Secure Funding Pty Limited v Coughlin
[2009] NSWSC 384
•15 May 2009
Reported Decision:
74 NSWLR 687
New South Wales
Supreme Court
CITATION: Secure Funding Pty Limited v Coughlin [2009] NSWSC 384 HEARING DATE(S): 11 May 2009
JUDGMENT DATE :
15 May 2009JUDGMENT OF: Schmidt AJ DECISION: Standing established. Motion to be heard. CATCHWORDS: PROCEDURE - miscellaneous procedural matters - other - notice of motion - defendant's children seeking to be joined as defendants to proceedings - question of standing - children not occupiers of property - section 63, section 65 and section 75 of the Supreme Court Act 1970 considered - interest in proceedings established - nature of duty imposed by section 8 of Farm Debt Mediation Act 1994 considered - personal interest raising from eviction from property established LEGISLATION CITED: Archaeological and Aboriginal Relics Preservation Act 1972 (Vic)
Common Law Procedure Act 1899
Farm Debt Mediation Act 1994
Local Government Act 1919
Supreme Court Act 1970
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005CATEGORY: Principal judgment CASES CITED: Bankstown Airport Ltd v Noor Al Houda Islamic College Pty Ltd [2002] NSWSC 193
Cameron North Sydney Investments Pty Ltd v The Owners Strata Plan No 50411 and Ors [2002] NSWSC 726
Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83
Cody v JH Nelson Pty Ltd (1947) 74 CLR 629
Day v Pinglen Proprietary Limited and Others (1981) 148 CLR 289
Forster v Jododex Australia Pty Ltd and Another (1972) 127 CLR 421
Johnco Nominees Pty Ltd v Albury Wodonga (NSW) Corp [1977] 1 NSWLR 43
Kerr v Sheriff of New South Wales (1996) 9 BPR 16,215
National Commercial Banking Corp of Australia Ltd v MRM Holdings Ltd (183) 3 BPR 9339
Neeta (Epping) Pty Ltd v Phillips [1974] 131 CLR 286
Onus and Another v Alcoa of Australia Limited (1981) 149 CLR 27
Owners Strata Plan No 50411 and Ors v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5PARTIES: Plaintiff - Secure Funding Pty Limited (ACN 081 982 872)
Defendant - Steven James CoughlinFILE NUMBER(S): SC 14966/07 COUNSEL: Plaintiff - Mr S Gray, counsel
The Occupiers - Mr M Foley, solicitorSOLICITORS: Plaintiff - Dibbs Barker
The Occupiers - Foleys
SCHMIDT AJIN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Friday, 15 May 2009
JUDGMENT14996/07 SECURE FUNDING PTY LTD v COUGHLIN
1 HER HONOUR: By notice of motion of 8 May 2009, by their tutor Ms Jie Yu (aka Jerry Yu), Heidi Coughlin and Chad Coughlin sought the following orders:
1. All formalities and requirements as to time for service of this Notice of Motion be waived and an Order that the INTERLOCUTORY relief sought in this Notice of Motion be dealt with on an urgent ex parte basis.
2. All enforcement action arising from the default Judgment and the Writ of Possession issued on 18th August 2008 be stayed forthwith and that such stay be continued until the Occupier's Notice of Motion is heard and determined.
3. That the Occupiers be joined as parties to these proceedings.
4. A Declaration that at all material times the Defendant was a "farmer" pursuant to the provisions of the Farm Debt Mediation Act, 1994.
5. A Declaration that at all material times the land referred to in the Schedule was a "farm" pursuant to the provisions of the Farm Debt Mediation Act, 1994.
6. A Declaration that at all material times the Plaintiff's Mortgage was a "farm debt" pursuant to the provisions of the Farm Debt Mediation Act, 1994.
