dictionary relevantly provides a meaning for the word “action” as “the process or state of acting; something done; an act; deed”. Thus, applying its ordinary meaning, “action” in s 3 of the legislation means any act or deed to enforce a farm mortgage. Moreover, I reject the Appellants’ contention that a reading of the statute book as a whole—particularly by reference to the provisions of the LAA—provides any basis for taking a different view of the meaning of these provisions. The word “action” is clearly used in a different context in limitation of actions legislation, and it is a trite principle of statutory construction that words and phrases must be interpreted in their particular legislative context. That is not to say that, in some cases, there may not be reasons to take a broader view of the statute book as a whole, but given the clear focus of the FDMA and also of the LAA, this is not such a circumstance. Moreover, the position that “any other action” bears a wider meaning in the FDMA is supported by the reference by the legislature to matters that are to be regarded as inclusive, such as the giving of a statutory enforcement notice. In my view, this makes it very clear that the term “action” extends beyond “court action” to actions that are not court actions, such as the giving of statutory enforcement notices, including a notice under s 76 of the TLA.
The Appellants contend that as court proceedings were not brought by the Respondents until 2012, “enforcement action” was only commenced at that time. This is inconsistent with a sensible reading of the Act given the specific inclusion in the legislation of the giving of a statutory enforcement notice as a type of “enforcement action” under s 3 of the FDMA. This signifies that the legislature intended the meaning of the term “action” to extend beyond mere “court action”; such as giving a statutory enforcement notice under s 76 of the Transfer of Land Act 1958. The ordinary meaning must be given to the words of the statute.
For these reasons, I do not accept the Appellants’ submissions that Gardiner AsJ erred in holding that on the proper construction of s 37 of the FDMA, the FDMA did not apply to the mortgage.
In my view, Gardiner AsJ correctly held that the proceeding ought be dismissed summarily as the primary basis of the claim against the Respondents was that they breached the terms of the FDMA in enforcing the mortgage. The claim as pleaded would have no prospect of success even if the appeal were to be granted and remitted back for a full trial. Thus, the provisions of both s 63 and, or alternatively, s 64 of the CPA were properly considered and applied on this basis.
Ground 2
Ground 2 is to the effect that the First Notice and the Second Notice were both waived and therefore did not constitute enforcement action for the purposes of s 37 of the FDMA. The waiver argument is put by the Appellant on two bases. The first is that the Notices were waived because of cl 6(2) of the Memorandum of Common Provisions (“MCP”) to the effect that outstanding interest was to be treated as “capitalised”. Thus interest, it is said, would then compound and any default in payment of interest under the loan was thereby cured. The second basis is that once the issue of waiver was raised, it was a matter of subjective and objective evidence for trial and not a matter for summary judgment. Further, the Appellants contended that there was objective evidence of waiver that ought to have been sufficient to dispose of the application for summary judgment.
The provisions of cll 6(2) and 31(11) of the MCP, as far as presently relevant, are set out in the judgment of Gardiner AsJ as follows:[21]
[21][2017] VSC 222, [55]–[56]; see also Exhibit AK-1 to the First King Affidavit, 65 [6(1)], 80 [31(11)].
55. …
6.(1) [Not relevant]
(2) If any interest payable hereunder is not paid by the due date for payment then without prejudice to the right of the Mortgagee to sue the Mortgagor for such unpaid interest and any other power of the Mortgagee contained in this Mortgage, the Mortgagee may if the Mortgagee thinks fit without notice to the Mortgagor treat such unpaid interest as having been capitalised and in that event such unpaid interest shall be added to and shall form part of the principal moneys secured and as such shall bear interest as provided for herein.
