Sharpe v CNH Capital Australia Pty Ltd

[2016] FCCA 1113

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARPE v CNH CAPITAL AUSTRALIA PTY LTD [2016] FCCA 1113

Catchwords:
BANKRUPTCY – Whether a further mediation was required under the Farm Debt Mediation Act 1994 – whether the farm debt mediation certificate could be applied to these proceedings – whether the farm debt certificate was invalid – whether the expiry of the certificate invalidates creditor’s right to pursue proceedings – application dismissed.

Legislation:

Bankruptcy Act 1966, (Cth) s.41

Farm Debt Mediation Act 1994 (Cth), ss.3, 11

Applicant: DAVID GEORGE SHARPE

Respondent: CNH CAPITAL AUSTRALIA PTY LTD

File Number: SYG 2998 of 2015

Judgment of: Judge Street

Hearing date: 10 May 2016

Date of Last Submission: 10 May 2016

Delivered at: Sydney

Delivered on: 10 May 2016

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr S Golledge

Solicitors for the Respondent: Bayside Solicitors

ORDERS

1. The application is dismissed.

2. The interim orders of the court are dissolved.

3. The applicant pay the costs of the respondent fixed in the amount of $8000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2998 of 2015

DAVID GEORGE SHARPE

Applicant

And

CNH CAPITAL AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction to set aside a bankruptcy notice under s.41 of the Bankruptcy Act 1966 (Cth).

2. A bankruptcy notice was issued as a result of a judgment obtained in proceedings commenced on 29 October 2012.  The judgement is a final judgment dated 24 June 2014.

3. Prior to the commencement of the proceedings, on 18 June 2012, the Rural Assistance Authority issued a certificate under s.11 that provided the Bankruptcy Act 1966 did not apply to the farm debt mortgage.

4. The applicant sought to advance, in substance, three different arguments.  The first proposition advanced was that the pursuit of the bankruptcy proceedings was, in substance, enforcement action and that a further mediation was required under the Farm Debt Mediation Act 1994 (Cth). 

5. Section 11(6) of the Farm Debt Mediation Act 1994 provides as follows:

   The expiry of a certificate under this section does not affect any proceedings for recovery of a farm debt, or for the exercise or enforcement of any right of the creditor, already taken or commenced by a creditor while the certificate was in force, and any such proceedings may be continued and concluded as if the certificate were still in force.

6. Section 3 provides as follows:

   The object of this Act is to provide for the efficient and equitable resolution of farm debt disputes.  Mediation is required before a creditor can take possession of property or other enforcement action under a farm mortgage.

7. The proceedings taken in this Court on the judgment are not proceedings that constitute the taking of possession of property or other enforcement action under a farm mortgage as defined in the Farm Debt Mediation Act 1994.  The Farm Debt Mediation Act 1994 does not prevent the applicant in the present case pursuing these proceedings.

8. The applicant sought to argue that the farm debt mediation certificate had expired on 8 May 2015 and, therefore, it could have no application to the taking of the steps in these proceedings by way of the service of the bankruptcy notice.  As indicated, the taking of steps under the Bankruptcy Act1966 are not steps caught within the Farm Debt Mediation Act 1994. The steps being taken by the creditor in the present case are for enforcement of the judgment obtained by the creditor. Section 11(6) of the Farm Debt Mediation Act 1994 makes crystal clear the entitlement of the creditor to pursue these proceedings irrespective of the expiry of a certificate.

9. The applicant also sought to argue that the certificate was one in respect of which the mediation process in relation to the issue of the certificate under s.11 was not satisfactory. Whether it was satisfactory was a matter for the authority to determine, not the subjective view of the applicant. Nothing said by the applicant from the bar table identified any basis upon which the certificate could be said to be invalid.

10. This is a sad case insofar as the applicant is adding to the costs of enforcement action against him and was not likely to advance his position.  Notwithstanding the steps taken by the Court at the commencement of the hearing to explain the nature of the hearing and to identify the issue likely to arise in respect of the material which the applicant had filed, the applicant indicated he was desirous of filing an interim application to advance in substance the ground concerning the expiry of the certificate.  The Court declined the application for leave to file any interim application.  The Court heard the applicant in relation to the argument he wished to advance.  There was nothing said by the applicant that warranted the granting of leave to file any interim application and the substance of the argument the applicant wished to develop, the applicant had the opportunity to and did develop.

11. The applicant embarked on seeking to identify the chronology as explaining the basis upon which the applicant asserted he was entitled to relief.  The applicant was seeking to maintain those submissions despite the Court having tried to explain to the applicant that the grounds that he was advancing were hopeless.  Nonetheless, the applicant was determined to pursue the application in advancing submissions that travelled nowhere and, with respect to the applicant, were a complete waste of time.

12. The application fails to make out any ground on which the bankruptcy notice can be set aside.  The application is dismissed.  The interim orders of the Court are dissolved.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 May 2016