Frugtniet & Anor v State Bank of NSW

[1996] HCATrans 66

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S26 of 1996

B e t w e e n -

BRIAN FRUGTNIET and SUZANNE MARIE FRUGTNIET

Applicants

and

STATE BANK OF NEW SOUTH WALES

Respondent

Application for a stay

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 MARCH 1996, AT 9.02 AM

Copyright in the High Court of Australia

MR G.D. WENDLER:   If the Court pleases, I appear for the applicants.  (instructed by Graeme A. Ryan)

HIS HONOUR:   Thank you, Mr Ronzani?

MR D.L. RONZANI:   May it please the Court, I appear for the respondent.  (instructed by Abbot Tout)

HIS HONOUR:   Mr Wendler, the first thing that has to be done, if this matter is to be dealt with, is to abridge the time for hearing of the application.  Do you say anything about that, Mr Ronzani?

MR RONZANI:   We have no opposition to that, your Honour.

HIS HONOUR:   Thank you.  In that event, time will be abridged to allow the application to be dealt with this morning. 

Mr Wendler, this matter has been listed as one of urgency.  I am in Court this morning as, indeed, I think all members of the Court are.  I think it would be convenient, therefore, if I approach this matter if it were an application for special leave to appeal, in the sense that I will allow you 20 minutes to present your application, Mr Ronzani, 20 minutes to respond and five minutes for you to reply.  I would be glad if counsel could adhere to those limits.

MR WENDLER:   Is your Honour suggesting that your Honour is proceeding pursuant to section 21 of the Judiciary Act or is your Honour just invoking a procedure?

HIS HONOUR:   No, I am not suggesting that at all.  All I am saying is that I think it would be convenient to adopt the time limits that operate in respect of special leave applications.  This, of course, is not a special leave application.

MR WENDLER:   I beg your pardon, I thought your Honour was referring to section 21.

HIS HONOUR:   No.  Counsel can take it that I have read the papers save for the affidavit received on behalf of the respondent only some minutes ago, which I have glanced at but which I cannot pretend I have read in any detail.  So proceed on that basis, Mr Wendler.

MR WENDLER:    If the Court pleases.  As your Honour knows, before the Court this morning is a summons dated 11 March, which seeks various orders directed to a stay of a writ of possession concerning certain property at Hunters Hill in the State of New South Wales.  Accompanying the summons is an affidavit with a number of annexures.  Your Honour, there has also been filed an application for special leave to appeal and the other documents which comply with the rules in relation to that application. 

It may be convenient then to confront this application by identifying first the principles of law upon which the application must proceed.  Your Honour, the first authority I propose to mention is Jennings Construction v Burgundy Royale.

HIS HONOUR:   You can take it I am familiar with that and hopefully familiar with other authorities, so that is not to say you should not refer them to me, but you could just take me to the passages of them that ‑ ‑ ‑

MR WENDLER:   I have a copy of them for your Honour’s assistance.

MR WENDLER:   Your Honour, the principles of law identified, of course, appear first at page 683 of 161 CLR in relation to that judgment, at point 5:

The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject-matter of the litigation.

So I will confront that issue immediately.  The subject-matter of the litigation concerns a family home which is on Ryde Road in Hunters Hill.  The reality of the situation is, if the execution of the writ of possession takes its normal course and the Sheriff of New South Wales, at 1.30 today, takes possession of that home, in due course it may well be that that house is eventually sold.  The purchaser of that house, of course, would obtain indefeasible title ‑ ‑ ‑

HIS HONOUR:   Well you say that, but there is nothing in the material that takes me beyond the fact that, absent a stay, the Sheriff’s office will enter into possession at 1.30 today or shortly thereafter.  Is there anything to indicate what then would follow?

MR WENDLER:   Not exactly, however there is attached as an annexure to the affidavit accompanying the summons the notice to vacate.

HIS HONOUR:   Yes, that is just what I have referred to.  My question was is there anything to indicate that any further step will be taken, either immediately or at any time, let us say, pending hearing of the application for special leave to appeal?

MR WENDLER:   Other than my instructions being that the Sheriff will enter the property, change the locks and proceed to manage it in such a way as to exclude the present occupants.

HIS HONOUR:   That is not quite facing up to what I was asking you.  I appreciate, of course, that the action of the Sheriff will exclude the applicants from possession of the property, but in so far as it is suggested that the subject matter of the litigation may be destroyed, absent a stay, what is there to indicate regarding any further steps that might be taken.