(3) [Not relevant]
56.Clause 31(11) of the MCP provides as follows:
Notwithstanding any rule of law or equity to the contrary—
(i)no indulgence granted by the Mortgagee to the Mortgagor or failure of the Mortgagee to take action in respect of any breach or default in the performance by the Mortgagor of the Mortgagor’s obligations hereunder shall constitute a waiver of all or any of the provisions of this Mortgage with respect to any subsequent or continuing breach or default;
(ii)the failure of the Mortgagee to exercise any power or discretion given to it by this Mortgage shall not, unless agreed by the Mortgagee in writing, constitute a waiver by the Mortgagee of the right of the Mortgagee at any time thereafter to require the Mortgagor to comply strictly with the provisions of this Mortgage.
The position on the evidence is conveniently summarised, consistently with the position put in the Appellants’ submissions in these proceedings,[22] as follows:[23]
59.In this regard, he submitted that the evidence is that neither the first notice or second notice were acted on, that DD & D continued to receive and accept payments to discharge the debt and that there were no steps taken to sell the land pursuant to the first notice or second notice. He noted that in the County Court proceedings, no reference was made to the first or second notices to support the summary judgment application. The plaintiffs contend that DD & D’s conduct as mortgagee is consistent with it having abandoned its rights under both the first notice and second notice and that it is therefore now estopped from reliance upon those notices.
[22]Appellants’ Submissions (14 July 2017), [4]–[6], [28].
[23][2017] VSC 222, [59].
In this context, the position of the Respondents before Gardiner AsJ and in this appeal is that cl 31(11) of the MCP is clear in its terms, and it follows that a waiver argument as put by the Appellants on the basis of the service of subsequent notices is not available. The Respondents’ position was and is also that the capitalisation of unpaid interest cannot, on the basis of the authorities and a proper construction of cl 6(2) of the MCP constitute a waiver of the defaults specified in either the First Notice or the Second Notice.
The Appellants, on the other hand, submitted before Gardiner AsJ that service of the First and Second Notices did not constitute enforcement action under the mortgage. Among the several grounds relied upon was the submission that the First Notice and the Second Notice were each waived by the continued acceptance of payments under the mortgage without complaint and as a result of the capitalisation of outstanding interest. Moreover, it was contended that the subsequent service of a third notice constituted the commencement of a fresh enforcement action.
The nature of capitalisation of interest in the present circumstances and the effect of so doing is the subject of submissions by the Appellants, the precise transactional detail of which it is not necessary to repeat here having regard to the Appellants’ written submissions.[24] It is sufficient for present purposes to focus on the Appellants’ submission that the capitalisation of outstanding farm debt identified in the First Notice was, it is said, conduct inconsistent with the operation of cl 6(2) of the MCP and, further, caused the outstanding farm debt in the First Notice to cease being outstanding from 22 August 2008. It is difficult, however, to see how the capitalisation of interest was inconsistent with cl 6(2) of the MCP and, in my view, this is not the position having regard to the matters raised in the Respondents’ submissions, discussed further below.
[24]Appellants’ Submissions (14 July 2017), [4]–[10].
In any event, even assuming this was the position, the Appellants’ submission that the result was the farm debt ceasing to be outstanding from 22 August 2008 relies upon the Appellants’ submissions with respect to the application of the High Court decision in Barns v Queensland National Bank.[25] The aspect of this case relied upon, said to be obiter, is that a power of sale of land once having arisen may come to an end by conduct of the mortgagee waiving its rights. Moreover, the Appellants submit that this decision has not been criticised, overruled or confined to its facts. However, for reasons discussed further below in light of more recent authority, the critical question is what is the nature of a mortgagee’s conduct which would amount to waiver. The same observation applies, in my view, in relation to the High Court decision in Agricultural and Rural Finance Pty Ltd v Gardiner,[26] which is relied upon by the Appellants in relation to evidence that the First Appellant did not make payment as demanded by the Second Notice.
[25](1906) 3 CLR 925.
[26](2008) 238 CLR 570.
