Mastronardo v Commonwealth Bank of Australia t/as BankWest

The applicants, Mr. and Mrs. Mastronardo, sought a stay of execution of writs of possession issued by the Supreme Court of New South Wales in favour of the respondent, Commonwealth Bank of Australia trading as BankWest. The dispute concerned the possession of properties located at 8 and 8A Pile Street, Gladesville. The application for a stay was heard by Meagher JA in the Court of Appeal of New South Wales.

The central legal issue before Meagher JA was whether there was a sufficiently arguable error in the primary judge's exercise of discretion to grant a stay of execution of the writs of possession. The applicants contended that the primary judge had erred in their decision, and this error was of a nature that would justify the Court of Appeal intervening to grant a stay pending an application for leave to appeal.

Meagher JA dismissed the application, finding that the applicants had not demonstrated a sufficiently arguable error in the primary judge's exercise of discretion. The Court determined that the applicants' grounds for appeal did not raise a question of principle, which is typically a prerequisite for granting a stay of execution in such circumstances. Consequently, the applicants failed to meet the threshold required to justify the extraordinary remedy of a stay.

The Court of Appeal ordered that the applicants' notice of motion seeking a stay of execution be dismissed and that the applicants pay the respondent's costs of that motion.