MR WENDLER:   Well, my clients do not have any information, other than they anticipate the property will be sold, in relation to some of the conversations they have had with the solicitors acting for the respondents.  So, other than that, I do not have any other instructions, but my friend may well be able to assist further on that.

HIS HONOUR:   I put the question to you because you were directing me to the principle that an important consideration may be, and ordinarily will be, the possible destruction of the subject matter of the litigation.

MR WENDLER:   Yes.  I cannot take it any higher, other than I am instructed that it is anticipated that once possession has been obtained there will be a move on to put the property up for sale in order to realise the indebtedness that is alleged to be in existence.  If I can move then, now, to the other principles of law underpinning the application - 685 of the Jennings Construction Case - it reads:

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s  discretion.

I propose to confront perhaps the most significant matter in relation to this application, and that is whether or not there is a substantial prospect that special leave to appeal will be granted.  That requires some scrutiny of the holding of the Full Court.  Can I invite your Honour to that?

HIS HONOUR:   Well, it also, I think, requires appreciation of the fact that what is the subject of the special leave application is not a substantive decision of the Court of Appeal, because, as I understand it, the appeal against the order of Mr Justice Hunter is still pending.

MR WENDLER:   Yes.

HIS HONOUR:   What is sought by the special leave application is to obtain leave to appeal against the decision of the Court of Appeal refusing leave to amend the notice of appeal.

MR WENDLER:   By reason of a refusal to allow fresh evidence to be introduced for that purpose.

HIS HONOUR:   True, but what is the state of the appeal itself?  It is just simply in the list, is it?

MR WENDLER:   That is right.  In discussions between myself and Justice Cole yesterday in the Supreme Court, his Honour indicated to me it would be unlikely that the matter would be listed this year and the more realistic estimate is perhaps early next year.  However, that may be, it is my respectful submission so far as the application to amend the notice of appeal is concerned, that has been finally and absolutely disposed of in relation to relying on fresh evidence.

HIS HONOUR:   I think realistically it has been.  I suppose it would still be open on the hearing of the appeal to seek from the Bench constituting the Court at that stage an amendment, but I am prepared to approach the matter on the basis that, at least as things stand, leave to amend the notice of appeal has been refused.

MR WENDLER:   Can I then invite your Honour to the decision of the Full Court which appears as annexure D, I think, to the affidavit of Suzanne Frugtniet.  It is dated 26 February - that is the decision of the Full Court.

HIS HONOUR:   It is not annexure D, is it?

MR WENDLER:   I think there is a mistake.  Actually, it is marked C but it should be annexure D.

HIS HONOUR:   Should it?  I think it should be annexure C.

MR WENDLER:   It should be D according to the affidavit of ‑ ‑ ‑

HIS HONOUR:   Whatever it should be, Mr Wendler, it is the judgment of 26 February 1996?

MR WENDLER:   Yes.  Can I invite your Honour then to page 4 of that judgment.

HIS HONOUR:   Yes.

MR WENDLER:   At point 5, that is the second paragraph which commences:

There must be, I think, an end to litigation.

his Honour the learned President proceeds in his judgment to state that there is a public interest in finality:

I do not think that, having regard to all the circumstances of this case, it is appropriate to allow this further evidence to be adduced at this stage for the purpose of securing an amendment to the notice of appeal so as to enable the Court to consider again whether, even if the suggested facts were satisfactorily proved and their absence at the trial and before Cole JA explained, it would provide a satisfactory basis for setting aside the judgment.  In all the circumstances, I am of the opinion that the Court should refuse leave to adduce fresh evidence.

In my respectful submission, what the learned President is saying there is that even if this fresh evidence would assist you in relation to curing, for instance, a miscarriage of justice, the public interest in the finality of litigation overrides any such reason to introduce fresh evidence for the purpose of amending a notice of appeal.  Such amendment, in this case, would cure the miscarriage of justice, in my respectful submission.

HIS HONOUR:   Well, you are using the expression “fresh evidence” and I understand why you are using it.  It is not, I think, the expression which is used by the Court of Appeal which refers to “further evidence” because it must be highly debatable whether the material which was sought to be adduced before the Court of Appeal was fresh evidence but I do not think we need to get too deeply into that question.