More particularly, the Appellants submit that only the outstanding two $18,068.75 monthly payments and any accrued penalties were payable, given the First Notice amount had been capitalised. It is observed that the First Appellant continued to make monthly payments which were accepted. Thus it is said that there may not have been any outstanding farming debt in respect of the defaulted payments identified in the Second Notice and that, consequently, the intention of the Respondents as to whether waiver occurred is a matter for trial.
Finally, at this point it should be observed that the Appellants appear to reserve in their submissions an argument that a statutory notice, such as the Second Notice, may be invalid because either an unwarranted demand by the mortgagee calling upon the mortgagor to remedy a non-existent default has occurred or there has been an unequivocal insistence by the mortgagee to pay a specified sum.[27] This point was, nevertheless, not pursued before Gardiner AsJ or in these proceedings.
[27]Appellants’ Submissions ( 14 July 2017), [11].
The Respondents, however, contend that the default specified in the First Notice and the Second Notice were not remedied by reason of the contractual entitlement of DD & D to add unpaid interest to the principal amount under the loan. In my view, it is quite correct, as the Respondents contend, that a contractual entitlement to capitalise interest simply allowed DD & D to compound interest in circumstances where, in the absence of a contractual entitlement, this would not be permitted.[28] Clause 6(2) of the MCP provided the contractual basis for DD & D to capitalise interest as it did. The critical provisions of that sub-clause are that “… unpaid interest shall be added to and shall form part of the principal money secured and as such bear interest as provided herein”. These provisions make it clear that if the Mortgagee takes such steps, they are done “without prejudice to the right of the Mortgagee to sue the Mortgagor for such unpaid interest and any other power of the Mortgagee contained in the Mortgage”. Additionally, cl 31(11) of the MCP provides for a general limitation on any waiver of right to take action for breach or default under the Mortgage. There is a specific provision in that sub-clause that there is no waiver unless agreed by the Mortgagee in writing. No evidence was presented by the Appellants that DD & D or any other Respondent had agreed to waive any rights arising by reason of the giving of the First Notice or the Second Notice; or otherwise. Moreover, the uncontested evidence of Mr King was that the defaults under the First and Second Notices remained at all times and were never remedied.[29]
[28]See E L G Tyler, P W Young and C E Croft, Fisher and Lightwood’s Law of Mortgage (2014, 3rd Australian Edition) [39.50].
[29]See the First King Affidavit (24 May 2016), [29].
Consequently, I accept that cll 6(2) and 31(11) of the MCP and the evidence at the hearing of the application before Gardiner AsJ does stand against the contention that “compounding” of interest caused outstanding interest to cease to be outstanding. I accept the Respondents submissions that the proper construction of cl 6(2) is not that the unpaid interest ceases to be unpaid interest, but that it is simply added to the principal amount and is compounded. Consequently, it does not lose its character as interest. Moreover, these provisions make it clear that DD & D expressly retains the right to sue and to enforce the mortgage for the unpaid interest. It is the position, as the Respondents contend, that this is supported by significant, considerable, authority. This is encapsulated in the statement of Brennan J (as his Honour then was) in describing the process of capitalisation of interest in Bank of New South Wales v Brown:[30]
An agreement which merely authorises a bank to add accrued interest to the principal in order that the total sum should be secured or should bear interest does not alter the character of the debt for interest. The total sum may appropriately be described as “principal”, but capitalization in this sense is no legal alchemy for changing the character of a debt for interest.
[30](1982-1983) 151 CLR 514; and see at 523 (Gibbs CJ) and at 555 (Dawson J); also see Sibard Pty Ltd v AGC (Advances) Ltd (1992) 6 BPR 13,178; and Whitbread Plc v UCB Corporate Services Ltd [2000] 3 EGLR 60 (CA); cf Barns v Queensland National Bank Ltd (1906) 3 CLR 925 at 935.
