National Australia Bank Ltd v Perovic

[2002] QCA 243

COURT OF APPEAL

WILLIAMS JA

Appeal No 5429 of 2002

NATIONAL AUSTRALIA BANK LIMITED	Respondent/Plaintiff
and
ZARKO PEROVIC and VICTORIA PEROVIC	Applicants/Defendants

BRISBANE

..DATE 16/07/2002

JUDGMENT

WILLIAMS JA: After a two day trial in the District Court, it was ordered, on the 21st of May 2002, that the plaintiff in the action, the National Australia Bank Limited, obtain possession of certain property, situated at 29 Ian Avenue, Pialba and also that the defendants in the action, Mr and Mrs Perovic, pay the sum of $194,562.69.

The Perovics have lodged a notice of appeal and by the application with which I am concerned today have sought a stay of proceedings on that judgment pending the hearing of that appeal.

It appears that in about 1994 the Perovics borrowed in excess of $200,000 from the Bank on the security of two properties at Hervey Bay. One of the properties has already been sold and the sale proceeds applied in reduction of the amount of the loan.

It is the other mortgaged property which is the subject of the order for possession. The Perovics had legal representation from about March 2000 to February 2002, but thereafter, appeared on their own behalf. They appeared on their own behalf at trial and again before me today.

The issues that have been raised in support of the application relate to certain matters which were extensively canvassed at trial and which were dealt with by the learned trial judge in his reasons for judgment.

One of the main contentions of the Perovics is that an offer to pay arrears was made some 10 days before the notice of default was served and more than a month before the notice of demand was served.

It is disputed by the Bank that a formal offer to pay arrears was made at that time, but it is clear on the evidence and findings that no formal offer was made to pay arrears consequent upon the service of notice of default and notice of demand.

Those matters were the subject of consideration in the judgment and they appear to have been adequately addressed by his Honour in the light of the evidence. There is also an issue raised with respect to the Perovics claim that they wanted trial by jury.

No jury had been initially asked for. That matter was raised informally with the trial Judge in February of 2002 when he indicated, quite properly, that a formal application should be made to the Court if trial by jury was sought.

No such formal application was ever made. Given the approach that must be taken by this Court to a stay, given the statements of principle to be found in Croney v. Nand (1999)
2 Queensland Reports 342, Banks v. Copus Newnham Pty Ltd [2001] QCA 526 and Barry v. National Australia Bank [2000] QCA 12, I am not satisfied that the applicants have discharged the onus of showing that this was an appropriate case in which to grant a stay. It is, of course, always unfortunate when it is a matrimonial home that is the subject of such proceedings, but, having given the matter careful consideration, I have come to the conclusion that the applicants have not discharged the onus of showing that this is an appropriate case in which to grant a stay.

Counsel for the Bank has made a formal statement to the Court, that the Bank's solicitors will instruct the bailiff to whom the warrant has already been delivered, not to take any action to execute it before the 1st of August.

That will give the Perovics approximately a fortnight to vacate the premises and find alternative accommodation. I have taken those matters into account in arriving at the conclusion.

The formal order of the Court will be that the application for a stay is refused.

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CaseChat Overview and Summary

The Court of Appeal in Queensland heard an appeal against a judgment of the District Court which ordered that the National Australia Bank Limited obtain possession of certain property, located at 29 Ian Avenue, Pialba, and that the Perovics pay the sum of $194,562.69. The Perovics had previously borrowed in excess of $200,000 from the Bank on the security of two properties at Hervey Bay. One of the properties had already been sold, and the sale proceeds had been applied in reduction of the amount of the loan. The remaining mortgaged property, which was the subject of the order for possession, had been the subject of a trial in the District Court. The Perovics had legal representation until February 2002, but thereafter appeared on their own behalf. The issues raised in support of the appeal related to certain matters which were extensively canvassed at trial and were dealt with by the trial judge in his reasons for judgment. The Perovics contended that an offer to pay arrears was made some 10 days before the notice of default was served and more than a month before the notice of demand was served. However, it was clear on the evidence and findings that no formal offer was made to pay arrears consequent upon the service of notice of default and notice of demand. The Perovics also claimed that they wanted trial by jury. However, no jury had been initially asked for, and the trial judge indicated that a formal application should be made to the Court if trial by jury was sought. No such formal application was ever made.

The legal issues before the Court of Appeal were whether the Perovics had discharged the onus of showing that this was an appropriate case in which to grant a stay, and whether the stay should be granted in the interests of justice. The Court of Appeal held that the Perovics had not discharged the onus of showing that this was an appropriate case in which to grant a stay. The Court referred to the statements of principle to be found in Croney v. Nand (1999) 2 Queensland Reports 342, Banks v. Copus Newnham Pty Ltd [2001] QCA 526 and Barry v. National Australia Bank [2000] QCA 12. The Court of Appeal noted that it was always unfortunate when it was a matrimonial home that was the subject of such proceedings, but having given the matter careful consideration, the Court had come to the conclusion that the applicants had not discharged the onus of showing that this was an appropriate case in which to grant a stay. The formal order of the Court was that the application for a stay was refused.

The Court of Appeal also made an order that the Bank's solicitors would instruct the bailiff to whom the warrant had already been delivered not to take any action to execute it before the 1st of August. This would give the Perovics approximately a fortnight to vacate the premises and find alternative accommodation. The Court of Appeal took these matters into account in arriving at the conclusion that the application for a stay should be refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established