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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 [2012] 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.

Alex Elliott

Hear mediator, Lee Nevison provide an insight into Farm Business Debt Mediation (FBDM) and how producers can best prepare for their mediation.

Rural financial counsellor, Wayne Stephen speaks about farm debt mediation and provides some tips to farmers in preparing for a mediation.

CAJ Mediation group attempting to conduct a credit card scam. Sounds like they are based out of Jamaica or some other Caribbean island.

Here is the phone number: 1-844-622-8179

Please inform your friends and family, especially those who are older. These people are ruthless and will not stop. This has been occurring for months despite me giving them a hard time whenever they call

My phone stopped recording half way through. Basically, this individual told me that I could settle with a credit card, so I gave him a BS number and asked if he was a scammer… He said no. I then told him that I was well aware that they were scammers and that I’d be forwarding their number to the authorities. I swore a bit at the end too… Wish you all could have heard that!

Notice how nervous he seems. He cannot tell me where this loan originates from.

http://www.jacksonlalic.com.au The emphasis at Jackson Lalic Lawyers is to provide assistance in a cost-effective and imaginative way. Call by Phone No: 61 2 9262 1770.

More:
https://www.conservatives.org.au/the_farm_debt_mediation_solution_bailey
The Conservative Party’s Victorian Senate candidate,  finance expert Kevin Bailey, says the Banking Royal Commission report isn’t all bad news.

This is video three in a four part series that explains farm debt mediation in NSW. This video focuses on the role of the mediator and others attending a farm debt mediation under the Farm Debt Mediation Act 1994. In NSW, a panel of nationally accredited mediators help lenders and farmers to have effective conversations about farm business issues. The video also discusses how others can provide support and assistance during a farm debt mediation. It notes that mediators are neutral facilitators who do not provide legal or financial advice.

2018-05-16 – Farm Debt Mediation Bill – First Reading – Video 1

Mark Patterson

Help us caption & translate this video!

https://amara.org/v/i4pK/

2018-05-16 – Farm Debt Mediation Bill – First Reading – Video 10

Hamish Walker

Help us caption & translate this video!

https://amara.org/v/i4xT/