It follows that the contention by the Appellants that notwithstanding that overdue interest was not paid a waiver may well have occurred in respect of the First and Second Notices because DD & D continued to receive monthly payments subsequent to the giving of the Notices must be rejected. Indeed, the Appellants’ in their submissions put it no higher than a contention that it “may amount to waiver”. For the preceding reasons, I am of the view that the submissions are answered completely by reference to the contractual terms between the parties, namely, cll 6(2) and 31(11) of the MCP. The reservation of rights on the part of DD & D make it absolutely clear that waiver must be agreed in writing and, as indicated, there is no evidence of any such agreement.
Reference should also be made at this point to the decisions of Silkdale Pty Ltd v Long Leys Co Pty Ltd,[31] Sibard Pty Ltd v AGC (Advances) Ltd,[32] State Bank v Lo[33] and Morton v Suncorp Finance Ltd,[34] to which reference is made in some detail in the judgment of Gardiner AsJ.[35] Having considered these authorities in considerable detail, Gardiner AsJ summarized the position as follows:[36]
76.The authorities reviewed above stand quite clearly for the proposition that unless there is evidence of conduct on the part of the mortgagee that demonstrates that there has been an abandonment of the notice, or acquiescence in the resumption of the position which existed prior to the notice, the notice will continue thereafter to govern the parties’ relationship. This is so despite the lapse of time and the service of subsequent notices. Any waiver must be clear and unequivocal and there must be evidence that the other party, in this context, Muranna Park, altered its position in reliance on it or acted upon it.
In my view, there is no error in the consideration and treatment of these authorities by Gardiner AsJ, nor in the summary of their effect in the passage just set out.
[31](1995) 7 BPR 14,414; (1995) 2 ACCR 33.
[32](1992) 6 BPR 13,178.
[33][2000] NSWSC 1191.
[34](1987) 8 NSWLR 325.
[35][2017] VSC 222, [63]–[76].
[36][2017] VSC 222, [76].
The Appellants, having noted the reference by Gardiner AsJ to these authorities, then contend that, as is evident from the position that each of these decisions was handed down following a trial, issues of waiver such as those raised in the present circumstances need to be the subject of discovery and tested at trial.[37] These evidentiary issues with respect to waiver were considered by Gardiner AsJ, who put the position as follows:[38]
81.Further, no evidence was adduced by the plaintiffs that they relied upon or acted on the assumption that the defendants had waived or abandoned the earlier notices, nor have they demonstrated that they have suffered any detriment so as to constitute the foundation of some type of estoppel. Significantly, there is no evidence of communications between the parties in the period after service of the first notice or the second notice which points to a clear and unequivocal waiver by DD & D of the earlier notices or a reliance or alteration on Muranna Park’s part in its position.
[37]Appellants’ Submissions (14 July 2017), [24]–[27].
[38][2017] VSC 222, [81].
In my view, the position expressed by Gardiner AsJ in the immediately preceding paragraph is correct on the basis of the authorities with respect to waiver to which reference has been made. It is clear, in my view, that these authorities require any alleged waiver to be clear and unequivocal, and that there must be evidence that the “other party” altered its position in reliance on it or acted upon it. Moreover, the latter is a matter entirely within the knowledge of the “other party”, in this context, Muranna Park, and it follows that there is no need for discovery or interrogation of the party said to be waiving its position. This is because the critical evidence that might be relied upon by the party alleging waiver, “the other party”, is entirely within its possession or control—save for the possibility of some unusual circumstances where there may be difficulty in accessing such evidence, which is not the position here. It follows that, in my view, an allegation of waiver in the present circumstances may readily be tested in summary proceedings and be the subject of summary judgment as occurred in the proceedings before Gardiner AsJ. In the present circumstances, there was no triable issue of waiver and no basis for the contention that, once raised, it ought to have gone to a hearing; particularly having regard to the matters raised in the Respondents’ submissions, matters which it is not necessary to repeat having regard to the position I have indicated in the preceding reasons.[39]
[39]See Respondents’ Outline of Submissions (20 July 2017), [27].
