Jeff Manny v Australian and New Zealand Banking Group Limited & Anthony Sims and Stephen Parberry & Shane O'Keefe and Murray Smith

[2014] ACTCA 5

JEFF MANNY v AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED & ANTHONY SIMS AND STEPHEN PARBERRY & SHANE O’KEEFE AND MURRAY SMITH
[2014] ACTCA 5 (26 February 2014)

APPEAL – stay application – application for extension of stay for delivery of possession – whether grounds for granting stay – whether hardship – no evidence to give confidence in prospect for success on appeal – orders appealed from made some time ago – identical application already heard by another judicial officer in proceedings below

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 87 – 2013
No. SC 746 of 2011

Judge: Burns J  
Court of Appeal of the Australian Capital Territory

Date: 26 February 2014          

IN THE SUPREME COURT OF THE       )          No. ACTCA 87 – 2013

)          No. SC 746 of 2011

AUSTRALIAN CAPITAL TERRITORY)  
  )
COURT OF APPEAL  )          

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JEFF MANNY

Applicant

v         

AND:AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED              

Respondent

AND:ANTHONY SIMS AND STEPHEN PARBERRY

First Third Party

AND:SHANE O’KEEFE AND MURRAY SMITH

Second Third Party

ORDER

Judge:Burns J

Date:26 February 2014

Place:Canberra

THE COURT ORDERS THAT: 

1. The application for a stay be refused with costs. 

1. This is an application which is made in the Court of Appeal effectively to stay the operation of orders made by a single judge of the ACT Supreme Court pending the hearing of an appeal in the Court of Appeal or, alternatively, to at least stay the operation of the orders for a short period in order to enable Mr Manny to leave the premises which are the subject of the appeal.

2. This matter came before the Court on very short notice because, as I understand it, it is anticipated that the respondent to the application, the ANZ Banking Group, intends to take action tomorrow to evict Mr Manny from the premises and to formally take possession of the premises at that time.

3. Mr Manny has been involved in a number of pieces of litigation in the courts of this Territory and other courts for some time.  Most of that litigation, if not all of it, involves the ANZ Bank.  As I understand the background to the matter, at one time Mr Manny arranged finance through the respondent bank.  That finance was with respect to a number of different businesses that Mr Manny at that time controlled through a number of different companies.  In addition, Mr Manny had a loan from the ANZ bank which secured his personal residence and that loan was secured by way of a mortgage to the ANZ Bank.

4. Mr Manny fell into arrears in payment of his mortgage.  The bank took action in order to enforce the mortgage and to recover the monies owing.  That is the matter that from which Mr Manny brings the appeal.  The single judge dismissed an appeal against summary judgment by the Master which gave possession of the premises to the bank pursuant to the mortgage.

5. Other proceedings have found against Mr Manny with respect to the accommodation provided by the bank in terms of the businesses that were at one time controlled by Mr Manny.  It is understandable that Mr Manny, on a practical level, sees all of these matters as being connected in the sense that he says the action by the bank to recover against the loans made to the businesses has made it impossible for him to earn an income which ultimately led to his inability to pay for the mortgage.  However, in law, they are strictly distinct.  The mortgage with respect to the residential premises was entirely distinct from the loans to Mr Manny’s companies.

6. It is a well-recognised principle of law that a party who has been successful in litigation should have the fruits of that success.  Courts do have the power to stay the operation of judgments pending the hearing of an appeal.  However, such a power should only be exercised in clear cases.  In the present case, there is no evidence before me which would give me any confidence that there is any prospect of success for Mr Manny in challenging the orders that were made by the single judge in these proceedings.  That, in my opinion, is sufficient to dispose of the present application.

7. Insofar as Mr Manny now relies upon hardship as a ground for the Court making an order staying the judgment of the court below, at least pending his opportunity to find alternative accommodation, I note that the orders that were made by a single judge of the Supreme Court were made quite some time ago now, last year as I understand it, and that it should have been apparent to Mr Manny that he needed to find accommodation so that he could move out of the premises and give possession of them to the ANZ Bank.  Indeed, it appears that on occasions over the last six months or so, he has taken steps to try to locate accommodation.

8. An application in almost identical terms was filed in the proceedings in the court below and was heard by the Master yesterday when it was refused.  I am told that the application before the Master  was based upon the proposition that Mr Manny did not have funds in order to be able to find alternative accommodation.  That does not appear to have been reiterated by Mr Manny today who says that he has the funds and that he now needs an opportunity to arrange that accommodation.

9. In my opinion, the present application should also be refused. 

10. The application will be refused with costs.

    I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

    Associate:

    Date:      20 March 2014

Counsel for the Applicant:  The applicant appeared in person

Counsel for the Respondent:  Mr W McCarthy

Solicitor for the Respondent:  Bradley Allen Love as agents for Gadens Lawyers

Date of Hearing:  26 February 2014

Date of Judgment:  26 February 2014