Politarhis v Westpac Banking Corporation (No 2)

Politarhis v Westpac Banking Corporation (No 2) involved the appellants, Politarhis, appealing against a judgment made by a single judge in the Supreme Court of South Australia, which ordered the possession of their home for the purposes of sale under a mortgage. The Full Court of the Supreme Court upheld the single judge’s decision, and the Politarhis sought an order to stay the execution of the possession order while they applied for special leave to appeal to the High Court.

The legal issue for the court to decide was whether the execution of the possession order should be stayed pending the application for special leave to appeal. The court needed to assess the merits of the appeal, the likelihood of success in obtaining special leave, and the balance of convenience for both parties.

The court found that the prospects of the Politarhis obtaining special leave to appeal were remote, and that if a stay was not granted, the appeal would essentially be rendered nugatory. The court also noted that the amount owed to Westpac exceeded the value of the Politarhis’ home, and that the difference between the debt and the home's value was increasing due to accrued interest. Westpac was suffering ongoing prejudice as a result. The Politarhis had not paid any amount into court or provided security for the outstanding balance, further tipping the balance of convenience against granting a stay. Consequently, the court refused the application for a stay of the order for possession.

The final orders were that the application for a stay of the order for possession was refused, and the execution of the possession order would proceed as per the single judge’s original decision.