It follows, in my view, that there is no basis for the Appellants’ contention that their assertions of waiver and the evidence relied upon were sufficient to raise at least an arguable case of waiver and reliance which would have been relevant to or satisfied the requirements of either s 63 or s 64 of the CPA. True it is, as the Appellants submit, that waiver and reliance may raise complex factual and legal issues, but in the present circumstances, there was no evidence led by the Appellants before Gardiner AsJ with respect to any alleged clear and unequivocal waiver and, critically, alteration of the position of Muranna Park in reliance upon the alleged waiver. Consequently, there is simply no basis for the position the Appellants put and no error on the part of Gardiner AsJ in the resolution of these issues and the granting of summary judgment.
Ground 3
In summary, it is claimed with respect to Ground 3 that Gardiner AsJ erred in determining that there was no real prospect of success that BEN “could” be a creditor within the meaning of s 3 of the FDMA. Further, the Appellants contend that his Honour erred in finding that DD & D received the proceeds of sale of the mortgaged property.
The Appellants submit that there was no evidential basis upon which Gardiner AsJ could make a finding of fact that DD & D did receive the proceeds of sale of the mortgaged property. In this respect, the Appellants say that the affidavit of Samuel Armytage sworn 21 July 2016 exhibiting the publicly available financial records of the Second Respondent indicated, applying his financial qualifications, that these financial records did not evidence any sale proceeds having been paid to DD & D. Moreover, it is said that according to the Second Affidavit of King, the net proceeds of sale of the farm property was paid to BEN by consent of DD & D. Further, it is said that that payment was, according to Mr King, either income earned on a “Sale Asset” which included a “SFL Asset” (in terms of clause 2.1(e) of the ASPD), or was an amount in respect of a “Sale Asset” (in terms of clause 8.3 of the ASPD). Ultimately, the Appellants submit, this occurred because the Muranna Park loan was a “Dwyer Interest” which was a “SFL Asset” and itself a “Sale Asset”.
With respect to the reasoning of Gardiner AsJ, the Appellants submit that his Honour had no regard to cl 2.7 of the ASPD in his decision, which was not redacted. Clause 2.7, the Appellants contend, is significant to the issue of which of the named Respondents is/are a “creditor”. Clause 2.7(b), it is said, expressly concedes that the Muranna Park farm loan had not been validly assigned or novated to either DD & D or SFL, and that the Muranna Park farm loan was part of the “Loan Assets”. The Appellants further contend that “Loan Assets” is, in effect, defined to be monies owed to SFL and the documents pertaining to those loans. SFL’s assets were sold to BEN pursuant to cl 2.1 of the ASPD. That being so, the Appellants submit, BEN would be a creditor, as the farm debt would be an asset of BEN, and BEN would be an equitable mortgagee. Critically, it is submitted that a “creditor” must have an “interest in or power over” any farm in terms of the definition of “farm mortgage” in the FDMA. In any event, it is said, the ASPD gave power over the farm to BEN, which is said to be sufficient.
The Respondents addressed this issue in detail in their submissions before Gardiner AsJ.[40] It is not necessary, for present purposes, to set out those submissions or to address the content in great detail. The position is that, in summary, under the ASPD, the Muranna Park facility was expressly excluded from the financial facility sold to BEN. The obligation to recover the Muranna Park facility remained with DD & D. Nevertheless, BEN became a unitholder in a managed investment scheme that comprised assets including the Muranna Park facility. Under that arrangement, DD & D legally owned the Muranna Park facility and was the party entitled to enforce the debt. BEN ultimately had the right to call on DD & D for the benefit of that recovered debt. In order to protect BEN’s interests, DD & D was not permitted to settle, waive or compromise the obligations under the Muranna Park facility without the express consent of BEN (under cl 8.13 of the ASPD). Nevertheless, this did not change the fact that the legal right of entitlement to enforce the Muranna Park facility remained with DD & D[41] and BEN was not a “creditor” with respect to the facility within the meaning of the FDMA.
