Menso v Commonwealth Bank of Australia

The applicant, Mr Menso, had borrowed money from the Commonwealth Bank of Australia and secured repayment by granting a mortgage over his real property. The Bank commenced proceedings seeking recovery of possession due to a default in repaying the loan. The District Court granted a summary judgment application brought by the Bank against Mr Menso, dismissed his counterclaim and other applications, and ordered that the Bank recover possession of the mortgaged land and judgment for the debt. An enforcement warrant has been issued and is due to be executed on 26 July 2016. Mr Menso contends that the orders of the primary judge should be stayed. The appeal against the primary judgment was dismissed by the Queensland Court of Appeal.

The appeal court was required to determine whether a stay of proceedings should be granted. The court needed to consider the prospects of success of the appeal, the prejudice to the parties if the stay was granted or refused, and the additional time Mr Menso needed to remove his property from the land.

The appeal court found that no error had been identified in the primary judge's decision. The court concluded that none of Mr Menso's claims had any realistic prospect of success to overturn the judgment given below. The proposed appeal lacked any substantive merit. The court considered that the prejudice to Mr Menso from the refusal of a stay did not reach the level that warranted the Court's discretion being exercised that way. The court also found that Mr Menso should be given a short extra period of time to remove himself from the property, rather than face the storage costs that would be incurred if the property is removed by the sheriff.

The appeal court refused the application for a stay, ordered Mr Menso to pay the Bank's costs of and incidental to the application, and stayed the execution of the warrant of execution until 4 pm on 9 August 2016.