Edmonds v Barrington Winstanley Group Pty Ltd

1. [1]

   MEAGHER JA: I agree with Stern JA.

2. [2]

   LEEMING JA: I agree with Stern JA.

3. [3]

   STERN JA: These proceedings arise out of two agreements between the appellants, DSJSE Pty Ltd (a company associated with the appellants) and the respondent. The first, an Exclusive Mandate and Fee Agreement to which the appellants as guarantors, DSJSE Pty Ltd as borrower and the respondent were parties, was entered into on 3 November 2017 (the “Fee Agreement”). The second, a Deed of Acknowledgement of Debt pursuant to which the appellants acknowledged the existence of a debt in the sum of $240,520.00 owing pursuant to the Fee Agreement and undertook to pay it to the respondent, was entered into on 27 April 2018 (the “Deed”). The context for the agreements was that the appellants had engaged the services of the respondent finance broker seeking to refinance some existing loans.

4. [4]

   By Statement of Claim filed on 22 April 2021, the respondent sought a monetary judgment against the appellants pursuant to the Deed. The respondent sought, in the alternative, judgment in the sum alleged to be outstanding under the Fee Agreement. The respondent also sought a declaration that a property situated at folio identifier 45/755811, known as “Dumaresq”, was charged in favour of the respondent for all monies owing under the Fee Agreement and sought an order for possession of that property. Interest and costs were also claimed.

5. [5]

   By Defence filed on 18 June 2021, the appellants made limited admissions and denied key matters in the Statement of Claim. Significantly, having regard to the issues arising on the appeal, they denied that any monies had become due and payable under the Fee Agreement. No cross-claim was filed by the appellants.

6. [6]

   In September 2021, the matter was set down for hearing on 19-20 April 2022 before Darke J. On 19 April 2022 an adjournment application was made by the appellants, supported by written submissions of Mr Edwards, counsel for the appellants, and by oral submissions of the first appellant (“Mrs Edmonds”) on behalf of the appellants. The primary judge rejected the adjournment application. His Honour’s doing so is said to have involved a denial of procedural fairness.

7. [7]

   The hearing proceeded, with Mrs Edmonds representing herself and the second appellant (“Mr Edmonds”) before the primary judge. His Honour gave reasons for judgment on 4 May 2022 and orders were made on 20 May 2022. His Honour upheld the respondent’s claim under the Deed for a monetary judgment against the appellants in the amount of $240,520.00, plus interest and costs. The other claims were dismissed.

8. [8]

   By notice of appeal filed 13 October 2022 (“NOA”) the appellants appeal against the primary judge’s orders. During the hearing the respondent was granted leave to file a notice of contention (“NOC”) seeking to challenge the primary judge’s rejection of the respondent’s reliance upon estoppel by Deed.

9. [9]

   For the reasons set out below, the appeal should be dismissed with costs. It is unnecessary to deal with the NOC.

Procedural Matters

1. [10]

   The NOA was filed on 13 October 2022, approximately four months after it was required to be filed under r 51.16(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The appellants seek an extension of time for filing the NOA. They rely upon an affidavit of 15 October 2022 from Mr Edwards, counsel practising in Brisbane and Toowoomba and living in Brisbane, who had at various points in time represented the appellants in the proceedings below. Mr Edwards gives evidence that he was constrained in his ability to take instructions and to advise as to the appeal by reason of Mrs Edmonds being incarcerated and by his own inability to travel. He also gives evidence of Mrs Edmonds telling him that her ability to obtain legal advice as to the merits of any appeal was impeded by financial constraints and by lockdowns at the Mid North Coast Correctional Centre at Kempsey where she had been incarcerated.

2. [11]

   The respondent did not seek to be heard on this application.

3. [12]

   The affidavit of Mr Edwards provides some explanation for the delay in filing the NOA and no prejudice was occasioned to the respondent by the delay. Further, whilst there are real difficulties with a number of the grounds of appeal, the ground alleging that the primary judge erred in his Honour’s construction of the Deed was not without reasonable prospects. In these circumstances, time for filing the NOA should be extended to 13 October 2022.

4. [13]

   When this appeal was initiated by the filing of the NOA on 13 October 2022, Mrs Edmonds was in custody having been convicted of a serious indictable offence on 3 September 2021. In light of this, Mrs Edmonds sought leave, if required, under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“the Act”). Sections 4-5 of the Act provide:

5. [14]

   These provisions were considered by Bell P (as his Honour then was) in Mr D v Ms P [2020] NSWCA 174 at [17]-[26]. His Honour observed that, whilst a number of decisions of this Court had proceeded on the basis that the bringing of an appeal amounts to the institution of civil proceedings within the meaning of s 4 of the Act (e.g., Chen v Zhang [2009] NSWCA 202; Ford v Simes [2009] NSWCA 351; and Clark v State of New South Wales [2018] NSWCA 13), that was an open question which did not need to be resolved on the facts of that case: at [17]-[18].

6. [15]

   His Honour also held that the “prima facie” requirement in s 5 of the Act represents “a relatively low threshold to be satisfied on an application for leave” under s 4: at [26]. In so holding his Honour relied upon the judgment of Allsop ACJ and Basten JA in Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17], where their Honours noted that:

7. [16]

   Having regard to the relatively low threshold for the “prima facie” requirement, and the absence of any suggestion of abuse of process in this appeal, I am satisfied that leave should be granted to the extent that it is required.

8. [17]

   By notice of motion filed 19 June 2023 the appellants sought to rely in this Court upon further evidence in support of their grounds of appeal. That application was supported by an affidavit of Mr Smits, solicitor for the appellants, filed 19 June 2023. This affidavit exhibited 198 pages of documents, comprising:

   1. (1)

      affidavits prepared for the purpose of other proceedings from Mrs Edmonds dated 18 January 2018, 5 June 2018, 11 June 2018 and 11 April 2019, Mr Edwards dated 10 April 2019 and 31 August 2020 and Kristina Fernandez, solicitor for Mrs Edmonds in those other proceedings, dated 18 January 2018;

   2. (2)

      valuations from 2017 for a number of properties including Dumaresq;

   3. (3)

      documents requesting a farmer-initiated mediation, and notifying that request, on their face completed by Mr Edmonds on 31 May 2018, addressed to Coastline Credit Union Limited and relating to mortgages over a number of properties including Dumaresq. Mrs Edmonds is identified in the notification document as the farmer “contact person” in the matter;

   4. (4)

      a bundle of blank forms and worksheets which relate to farm debt mediation and have the header of the NSW Government Rural Assistance Authority; and

   5. (5)

      email correspondence from February 2023 between solicitors for the appellants and the respondent relating to the application to adduce further evidence and the preparation of the appeal.