[40]Outline of Submissions on behalf of the Defendants (18 July 2016), [27]–[32].
[41]See the First King Affidavit (24 May 2016), [45]; the Affidavit of Ashley Collett King (1 July 2016), [12].
This issue was addressed comprehensively in the reasons of Gardiner AsJ.[42] For the preceding reasons, having regard to the content of his Honour’s reasons in this respect, I find that there is no error.
[42][2017] VSC 222, [91]–[108].
In relation to the contention by the Appellants that Gardiner AsJ did not identify the factual basis upon which he found that the proceeds of sale of the mortgaged property were paid to DD & D, the evidence underpinning this finding is provided by the First King Affidavit,[43] and particularly the novation deed dated 19 February 2014, which identifies that the contract of sale and the benefit thereof—including receipt of the sale price from the purchaser—was novated to DD & D. Moreover, and, as the Respondents contend, most significantly, the financial records of DD & D disclose that the proceeds of the sale were applied to reduce the loan amount balance of Muranna Park owing to DD & D—by way of two deposits, one of $2,200 and the other of $151,257.86, which were made to DD & D on 14 and 15 September 2015 respectively. Consequently, I accept that, as the Respondents contend, the books of DD & D do evidence that it received and accounted for the proceeds in its capacity as creditor of Muranna Park.[44]
[43]First King Affidavit (24 May 2016), [33]–[37].
[44]And see also Corporations Act 2001 (Cth) s 1305; Australian Securities and Investments Commission v PFS Business Development Group Pty Ltd 57 ACSR 553 at 571–2 [69]–[70].
Ground 4
The Appellants sought to appeal the decision of Gardiner AsJ in ultimately not determining the Summons dated 21 June 2016 for the production of a complete and unredacted version of the ASPD. The practitioners for the Appellants also sought in that Summons to be released from the undertakings as to confidentiality given some months before in relation to the ASPD. The Appellants claim that such a “…failure to rule resulted in the Appellants being denied natural justice and/or procedural fairness.”[45] Further, in oral submissions before me, reference was made by counsel for the Appellants to the Respondents’ refusal to discover certain documents, a matter which was not the subject of the Summons of 21 June 2016. Though the legal consequence of this refusal was never clearly articulated, I understand it to be another basis for a finding that procedural fairness was denied to the Appellants before Gardiner AsJ.
[45]Appellants’ Submissions (14 July 2017), [35].
Counsel for the Respondents submitted that Gardiner AsJ dealt with the question of whether the unredacted version of the ASPD was required for the Appellants to competently put their case; and in so doing made no error. In my view, this is clearly the position.
The ASPD is a document which is highly confidential in nature, having regard to the information with respect to third parties which it contains. Moreover, only a small portion of the document relates to the matter at hand. As such, it was not unreasonable or unfair for the Respondents to require undertakings from the representatives for the Appellants before delivering up the unredacted document.
In the Appellants’ written submissions,[46] reference was made to the decision of Stead v State Government Insurance Commission[47] and the joint judgment of Mason, Wilson, Brennan, Deane and Dawson JJ and their Honours’ approval of the statement of the Court of Appeal in Jones v National Coal Board that:[48]
There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.
Their Honours went on to say, however, that:[49]
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
[emphasis added]
[46]Appellant’s Submissions (14 July 2017), [36].
[47](1986) 161 CLR 141 at 145.
[48][1957] 2 QB 55 at 67.
[49]Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.
Having regard to these matters, Gardiner AsJ was, in my view, entirely correct in stating the position factually and on the basis of the authorities, as follows:[50]
The ASPD is a complex commercial instrument. For the purposes of this part of the application it is necessary to have reference to its terms. Although the plaintiffs advisors initially had access only to a redacted version of the ASPD for the purposes of their submissions, for reasons outlined earlier, I do not consider that this impeded their ability to make proper submissions on the present issue under consideration as the redactions were minor and not material in the present context. They were ultimately given access to an unredacted version of the document upon giving undertakings as to confidentiality.
