Merton v Bank of Queensland Ltd

[2013] NSWCA 228

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Merton v Bank of Queensland Ltd [2013] NSWCA 228

Hearing dates:

15 July 2013

Decision date:

15 July 2013

Before:

Gleeson JA

Decision:

(1) The notice of motion filed by Mr Merton and Ms Butler on 9 July 2013 be dismissed.

(2) The applicants to pay the respondent's costs of the motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - civil - application for stay pending application for special leave - whether exceptional circumstances shown

PROCEDURE - civil - judgments and orders - where applicant sought order restraining the sale of security properties

Legislation Cited:

Judiciary Act 1903

Cases Cited:

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; 161 CLR 681
Rinehart v Welker [2012] NSWCA 1; 285 ALR 191

Category:

Interlocutory applications

Parties:

Matthew Merton (First Applicant)
Karen Butler (Second Applicant)
Bank of Queensland Ltd (Respondent)

Representation:

Counsel:
First applicant in person
Mr R Schneider (Sol) (Respondent)
Solicitors:
First applicant in person
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2012/284440

 Decision under appeal 

Jurisdiction:

9111

Citation:

Bank of Queensland Ltd v Heritage Village Estate Pty Ltd [2012] NSWSC 925

Date of Decision:

2012-08-08 00:00:00

Before:

Stevenson J

File Number(s):

2009/295047

Judgment

1. HIS HONOUR: This is an application by notice of motion filed 9 July 2013 by the applicants, Mr Merton and his wife, Ms Butler, for a stay of the judgment of the Court of Appeal given on 14 May 2013 dismissing an appeal from a decision of Stevenson J given on 8 August 2012: see Merton v Bank of Queensland [2013] NSWCA 115.

1. The applicants seek a stay of proceedings while an application is dealt with by the High Court for special leave to appeal from the decision of the Court of Appeal. The applicants also seek an order that the respondent bank be restrained from selling three security properties held by the bank as security for the judgment debt.

1. Mr Merton appeared on his own behalf and was granted leave, as occurred in relation to the appeal itself, to also appear on behalf of his wife. There was no objection by the respondent to that course being taken.

1. The Court has previously considered and refused an application for a stay of proceedings on 27 May 2013: see Merton v Bank of Queensland [2013] NSWCA 159. At the time of that earlier application, Mr Merton had not yet filed the necessary papers with the High Court. He has now done so, and has provided to the Court in support of the current application, firstly, a…