7. The Writ of Possession issued 18th August 2008 be set aside.
8. The Plaintiff's Statement of claim be stuck out.
9. Or in the alternative, that the judgment entered by default in this matter be set aside.
10. The Occupiers be granted 14 days in which to file their Defence and Cross-Claim.
12. The Plaintiff pay the Occupier's Costs of and incidental to this Motion.11. Such further or other Order or Direction that to this Court seems fit.
2 The land in question was owned by Heidi and Chad Coughlin’s father, Steven James Coughlin. Mr Coughlin had himself filed a motion in the proceedings seeking similar orders, default judgment having earlier been given and a writ for possession issued in favour of the plaintiff in August 2008.
3 Mr Coughlin’s motion was being heard by Hoeben J, when Mr Coughlin was made a bankrupt on 6 April 2009, the hearing having earlier been adjourned in order to permit Mr Coughlin to put on further evidence in support of his application. After consideration, Mr Coughlin’s trustee elected not to proceed with the motion and on 30 April 2009, the motion was dismissed. On 5 May, the Sheriff served notices that the writ would be enforced on 12 May. On the afternoon of 8 May, the motion brought on behalf of Heidi and Chad Coughlin was filed and the enforcement of the default judgment and writ of possession was stayed, with the motion listed for hearing on 11 May.
4 That motion was supported by an affidavit of Ms Yu of 7 May 2009. She was also called to give evidence. Her evidence was that Heidi and Chad Coughlin were children who resided at the property with their father, who had custody of them. While the plaintiff complained that the evidence was insufficient to establish their residence, I am satisfied that in the circumstances there is no reason for Mr Yu’s evidence to be rejected.
5 There was also an issue between the parties as to whether the children were occupiers of the property and whether they had ever been served with a notice to the occupier, as the Uniform Civil Procedure Rules 2005 required. There was no question that they had been served with a Notice to Vacate, dated 5 May 2009.
6 The initial question to be determined was Heidi and Chad Coughlin’s standing to bring the motion and to be joined as defendants in the proceedings. Their motion sought to raise two matters. Firstly, the failure to serve upon them the notice required by Rule 6.8 of the Rules and secondly, that the plaintiff had failed to comply with the provisions of the Farm Debt Mediation Act 1994, which applied to their father's mortgage, with the result that these enforcement proceedings were void. While accepting that they were not parties to the mortgage, and themselves having no rights under the Farm Debt Mediation Act, their case was that as occupiers and residents of the property, they had a sufficient interest to be joined as defendants in the proceedings in order to make applications under ss 65 and 75 of the Supreme CourtAct 1970.
Occupiers
7 The first question which thus arose was whether Heidi and Chad Coughlin were ‘occupiers’, for the purpose of the Uniform Civil Procedure Rules. Rule 6.8 provides:
- 6.8 Originating process for recovery of land to be served on occupier
- (cf SCR Part 7, rule 8)
- (a) must state in the originating process that the plaintiff does not seek to disturb the occupier’s occupation of the land, or
(b) must serve the originating process on the occupier together with a notice to the effect that:
(i) the occupier may apply to the court for an order that the occupier be added as a defendant, and
(ii) if the occupier does not so apply within 10 days after service, the occupier may be evicted under a judgment entered in the occupier’s absence.
(3) If originating process is amended by the addition of a claim for possession of land, the time at which proceedings for possession of that land are commenced is taken, for the purposes of subrule (1), to be the time at which the amendment is made.
8 There was an issue between the parties as to service of the notice on Heidi and Chad Coughlin in 2007. An affidavit of service was relied on by the plaintiff in which Mr John McCullum deposed that he had served the notice on 16 January 2008, in accordance with the requirements of Rule 6.8(2), by leaving the notice at the property, addressed to the occupiers. It followed, it was argued for the plaintiff, that the motion had not been brought within the time fixed by Rule 6.8 (1)(b)(ii) and should accordingly be dismissed. Ms Yu’s evidence was that Heidi and Chad Coughlin had not been served with any such notice.
