Foong v Commonwealth Bank of Australia

The applicants, Mr. and Mrs. Foong, sought leave to appeal against a judgment of Beech-Jones J in the Common Law Division of the Supreme Court of New South Wales. The original application before Beech-Jones J was to extend a stay of execution of a writ of possession, which had been dismissed. The grounds for the appeal were based on alleged hardship. The matter came before Basten and Gleeson JJA of the Court of Appeal.

The Court of Appeal was required to determine whether there was an arguable case that the primary judge had erred in the exercise of his discretion when dismissing the application to extend the stay of execution. This involved considering whether the grounds of hardship raised by the applicants were sufficient to warrant interference with the primary judge's decision.

The Court of Appeal refused the application for an extension of time to file the summons seeking leave to appeal. Consequently, the summons seeking leave to appeal was dismissed. The applicants were ordered to pay the respondent's costs of the motion.