9. [18]

   During the hearing the Court indicated that Mr Smits’ affidavit would be treated as written submissions in support of the application that the Court receive the further evidence, and that the Court would rule on admissibility in its judgment on the appeal.

10. [19]

    The appellants sought to rely upon the further evidence in support of grounds of appeal relying upon the application of the Farm Debt Mediation Act 1994 (NSW) (“FDM Act”). As set out below, I have concluded that the appellants should not be permitted, on appeal, to rely upon those grounds when they were not substantively advanced before the primary judge. In those circumstances, the rationale for the appellants’ reliance upon the further evidence falls away.

11. [20]

    In any event, the evidence that the appellants sought to rely upon showed that by January 2018 Mrs Edmonds was well aware of the provisions and ambit of application of the FDM Act. The appellants had relied upon the FDM Act in respect of properties including Dumaresq in evidence prepared for the purpose of Supreme Court proceedings that they were involved in in 2018 (which were brought by Coastline Credit Union Limited). This is apparent from an affidavit prepared by Mrs Edmonds’ solicitor for the purpose of those proceedings, and sworn on 18 January 2018, which directly addressed the question whether a mortgage in favour of Coastline Credit Union Limited over properties including Dumaresq, in respect of which Mrs Edmonds was a borrower, met the definitions in the FDM Act. Mrs Edmonds herself, in an affidavit dated 5 June 2018 at [41] states that the “first time I was aware of my right to mediation under the FDM Act was in January 2018.” The evidence that the appellants sought leave to rely upon on their grounds of appeal relating to the FDM Act also includes a notice to Coastline Credit Union Limited signed by Mr Edmonds and dated 31 May 2018 requesting farmer-initiated mediation in respect of a farm mortgage. This request related to mortgages over properties including Dumaresq. Thus, even if this evidence had been admitted, it would not have assisted the appellants’ contention that they should be permitted to rely upon the FDM Act on appeal when they had not relied upon it substantively before the primary judge.

12. [21]

    To the extent that the material sought to be relied upon goes to the factual questions of whether there was a “farm mortgage” or a “farm debt” within the meaning of the FDM Act at the point in time when “enforcement action” was taken by the respondent, there would be significant unfairness to the respondent were the evidence to be admitted in circumstances where those matters were not in issue before the primary judge. In any event, none of that material addressed the factual situation as at April 2021. For reasons set out below, that would be the date at which “enforcement action” within the meaning of the FDM Act was taken. Thus, the material sought to be relied upon would not have assisted the appellants’ grounds of appeal relying upon the FDM Act.

13. [22]

    In these circumstances, the appellants have not demonstrated that there are special grounds as required by s 75A(8) of the Supreme Court Act 1970 (NSW). The application to rely upon further evidence on the appeal should be dismissed.

The grounds of appeal

1. [23]

   Whilst the NOA is lengthy and extends to 16 grounds of appeal, many of which involve numerous sub-grounds, during the hearing before this Court the appellants abandoned those grounds that were not relied upon in their written and oral submissions. During oral submissions, the grounds pressed, which do not neatly correspond to any of the numbered grounds of appeal, were:

   1. (1)

      whether the primary judge erred in his Honour’s construction of the Deed (grounds 4 and 5(a)-(b));

   2. (2)

      whether there was a denial of procedural fairness in the primary judge refusing the appellants’ application on 19 April 2022 to adjourn the trial (grounds 1, 5(j) and 11); and

   3. (3)

      the validity of proceedings to enforce any such obligations having regard to the provisions of the FDM Act (grounds 5(i) and 13).

2. [24]

   Each of these grounds is considered below.

3. [25]

   Some further grounds in the NOA were relied upon in the appellants’ written, but not oral, submissions. These were characterised in the appellants’ submissions in reply as “defences, counterclaims and appeal grounds” that would have been advanced by the appellants “but for said setbacks, systemic access unavailability of Mrs Edmonds, and failures to accord due process". These included grounds based upon claims of breach of fiduciary duty, breaches of the National Consumer Credit Protection Act 2009 (Cth), misleading or deceptive and unconscionable conduct both at common law and under statute, claims of common law fraud and reliance upon the second limb of Barnes v Addy (grounds 5(f)-(g), 6, 9, 10, 14-16) (“Further Grounds”). I also include within this category of “Further Grounds” the submissions advanced by the appellants in writing that the Deed was liable to be set aside for unilateral or common mistake and that there was a defence available to the appellants under s 12DMA of the Australian Securities and Investments Commission Act 2001 (Cth).

4. [26]

   These were not matters that were raised before the primary judge. They were not pleaded, either by way of defence or cross-claim, nor were they relied upon in submissions before the primary judge. As set out by the High Court in University of Wollongong v Metwally [1985] HCA 28; (1985) 59 ALJR 481 at 483:

5. [27]

   This is not a case in which there are any exceptional circumstances.

6. [28]

   As submitted by the respondent, each of the Further Grounds would give rise to questions of fact upon which the respondent would have been entitled to lead evidence and cross-examine Mrs Edmonds. This Court does not have before it the evidence bearing on these claims as would have been the case had they been raised in the court below: see, e.g., the analysis of Latham CJ, Williams and Fullagar JJ in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 at 438. In my judgment there would be significant unfairness to the respondent if this Court were to allow these claims to be agitated on appeal. Further, contrary to the appellants’ submission, and for the reasons set out below, I do not accept that the failure to advance these claims below was due to any “failures to accord due process”, which I take to mean a denial of procedural fairness.

7. [29]

   In those circumstances, the appellants should be bound by the conduct of their case below and should not be permitted to rely upon the Further Grounds.

Background

1. [30]

   Prior to the execution of the Fee Agreement on 3 November 2017, there was email correspondence between Mrs Edmonds and Mr Hough (a director of the respondent). The substance of these communications was that the appellants wished to refinance existing loans and, as set out in an email from Mrs Edmonds of 1 November 2017, to “have some working capital.” It appears from this correspondence that the appellants were in a situation of some financial distress.

2. [31]

   At 6.06pm on 3 November 2017, Mr Hough sent an email to Mrs Edmonds attaching an amended version of the Fee Agreement for signing and informing Mrs Edmonds that he had just received an amended Letter of Offer.

