FEDERAL COURT OF AUSTRALIA

Waller v Yamaha Motor Finance Australia Pty Ltd [2012] FCA 934

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs fixed at $1500.

3.    The exhibits be returned.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as the State Minister pursuant to the Native Title Act 1993 (Cth) [2012] FCA 792 at [31]-[32], I determined that the expression ‘tourist facility’ included a reptile park. In this morning’s case, I must determine whether the word ‘tractor’ includes an agricultural quad bike. If it does, then it will be farm machinery within the meaning of the Farm Debt Mediation Act 1994 (NSW). If that is so, then the financier, Yamaha, which extended to Mrs Waller the purchase price for the quad bike in question, was required to go through that Act’s pre-litigation mediation procedures. This matters because the financier, who was the petitioning creditor in the Court below, has not attempted to take those steps. I assume, in Mrs Waller’s favour, that, if the Act applied, failure to take those steps would provide a good reason not now to permit a sequestration order to be made.

2    The train of events which bring the matter here today were as follows: first, proceedings were brought in the Local Court against Mrs Waller, commenced by the petitioning creditor and ultimately terminating in a default judgment against her. It is that judgment which, after some delays, was the debt relied upon by the petitioning creditor before the Federal Magistrates Court. The Federal Magistrate made a sequestration order on 16 July 2012 which he stayed for 21 days in order to afford Mrs Waller a chance to pay the underlying debt. It is from the sequestration order that Mrs Waller has now appealed this morning.

3    Was the quad bike farm machinery to which the Farm Debt Mediation Act applied? Section 4 of the Act defined the term ‘farm machinery’ as follows:

(a)    a harvester, binder, tractor, plough or other agricultural implement, or

(b)    any other goods of class commonly used for the purposes of a farming operation that are prescribed by the regulations as being farm machinery for the purposes of this Act,

if the goods are acquired for the purposes of a farming operation.

4    Although s 30 of the Act empowered the Governor to make regulations under the Act, neither her Excellency nor her predecessors have seen fit to exercise the power in sub-cl (b) to prescribe, by regulation, other classes of farm machinery. I mention this matter because of a submission of Mrs Waller, to which I will return below, that a regulation should have been made prescribing an agricultural quad bike as farm machinery. For present purposes, it is sufficient to observe that whether, that submission be right or not, the short fact is that there is presently no regulation under the Farm Debt Mediation Act dealing with quad bikes.

5    Mrs Waller’s primary argument was that her quad bike was a tractor within the meaning of sub-cl (a) of the definition of farm machinery. She eschewed any argument that it was to be seen as a harvester, a binder or a plough and her argument was developed instead as follows: tractors and quad bikes had the same number of wheels and quad bikes could be used to perform all of the functions of an admittedly small tractor. In this regard, there was introduced into evidence certain brochures concerning quad bikes and the various items which might be attached to them. I am not sure that this material necessarily satisfies the classic criteria for the reception of evidence on appeal but I am prepared to proceed on the basis that the material may be useful.

6    The material certainly showed that a quad bike could be used for many activities which a small tractor can be used for as well. It can plough, it can spray vines, it can tow other devices of many descriptions and it could do many other things besides. It is a veritable Swiss Army knife for the paddocks. I accept that there is a very significant overlap between all of the functions which may be performed by a small tractor and some of the functions which may be performed by a quad bike but the converse is not true. A quad bike has a number of features which a tractor could not hope to emulate, nor functions to perform. A quad bike can, for example, be used for rapid transport off road. There is no doubt this includes farms where a tractor might perhaps be able to pass as some form of transport device but it also includes beaches, sand dunes and golf courses, where that would not possibly be the case. This rather suggests, and I am inclined to infer, that whilst there is an overlap in some aspects of functionality, it cannot be said that a quad bike is a tractor. There is, of course, also the question of speed.

7    There are, I think, other difficulties. During her opening in this morning’s appeal, Mrs Waller sought to define the genre to which both quad bikes and tractors belonged as that class of goods having four wheels which are all the same size. There are, of course, tractors which do have four identical wheels but, generally speaking, the ones at the rear tend to be larger. Although this observation probably lies beyond the legitimate scope of judicial notice under s 144 of the Evidence Act 1995 (Cth), it is, however, confirmed by the definition in the Oxford English Dictionary (‘OED’) of a tractor, which, in paragraph 2(c), concludes as follows:

In mod. use (now the usual sense), a rugged, powerful motor vehicle for drawing farm machinery, esp. one with large rear wheels and an elevated driving seat.

8    By contrast, the OED defines a quad bike as:

A four-wheeled motorized off-road vehicle modelled on a motorcycle, used for sport or recreation.

9    It would, I think, be difficult to describe a tractor as being able to be used for sport or recreation or as being modelled on a motorcycle. Unlike the OED, the Macquarie Dictionary does not see the concept of a quad bike as necessarily being linked to sport or recreation. It says that a quad bike is:

A four-wheeled motorbike designed to travel over rough terrain.

