NAB v Landy Chen-Conway [2008] NSWSC 448

This was a farm mortgage and therefore subject to the Farm Debts Mediation Act. The NAB issued a s8 Certificate on 14 March 2005 (asking whether the farmer wanted to mediate). The farmer elected for mediation but then refused to arrange/attend mediation. The bank waited the statutory 3 months and then obtained a s11 Certificate from the Rural Assistance Authority on 5 December 2005 (allowing it to commence enforcement proceedings). The Farmer then defended the enforcement proceedings on the basis the certificate was invalid because he never received it. The court found for the bank indicating the important point was not whether the farmer was served with the certificate but rather whether one was issued.

As can be seen through a combination of the Farm Debts Mediation Act and the inefficient NSW Supreme Court possession list it takes more than 3 years to evict a farmer. Farmers lobbied for the special compassion afforded by the Farm Debts Mediation Act and lenders must now give it to them in the form of higher interest rates and lower LVRs or else face shortfalls.

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