3. [32]

   At 6.23pm on 3 November 2017, Mrs Edmonds sent an email to Mr Hough attaching the signed Fee Agreement which she described as a “duly executed dated and witnessed Mandate document.”

4. [33]

   The Fee Agreement, in essence, provided for the respondent to arrange finance for DSJSE Pty Ltd as borrower in exchange for a service fee of 5% of the loan amount approved plus GST (“Service Fee”). Under clause 13 of the Fee Agreement, the appellants, as guarantors, were “liable for all the obligations of the Borrower [DSJSE Pty Ltd] under this agreement” and “unconditionally and irrevocably” guaranteed to the respondent “the due and punctual payment and satisfaction of the Service Fee and any other amount owing to BWG [the respondent] arising out of this agreement by the Borrower.”

5. [34]

   Under the Fee Agreement, the respondent was to arrange finance on behalf of DSJSE Pty Ltd “within the ambit of the instructions set out at Item 3 of Schedule A”: clause 1. Item 3 of Schedule A set out various parameters for the loan, including that the loan should be for $3,840,000.00 or 60% of the valuation, whichever was the lesser and that the loan term should be 12 months. Clause 2.2 of the Fee Agreement provided that a Service Fee became due and payable by DSJSE Pty Ltd upon the respondent “obtaining a loan offer within the ambit of the instructions set out at Item 3 of Schedule A, irrespective of whether the Borrower takes up the Offer.”

6. [35]

   Pursuant to clause 13.9.1 of the Fee Agreement it was agreed that if any monies became due and payable under the agreement, for any reason:

7. [36]

   The properties at Item 5 of Schedule A included Dumaresq.

8. [37]

   As held by the primary judge at [17], the appellants signed Appendices 1 and 2 to the Fee Agreement. By the first, a request was made that the respondent delay the requirement for payment of the Service Fee under the Agreement. There was no evidence that the respondent ever agreed to delay that payment.

9. [38]

   The Letter of Offer referred to in Mr Hough’s email of 3 November 2017, was an offer by In Base Investments Pty Ltd (“In Base Investments”) to lend $3,840,000.00 to DSJSE Pty Ltd. Relevantly, it provided for a loan term of three months.

10. [39]

    As found by the primary judge at [19], it appears that Mrs Edmonds signed the Letter of Offer on 3 November 2017, after signing the Fee Agreement, and returned the Letter of Offer to the respondent on 4 November 2017 (and again on 6 November 2017) together with up-to-date title searches and rate notices including in respect of Dumaresq.

11. [40]

    The title search for Dumaresq showed that it was owned by the appellants as joint tenants and was encumbered by a registered mortgage to Coastline Credit Union Limited, and that caveats had been lodged by PMA Holdings Pty Ltd and Directline Finance Pty Ltd. A rate notice from Uralla Shire Council for 1 July 2017 to 30 June 2018 indicated that Dumaresq was rated as “farmland – General Rate”. However, a desktop residential valuation of Dumaresq with a valuation date of 16 November 2017 described the zoning/instrument as “RUS Large Lot Residential”. In this valuation the highest and best use was “assumed to be its present use: that is, Large lot rural residential use”. It was further noted that the “subject property is a circa 1958 and extended in 1990s single storey brick veneer four (4) bedrooms homestead and tile home and presents in average condition on a gently sloping rural block of 58.3 hectares. The whole land is arable with equipped bore, dams and creek.”

12. [41]

    Between 14 and 23 November 2017, the appellants failed to make several payments due pursuant to the Letter of Offer from In Base Investments including a $13,000.00 payment payable on acceptance of the loan offer, a $14,850.00 valuation fee and a $2,000.00 legal fee.

13. [42]

    At 9.41am on 21 November 2017, the lawyers for In Base Investments sent an email to the respondent stating that if no money was received in the next 48 hours the matter should be considered “at an end.” After about 29 November 2017, the proposed loan under the Letter of Offer was not actively pursued and the primary judge noted that Mr Hough’s evidence was that “at about that time the offer was withdrawn”: at [27].

14. [43]

    As found by the primary judge at [28], Mrs Edmonds continued to engage with the respondent to obtain financing. There was a further loan offer, this time for $2.8 million, forwarded to the appellants by the respondent. Again, there were communications about outstanding fees that were not paid by the appellants. Again, that loan did not proceed.

15. [44]

    On or about 18 December 2017, the respondent, through its solicitors JHK Legal, lodged a caveat (AM983914) against the titles to various properties, including Dumaresq. By the caveat, the respondent claimed an interest as an equitable mortgagee by virtue of the Fee Agreement.

16. [45]

    On 24 February 2018, Mr Hough travelled from Melbourne to Coffs Harbour for a face-to-face meeting with Mrs Edmonds. Mr Hough agreed to do so on the proviso that the cost of his airfares would be reimbursed: at [30]. He claimed that these fees were not reimbursed by the appellants, though this was disputed by the appellants: at [42].

17. [46]

    On 29 March 2018, Wordsworth Lawyers, acting for the appellants at the time, sent a letter to JHK Legal. The letter, which was received on 5 April 2018, was in the following terms:

18. [47]

    On 6 April 2018, Mrs Edmonds advised Mr Hough by email that she had given instructions for Wordsworth Lawyers to lodge a withdrawal of the lapsing notice on that day.

19. [48]

    The primary judge found that sometime between 5 and 10 April 2018, Mr Hough had a telephone conversation with Mrs Edmonds: at [61]. Mrs Edmonds deposed that during this conversation the respondent had verbally abused, intimidated and bullied her but this was denied by Mr Hough. At [61]-[76] the primary judge rejected Mrs Edmonds’ evidence as to this.

20. [49]

    During the period between 11 and 16 April 2018, Wordsworth Lawyers and the respondent exchanged correspondence regarding the caveat. On 16 April 2018, JHK Legal sent an email to Wordsworth Lawyers attaching a draft of the Deed, requesting that it be executed and returned by no later than 4.00pm on 19 April 2018.

21. [50]

    On 20 April 2018, following an exchange of emails summarised by the primary judge at [40]-[43], Mrs Edmonds sent an email to Mr Hough stating (emphasis in original):

22. [51]

    On 21 April 2018 Mr Hough sent a copy of the proposed Deed to Mrs Edmonds. Mr Hough reiterated that the Deed was not in final form. Mr Hough indicated he would confirm the final document on 23 April 2018 and directed Mrs Edmonds to obtain legal advice in relation to the Deed. Notwithstanding this, the appellants returned a signed copy of this version of the Deed by email on 22 April 2018 at 4.33pm.