9 The state of the evidence was somewhat unsatisfactory, given that Mr McCullum was unavailable for cross examination and no evidence had been put on by Heidi or Chad Coughlin, but nothing finally turned on this. This was because it became clear, on the authorities, that neither Heidi nor Chad Coughlin were occupiers upon whom the disputed notice had to be served by the plaintiff.
10 The term ‘occupier’ is not defined in the Rules. Various authorities have however, considered the position of family members of tenants and other occupiers. In National Commercial Banking Corp of Australia Ltd v MRM Holdings Ltd (183) 3 BPR 9339, it was observed at 9341-9342:
The critical question is whether at the relevant time Mr Munnoch Jnr was an occupier of the subject premises within the meaning of the abovementioned rules, in that on the date on which proceedings for possession of the land were commenced he was in occupation of any part of that land.
Mr Jacobson of counsel, who appeared for the bank, submitted that "occupier" in this context means a person with some contractual right to possession. At the same time he fairly conceded that it was not easy to give an exhaustive definition of the word "occupier".
Reference was made to The Queen v The Assessment Committee of St Pancras (1877) 2 QBD 581 at 588, where Lush J said, in relation to a rating statute: "It is not easy to give an accurate and exhaustive definition of the word 'occupier'. Occupation includes possession as its primary element, but it also includes something more. Legal possession does not of itself constitute an occupation. The owner of a vacant house is in possession, and may maintain trespass against anyone who invades it, but as long as he leaves it vacant he is not rateable for it as an occupier. If, however, he furnishes it, and keeps it ready for habitation whenever he pleases to go to it, he is an occupier, though he may well reside in it one day in a year."
It was submitted by Mr Jacobson that Mr Munnoch Jnr had a bare licence from the owner or from Mr Munnoch Snr to reside in the premises and was not an occupier.
Miss Merkel, who appeared for the owner, submitted that the precise meaning of the word "occupier" must depend on the purpose for which, and the context in which, it was used. Sometimes occupation denotes legal possession in the technical sense, sometimes mere physical presence : Pro-Campo Ltd v Commissioner of Land Tax (NSW) (1981) 81 ATC 4270 at 4276. Reference was also made to Stroud's Judicial Dictionary, 4th ed Vol 3 p 1812 et seq (and second supplement p 131), as illustrative of the various meanings of which may be attributed to the term "occupier", depending upon the context.
She submitted that occupation may be shared with others and relied upon Strand Securities Ltd v Caswell [1965] 1 Ch 959 at 980, and the various cases there cited. She sought to distinguish the judgment in Hodgson v Marks [1970] 3 All ER 513, in particular a passage in the judgment of Ungoed-Thomas J at 523, where his Honour said in relation to the Land Registration Act 1925: "Actual occupation requires physical presence. It was suggested at one stage of the argument that the occupation had to be exclusive. But it has been established that 'actual occupation may be shared with others or had on behalf of others' (see Strand Securities Ltd v Caswell ). If occupation can be shared, then in the present case there was no advantage in maintaining that it nevertheless had to be exclusive; and this was not pressed. But it requires more than physical presence - a guest to dinner in not an occupier of the house or room in which he dines. Indeed the defendant submitted that mere personal residence does not constitute occupation; and I agree. The observations in the Strand Securities case, which were referred to, clearly do not in my view establish the contrary."
It was further submitted that the purpose of Pt 7 r 8 is that the persons in occupation of land should have opportunity of being joined as defendants in proceedings of possession of land. The question whether the occupants have a defensible right against the person seeking possession is irrelevant.
If the benefit of the rule were limited to persons who must in any case be joined as defendants, it would be superfluous.
An effect of requiring that notice be given is to allow the opportunity for exercise by the occupants of legal or contractual rights against some third party, of which the person seeking possessio may to have notice.
It was submitted in the ultimate that in the context of the relevant Supreme Court Rules occupation means no more than personal residence in the subject premises.
Having set out the competing submissions, I shall now express my own views on the matter.
The decisive aspect of this case, to my mind, is that Mr Munnoch Jnr was residing in these premises as part of a family unit, albeit that he was 21 years of age.