There is clearly no error in this statement.
[50][2017] VSC 222, [99].
The Appellants’ application for unrestricted access to the ASPD was unnecessary to the extent that the parties agreed by consent to allow the representatives for the Appellants to have access subject to undertakings as to confidentiality. This course is not unusual, given the complex and commercial nature of a document such as the ASPD.
As to the question, would the further information in the ASPD have made a difference?[51] The answer is no. The Appellants were not denied natural justice, nor was there a lack of procedural fairness.
[51]See Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 (as set out above, [56]).
The Appellants sought to rely on additional evidence in the appeal to further their contention that the Respondents had failed to comply with numerous requests for discovery of documents. The documents of which the Appellants sought discovery are those referred to in the particulars of paragraph six of the Further Amended Defence filed on behalf of Muranna Park Pty Ltd on 11 October 2012 in County Court proceeding CI 12 00359.[52] In that paragraph, Muranna Park denies the allegation that it “defaulted under the terms of the Mortgage and the Variations” and alleges that it “entered into agreements with [Southern Mortgages Ltd] pursuant to which [Southern Mortgages Ltd] agreed to lend further sums totalling approximately $120,466 which by agreement was applied to the payment of interest due under the Mortgage”. The Appellants made the somewhat awkward submission that although they do not know what is contained in the documents as they no longer have access to them, they maintain, on the basis that those documents were relied upon by Muranna Park previously in the circumstances as just set out, that they are relevant to the issue of waiver.[53] The implication, which was never expressly put, is that the Appellants were denied procedural fairness when Gardiner AsJ acceded to the summary judgment application before the Appellants had access to the documents.
[52]See Exhibit AK-1 to the First King Affidavit (27 May 2016).
[53]Transcript (25 July 2017) 130–2.
The Respondents did not object to the tender of correspondence between the parties regarding the production of the relevant documents,[54] and that correspondence was received. The Respondents’ position as articulated with this respect to this material is that the documents requested ought to have been in the Appellants’ “possession, custody or power” given that the documents sought were relied upon by one of the Appellants in an earlier court proceeding, and that no obligation could arise to discover those documents while they reasonably appeared to be in the Appellants’ possession. In any event, the correspondence in this material does not establish that the Appellants were denied natural justice or procedural fairness before Gardiner AsJ. The Appellants did not identify any error in the Respondents’ position that there was no obligation on the Respondents to discover the documents. In the absence of such an obligation, it seems impossible to rely on the refusal to produce the documents to establish an error on the part of Gardiner AsJ. Indeed, there is nothing on the evidence to disturb the reasonable inference that the Appellants did have access to the documents, even if only within the file of a former solicitor. Consequently, the Appellants were not denied procedural fairness.
[54]Transcript (25 July 2017) 143, 147; see, regarding the production of further evidence on appeal, Fanniesab Pty Ltd v Futistasera Pty Ltd [2016] VSC 359, [17]–[21].
Conclusion and orders
For the preceding reasons, I find that the appeal fails on all grounds as Gardiner AsJ made no relevant error—either with respect to, what might be characterised as, substantive matters, nor in relation to the operation and application of s 63 and, or alternatively, s 64 of the Civil Procedure Act.
The parties are to bring in orders to give effect to these reasons. I otherwise reserve the question of costs.
SCHEDULE OF PARTIES
MURANNA PARK PTY LTD (ACN 086 934 045) First Appellant
GARRY JOHN ZERBE Second Appellant
OCTAVIUS SECURITIES AND INVESTMENTS PTY LTD
(ACN 138 228 243) Third Appellant- AND -
SOUTHERN MORTGAGES LIMITED (ACN 089 763 413) First Respondent
DD & D SECURITIES LIMITED (ACN 089 684 346) Second Respondent
BENDIGO AND ADELAIDE BANK LIMITED
(ACN 068 049 178) Third Respondent
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7
0