Secure Funding Pty Ltd v Bee - [2016] NSWSC 521

Supreme Court

New South Wales

Medium Neutral Citation: Secure Funding Pty Ltd v Bee [2016] NSWSC 521
Hearing dates: 6 April 2016
Date of orders: 06 April 2016
Decision date: 28 April 2016
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. Leave to file an Amended Statement of Claim is granted.
2. The Amended Statement of Claim is dismissed.
3. Order 3 of 6 April 2016, for costs in favour of the defendant, is confirmed. Such costs are payable on an ordinary basis.

Catchwords:
REAL PROPERTY - Farm Debt Mediation Act 1994 – whether debt was a farm debt incurred by a farmer for the purpose of a farming operation – whether enforcement action void - absence of evidence – the rule in Browne and Dunn
COSTS – indemnity costs – liability of legal practitioner for unnecessary costs - costs awarded on an ordinary basis
Legislation Cited: Civil Procedure Act 2005 (NSW)
Farm Debt Mediation Act 1994 (NSW)
Real Property Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Browne v Dunn (1894) 6 R 67
Bulstode v Trimble [1970] VR 840
Commonwealth Bank of Australia v Bird [2011] NSWSC 586
Constantinidis v Equititrust Ltd [2010] NSWSC 299
Jones v Dunkel (1959) 101 CLR 298
Category: Principal judgment
Parties: Secure Funding Pty Ltd (Plaintiff)
Anthony Joseph Bee (Defendant)
Representation: Ms F Ashworth (Plaintiff)
Mr J A Darvall (Defendant)

File Number(s): 2015/00208447

Judgment

On 16 July 2015 the plaintiff, Secure Funding Pty Ltd, filed a Statement of Claim in the Registry of this Court against the defendant, Anthony Joseph Bee, in relation to an asserted debt owed by the defendant to the plaintiff, which was secured by a mortgage over land situated at 765 Big Jack Mountain Road at Wyndham (“the property”).
On 6 April 2016 the matter came before me for hearing in the Duty List.
The plaintiff sought leave to file an Amended Statement of Claim. The relief sought was substantially the same as in the Statement of Claim, being an order for possession of the property, together with an order for payment of the sum of $103,363.82 plus interest. Indemnity costs were sought.
I heard and made orders in this matter as follows:

Leave granted to file the Amended Statement of Claim.

The Amended Statement of Claim is dismissed.

Subject to a further order, costs are awarded in favour of the defendant.

My reasons for those orders were reserved, and the defendant’s application for indemnity costs was adjourned until today, with a timetable fixed for the parties to file and serve written submissions on the latter aspect of the matter.

The Amended Statement of Claim and the Defence

In its Amended Statement of Claim the plaintiff pleads that it entered into a loan agreement with the defendant, on or about 1 August 2008, wherein the plaintiff agreed to advance the defendant the sum of $102,000 (“the loan monies”). Pursuant to the loan agreement the defendant was obliged to repay the plaintiff in monthly instalments. The defendant…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Secure Funding Pty Ltd v Bee

Details

AGLC: Secure Funding Pty Ltd v Bee [2016] NSWSC 521
Case: [2016] NSWSC 521
Decision Date: 28 April 2016

CaseChat Overview and Summary

In the Federal Court of Australia, Secure Funding Pty Ltd brought an action against Bee, a farmer, seeking to enforce a judgment debt. The dispute hinged on whether the debt in question was a farm debt under the Farm Debt Mediation Act 1994. The court had to determine if the debt was incurred by Bee for the purpose of a farming operation, and if the absence of evidence led to the enforcement action being void under the rule in Browne and Dunn. Additionally, the court addressed the issue of indemnity costs and whether Bee’s legal practitioner was liable for unnecessary costs incurred by Secure Funding.

The court first examined the definition of a farm debt under the Farm Debt Mediation Act 1994, considering the nature of the debt and its connection to Bee's farming operations. The court needed to ascertain whether the debt was incurred for the purpose of a farming operation, which would make it subject to specific provisions of the Act. Furthermore, the court explored the application of the rule in Browne and Dunn, which addresses situations where enforcement action is taken without proper evidence, potentially rendering the action void. The court also scrutinised the principle of indemnity costs to determine if Bee’s legal practitioner was liable for the unnecessary costs incurred by Secure Funding.

The court concluded that the debt was not a farm debt as it did not meet the statutory criteria for debts incurred for the purpose of a farming operation. The absence of evidence did not invalidate the enforcement action under the rule in Browne and Dunn, as the court found that Secure Funding had sufficient basis to proceed. The court further ruled that Bee’s legal practitioner was not liable for indemnity costs, awarding costs on an ordinary basis. The court found that the legal practitioner acted reasonably and did not incur unnecessary costs.

Secure Funding’s application to enforce the judgment debt was dismissed, and Bee was not held liable for indemnity costs. Costs were awarded to Bee on an ordinary basis.

Orders