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Farm Debt Mediation in NSW — A few problems
by ALEX ELLIOTT on 05/05/2012 · LEAVE A COMMENT · in MEDIATION
The object of the NSW Farm Debt Mediation Act 1994 is to provide for the efficient and equitable resolution of farm debt disputes. Mediation is required before a bank or financial institution can take possession of the farm or other farm property.
Section 10 of the Act provides that once a farmer gives notification that mediation is required, the bank or financial institution cannot take any enforcement action unless a certificate is in force under section 11.
Section 11 of the Act stipulates that a certificate will be issued by the Authority (NSW Rural Assistance Authority), if the Authority is satisfied that a satisfactory mediation has taken place in respect of the farm debt involved.
Mediation is a structured process in which the mediator, who must be a neutral and independent person, assists the farmer and the bank or financial institution to reach an agreement. That agreement may mean the capitalisation of interest, the extension of repayments, additional advances or increasing an overdraft limit. It may also mean the sale of certain assets over time. There are many possible settlement outcomes available to the parties.
The High Court of Australia in its decision in Waller v Hargraves Secured Investments Limited  HCA 4 has added a substantial complication to the mediation process and any possible settlement.
In August 2003, Hargraves Secured Investment Limited advanced $450,000 to Ms Waller under a loan agreement. The advance was secured by a mortgage over Ms Waller’s farm. She defaulted on the loan.
Mediation was held under the provisions of the Farm Debt Mediation Act 1994. The parties entered into terms of settlement under which there was a second loan agreement for $640,000. This enabled the first loan to be paid out, along with past and future interest.
Ms Waller defaulted on the second loan.
Hargraves Secured Investment Limited commenced action in court for possession of the farm and judgment against Ms Waller.
Ms Waller appealed to the High Court from a decision of the NSW Court Appeal. The argument which was accepted by the High Court was that the enforcement proceedings were not in relation to the farm debt the subject of the mediation. There was now a new and different debt, which was distinct from the first loan. Hargraves Secured Investment Limited had not complied with the Act because the mediation only dealt with the first loan, not the new one.
So it seems that even if a section 11 certificate has been obtained in respect of a farm mortgage, a bank or financial institution must be careful that the farm debt it relates to is the same and has not been discharged in anyway prior to enforcement action. If in doubt it seems that a new notice to the farmer may have to be given.
The High Court’s decision may discourage future lending to farmers because of the uncertainty surrounding this decision. The bank or financial institution may play it safe and only offer in mediation the option of refinancing with another institution, selling the asset or agreeing to surrender the asset to the bank or financial institution. Anything else may complicate future enforcement proceedings.
This is clearly not in the interests of the rural community and the Act needs to be amended as a matter of urgency. A full range of options should be available to comply with the spirit of the legislation.
Debt-Savvy is South Africa’s leading debt counsellor. Each month we help hundreds of South Africans to consolidate their debts, reduce interest rates, and more! Learn how with our free education videos: www.debt-savvy.co.za
Hear mediator, Lee Nevison provide an insight into Farm Business Debt Mediation (FBDM) and how producers can best prepare for their mediation.
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Since the last economic collapse and market crash, we have witnessed the greatest corporate debt binge in U.S. history. Corporate debt has more than doubled since then, and it is now sitting at a grand total of more than 9 trillion dollars. Of course there have been other colossal corporate debt binges throughout our history, and they all ended badly. In fact, the ratio of corporate debt to U.S. GDP rose above 40 percent prior to each of the last three recessions, but this time around we have found a way to top that. According to Forbes, the ratio of nonfinancial corporate debt to U.S. GDP is now nearly 50 percent…
You can see the chart they are talking about right here and it clearly shows that each of the last three stock market crash and economic crisis coincided with the bursting of an enormous corporate debt bubble. This time around the corporate debt bubble is larger than it has ever been before, and risky corporate debt has been growing faster than any other category…
Needless to say, the stage is set for a corporate debt collapse of epic proportions.
What makes this debt bubble even worse is the way that our big corporations have been spending the money that they are borrowing. Instead of spending the money to build factories, hire workers and expand their businesses, our big corporations have been spending more money on stock buybacks than anything else.
And now this giant corporate debt bubble has reached a bursting point, and there is no way that we can avoid a huge stock market crash and economic crisis.
Meanwhile, another financial bubble of epic proportions is also getting a lot of attention these days. Nonbank lending, an industry that played a central role in the financial crisis, has been expanding rapidly and is still posing risks should credit conditions deteriorate. This kind of lending has absolutely exploded all over the globe since the last recession, and it has now become a 52 trillion dollar bubble…
Who is going to pick up the pieces when a big chunk of those debts start going bad during the next economic collapse and market crash? Never before in human history have we seen so much debt. Government debt is at all-time record levels all over the world, corporate debt is wildly out of control and consumer debt continues to surge.
This is one of the reasons why I get so frustrated with the financially-illiterate politicians who insist that everything will be just fine if we just tweak our current system a little bit.
No, everything is not going to be just fine. In fact, we have perfectly set the stage for the worst financial collapse in human history. At this point nobody has put forth a plan to fundamentally change the system, and there is no way out. All that is left to do is to keep this current bubble going for as long as humanly possible, and then to duck and cover when economic collapse finally strikes.
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Script written by Michael Snyder, author of the www.theeconomiccollapseblog.com
Music: CO.AG Music https://www.youtube.com/channel/UCcavSftXHgxLBWwLDm_bNvA
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