Buccolliero v Commonwealth Bank of Australia

[2011] NSWCA 209

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Buccolliero v Commonwealth Bank of Australia [2011] NSWCA 209

Hearing dates:

18 July 2011

Decision date:

18 July 2011

Before:

McColl JA

Decision:

(1) Expedite the hearing of the appeal.

(2) Set the matter down for hearing on 5 October 2011 as a one day matter.

(3) Order that the execution of the Notice to Vacate pursuant to the Court's judgment of 25 February 2011 be stayed until 29 August 2011.

(4) Costs of the application to be costs in the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - application for stay pending appeal - mortgage default - applicant unable to pay money owing into court - whether stay should be granted on grounds of hardship alone

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Contracts Review Act 1980 (NSW)

Cases Cited:

Inglis v Commonwealth Trading Bank of Australia [1912] HCA 74; (1972) 126 CLR 162

Category:

Procedural and other rulings

Parties:

Loretta Laura Buccoliero (by her tutor Sylvia Commins) - applicant
Commonwealth Bank of Australia - respondent

Representation:

S Chapple - applicant
S Aspinall - respondent
Clamenz Corporate Lawyers - applicant
Henry Davis York - respondent

File Number(s):

CA 2011/85107

 Decision under appeal 

Citation:

Commonwealth Bank of Australia v Munro and Anor [2011] NSWSC 128

Date of Decision:

2011-02-22 00:00:00

Before:

RA Hulme J

File Number(s):

SC 2009/293782

Judgment

1. McCOLL JA : The applicant, Ms Loretta Buccolliero moves, through her tutor, Silvia Commins, for an order expediting the appeal and, pursuant to s 135(2) of the Civil Procedure Act 2005 (NSW), for an order that the execution of the Notice to Vacate, pursuant to the Court's judgment of 25 February 2011, be stayed until the determination of these proceedings: see Commonwealth Bank of Australia v Munro [2011] NSWSC 128.

1. There is a stay in force granted by Simpson J to extend to 5pm on 25 July 2011. It was a condition of that stay that the applicant make the application for expedition presently before me. I have indicated to the parties that the Court is minded to grant expedition.

1. The proceedings concern the enforcement by the respondent, the Commonwealth Bank of Australia, of a mortgage facility it granted to the applicant and a Mr Munro in respect of a property in Miranda. The facility was provided in December 2007. At the time the facility was granted, or very shortly thereafter, the co-borrower, Mr Munro, apparently became an owner, as a tenant in common with the applicant, of the mortgaged property. There has never been a repayment of any amount on the facility, the balance of which as at today's date the respondent informed the Court, without demur, is $650,000 or thereabouts.

1. The applicant contends, also without demur, that the property is worth in the range of $560,000 to $600,000. She accepts that because Mr Munro has never defended the proceedings, the respondent will, at some stage, be able to enforce the judgment it has obtained against Mr Munro's interest in the mortgaged property, so that it will have to go to sale, presumably by auction.

1. The applicant cannot pay any money into court in order to secure a stay: cf Inglis v Commonwealth Trading Bank of Australia [1912] HCA 74; (1972) 126 162 (at 164). However she seeks to persuade the Court to grant a stay pending determination of the appeal because of the hardship she will suffer if she has to vacate the property any sooner.

1. The essential basis upon which the applicant will seek to challenge the judgment below is in reliance on those provisions of s 9 of the Contracts Review Act 1980 (NSW) dealing with unjust contracts. Mr Chapple, who appears for the applicant, has very carefully taken me through those matters and I have perused Hulme J's judgment. Regrettably, it appears that the applicant and, possibly, most probably as I understand his Honour's findings, the respondent were both the victims of the activities of a fraudster who misled the respondent as to the applicant's means to service the mortgage, whereas in fact she was, at all material times, both unemployed and in receipt of Centrelink benefits.

1. When the Court is asked to grant a stay pending an appeal, it is necessary to consider the position of both parties, and to take into account that the respondent is, prima facie, entitled to the benefit of that judgment, subject to it always being disturbed on appeal.

1. In the circumstances it is unnecessary to express an opinion about the prospects of success on appeal. As Mr Chapple accepts, even if the applicant succeeds on appeal and is the beneficiary of an order relieving her of her burden under the mortgage, the property will still have to be sold. In the meantime, interest continues to run under the mortgage and even, were it to be the case that the respondent was only able to recover the mortgage debt in due course from Mr Munro's share of the property, nevertheless, the likelihood is that the respondent's pecuniary loss will continue to increase. While I am conscious of the emotional discomfort the applicant may suffer if compelled to vacate the property earlier than she would like, I do not think that the Court should place the respondent in a position where the value of its mortgage continues to be eroded by accruing interest.

1. It is apparently not possible for the applicant to secure alternative accommodation with a relative. Although there is no evidence to this effect, in terms, Mr Chapple has now informed the Court that his instructing solicitor has made inquiries and ascertained that arrangements may be able to be made for the applicant to secure community housing within six or so weeks.

1. Accordingly, while I will not grant a stay pending disposition of the appeal, I will, however, because the time it will take, apparently, for another writ of execution to issue, and the time within which community housing might possibly be arranged are fairly coincident - grant a stay until 29 August 2011 to enable alternative accommodation to be arranged for the applicant.

1. The Court could have listed the matter for hearing on 26 August but due to the unavailability of the respondent's solicitor on that date will list the matter for hearing on 5 October 2011 on the basis, as the parties have indicated, that it will be a one day appeal.

1. I make the following orders:

(1) Expedite the hearing of the appeal.

(2) Set the matter down for hearing on 5 October 2011 as a one day matter.

(3) Order that the execution of the Notice to Vacate, pursuant to the Court's judgment of 25 February 2011 be stayed until 29 August 2011.

(4) Costs of the application to be costs in the appeal.

**********