23. [52]

    At 6.20pm on 22 April 2018, Mr Hough sent an email to Mrs Edmonds which included the following:

24. [53]

    On 24 April 2018, an updated version of the Deed was sent to Wordsworth Lawyers. This was returned, apparently executed by Mrs Edmonds for DSJSE Pty Ltd and separately by Mrs and Mr Edmonds as guarantors. The email included the following:

25. [54]

    Wordsworth Lawyers indicated, by way of email on 1 May 2018, that they had advised the appellants not to sign the Deed but had been instructed that the appellants had signed and returned the Deed, presumably directly to the respondent.

26. [55]

    The parties to the Deed are the respondent, the appellants and DSJSE Pty Ltd. The recitals relevantly provide:

27. [56]

    Clause 1.1 of the Deed includes a (second) definition of Debt as meaning the “Service Fee plus all accruing interest and amounts payable under the Agreement.” It also defines Letter of Offer to mean “the letter of offer from In Base Investments Pty Ltd for a loan amount of $3,840,000 to DSJSE and Sandra and David dated 3 November 2017.”

28. [57]

    The operative part of the Deed includes the following:

29. [58]

    The execution page is headed “EXECUTED AS A DEED”. It provides for execution by the respondent and DSJSE Pty Ltd in accordance with s 127 of the Corporations Act 2001 (Cth) and for each of Mrs Edmonds and Mr Edmonds to sign, seal and deliver in the presence of a witness. The signatures of Mrs and Mr Edmonds were apparently witnessed by Jennifer Marshall, a sister of Mrs Edmonds.

30. [59]

    It appears from Mrs Edmonds’ affidavit dated 14 March 2022 that at some time in 2018 two other properties, 1549 Boonolong Road Armidale and 134 Bellbrook East Road Armidale, that had been identified as Security Properties in the Fee Agreement (along with Dumaresq), were sold.

Adjournment application by the appellants

1. [60]

   The adjournment application was made on the first day of the scheduled hearing of the proceedings before the primary judge on 19 April 2022. The appellants relied upon five pages of written submissions drafted by “David Edwards, Counsel for the defendants”. Whilst the submissions refer to the hearing as commencing on 18 April 2022 and are dated 18 April 2021, as the primary judge observed, that should have read 19 April 2022 and 18 April 2022 respectively. Mr Edwards was unable to attend the hearing, but at the hearing Mrs Edmonds made further oral submissions in support of the adjournment application on behalf of both herself and Mr Edmonds. Mr Edwards set out that he had acted for Mrs Edmonds “on a largely pro bono basis” before her incarceration but with “hope of being paid from funds to which she advised she had access” but that after Mrs Edmonds’ incarceration he had not received any word from her for some time and thus informed the respondent’s solicitors that he would no longer be able to represent her. He also stated that Mrs Edmonds had then contacted him seeking urgent assistance on 5 April 2022 and that they had spoken since then “at least eight times” but only for about ten minutes on each occasion.

2. [61]

   The matters relied upon in support of the application were, in essence, the unavailability of counsel, the difficulties Mrs Edmonds had had in accessing legal advice and preparing for the hearing by reason of her incarceration, Mr Edwards’ limited access to material, and the appellants’ prospects of successfully defending the claim. As to the last of these matters, Mr Edwards set out in the submissions that, from the materials that he was able to access, he was of the opinion that Mrs Edmonds had a reasonable chance of successfully defending the claim for reasons including:

   1. (1)

      her having been harassed and “tricked” into signing an array of differing documents;

   2. (2)

      her mental condition when signing documents which meant that the Fee Agreement and Deed were “in the circumstances and generally harsh, oppressive and unconscionable”; and

   3. (3)

      the application of s 8(1) of the FDM Act, which contains a prohibition on enforcement action in respect of a “farm mortgage”.

3. [62]

   The submissions concluded with the following:

4. [63]

   On 19 April 2022 Mrs Edmonds told the primary judge that she appeared for herself and intended to appear for her husband, albeit that they had legal representation “that couldn’t make it today” by reason of other commitments.

5. [64]

   During her oral submissions on the adjournment application, the primary judge put the following to Mrs Edmonds:

6. [65]

   Mrs Edmonds responded that she could not do this without legal representation. However, in response to a question from the primary judge, she confirmed that in the course of the proceedings she had acted both for herself and for Mr Edmonds and “considered that [she had] at least some ability to conduct a defence of the proceedings”.

7. [66]

   When the primary judge asked why it would be appropriate to order an adjournment the following exchange occurred as recorded in the transcript:

8. [67]

   Whilst Mr Edwards’ submissions also purported to rely upon Mrs Edmonds having only been served with limited material, it was apparent from affidavit evidence relied upon by the respondent that this was not the case.

9. [68]

   The respondent opposed the adjournment application on the basis that the respondent “has done everything in its power, and the Court has done everything in its power to get this ready for hearing today, and there is no substance to any of the proposed new defences vaguely alluded to by Mr Edwards that are not already before your Honour”. As to the proposed reliance upon the FDM Act, Senior Counsel for the respondent submitted:

10. [69]

    The primary judge refused the application for adjournment. The primary judge found that the appellants had had an adequate opportunity to formulate any defences to the respondent’s claim and noted that there was no explanation as to why defences “that are not presently included in the defence and/or affidavits that have been filed and served were not brought forward at an earlier time.” His Honour also had regard to the fact that the materials in relation to the hearing had been made available to Mrs Edmonds at the correctional facility where she was incarcerated.

11. [70]

    The hearing proceeded and the primary judge upheld the respondent’s claim under the Deed and gave judgment against the appellants in the amount of $240,520.00 plus interest and costs. The respondent’s other claims were dismissed.

Primary judgment

1. [71]

   The primary judge formed an unfavourable impression of Mrs Edmonds as a witness and set out reasoning in this regard at [67]. His Honour concluded that Mrs Edmonds’ evidence should be treated with great caution, holding that he “would not be prepared to accept her evidence on any contentious matter unless it were corroborated by other evidence that was itself reliable and likely to be accurate”: at [68]. His Honour’s conclusion in this regard was not based upon, but was reinforced by, the fact that Mrs Edmonds was then serving a prison sentence for offences involving fraud: at [68].