Mr Munnoch Snr, the lessee, had granted his son and daughter permission to reside in the home, no doubt as a consequence of his sense of parental obligation.
In the circumstances I classify Mr Munnoch Jnr as a resident or inhabitant of the premises. To my mind Mr Munnoch Snr is the occupier for the purposes of Pt 7 r 8 of the Supreme Court Rules.
11 In Kerr v Sheriff of New South Wales (1996) 9 BPR 16,215, it was observed at 16,216:
- The purpose of the "notification to occupier" is to make sure that it is received by the persons who have the right to defend their possession of the property, so that person can intervene in the proceedings. It is not intended that every person whose fate must depend on the fate of the tenant must receive a notice.
12 In Bankstown Airport Ltd v Noor Al Houda Islamic College Pty Ltd [2002] NSWSC 193, Young CJ in Eq said at [64] - [69]:
[64] There is little discussion in the authorities as to who is an occupier under the Rule. The most extensive discussion is in the judgment of Carruthers J in National Commercial Banking Corp of Australia Ltd v MRM Holdings Pty Ltd (1983) 3 BPR 9339, 9341-3. See also my decision in Kerr v Sheriff of NSW (1996) 9 BPR 16,215.
[65] The general rule is that "wives, children, servants, friends and visitors of tenants or under tenants" (see Cole on Ejectment, (H Sweet, London, 1857) at p84) are not considered occupiers. In particular, the occupation rights of employees are considered the occupation of the employer; see eg Mayhew v Suttle (1854) 4 E & B 347; 119 ER 133.
[66] It must be remembered that the present action for possession under s79 of the Supreme Court Act 1970 replaced the action for ejectment under the Common Law Procedure Act 1899. Although that action replaced the fictitious Doe v Roe action (see Oxford Meat Co Pty Ltd v McDonald (1963) 63 SR (NSW) 423, 426), it still carried with it some of the attributes of the still earlier action. Under the former procedure, the person named as defendant might not be the person principally interested in defending possession against the plaintiff. Indeed, the action might be a wholly collusive one between the named plaintiff and the named defendant.
[67] A procedure was thus devised for a judge to grant the real defendant leave to defend which was taken up into the NSW Common Law Procedure Act 1899, s214. The section gave a right to any person who "was in possession of the land by himself or his tenant." A person was in possession if he or she claimed de facto possession against the plaintiff: Oxford Meat Co Pty Ltd v McDonald (1963) 63 SR (NSW) 423, 428.
[69] In my view, the term "occupier" in Pt7 r8 carries the same connotation. An occupier is a person who claims to be in possession and who would have been the sort of person to receive leave to defend under the old practice. This conclusion fits in well with the conclusion reached in National Commercial Banking Corp of Australia Ltd v MRM Holdings Pty Ltd (supra).[68] The authorities on the section and the corresponding English provision showed that the section was liberally construed. As long as an affidavit was filed that showed the applicant claimed possession, the leave was given. However, a person claiming under the defendant was not a person claiming possession. Thus, wives, licensees etc were excluded. However, sub-tenants, people in adverse possession and beneficiaries under a trust in actual possession were entitled to defend. As to this last category see Longbourne v Fisher (1878) 47 LJ Ch 379.
13 These authorities were here sought to be distinguished, on the basis that Heidi and Chad Coughlin resided at the property in their capacity as children of the owner, Steven Coughlin. In my view, that put them in no different position to the family members of other occupants. Mr Coughlin was, undoubtedly, himself an occupier of the property, given that he owns the property and resides there. On Ms Yu’s evidence, Heidi and Chad Coughlin lived with him there, both when notices were given by the plaintiff, which led to these proceedings being brought and at the time of the hearing of their motion. The fact of that residence cannot, however, have made them occupiers, for the purpose of the Rule.
14 It followed that the plaintiff had no obligation to serve the notices in question upon Heidi and Chad Coughlin and that they had no standing to be joined as defendants in these proceedings, on the basis that they were occupiers of the property.
