Carnemolla v Adelaide Bank Ltd - [2013] NSWCA 166

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carnemolla v Adelaide Bank Ltd [2013] NSWCA 166
Hearing dates: 3 June 2013
Decision date: 03 June 2013
Before: Barrett JA
Decision:
1. The notice of motion filed on 22 May 2013 seeking a stay is dismissed with costs.
2. The exhibits tendered and admitted upon the hearing of the notice of motion may be returned after fourteen days.
[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 determination of application for special leave to appeal to High Court of Australia - no matter of principle
Legislation Cited: Judiciary Act 1903, s 35A
Cases Cited: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681
Rinehart v Welker [2012] NSWCA 1; (2012) 185 ALR 191
Category: Interlocutory applications
Parties: Sebastian Carnemolla - First Applicant
Lucia Carnemolla - Second Applicant
Adelaide Bank Ltd - First Respondent
Leon Angelopoulos - Second Respondent
PC Wholesale - Third Respondent
Romavale Pty Corp - Fourth Respondent
Representation: Applicants in person
Mr S Pearlman - First Respondent
Applicants in person
Curwoods Lawyers

File Number(s): 2012/81298

Judgment

The applicants, Mr and Mrs Carnemolla, were the unsuccessful appellants in appeal proceedings determined by the Court on 14 May 2013. Their appeal related to proceedings brought against them by the respondent bank in which judgment was given for the bank and it was determined that the bank as mortgagee was entitled to possession of real property owned by the applicants.

Before me is the applicants' notice of motion seeking a stay of proceedings upon a writ of possession pending determination of an application for special leave to appeal to the High Court of Australia.

The applicants' application for special leave was filed on 21 May 2013. The grounds are set out in paras 2 to 5:

"2. The determination by the 3 Judges failed to comprehend the nature of all the matters brought forward on this case and erred in not taking into consideration of the proof as submitted in detail.

3. Many important files as submitted to the Supreme Court of NSW, before the hearings were missing, when investigations were carried out by the appellants. These missing files were reported as stolen well before the hearing date to the Supreme Court of NSW, but they have not been able to locate these sealed and filed documents even to this day

4. The determination by the 3 judges erred in their findings and consideration of the medical records of the condition of the first appellant, was not taken into consideration. This evidence was submitted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carnemolla v Adelaide Bank Ltd

Details

AGLC: Carnemolla v Adelaide Bank Ltd [2013] NSWCA 166
Case: [2013] NSWCA 166
Decision Date: 03 June 2013

CaseChat Overview and Summary

In the matter of *Carnemolla v Adelaide Bank Ltd*, the applicant, Carnemolla, sought a stay of proceedings pending the determination of an application for special leave to appeal to the High Court of Australia. The respondent was Adelaide Bank Ltd. The application was heard by Barrett JA in the Supreme Court of New South Wales.

The central legal issue before the Court was whether a stay of proceedings should be granted. This required the Court to consider whether the applicant had demonstrated a sufficient basis for such an order, particularly in circumstances where the application for special leave to appeal to the High Court did not appear to raise a matter of principle.

Barrett JA dismissed the notice of motion seeking the stay. The reasoning applied was that the applicant had not established grounds for a stay, implying that the threshold for such an order, especially in the context of an appeal to the High Court that did not present a significant legal question, had not been met. The Court's decision reflects the general principle that stays are exceptional remedies and require a strong justification.

The Court ordered that the notice of motion be dismissed with costs. It was also ordered that the exhibits tendered and admitted during the hearing of the notice of motion could be returned after fourteen days.

Orders

Orders of the court

1. The notice of motion filed on 22 May 2013 seeking a stay is dismissed with costs.

2. The exhibits tendered and admitted upon the hearing of the notice of motion may be returned after fourteen days.

[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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Carnemolla v Adelaide Bank Ltd [2013] NSWCA 166
Hearing dates:	3 June 2013
Decision date:	03 June 2013
Before:	Barrett JA
Decision:	1. The notice of motion filed on 22 May 2013 seeking a stay is dismissed with costs. 2. The exhibits tendered and admitted upon the hearing of the notice of motion may be returned after fourteen days. [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 determination of application for special leave to appeal to High Court of Australia - no matter of principle
Legislation Cited:	Judiciary Act 1903, s 35A
Cases Cited:	Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681 Rinehart v Welker [2012] NSWCA 1; (2012) 185 ALR 191
Category:	Interlocutory applications
Parties:	Sebastian Carnemolla - First Applicant Lucia Carnemolla - Second Applicant Adelaide Bank Ltd - First Respondent Leon Angelopoulos - Second Respondent PC Wholesale - Third Respondent Romavale Pty Corp - Fourth Respondent
Representation:	Applicants in person Mr S Pearlman - First Respondent Applicants in person Curwoods Lawyers
File Number(s):	2012/81298