10    In either case, however, it is too much to ask that this Court should conclude that a quad bike is a tractor. I find that it is not.

11    Mrs Waller had a reserve argument, however. The definition, in sub-cl (a), it will be recalled, also included any ‘other agricultural implement’ and she submitted that a quad bike was such an implement. But an implement is an instrument, tool or utensil. Implements tend to be smaller and handheld. There may be some mechanised implements such as a Mixmaster or some larger implements such as a wheelbarrow, but I would not accept that a motor vehicle, such as a quad bike, can be an implement. It follows that the Farm Debt Mediation Act did not apply to the petitioning creditor’s claims against Mrs Waller.

12    Mrs Waller’s final argument was that she had repaid the debt, in the sense that she had paid $11,000 of what appeared to be a debt which was approximately originally in that vicinity. The evidence before the Federal Magistrate did not, however, bear this out when the fine detail was attended to. There had been, on 7 January 2009, a default judgment in the sum of $12,157.96. After entry of that default judgment, Mrs Waller applied, as she was entitled to do, for orders setting aside the default judgment but on the day that that application was returned, an agreement was reached between her and the petitioning creditor, under which she would pay $8,000 by monthly instalments of $400. In the event that there was a default in the payment of the $400 figure, the entire default judgment would become due.

13    Orders were made embodying that agreement by a Magistrate of the Local Court on 2 March 2009. About four weeks later, on 1 April 2009, Mrs Waller defaulted under that arrangement and this eventually provoked the petitioning creditor into the commencement of bankruptcy proceedings before the Federal Magistrates Court nearly two years later, on 20 June 2011. After the commencement of those proceedings, the petitioning creditor made an offer to Mrs Waller that if she were to pay its costs of $6,235.22, it would be willing to accept, in full, its judgment debt paid in three instalments. That offer was made on 28 February 2012.

14    On 12 March 2012, Mrs Waller’s daughter interceded in the matter and offered to pay $6,000 towards her mother’s difficulties. It was then suggested by the petitioning creditor that it had incurred $7,135.22 in legal costs and the remaining amount of the debt could be repaid in three equal instalments of $5,010.94, payable respectively on 9 April, 16 April and 30 April 2012. To this, Mrs Waller’s side raised an objection; the daughter only had $6000 and was not able to pay the sum of $7,135.22 on account of the costs. The petitioning creditor agreed to accept the balance of $1,135.22 as a supplement, due at the same time the first instalment was due on 9 April.

15    Agreement was then reached on that basis and, indeed, $6,000 was paid on that day. When, however, the time came for the first instalment to be paid on 9 April 2012, there was a default by Mrs Waller. On 16 April 2012, when the matter was back before a Registrar of the Federal Magistrates Court and Mrs Waller desired to avoid a sequestration order being made, she offered to pay a further $5,000. There was a dispute before the learned Federal Magistrate at trial as to what this $5,000 was to be paid in respect of. According to an affidavit sworn by Mr Xenos, the solicitor for the petitioning creditor, on 6 June 2012 and read before the learned Federal Magistrate, the discussions which took place between himself and Mrs Waller on 16 April, pending a hearing before Registrar Hedge, was to the effect that the $5,000 which was being offered by Mrs Waller would be utilised by the petitioning creditor in payment of Mr Xenos’ costs.

16    There was a dispute before the Federal Magistrate as to whether this was correct but his Honour concluded that he accepted Mr Xenos’ account of what occurred: Yamaha Motor Finance Australia Pty Ltd v Waller [2012] FMCA 665 at [7]. I can see no reason to interfere with that conclusion of fact. In any event, the sum of $5,000 was paid and the matter adjourned. Ultimately, the debt remained in place and the sequestration order was made.

17    From Mrs Waller’s perspective, it is perhaps easy to understand why she believes she has paid the debts. On two occasions, she has attended Court hearings and, in the lead up to them, paid respectively sums of $6,000 and $5,000 which, to the untutored eye, might well resemble the principal sum which was originally due.

18    However, attention to the terms of the agreements under which those two sums were paid brings into focus the fact that they were paid not with respect to the underlying debt upon which the petition was premised but rather and in contradistinction pursuant to agreements to pay Mr Xenos’ legal fees. In the circumstances, when one analyses what has occurred, it is true that Mrs Waller has paid $11,000 but she has, in effect, been paying the legal fees of the petitioning creditor, rather than the underlying debt which, in those circumstances, has at all times remained due. In those circumstances, I am not satisfied that any error is shown in the decision of the learned Federal Magistrate and the only order that can be made is that the appeal be dismissed with costs. The exhibits may be returned.

19    I fix the costs to which the respondent on the appeal is entitled at $1,500.

Associate:

Dated:    3 September 2012