Mastronardo v Commonwealth Bank of Australia t/as BankWest

[2019] NSWCA 99

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mastronardo v Commonwealth Bank of Australia t/as BankWest [2019] NSWCA 99
Hearing dates:	29 April 2019
Decision date:	29 April 2019
Before:	Meagher JA
Decision:	1. Dismiss the applicants’ notice of motion filed 29 April 2019 seeking a stay of execution of the writs of possession of the properties at 8 and 8A Pile Street, Gladesville. 2. Order the applicants pay the respondent’s costs of that motion.
Catchwords:	PRACTICE – stay pending application for leave to appeal – whether sufficiently arguable error of primary judge in exercise of discretion to justify stay of execution of writs for possession – no question of principle
Cases Cited:	House v The King (1936) 55 CLR 499; [1936] HCA 40
Category:	Procedural and other rulings
Parties:	Carmelo Adriano Mastronardo (first applicant) Claudia Alejandro Mastronardo (second applicant) Commonwealth Bank of Australia t/as BankWest (respondent)
Representation:	Counsel: M Cashion SC (applicants) M Dempsey SC, MC Rose (respondent)   Solicitors: Tomaras Lawyers (applicants) Norton Rose Fulbright (respondent)
File Number(s):	2019/132382
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2019] NSWSC 466 Date of Decision: 26 April 2019 Before: Fagan J File Number(s): 2014/86502

Judgment

1. MEAGHER JA: On 26 April 2019, Fagan J dismissed the applicants' application for a stay of execution of writs of possession issued in respect of two properties known as numbers 8 and 8A Pile Street, Gladesville: Mastronardo v Commonwealth Bank of Australia [2019] NSWSC 466. The judgment for possession in favour of the respondent bank was given and entered in August 2017: Mastronardo v Commonwealth Bank of Australia t/as BankWest [2017] NSWSC 1052. There was then an unsuccessful appeal to this Court (Mastronardo v Commonwealth Bank of Australia Ltd [2018] NSWCA 136) and an application for leave to appeal to the High Court which was refused in November 2018. The writs which were the subject of the application before Fagan J were fresh writs issued on 25 January 2019. On 19 March 2019 the applicants were given written notice by the Sheriff that those fresh writs were to be executed tomorrow, 30 April 2019.

2. In the proceeding in this Court, the applicants, Adriano and Claudia Mastronardo, seek leave to appeal from that decision of Fagan J.  In doing so, they accept it involved the exercise of a discretion and is only subject to appellate intervention in accordance with the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40.

3. In support of an interim stay pending the determination of that application for leave to appeal, senior counsel for the applicants relies on one asserted error on the part of the primary judge. It is said that in dealing with the proposed cross‑claim referred to at Judgment [33], his Honour erred in not treating the fact of that cross‑claim as a matter that had to be taken into account on the stay application before him.  At Judgment [33], his Honour said:

The proposed cross-claim in the Queens Road proceedings has no relevant status on the present stay application beyond it being a possible source of recovery of funds out of which Mr Mastronardo might be able to redeem the mortgages of the Pile Street properties. Even before judgment for possession of the Pile Street properties had been entered by Hammerschlag J on 21 August 2017, the Court would not have refused the Bank that relief by way of enforcement of its securities merely upon the ground that the mortgagors were proposing to make a claim against the Bank, being a claim not propounded as an equitable set-off. See Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161.

4. In order to understand that argument, I need to say something briefly about a second set of proceedings which were commenced in 2013 by the Commonwealth Bank against another company controlled by the first applicant and his father, Remo 97-99 Queens Road Pty Ltd, as well as against him and his father, Antonio, as guarantors. In those proceedings, which have not been resolved, the bank claims an amount, which is currently said to be in excess of $23 million. In December 2015, Antonio Mastronardo filed a cross-claim in that proceeding and in April of this year, he and Adriano applied for leave to amend that cross‑claim, including by adding Adriano Mastronardo as a cross-claimant. It is to that proposed amended cross‑claim that Fagan J is referring at Judgment [33].

5. Returning to the asserted error, it is said that his Honour erred in simply noting that proposed amended cross‑claim had no relevant status, "beyond it being a possible source of recovery of funds out of which Mr Mastronardo might be able to redeem the mortgages of the Pile Street properties".  The argument, as I understand it, is that his Honour’s analysis should have gone further and considered the consequences for the applicants of failing to allow them to pursue that cross-claim to provide funds for that purpose, including any hardship to the applicants arising from the execution of the writs. 

6. In my view, his Honour is not shown to have erred, even arguably, in his treatment of the proposed cross‑claim as having no relevance in circumstances where it was no more than a possible source of funds at some stage in the future which might be applied towards repayment of the judgment debt.  In relation to the question of hardship, his Honour’s consideration of that subject at Judgment [13] is not said to have involved error:

The assertion of hardship as a ground for the stay of execution now sought must be rejected.  From 14 November 2018 when the High Court refused special leave it must have been apparent to the plaintiffs that the Bank's judgment for possession would be enforced.  The plaintiffs have never suggested that they can repay any part of the enormous and rapidly increasing debt from any source independent of the sale of the Pile Street properties.  They have had five months from the date of the High Court's decision within which to vacate.  Any hardship which may flow from a forcible eviction at the hands of the Sheriff on 30 April 2019 will be self-inflicted.

7. As his Honour made plain, the judgment which is the subject of the writs of possession was entered in August 2017.  The applicants have had plenty of time in which to come to grips with the reality that if that judgment debt was not satisfied, the respondent was in a position to enforce its judgment for possession.

8. The argument outlined this afternoon does not provide a basis for granting a stay pending the hearing of the summons seeking leave to appeal. Accordingly, I dismiss the present application with costs.

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Decision last updated: 03 May 2019