2. [72]

   In addition to dismissing the respondent’s claims arising out of the Fee Agreement, the primary judge held that the respondent was not entitled to a charge over Dumaresq or to possession. This was because the Letter of Offer from In Base Investments was for a loan for a period of 3 months rather than the 12 month period specified in Item 3 of Schedule A to the Fee Agreement: at [80]. The primary judge found that the appellants were not precluded by an estoppel by Deed from asserting that no monies were payable under the Fee Agreement within the meaning of clause 13.9 of the Fee Agreement (being the charge). An estoppel by deed could only operate in an action on the Deed and thus did not preclude an action on the Fee Agreement: at [84].

3. [73]

   The core of the primary judge’s reasoning as to the respondent’s successful claim pursuant to the Deed is at [73]-[74]:

Consideration of the grounds of appeal

1. [74]

   In grounds 1, 5(j) and 11, the appellants contend that it was a denial of procedural fairness for the primary judge to have proceeded on 19-20 April 2022 and not to have granted the adjournment. It is somewhat unclear whether this ground was ultimately pressed by the appellants. At the hearing of the appeal the solicitor for the appellants submitted:

2. [75]

   To the extent this ground was ultimately pressed, in my judgment it should be dismissed. As is clear from the matters set out below, the appellants were given a reasonable opportunity to be heard in response to the claims made by the respondent. That is what procedural fairness requires: see e.g., Kiefel CJ, Bell and Keane JJ in HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 at [17], see also Gordon J at [64].

3. [76]

   The starting point in considering whether or not the appellants were given a reasonable opportunity to be heard is that Mrs Edmonds has a law degree from the Southern Cross University. She obtained this qualification in 2016. Further, as is apparent from the matters set out below, she was someone who had a reasonable working understanding of the issues in the proceedings and what was required of the appellants as litigants responding to claims such as those advanced by the respondent.

4. [77]

   Proceedings were commenced on 22 April 2021. A Defence was filed on 18 June 2021. It appears on the face of that document that it was prepared by Mrs Edmonds. She signed it and her name is given as the contact name on the front page. The Defence by its terms suggests that it was prepared by someone with a general understanding of what is required of pleadings and of the matters of substance alleged in the Statement of Claim.

5. [78]

   Mrs Edmonds was incarcerated, upon conviction, on 3 September 2021.

6. [79]

   Mrs Edmonds filed two detailed affidavits in the proceedings below, dated 8 July 2021 and 14 March 2022 respectively. In her affidavit of 8 July 2021, she stated at [1] that she was “authorised to represent the Second Defendant”, being Mr Edmonds. In her affidavit of 14 March 2022, she sought that the proceedings be dismissed both on her and Mr Edmonds’ behalf. These affidavits provide a substantive factual response to the matters raised in the Statement of Claim and support the matters pleaded in the Defence. The affidavit of 14 March 2022 also includes further matters alleged by the appellants against the solicitors for the respondent and identified that Mrs Edmonds had lodged complaints with the Legal Services Commissioner and Law Cover.

7. [80]

   It is apparent from Mrs Edmonds’ affidavits that when these were prepared, including as at 14 March 2022 after she was incarcerated, she had access to documents underlying the respondent’s claim. Both the Fee Agreement and the Deed were identified as being annexed to Mrs Edmonds’ affidavit of 8 July 2021. In the 14 March 2022 affidavit Mrs Edmonds refers to “extensive investigation and examination of documents” which she had then referred to Law Cover: at [5]. The Fee Agreement is itself identified as an exhibit to the affidavit and there is express reference to the terms of the agreement: at [7]. The caveat is also identified as an exhibit: at [8]. Her affidavits are notable for their sophistication and detail, including as regards the circumstances of her interchanges with the respondent, the agreements themselves, as to her own circumstances and as to her assertions regarding the ways in which she alleged that the respondent had failed to comply with its obligations.

8. [81]

   In a letter dated 16 March 2022 from Mrs Edmonds to the solicitors for the respondent, Mrs Edmonds asked that correspondence and communications be sent to her as she had “carriage of the matter at this stage.” In that letter Mrs Edmonds stated that she had been provided with an earlier letter dated 24 February 2022 that had been sent to Mr Edmonds, and which clearly stated that the matter was listed for directions by telephone conference on 8 April 2022 and was listed for hearing on 19-20 April 2022. It is apparent from Mr Edwards’ submissions on the adjournment application that Mrs Edmonds attended the directions hearing on 8 April 2022 by audio-visual link. There is nothing to suggest that Mrs Edmonds gave any indication at that hearing of wanting to rely upon grounds which were not included in the Defence or wished to put any further evidence before the Court.

9. [82]

   It is clear from Mrs Edmonds’ oral submissions before the primary judge on the adjournment application that she had received the Court Book on 5 April 2022. There was also an affidavit of Ms Suyu Dai affirmed on 14 April 2022 before the primary judge. It is clear from this affidavit that materials for the hearing, including the Court Book and submissions, were served on the appellants on various dates between 31 March and 12 April 2022.

10. [83]

    I infer from this material that Mrs Edmonds was acting on behalf of both of the appellants in the proceedings, understood what was alleged by the respondent in the proceedings, was conscious of the directions of the Court and sought to comply with those directions by filing a Defence and affidavit evidence in response to the matters alleged in the statement of claim, attended at least one directions hearing and was well aware that the matter had been listed for hearing on 19-20 April 2022. She had access to documentation underlying the claim and in 2021 responded to the Statement of Claim, referencing the underlying documents, in both the Defence and in her affidavits. She was served with the Court Book on 5 April 2022. She had timely access to material enabling her to understand and respond to the claims made by the respondent.

11. [84]

    It is also apparent that the appellants had the benefit of legal advice in 2021 and again from 5 April 2022. In a letter to the solicitors for the respondent dated 8 August 2021 Mr Edwards stated that he had agreed to act for the appellants, albeit that he had not yet been fully briefed. On 16 September 2021, after Mrs Edmonds was convicted and incarcerated, Mr Edwards wrote that he had “no reason to believe that” he was no longer instructed in the matter. The solicitors for the respondent then sent Mr Edwards an email enquiring as to his availability on 19-20 April 2022 for the purpose of the Court setting dates for trial. He responded by email on 16 September 2021 confirming that he was available on those dates but that he would have to investigate “whether or not [and] how she [Mrs Edmonds] will be able to instruct and give evidence.” It was not until 8 February 2022 that he informed the solicitors for the respondent that he was no longer briefed in the matter.