- Relief under the Supreme Court Act 1970
15 What was also in issue was whether or not their residence with their father at the property gave Heidi and Chad Coughlin sufficient interest in the proceedings, to entitle them to pursue the relief which they sought, either under ss 65 or 75 of the Supreme Court Act. In considering these provisions, attention must also be given to s 63. Section 75 is concerned with declaratory relief, providing:
No proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not.
75 Declaratory relief
16 Sections 63 and 65 provide:
63 Final determination
The Court shall grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided.
65 Order to fulfil duty
(1) The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested.
(2) The Court may, on terms, make an interlocutory order under subsection (1) in any case where it appears to the Court just or convenient so to do.
(3) The powers of the Court under this section are in addition to any other powers of the Court.
17 It was conceded that Heidi and Chad Coughlin were not parties to the mortgage and that as residents, or even occupants of the property, they had no rights under the Farm Debt Mediation Act. That Act applied to ‘creditors under a farm debt’ (s 5). There was a dispute between the plaintiff and Mr Coughlin as to whether this legislation applied to them, which depended on whether Mr Coughlin was a farmer as defined, and whether he had incurred a ‘farm debt’ to the plaintiff under a ‘farm mortgage’. ‘Farm debt’ is defined in s 4 as:
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.
18 ‘Farm’, 'farmer’, ‘farming operation’ and ‘farm mortgage’ are defined as:
farm means land on which a farmer engages in a farming operation.
farming operation means: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.
(a) a farming (including dairy farming, poultry farming and bee farming), pastoral, horticultural or grazing operation, or
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:(b) any other operation prescribed by the regulations for the purposes of this definition.
(a) any stock mortgage or any crop or wool lien, or
(b) the interest of the lessor of any farm machinery that is leased.
19 Mr Coughlin’s pursuit of the relief he had sought in these proceedings in relation to the rights which he claimed he had under the Farm Debt Mediation Act, came to an end with his bankruptcy. Thereafter, the Act no longer applied to him (see s 5). Nevertheless, the trustee sought and was given the opportunity to consider whether to pursue Mr Coughlin’s motion, Mr Coughlin’s claim being that the Act applied at the time the plaintiff gave its notices, with the result that the failure to comply with the requirements of the Farm Debt Mediation Act made the enforcement action which the plaintiff was here pursuing void (see s 6).
20 The trustee ultimately decided not to pursue the motion and, as a result, it was dismissed. That did not determine the question of whether the Farm Debt Mediation Act applied to the mortgage, but it brought to an end the claim pursued by Mr Coughlin, leaving the plaintiff free to act on the judgment and the writ of possession it had earlier obtained. On 5 May, the Sheriff thus gave Heidi and Chad Coughlin notice of their eviction from the premises.
21 By this motion, Heidi and Chad Coughlin now seek to argue that when the plaintiff gave the notices on which the default judgment was obtained, the plaintiff was bound to deal with their father in accordance with the requirements of the Farm Debt Mediation Act, with the result that that these enforcement proceedings are void, the plaintiff not having complied with s 8 of that Act. There was no issue that the plaintiff had not done so, it taking the view that the legislation did not apply to the mortgage. The plaintiff challenged Heidi and Chad Coughlin’s standing to bring their motion, they not having the right to be joined as defendants to the proceedings, not being occupiers of the property and having no other interest in the property.
22 There was no issue that as the result of the bankruptcy, the Farm Debt Mediation Act no longer applies to Mr Coughlin. The practical position between the parties was thus that even if the Farm Debt Mediation Act applied at the time the plaintiff gave the notices upon which it relied when obtaining default judgment, that legislation no longer applies and even if Heidi and Chad Coughlin have standing to bring these proceedings and succeed in the argument that they wish to advance, the plaintiff is now free to pursue its rights under the mortgage, without giving any notices under the Farm Debt Mediation Act. It follows that, in the short term, eviction might thus be averted if standing is established and the argument succeeds otherwise, but the plaintiff is undoubtedly free to pursue its rights, given Mr Coughlin’s default under the mortgage. The plaintiff will be able to obtain possession, by issuing fresh notices.