MR WENDLER:   Quite.

HIS HONOUR:   As I understand it, what the Court of Appeal is saying is that these are all matters that could have been urged at trial but that at trial, effectively, there was no dispute as to the indebtedness of the applicants under the first of the two mortgages given to the respondent.

MR WENDLER:   That conveniently introduces the next matter which, in my respectful submission, is relevant to the prospects of success on an application for special leave to appeal in the future.  It may be convenient now to invite your Honour to his Honour Justice Hunter’s reasons for judgment in the trial to point this out.

TOOHEY J:   Yes, I have that.

MR WENDLER:   Dated 30 November.  On the very first page there appears the following at about point 7:

Although the defendants assert having discharged their obligations under the first mortgage by payment of the indebtedness secured by it, that is clearly not the case as evidenced by the affidavit of Timothy Noel Kitchen sworn on 28 November.

Just for convenience - I do not think this is disputed - Kitchen was a Bank officer who simply tendered an affidavit in the trial which said nothing else other than that there was some indebtedness, but it is that sentence which suggests that the case against the defendants before Justice Hunter was they had not paid any money to defray the first mortgage.  That was not the case.

HIS HONOUR:   Not necessarily they had not paid any money, but they had not paid enough money to cure any indebtedness.

MR WENDLER:   Quite, but the whole case - and this is complicated by the fact that the applicants appeared as litigants in person, there were a number of interlocutory applications for adjournment on the basis of sickness and then on one occasion one applicant represented the other applicant and then that was no longer the case.  However, my point is this, that his Honour proceeded to judgment on the basis that the case for the defendants was that no money had been paid when the real nature of the case was the rights to apportionment, in other words, money was paid and the Bank’s rights to use it and direct it towards other accounts of indebtedness.  In other words, the whole case has gone off on a complete misconception as to the real issues joined.

So when it gets to the Full Court and there is an attempt to clear up the issue concerning whether or not money was paid, not that no money was paid, that the money was paid and where that money was directed, we get to the stage where the Full Court does not appreciate, with the greatest respect to it, the relationship between that holding of his Honour Justice Hunter and the sort of fresh evidence that was sought to be led for the purpose of amending this notice of appeal, which, incidentally, was framed by once again one of the litigants in person without any legal assistance.

HIS HONOUR:   I understand that and obviously the courts have made allowance through the progress of this matter for the fact that at various stages the applicants have been unrepresented.  But, if one thing does emerge with some clarity from the papers, it is that the trial was originally fought on a number of issues; one, of course, being the validity of the second mortgage; the other being the cross‑claim brought by the applicants against the respondent, but that there was clear evidence from the respondent that the applicants had not complied with the provisions of the mortgage, and I accept that there seems to have been some evidence that some moneys have been paid, but that that was not the real basis upon which the action was fought.

MR WENDLER:   The real basis upon which the action was fought, as far as the plaintiff was concerned was, of course, its enforcement of its rights under the mortgage, but it fought the case on the basis that no money had been paid when, in reality, the issue was the rights of the Bank to apportion that money when the money was, in fact, paid.  But, appearing amongst these documents, by their own evidence, there appears, as annexure G, what can be described as exhibit 4, before his Honour Justice Hunter, this was introduced into evidence by the plaintiffs and it is quite clear it is a bank statement setting out various parcels of money paid into various accounts which were operated by the applicants and a scrutiny of that would suggest that money was paid, especially if one looks at the proceeds from sale, at point 7 on that letter, of property at 35 Solomon Avenue, credited to the current account $103,173.  Now, your Honour will note that that figure appears both in, I think, the Court of Appeal judgment and also in his Honour’s judgment.   But, once again, the case went on the basis that no such money was paid, rather than the Bank’s rights to apportion that money when it was paid.  That was the real nature of the case.

HIS HONOUR:   But if, at the end of the day, whatever moneys your clients claim to have paid be taken into account, is not the picture that there was still a very substantial indebtedness to the respondent that would trigger the mortgage provisions under the first mortgage ‑ ‑ ‑

MR WENDLER:   Well, there was in relation to other matters, but ‑ ‑ ‑

HIS HONOUR:   I think President Mahoney speaks of millions of dollars.