12. [85]

    The written submissions prepared by Mr Edwards in support of the application to adjourn the hearing on 19 April 2022 relied upon matters that were not pleaded by the appellants, including the FDM Act, but made no application to amend the Defence filed 18 June 2021. As set out above, Mr Edwards expressly identified in those submissions that he had spoken to Mrs Edmonds on at least eight occasions since 5 April 2022 and had prepared the submissions on the basis of instructions from Mrs Edmonds and other limited materials to which he had access (which did not include the Defence or Mrs Edmonds’ affidavits). I would infer from this that Mrs Edmonds was well aware of the matters that Mr Edwards proposed to rely upon in support of the adjournment application and that instructions as regards those matters came from her. It is possible that she was, in any event, aware of these matters from earlier conversations with Mr Edwards in 2021 when he was first instructed in the proceedings or from her own legal knowledge.

13. [86]

    In her affidavit of 14 March 2022 Mrs Edmonds identified that documents had been lodged with the Legal Aid grants division but that she had been informed that the processing of those documents could take up to six weeks. She did not identify when those documents were lodged. In Mr Edwards’ written submissions in support of the appellants’ adjournment application, he stated that Mrs Edmonds had applied for Legal Aid but was informed that her application would take six to ten weeks to be processed. It was, however, no part of the argument advanced on the adjournment application that the proceedings should be adjourned to enable an application to Legal Aid to be determined or that there was an extant or proposed appeal against a refusal or limited grant of Legal Aid so as to engage s 57 of the Legal Aid Commission Act 1979 (NSW). Nor was there any reliance upon such matters before this Court.

14. [87]

    There is no other evidence as to efforts made by the appellants to secure legal representation for the purpose of the proceedings. Nor is there any explanation as to why Mr Edwards was not contacted as regards appearing at the 19-20 April 2022 hearing until 8 April 2022 when he says Mrs Edmonds got in contact with him again.

15. [88]

    As set out at [66] above, during her oral submissions on the adjournment application Mrs Edmonds was specifically asked by the primary judge why there was no reliance upon the FDM Act in the Defence. It is apparent from her response to the primary judge, as set out at [66] above, that at some point prior to 19 April 2022 she had been advised by Mr Edwards in relation to the FDM Act. Notwithstanding this, there was no hint prior to the hearing that the appellants were in any way seeking to rely upon the FDM Act. This being the position falls to be considered in a context which includes that Mrs Edmonds had been aware of the right to mediation under the FDM Act since at least January 2018.

16. [89]

    Having regard to the matters set out above, the appellants had a reasonable opportunity, over the course of the proceedings, to formulate such defences or counter claims as they wished to rely upon. Over that period, they had some legal advice and otherwise themselves, in particular through Mrs Edmonds, gave close attention to the matters alleged in the claim and how best to respond to them. They were sufficiently aware of the provisions of the FDM Act and its ambit of application to rely upon the FDM Act in other proceedings. They were appropriately served with the court documents and evidence relied upon by the respondent. They were advised as to further matters that they could potentially rely upon by Mr Edwards apparently between 5 and 18 April 2022 but did not seek to amend their Defence to rely upon such matters. Further, the hearing was fixed in September 2021 by reference to Mr Edwards’ availability. There was no explanation as to why, in these circumstances, attempts were not made to secure the attendance of Mr Edwards, or another legal representative, at the hearing until 8 April 2022. There was no denial of procedural fairness.

17. [90]

    To the extent pressed, grounds 1, 5(j) and 11 of the NOA should thus be dismissed.

18. [91]

    There was no dispute before this Court as to the principles applicable to the construction of a commercial contract such as the Deed. Thus, as set out by Kiefel, Bell and Gordon JJ in Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 at 551, this Court should approach that task on the basis that the terms of the Deed are to be understood objectively, by what a reasonable businessperson in the position of the parties would understand them to mean having regard to the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it.

19. [92]

    The appellants submit that the proper construction of the Deed is that the debt which the appellants undertook to repay in clause 2.1 is the same as the liability that exists under the Fee Agreement. They submit that as the primary judge found that no money was owing under the Fee Agreement, the primary judge should also have found that there was no money owing under the Deed. In this regard they submit that clause 1.1 of the Deed, which states that “Debt means the Service Fee, plus all accruing interest and amounts payable pursuant to the Agreement” is inconsistent with, and would override, Recital M, which provides that:

20. [93]

    They submit that Recital M should be read as referring to the definition of Debt in clause 1.1. Further, they submit that the acknowledgement of “the Debt” and undertaking to repay “the Debt” in clause 2.1 should be read as a reference to whatever debt existed at that time, and not as connoting a new or fresh debt under the Deed. Thus, clause 2.1 has “no operation or effect” if there was, at the relevant time, no liability under the Fee Agreement.

21. [94]

    In my judgment the primary judge did not err in construing the Deed. Recital M and clause 1.1 should be read together and harmoniously. Clause 1.1 relevantly provides that “Debt means the Service Fee…”. Read together with Recital M, the reference to Service Fee in the definition of Debt in clause 1.1 is plainly a reference to the sum of “$240,520.00”, which is there set out to be the “Service Fee plus accrued interest calculated in accordance with the Agreement” as at 12 April 2018. That conclusion is further supported by the inclusion in Recital M in bold type of the words “the Debt” in parenthesis after the reference to the Service Fee plus accrued interest being $240,520.00. This indicates that this was the sum which was identified in the Deed as the Debt as at 12 April 2018.

22. [95]

    On this construction there is no inconsistency between Recital M and clause 1.1 of the Deed. However, even if there were, the opening words of clause 1.1 provide that the “following words have their corresponding meanings unless the context requires otherwise”. The context would include Recital M, and the identification therein that the Debt means the Service Fee plus interest in the sum of $240,520.00 as at 12 April 2018.

23. [96]

    Thus, the Debt which is acknowledged and undertaken to be paid in clause 2.1 of the Deed, is at least the sum of $240,520.00 irrespective of what sums are actually found to have been owing under the Fee Agreement as at the date when the Deed was entered into or from time to time. In this regard, it was not contended before the primary judge or before this Court that the Debt in clause 1.1 also includes further sums by way of “accruing interest and amounts payable pursuant to the Agreement” (as stated in clause 1.1 of the Deed). It is thus unnecessary to consider whether the Debt, as defined in the Deed, is in fact a sum in excess of $240,520.00.

24. [97]

    This construction of the Deed also best serves the object and purpose of the Deed, objectively construed. It achieves a measure of commercial certainty and obviates the scope for later dispute as to what was or was not payable under the Fee Agreement. That gives the acknowledgement in clause 2.1 of the Deed real work to do. On the construction advanced by the appellant, there would be little commercial purpose in the appellants acknowledging amounts as debt that were themselves contingent upon the proper operation of the Fee Agreement.