23 Heidi and Chad Coughlin’s application thus has to be considered in light of the approach of the High Court, that a declaration will generally not be granted, where there is not sufficient practical utility in resolving a dispute (see Neeta (Epping) Pty Ltd v Phillps [1974] 131 CLR 286) and where the applicant has no substantive interest in the matter to be decided (see JohncoNominees Pty Ltd v Albury Wodonga (NSW) Corp [1977] 1 NSWLR 43. While the power is an extremely broad one, as was observed in Forster v Jododex Australia Pty Ltd and Another (1972) 127 CLR 421 at 435, the power is ordinarily exercised ‘where it is a question of defining the rights of two parties’. Here, neither Heidi nor Chad Coughlin themselves claim to have any relevant rights under the mortgage or legislation in question. It follows that they have no substantive interest in the matter which they seek to have the Court decide, namely the application of the Farm Debt Mediation Act at the time notice was given in 2007. Nor do they have any substantive interest in the mortgage upon which the default judgment and writ of possession which they seek to have set aside rest.
24 Nevertheless, the application to set aside the default judgement was also pressed under s 65 of the Supreme Court Act. While at one point it was argued that even a stranger would have standing to challenge the plaintiff’s alleged failure to adhere to the obligations imposed by the Farm Debt Mediation Act, on the authorities it is clear that in order to establish standing under that section, it has to be shown that the plaintiff had a 'duty' under the Farm Debt Mediation Act, in respect of which Heidi and Chad Coughlin have an interest, beyond that of any other member of the public. In Day v Pinglen Proprietary Limited and Others (1981) 148 CLR 289, this was explained at 299 and 300, on this basis:
At 299:
... there being no interference with a private right, the appropriate test is whether the appellant has a special interest in the subject matter of the action, being an interest over and above that enjoyed by the public generally: Australian Conservation Foundation Inc. v. The Commonwealth [(1980) 146 C.L.R. 493] , at p. 526, per Gibbs J. (as he then was), and Mason J. [(1980) 146 C.L.R. 493, at p. 547] ...
at 300:
The existence of an impending detriment threatened by an unlawful act is sufficient to confer standing to seek an injunction to restrain that act, without regard to theoretical possibilities in other circumstances: cf. Campbell v. Paddington Corporation [[1911] 1 K.B. 869] , at p. 879.
25 In Day, what arose for consideration was Section 315 of the Local Government Act 1919, which provided that a building approval given by a municipal council would be void if the building work to which it referred was not substantially commenced within twelve months after the date of approval. An adjoining owner, who claimed that the project would adversely affect the view of the harbour from her property, applied for a declaration that the approval had become void and an injunction restraining the owner of the building site and the builder it had engaged for the work from constructing the building, without a valid consent from the council. It was found that the plaintiff had standing to maintain the proceedings, firstly, because the existence of an impending detriment threatened by an unlawful act was sufficient to confer standing to seek an injunction to restrain that act and, secondly, because the existence of a right in the plaintiff to have objected to the grant of approval to the development identified her as a member of a category of persons who were potentially affected by it.
26 In this case, the question of Heidi and Chad Coughlin’s personal interest in whether or not the notices given by the plaintiff to their father in 2007 were void, may be accepted, it seems to me, given that they reside with their father at the property and will be evicted, if the plaintiff enforces the writ of possession against them. If the Farm Debt Mediation Act applied to the mortgage here in question, then the plaintiff’s pursuit of these enforcement proceedings is void. The detriment which Heidi and Chad Coughlin seek to avoid is eviction as the result of enforcement proceedings which they claim are void. That, it seems to me, establishes an impending detriment, sufficient to give them an interest in the matters which they seek to raise, beyond that of other members of the public.
