Buccolliero v Commonwealth Bank of Australia

In the matter of *Buccolliero v Commonwealth Bank of Australia*, the applicant sought a stay of execution of a court judgment pending an appeal. The dispute arose from a mortgage default, and the applicant was unable to satisfy the requirement to pay the money owing into court as a condition for granting the stay. The application was heard by McColl JA in the Court of Appeal of New South Wales.

The primary legal issue before the court was whether a stay of execution should be granted solely on the grounds of hardship, notwithstanding the applicant's failure to meet the usual prerequisite of paying the judgment sum into court. The court was required to consider the principles governing the grant of a stay pending appeal, particularly in circumstances where the applicant's financial inability prevented compliance with standard conditions.

McColl JA considered the principles for granting a stay pending appeal, which typically require the applicant to demonstrate a strong arguable case and that the appeal would be rendered nugatory if the stay were not granted. Crucially, the court noted that while hardship is a relevant consideration, it is generally not sufficient on its own to justify a stay, especially when the applicant cannot meet the usual condition of paying the judgment debt into court. However, in this instance, the court acknowledged the applicant's stated inability to pay and ordered that the execution of the Notice to Vacate be stayed until 29 August 2011, while also expediting the hearing of the appeal and setting it down for 5 October 2011. The costs of the application were reserved to be costs in the appeal.