MR WENDLER:   Yes, that was in relation to other unrelated accounts.  What happened was that the mortgage blew out in relation to bank charges and interest and there was an on-running dispute between the applicants and the bankers to the fact the money had been paid.  In reality, when the money was paid it was apportioned to another account which had blown out as a result of interest and charges.  So, when your Honour reads in the judgment of his Honour Justice Hunter and also in the Court of Appeal this large parcel of money, it is really made up of three components, three different parts.

HIS HONOUR:   But to say that there is an error in suggesting that no money had been paid under the mortgage when in fact some had been paid does not really answer the question, does it, as to whether there was an indebtedness such that the respondent was entitled to exercise its powers under the first mortgage?

MR WENDLER:   Well, it was an indebtedness which the defendant argued, so far as the first mortgage was concerned, which had been settled by the payment of that $103,000.

HIS HONOUR:   What do you mean settled?  Do you mean discharged?

MR WENDLER:   Discharged; that is how they understood it - that that was completely wiped off the books, that they had directed their solicitor to direct that money specifically to the discharge of that mortgage.

HIS HONOUR:   Well, if that is the proposition, Mr Wendler, it certainly has fallen on pretty barren ground as far as every judge in the Supreme Court of New South Wales before whom this matter has come.

MR WENDLER:   Well, in my respectful submission, so far as the Court of Appeal is concerned, for instance, on page 3 of its judgment ‑ ‑ ‑

HIS HONOUR:   We are back to the judgment of 26 February, are we?

MR WENDLER:   Yes.

HIS HONOUR:   On which page?

MR WENDLER:   Page 3.  Your Honour will see there that the learned President echoes the submission made by counsel before the court, and there is mention again of that $103,000, and this was the reason for the introduction of this fresh evidence which could not have been - so described “fresh evidence”.  That is a loose description, but this was the sort of evidence they were trying to get before the court in order to justify leave to amend this notice of appeal, and it is extremely important that this notice be amended, otherwise the whole appeal against the finding of Justice Hunter just does not get off the ground.

HIS HONOUR:   No, I understand that.

MR WENDLER:   If the Court pleases, it is that - I do not want to stray away from the real focus of the application at the moment, which is some prospect of a grant of special leave to appeal.  So, in my respectful submission, it is open and arguable that the Full Court, in adopting the public interest policy in relation to the finality of litigation, has adopted a test which, in my respectful submission, is too high when it is compared with the circumstances it was confronting, namely - and, mindful of the history of the circumstances where there have been litigants in person without legal training who had attempted to run the case, a fairly complex piece of civil litigation so far as their counter‑claim was concerned.  Having that history or being mindful of that history, the Full Court then adopts what I would describe as a very high test for the amendment of a notice of appeal by simply stating that public interest and the finality of litigation must override any application to amend a notice of appeal even when it can be suggested there may have been a miscarriage of justice.

In my respectful submission, that raises at least a section 35AB?? problem.  Even if it is not a special leave issue in the real sense of the term, it still raises the possibility that there may have been a miscarriage of justice in all the circumstances.  The appropriate situation would be perhaps to remit it to the Full Court to reconsider this fresh evidence so described.

The other matter is this, your Honour ‑ ‑ ‑

HIS HONOUR:   I think you need to be very brief as to the other matter.

MR WENDLER:   Yes.  The other matter is this, that when the applicants did obtain legal representation - and this appears in the body of documents filed by the respondent.  Perhaps it might be convenient to invite your Honour to that bundle of documents annexed to the affidavit of John Henry Bartrop.  I think it is identified as - it is a portion of transcript almost at the end of the papers dated 29 November.  It is about 10 pages from the end.

HIS HONOUR:   Well, cannot you identify it by exhibit number?

MR WENDLER:   I cannot, your Honour, it is just the way paragraph 3 has been designed.  It is a portion of transcript dated 29 November 1995 before his Honour Justice Hunter. 

HIS HONOUR:   Yes, I have that.

MR WENDLER:   It is exhibit 5, I am told.

HIS HONOUR:   I said that I had it.  I am not so sure that I do, now.  Yes, I do have it.

MR WENDLER:   On the last day of the litigation they managed to obtain the services of counsel who appeared before his Honour.  Now, at that stage his Honour indicated to counsel that he had already come to a concluded view in relation to the litigation.  On the second page Mr Lever-Naylor made a submission to his Honour that, “It would be unfair in the interests of justice not to have heard her submissions”, referring to the litigant in person.  At that stage, in my respectful submission, it was incumbent upon his Honour to have at least entertained a submission in the nature of a closing address on behalf of these people.  His Honour shut them out completely.