27 Whether or not the Farm Debt Mediation Act establishes any ‘duty’, which might be the subject of an order under s 65, must thus also be considered. The ‘duty’ was argued to be the duty to give the notice required by s 8 of the Farm Debt Mediation Act. Whether or not s 65 of the Supreme Court Act is concerned with ‘duties’ which are not public or quasi public, has not been much considered. (See the commentary at SCA s 65.5 Vol 2 Ritchie’s Uniform Civil Procedure 15,471-2). Clearly any ‘duty’ to give a notice under s 8 of the Farm Debt Mediation Act, is not a duty of a public or quasi public kind. Section 8 provides:
- 8 No enforcement action until notice of availability of mediation given
(1) A creditor to whom money under a farm mortgage is owed by a farmer must not take enforcement action against the farmer in respect of the farm mortgage until at least 21 days have elapsed after the creditor has given a notice to the farmer under this section.
(2) Notice to the farmer is to be in writing in a form approved by the Authority (informing the farmer of the creditor’s intention to take enforcement action in respect of the farm mortgage and of the availability of mediation under this Act in respect of farm debts).
(3) This section does not apply if a certificate is in force under section 11 in respect of the farm mortgage concerned.
28 The statutory regime however, not only precludes a creditor to whom a farm mortgage is owed from taking enforcement proceedings, unless the statutory notice is given, that notice also triggers a mediation regime, if requested by the farmer within a specified period. Enforcement proceedings taken inconsistently with the statutory regime are void (s 6); any agreement by which parties seek to contract out of the Act is void and gives rise to an offence (s 20); and any waiver of any mediation rights under the Act is also void (s 21).
29 The word ‘duty’ is not defined in the Supreme Court Act. Section 65 apparently has its origins in the Common Law Procedure Act 1899, where the specific reference to relief by way of mandamus, confined the duties in question to those of a public or quasi public nature. (See the commentary at SCA s 65.5 Vol 2 Ritchie’s Uniform Civil Procedure 15,471.) Section 65 is not expressly so confined and its construction must be approached in the context of the Act as a whole, which requires that consideration be given to the separate provisions made in s 69, in relation to the Court’s jurisdiction to grant relief in cases where the Court formerly had power to grant relief by way of writ.
30 As recently observed by the Chief Justice in Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83:
- 86 It is now well established that the contemporary approach to statutory interpretation requires a court to have regard to the context in which words appear in the first instance and not merely after some ambiguity has been identified. (See eg CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 405; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 at [11].)
87 As Justice Learned Hand once put it (Helvering v Gregory (1934) 69 F 2d. 809 at 810-811):
- “The meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create”.
31 I am satisfied that the word ‘duty’, where used in s 65 of the Supreme Court Act ought not to be given any confined meaning. As Dixon J observed in Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 647, ‘words although general should be understood in their primary and natural signification unless there are sufficient indications of some other meaning’. There are in the Supreme Court Act no such indications.
32 In its ordinary meaning, the word ‘duty’ is clearly wide enough to encompass a statutory obligation of the kind imposed by s 8 of the Farm Debt Mediation Act, encompassing as it does the meaning ‘that which one is bound to do by moral or legal obligation’ (see the Macquarie Dictionary Online). In the Encyclopaedic Australian Legal Dictionary, the word is similarly defined as ‘a legal obligation by one person to another. A duty may require the performance of certain actions, or the refraining from certain actions.’
33 While it is always a matter for a creditor to determine whether or not to enforce a debt, once s 8 of the Farm Debt Mediation Act is attracted to a mortgage, it requires both that the creditor take certain action – the giving of a statutory notice - and that the creditor refrains from certain action – the enforcement of the debt, until 21 days have elapsed from the giving of the notice.