25. [98]

    It follows that grounds 4 and 5(a)-(b) should be dismissed.

26. [99]

    In grounds 5(i) and 13 of the NOA, and in their written and oral submissions, the appellants contend that the primary judge erred “by allowing the hearing to proceed without taking into account any evidence of compliance with the conditions precedent required to be fulfilled under s 9 of the FDM Act which applied respectively to existing credit contracts, the Agreement, the Deed and each proposed Loan.” Given that the primary judge dismissed the respondent’s claims, save the claim for judgment under the Deed, and there is no cross-appeal against those findings, it is unnecessary to address the potential application of the FDM Act to any agreement or interest other than the Deed.

27. [100]

    In support of these grounds of appeal, the appellants submit, in summary, that entry into the Deed was “enforcement action”, taken by the respondent in respect of a farm mortgage, within the meaning of s 8(1) of the FDM Act. They submit that this is so because it was action taken to resolve the question of the respondent’s entitlement under the Fee Agreement to lodge a caveat, which itself arose under the charge in clause 13.9 of the Fee Agreement. Thus, they submit, by reason of s 8(2) of the FDM Act, the Deed is void. The appellants also submit that these proceedings as a whole are void by reason of s 8(2) of the FDM Act because the respondent’s money claim is “piggy backed” on the claims under the Fee Agreement and the respondent’s claim for debt under the Deed is inextricably linked with the claims under the Fee Agreement. In this regard, they rely upon [66]-[68] of the judgment of Heydon J (French CJ, Kiefel and Crennan JJ and Hayne J agreeing) in Waller v Hargraves Secured Investments Ltd (2012) 245 CLR 311; [2012] HCA 4 (“Waller”). They submit that the same conclusion reached by Heydon J on the facts of that case, namely that the claim for a monetary order fell within the definition of “enforcement action” in the FDM Act, should be reached here. Finally, they rely upon the fact that the charge under the Fee Agreement would remain “alive and operative” to the extent that, notwithstanding the judgment of the primary judge, it would secure certain costs payable under the Fee Agreement. It is not, however, clear what “enforcement action” the appellants say has been taken by the respondent in this respect.

28. [101]

    These contentions were not advanced before the primary judge. Rather, as set out above, the appellants did not rely upon the FDM Act in the substantive proceedings (as opposed to the adjournment application) before the primary judge. The appellants, in effect, seek leave to amend their underlying Defence so as to rely upon arguments raised for the first time on appeal. It is in support of these arguments and grounds of appeal that the appellants seek to tender further evidence.

29. [102]

    In my judgment the appellants should not be permitted to advance these grounds of appeal in circumstances in which they could have, but did not, rely upon the FDM Act in the substantive proceedings before the primary judge. This is not a pure legal point which can properly be run for the first time on appeal: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35. The appellants’ proposed contentions relying upon the FDM Act require detailed factual analysis by reference to the definitions in the FDM Act. That factual analysis necessarily requires that both sides have a reasonable opportunity to investigate, adduce evidence and cross-examine as to relevant matters. That did not happen as the claims were not substantively advanced before the primary judge.

30. [103]

    Analysis of the provisions of the FDM Act (noting that relevant provisions were amended with effect from 3 September 2018) reveals why this is so.

31. [104]

    Section 5(1) of the FDM Act provides that:

32. [105]

    “Creditor” is defined in s 4 of the FDM Act to mean:

33. [106]

    “Farm debt” is defined in s 4 of the FDM Act to mean:

34. [107]

    The appellants seek to rely upon ss 8(1) and 8(2) of the FDM Act. Since 3 September 2018 these sections have provided:

35. [108]

    The definition in s 4(1) of “enforcement action” includes in relation to a farm mortgage “taking possession of property under the mortgage or any other action to enforce the mortgage”. The question whether either the entry into the Deed or the commencement of the underlying proceedings constituted “enforcement action in respect of a farm mortgage” within s 8(1), or “enforcement action taken by a creditor in respect of a farm debt” within s 8(2), as alleged by the appellants, directs attention to the definition of “farm mortgage”.

36. [109]

    The term “farm mortgage” is defined in s 4 of the FDM Act (and was in this form at all relevant times):

37. [110]

    That in turn directs attention to the definitions in s 4 of the FDM Act of “farm property” and “farmer”. Starting with “farm property”:

38. [111]

    “Farm”, in turn, is defined to mean:

39. [112]

    The word “engages” in that definition is in the present tense. Thus, whether a property is farm property, such that s 8(1) applies, requires evidence that at the relevant time a farmer is engaging in a farming operation on that property. What the “relevant time” is, for these purposes, is discussed below.

40. [113]

    “Farmer” is defined in s 4 of the FDM Act to mean:

41. [114]

    Again, Parliament has used the present tense in this definition.

42. [115]

    Section 4AB, which was inserted into the FDM Act on 3 September 2018, provides that:

43. [116]

    Prior to 3 September 2018, “farming operation” was defined to mean:

44. [117]

    In the application of each of ss 8(1) and 8(2), the question of timing which arises is as to the time at which the relevant definitions need to be satisfied. That question arose in Waller. At the relevant time, s 8(1) was in a different form, providing:

45. [118]

    As to this section, Heydon J at [55] (French CJ, Crennan and Kiefel JJ agreeing) held that the critical date for determining whether there was a farm mortgage (as defined) was “the day when the respondent took enforcement action against the appellant by instituting the Supreme Court proceedings.” That analysis, in so far as it directs attention to whether or not the definition of a farm mortgage is met at the time of the relevant enforcement action being taken, would also apply to s 8(1) of the FDM Act as amended. Thus, in order to succeed in their grounds of appeal relying upon the FDM Act, the appellants would need to satisfy the Court that enforcement action is being taken in respect of an interest or power arising under a “farm mortgage” as at the date when the Deed was entered into, being April 2018 (as regards the contention that this was enforcement action under s 8(1)) or as at the date when proceedings were commenced, being April 2021.