HIS HONOUR:   That is not a matter really which seems to have surfaced in the course of the various proceedings since but when I indicated these time limits I really was quite serious about them because this matter has to be dealt with as one of urgency.

MR WENDLER:   Yes.  If the Court pleases, they are the submissions, in general terms, concerning the application for a stay.  There is, of course, also the affidavit, that last affidavit of Suzanne Frugtniet which sets out her personal circumstances.

HIS HONOUR:   Yes, I have read that.

MR WENDLER:   Yes.  If the Court pleases, they are my submissions.

HIS HONOUR:   Yes, thank you, Mr Wendler.  Mr Ronzani?

MR RONZANI:   Your Honour, I have prepared an outline of submissions.  If I could assist by handing it up. 

HIS HONOUR:   The matter seems to have been before the court on more occasions than is indicated by the applicants’ material.

MR RONZANI:   It certainly is the case, your Honour, which would understand why the learned President permitted himself the comment that he made about an end to litigation. 

HIS HONOUR:   The main complaint made by Mr Wendler in relation to what happened below seems to have been that this amount of $103,000 was not properly taken into account.

MR RONZANI:   He also submitted to your Honour, against his own evidence, that if it had been credited to the home account it would have discharged it.  The fact is, as is recorded on page 2, at about half-way down the page of the judgment of the Full Court of Appeal that he took you to - that is the judgment of 26 February 1996, the subject of a special leave application - his Honour the learned President there, in addressing the amount of money in question - the $103,000 odd - said that:

The suggestion put to the Full Court was that had it been credited to the correct account, and not to the account to which it was, in fact, credited, the amount owing by the applicant would have been reduced and, accordingly, the total indebtedness, though some indebtedness would have remained, would have been reduced below the very substantial amount which is now in question.

The fact remains, your Honour, it did not - it would not have discharged what was owing under the first mortgage.  And what his Honour the trial judge said when he referred, on the first page of his judgment that my friend took you to, to the question of the claim of the then defendants that their obligations under the first mortgage had been discharged, is clearly quite accurate, because his Honour is not there saying, as was put to you, that no payments had been made; what his Honour is saying is insufficient payments had been made.

Even on the case presented today, as was presented to the Full Court, the several Justices of Appeal sitting singly, Justice Bainton, the amount, even if it be assumed that it was credited incorrectly, nevertheless did not discharge the debt under the home mortgage.  But the fact, however, remains, your Honour, that what my friend is seeking - a stay - concerns, or is predicated upon some arguable special leave application.  It is not, with respect, likely - indeed, I submit it is hopeless, given the nature of what is sought to be appealed against - it is an interlocutory order where discretion has been exercised. 

There is no error demonstrated in respect of what the Court of Appeal did sitting in review as they determined.  When Mr Evatt of counsel appeared for the now applicants and, as the Full Court reasons by the learned President point out, a full hearing was given to Mr Evatt.  As they said, they had heard the submissions of Mr Evatt at some length and this further evidence was rejected, as appears on page 3 of the Full Court of Appeal’s judgment in this manner - as the learned President said:

I am of the opinion that the Court should not allow the evidence to be tendered at this stage.

And what his Honour must have had in mind is the provisions of section 75A of the Supreme Court Act, where the court is empowered to exercise its discretion to permit further evidence that had existed during the trial where, amongst other things, special grounds have been satisfied.  One of them is that a reasonable or sufficient explanation was available to the court as to why this material was not, in fact, adduced before the trial judge.

Page 3 clearly demonstrates that what motivated, essentially, the Court of Appeal to dismiss that application was because there was no such sufficient explanation.  If there is a sufficient explanation one might expect that by now, given Monday’s appearance before Mr Justice Cole, when the selfsame application that was before the Court of Appeal on the two previous occasions was again before the court, that if anything new was able to be adduced, it would have been adduced.  The fact is, your Honour, it is ‑ ‑ ‑

HIS HONOUR:   You say before the Court of Appeal on two previous ‑ ‑ ‑

MR RONZANI:   On Monday.

HIS HONOUR:   No.

MR RONZANI:   Well, Mr Justice Mahoney, on 31 January, where his Honour adjourned that application but made it quite plain that it was bound to fail if there was nothing better put before the court.