34 In Cameron North Sydney Investments Pty Ltd v The Owners Strata Plan No 50411 and Ors [2002] NSWSC 726, Young CJ in Equity appears to have come to a similar view. There at issue was whether the Court could order the first defendant to consent to the plaintiff lodging a development application with the North Sydney Council. His Honour observed:
19 It seems to me that this was the power that was invoked by Hodgson CJ in Eq in 117 York Street Pty Limited v PSP16123 (1998) 43 NSWLR 504 at 521-522 where as part of the grant of an easement under s 88K of the Conveyancing Act , 1919 his Honour held that the ancillary rights involved the right to a written consent to the lodging of a development application and the power of the Court to compel such a consent to be given.18 I must confess that I am a little in the dark as to just what power the Court is exercising when it does what Waddell CJ in Eq did, but it seems to me probable the seat of power is s 65 of the Supreme Court Act 1970 which provides that the Court may order any person to fulfil any duty in fulfilment of which the person seeking the order is personally interested. The prime thrust of duty under previous versions of s 65 was confined to duties of a public or quasi-public nature (see eg Benson v Paull (1856) 6 E & B 273; 119 ER 865). However, I agree with the remarks of the learned editor of the Supreme Court Practice on s 65, that the present section is not so confined and confers a power which is exercisable, even where the duty in question is not able to be described as public or quasi-public.
35 The appeal from his Honour’s decision was dismissed, but, it seems that these observations were not considered. (See Owners Strata Plan No 50411 and Ors v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5).
36 In Onus and Another v Alcoa of Australia Limited (1981) 149 CLR 27 what was sought was declaratory and injunctive relief in relation to works proposed to be carried out by Alcoa, in claimed breach of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic). As described by Gibbs CJ at p 35, that case concerned ‘two private citizens who cannot show that any right of their own has been infringed bring an action for the purpose of restraining another private citizen (Alcoa) from breaking the criminal law by acting in contravention of s 21 of the Relics Act’. His Honour concluded that standing had been established, observing at 35-36:
The question is whether they have standing to bring the action. If an attempt were made to frame an ideal law governing the standing of a private person to sue for such a purpose, it would be necessary to give weight to conflicting considerations. On the one hand it may be thought that in a community which professes to live by the rule of law the courts should be open to anyone who genuinely seeks to prevent the law from being ignored or violated. On the other hand, if standing is accorded to any citizen to sue to prevent breaches of the law by another, there exists the possibility, not only that the processes of the law will be abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to very great cost and inconvenience in defending the legality of his actions. Moreover, ideal rules as to standing would not fail to take account of the fact that it is desirable, in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings. The principle which has been settled by the courts does attempt a reconciliation between these considerations. That principle was recently stated in Australian Conservation Foundation Inc. v. The Commonwealth [(1980) 146 C.L.R. 493]. A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action (1980) 146 C.L.R., at pp. 530-531, 537, 547-548]. The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.
37 In this case, it is not another’s infringement of the criminal law with which this motion is concerned, but rather the consequences of a claimed failure to observe a duty imposed by legislation which it is claimed, make the present enforcement proceedings void.
38 There is an obvious question as to whether, given the time at which the notice in question was given by the plaintiff, any effective order could be made as to the fulfilment of that duty. It was common ground that at the present, given Mr Coughlin’s bankruptcy, the Farm Debt Mediation Act no longer applies to the mortgage. Nevertheless, the plaintiff still actively seeks to enforce a debt by proceedings which Heidi and Chad Coughlin seek to show are void, under the express provisions of that legislation. I am satisfied that they have established standing to advance that claim, given their personal interest in the eviction which flows from those enforcement proceedings.
39 It follows that it must be concluded that s 8 of the Farm Debt Mediation Act imposes a duty on creditors to whom it applies. It also follows that Heidi and Chad Coughlin have established a personal interest in what they claim was the plaintiff’s failure to fulfil that duty, when it sought to enforce their father’s debt in these proceedings. In those circumstances, their standing to be joined as defendants in the proceedings has been made out and the parties must be heard in relation to the orders which they wish to press.
Orders
40 For the reasons given, Heidi and Chad Coughlin have established standing and their motion must be heard. I order accordingly.
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