46. [119]

    In the circumstances of this case, it is unnecessary to consider whether, as suggested by Meagher JA in Harker-Mortlock v Commonwealth Bank of Australia [2019] NSWCA 56 (“Harker-Mortlock”) at [66], there may be a difference in the interpretation of these provisions adopted by Heydon J in Waller at [48]-[49] and Barrett J in Constantinidis v Equititrust [2010] NSWSC 299 and in other authorities identified by Meagher JA in Harker-Mortlock at [65]. This is because, on either view, enforcement action will be prohibited by s 8(1) only if:

    1. (1)

       the relevant debt is a farm debt, which requires that attention be given both to whether it was incurred for the purpose of the conduct of a farming operation and to whether the debt is, at the time of the enforcement action, secured wholly or partly by a farm mortgage. That in turn requires that at the time the enforcement action is taken the creditor has an interest in or power over property, meeting the definition of farm property, where that interest or power secures obligations of a person meeting the definition of a farmer;

    2. (2)

       the action is being taken by a creditor, being a person to whom a debt meeting the definition of a farm debt is owed by a person meeting the definition of a farmer at the time that the enforcement action is taken; and

    3. (3)

       action is being taken to enforce an interest or power meeting the definition of a farm mortgage at the time that the enforcement action is taken.

47. [120]

    For s 8(2) of the FDM Act to operate and render void enforcement action taken by a creditor in respect of a farm debt, each of those definitions must be met at the time the relevant enforcement action is taken.

48. [121]

    The resolution of the appellants’ grounds of appeal relying upon the FDM Act requires at least that this Court be satisfied as to multiple matters of fact as at November 2017 (when the Fee Agreement was entered into) and as at either April 2018 (when the Deed was entered into) or April 2021 (when these proceedings were commenced). The respondent disputes that the evidence the appellants seek to rely upon suffices to establish that the FDM Act applies at all. However, and importantly, the respondent submits that as these matters were not in issue before the primary judge, there was no reason for it to explore those facts or to lead or challenge evidence that went to such matters. The respondent says that if the potential application of the FDM Act had been in issue before the primary judge, it would have investigated these matters. It submits that it would not have taken evidence from Mrs Edmonds “on faith” and would have cross-examined Mrs Edmonds as to these matters.

49. [122]

    There would be significant unfairness to the respondent if the appellants were permitted to rely upon contentions as to the application of the FDM Act on appeal. The proper resolution of those contentions raises numerous factual issues, the resolution of which is materially hindered by the circumstance that these matters were not the subject of evidence and cross-examination before the primary judge. In these circumstances, the arguments pressed by these grounds cannot be made on appeal.

50. [123]

    For completeness I would add that these grounds do not in any event have reasonable prospects of success. In the circumstances, I will limit my analysis to a summary of key difficulties faced by the appellants in this regard.

51. [124]

    First, entry into the Deed was a consensual act which could not properly be characterised as enforcement action falling within s 8(1) of the FDM Act. It was not action “taken” by the respondent in respect of any security it may have had over Dumaresq by virtue of clause 13.9 of the Fee Agreement. This is so irrespective of the fact that the appellants acknowledged, in clause 2.4 of the Deed, that they would not take any steps in relation to the lapsing of the caveat the respondent had lodged. This conclusion is reinforced by the object of the FDM Act as set out in s 3, being “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”. That object does not support a construction of “enforcement action” that includes entry into a consensual agreement such as the Deed.

52. [125]

    Second, there is a dearth of evidence before the Court as to the factual position as at April 2021 when these proceedings were commenced, and that lacuna would not have been filled even if the application for further evidence had been successful. Thus, the contention that these proceedings were precluded by ss 8(1) and 8(2) of the FDM Act would not have been established on the facts.

53. [126]

    Third, the appellants’ contention that the facts in Waller were analogous to those in the present case was misconceived. In Waller, at [66], Heydon J observed that the Amended Statement of Claim in the proceedings alleged that it was a term of the mortgage that interest be paid monthly and that the appellant was obliged under the mortgage to pay the principal sum with interest owing. At [32] Heydon J held that the mortgage was a farm mortgage. Thus, the monetary claim in that case was expressly made under a farm mortgage. In that context, at [66] Heydon J held that the better view was that the definition of enforcement action in s 8 of the FDM Act (before it was amended in 2018) was “wide enough to extend beyond enforcement of the security by taking possession to include reliance on any of the rights in the farm mortgage”. Further, at [66] his Honour also held that “since the claim to the order for possession was solely based on the breach of the money obligations arising under” the farm mortgage and the loan agreement, the possession claim was “inextricably interlinked” with the monetary claim.

54. [127]

    In the present case, by contrast, the debt claim on which the respondent succeeded before the primary judge was not itself based upon anything which could answer the description of a farm mortgage. It was based upon the Deed. It was not action to “enforce” a farm mortgage. Rather, as submitted by the respondent, the debt claim under the Deed is more akin to the money claim made pursuant to facility agreements, but not under a mortgage, considered by this Court in Charlton v National Australia Bank Limited [2021] NSWCA 111 (“Charlton”). As held by Macfarlan JA at [64] (with whom Basten JA agreed) and Emmett AJA at [91], the FDM Act does not apply as regards a claim for debt that is made under an instrument other than a farm mortgage. Moreover, in Charlton the proceedings included both a possession and a debt claim. In that context, Macfarlan JA held that the bank could “claim in a personal debt action against Ms Charlton amounts that became due under the finance facilities, irrespective of the occurrence of a farm debt mediation”: at [65]. To similar effect, Emmett AJA observed that Ms Charlton’s contention that the proceedings for possession were void (on account of the alleged defects in the certificate under the FDM Act) “ignores the fact that the claim for debt against the first appellant was made under the facility agreements with the NAB and not under the farm mortgage”: at [91].

55. [128]

    Fourth, having regard to Charlton, and in light of the fact that the debt claim under the Deed was not itself a claim under a farm mortgage, it is difficult to see how the appellant could have succeeded in their contention that the proceedings as a whole before the primary judge, including the debt claim under the Deed, were void.

56. [129]

    In the circumstances, grounds 5(i) and 13, which rely upon the FDM Act, should be dismissed.

Conclusion

1. [130]

   During the hearing it was submitted by Senior Counsel for the respondent that this Court should reserve the question of costs to enable further submissions. In these circumstances, the question of costs should be dealt with on the papers, following the receipt of written submissions.

2. [131]

   For the reasons set out above the following orders should be made:

   1. (1)

      Pursuant to UCPR r 51.16(1)(c), time for filing the notice of appeal is extended to 13 October 2022.

   2. (2)

      Grant leave to the first appellant under s 5 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute this appeal to the extent such leave is necessary.

   3. (3)

      The notice of motion filed 19 June 2023, seeking to rely upon further evidence, should be refused.

   4. (4)

      The appeal is dismissed.

   5. (5)

      The respondent file and serve written submissions on costs, limited to two pages, within seven days of the date of these orders. The appellants then to file and serve written submissions in response, again limited to two pages, within fourteen days of the date of these orders.