HIS HONOUR:   His Honour was there sitting as a member of the Court of Appeal but sitting alone.

MR RONZANI:   Alone on motion day.

HIS HONOUR:   Yes.

MR RONZANI:   Then, the next occasion, that motion was before the Full Court as was a fresh one which also was the subject of an amendment which

Mr Evatt brought in on the morning which is why Mr Bartrop’s affidavit is so fulsome, because what your Honour has been given is terribly deficient on the facts.

HIS HONOUR:   It is not fulsome.  It seems to me to be a misuse of the word.  It may be full but it is not necessarily fulsome.

MR RONZANI:   Thank you, your Honour.  Attempting to provide the court with a complete correct history, what then the Court of Appeal, then sitting as a bench of three, had was the amended notice of motion, the new notice of motion and the adjourned notice of motion.  The material for all is the same.  The material before Justice Cole on Monday was the same.  Indeed, the actual terms of the relief sought have never differed and if one could comment, it is verging on if not, in fact, an abuse of the process to continuously come to a court and, if you look at the chronology, your Honour, it is always at the death‑knell.  It was on 27 December, the day before the final day of the stay granted by Justice Hunter and so it has been throughout.  In my respectful submission, to further entertain this application is not warranted and no stay is called for.

If , however, your Honour is minded to entertain some sort of stay, a stay of course can be granted on terms and if that is a matter which is considered by your Honour as a possibility, well then I would wish to make a submission as to an appropriate term.

HIS HONOUR:   Well, if you have in mind the situation that sometimes arises where an offer is made to pay the outstanding money into court, or something of that sort, no such offer has been made and I do not think you need to take that matter into consideration.

MR RONZANI:   If it please the Court, they are my submissions.

HIS HONOUR:   Thank you, Mr Ronzani.

MR WENDLER:   Just briefly, my friend suggested that the number of applications may amount to abuse of process.  In my respectful submission there is no time limit on curing a miscarriage of justice and just because an applicant continues to approach various courts that are open to him to effect that purpose, I would not necessarily describe that as, with respect, a form of abuse of process.

Your Honour, my friend made a submission in relation to the holding by His Honour Justice Hunter concerning the money in relation to it being paid into the bank.  When Justice Cole first heard the matter, following

Justice Marney standing the matter over in order that an application be made to seek leave to amend the notice of appeal, that application of course came before Justice Cole as an application for leave to amend the notice of appeal and various information - or a body of information, material, was put before His Honour.  Can I just invite your Honour to exhibit C just finally ‑ ‑ ‑

HIS HONOUR:   Exhibit C to your client’s affidavit?

MR WENDLER:   Yes, your Honour, that is the judgment of His HonourJustice Cole dated 12 February 1996 - on page 3, in particular the middle paragraph at point 5, His Honour declined that application essentially because it was inadequate - the affidavit material which had been raised by the applicants themselves was inadequate.

But clearly his Honour there proceeds on the basis that in paragraph there are two immediate difficulties with the course that has been adopted, endeavouring to establish discharge.  First, there is no evidence, at all, of payment of that $103,000 to the Bank.  Certainly his Honour was of the view, at that stage, there was still the litigation of proceed on the basis that no money had been paid in.  This has been my submission, but when his Honour made that finding the applicants were not present; they were not present for two days at that particular trial because one of them was sick and, as a consequence, in my respectful submission, his Honour has proceeded to resolve the case against the applicant on misapprehension of the true nature of the litigation between them.  In other words, it came down to an issue of apportionment, not the fact that no money had never been paid.  If the Court pleases.

HIS HONOUR:   Thank you.  It is necessary that I dispose of this summons today and now, given the events that apparently are to take place this afternoon. 

This is a summons for an order that a writ of possession be stayed until determination of an application for special leave to appeal against a judgment of the Court of Appeal of New South Wales. 

The applicants are defendants in an action brought by the respondent claiming possession of a property at 131 Ryde Street, Hunters Hill.        On 30 November 1995, Mr Justice Hunter gave judgment in favour of the respondent, the mortgagee of the property in question, by reason of default on the part of the applicants under one of two mortgages granted to the respondent.  It is apparent from the judgment of his Honour that whatever moneys may have been paid by the applicants under that mortgage, there remained a substantial indebtedness to the respondent.  Judgment was then given for possession of the land, with liberty to the plaintiff, that is the present respondent, to issue a writ of possession. Execution upon that writ was stayed for 28 days to give the defendants, that is the present applicants, time to consider an appeal.  On 22 December 1995, the applicants lodged a notice of appeal against the judgment of Mr Justice Hunter. 

The material furnished by the respondent shows that there were applications heard by the Supreme Court of New South Wales on 27 December 1995, on 4 January 1996 and on 12 January 1996, all I take it being aimed at securing further stays of execution of the writ.  On 31 January 1996 Justice of Appeal Mahoney heard as a matter of urgency an application for a further stay of the writ of possession.  His Honour observed in the course of giving judgment on that matter that although the notice of appeal called in contest the procedural correctness of certain steps taken before Mr Justice Hunter, it did not call in question a finding that the first mortgage was outstanding and that there was a substantial amount of money owing under that mortgage.  It was, therefore, inappropriate in his Honour’s view to grant a further stay.  However, he did grant a short stay to enable the applicants to seek an amendment of the notice of appeal. 

On 12 February 1996 Mr Justice Cole heard an application for leave to amend the notice of appeal.  His Honour refused that application essentially on the basis that nothing in the material before him, including an affidavit by one of the applicants, led to any conclusion other than that the first mortgage had not been repaid.  On 26 February this matter again came before the Supreme Court, this time before the Court of Appeal.  It is not entirely clear from the material before me upon what basis the matter came before the Court on that occasion.  It certainly was not by way of an appeal against the judgment of Mr Justice Hunter but, rather, in some way as an attempt to review the decision of Mr Justice Cole to dismiss the motion earlier heard by him.

A number of affidavits were offered on behalf of the applicants and leave was sought to adduce what was described as fresh evidence in support of the application to amend the notice of appeal.  The Court refused leave to tender further evidence, there being no satisfactory explanation of why that evidence was not adduced before the trial judge or before Mr Justice Cole.  In any event it is apparent that the court did not think that the evidence in question provided a satisfactory answer to the orders made by Mr Justice Hunter.  The Court of Appeal granted no further extension of the stay. 

The affidavit in support of the present summons mentions yet another hearing before Mr Justice Cole on 11 March for various orders including leave to amend the notice of appeal.  The affidavit in support of the present application recites that his Honour, “declined to entertain the application”.  The circumstances of that hearing appear in greater detail in the material that has been furnished by the respondent.  In any event, the orders made by Mr Justice Cole are not the subject of the present application for special leave to appeal.  The applicants have received from the sheriff’s office a notice to vacate the property by 13 March, that is today, by 1.30 pm.  As I have said earlier, the appeal against the judgment of Mr Justice Hunter has not yet been heard and according to counsel for the applicants it may not be heard for some considerable time.  The attack upon the judgment of Mr Justice Hunter in the notice of appeal as it presently stands is therefore, I take it, confined to those procedural matters which were mentioned earlier in these reasons.

Certainly the application for special leave to appeal is in relation to a procedural matter, namely, the refusal of the Court of Appeal to allow further evidence to be adduced for the purpose of securing an amendment to the notice of appeal.  This Court has on a number of occasions made it clear that it will not ordinarily grant special leave to appeal in matters of practice and procedure.  The question of an amendment to the notice of appeal has been fully considered by Mr Justice Cole on two occasions and by the Court of Appeal.

Having regard to the course of proceedings in the Supreme Court including the absence of any challenge at trial, not to the amount owing by the applicants, but to the fact that there was a substantial indebtedness under the first mortgage, I am of the view that an appeal against the judgment of the Court of Appeal has so little prospect of success that the application for special leave to appeal is unlikely to succeed.  Certainly the prospects of success are insufficient to justify a stay of the relief to which the respondent is presently entitled.

The consequence of not granting a stay is that the respondent will enter into possession of the subject land.  There is nothing in the material before me to show that any further step will be taken by the respondent before the hearing of the application for special leave to appeal.  In any event, this Court has said more than once that exceptional circumstances must be shown before the exercise of what has been described as an extraordinary jurisdiction is warranted.  No such circumstances have been shown.  It follows that the summons must be dismissed.  The order of the Court is summons dismissed.

Is there anything else I need direct my attention to?  That will be the order of the Court and the Court will now adjourn.

AT 9.48 AM THE MATTER WAS CONCLUDED