Priestley v National Australia Bank

[2013] NSWCA 108

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Priestley v National Australia Bank [2013] NSWCA 108

Hearing dates:

7 May 2013

Decision date:

07 May 2013

Before:

Basten JA
Macfarlan JA

Decision:

1. Application for leave to appeal against the judgment of Garling J delivered on 10 December 2012 is refused.

2. The applicants to pay the respondent's costs of the proceedings in this Court.

[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 - application for leave to appeal - primary judge refused stay order - action sought to be stayed occurred before filing of application for leave - application futile

Legislation Cited:

Farm Debt Mediation Act 1994

Cases Cited:

Caldar v Public Trustee of New South Wales [2005] NSWCA 166

Category:

Procedural and other rulings

Parties:

Christopher William Priestley (First Applicant)
Claire Milla Beverley Priestley (Second Applicant)
National Australia Bank (Respondent)

Representation:

Counsel:
Self-represented Applicants
D R Sulan (Respondent)
Solicitors:
Self-represented Applicants
DibbsBarker (Respondent)

File Number(s):

2013/74328

 Decision under appeal 

Jurisdiction:

9111

Citation:

National Australia Bank Ltd v Priestley [2012] NSWSC 1611

Date of Decision:

2012-12-10 00:00:00

Before:

Garling J

File Number(s):

2011/292621

Judgment

1. THE COURT: These are our reasons for dismissing with costs an application for leave to appeal from a decision of Garling J dated 10 December 2012 ([2012] NSWSC 1611). His Honour dismissed a notice of motion by which the applicants sought a stay of execution of writs for possession of a number of rural properties owned by the applicants.

1. In 2008, the applicants obtained loan facilities for $7.7 m, from the respondent bank ("NAB"). These replaced earlier facilities obtained in 2004. The applicants have had lawyers representing them at times in the past but were not represented on the application made to Garling J.

1. After the applicants defaulted under the loan securities, a mediation occurred in July 2010 under the Farm Debt Mediation Act 1994. In 2011, the applicants breached obligations placed upon them by a Heads of Agreement which they entered into at that time with the NAB.

1. The NAB commenced the present proceedings in September 2011, with a defence being filed by the applicants in December 2011. The applicants made a number of unsuccessful applications to the Court for leave to amend their defence, but in May 2012 the NAB secured a default judgment for possession, which was the only substantive relief sought by it in the proceedings.

1. In September 2012 Schmidt J dismissed an application by the applicants to set aside the default judgment and for leave to file an amended defence. Her Honour noted that the draft defence before her on the application was the sixth version that the applicants had, over time, proffered. She concluded that the defence sought to be advanced did not have any real prospect of success.

1. On the application of the NAB, writs for the possession of the applicants' properties were issued in October 2012 and on 19 November 2012 the applicants filed a notice of motion seeking a stay of the execution of the writs. On 23 November 2012 Davies J declined to grant such a stay but stood the motion over for further hearing before the duty judge. The motion was heard on 5 December 2012 by Garling J who dismissed it by his judgment of 10 December 2012 referred to above.

1. As the writs for possession have been executed since Garling J's decision and the NAB has taken possession of the properties, the present application is futile and should be dismissed. A similar situation arose in Caldar v Public Trustee of New South Wales [2005] NSWCA 166. In that case this Court concluded that a summons for leave to appeal against a refusal to stay execution of a writ of possession which had since been executed was vexatious and an abuse of process (see [5] - [6]).

1. In any event, the applicants have not demonstrated any material error in Garling J's decision. The essential complaint of the applicants is that the NAB did not comply with the Code of Banking Practice with which they contend it was obliged to comply under the terms of the facilities granted to them. In particular, they contend that the bank failed to adhere to the provisions in clause 35 of the Code concerning Internal Dispute Resolution before initiating a mediation under the Farm Debt Mediation Act

1. However, the applicants acknowledge that they have had a copy of the Code for some years, apparently since the inception of the loan facilities in 2004, and have sought to rely upon its terms at various stages in the present litigation. The only new aspect to their argument seems to be an assertion that the NAB did not disclose to them the existence of the Code Compliance Monitoring Committee Association Constitution to which the NAB apparently became a party in 2004. The applicants contend that this Constitution altered the Code in a way that was detrimental to them. However they were not able to explain how this contention assisted them as, even if it were correct, the result would be no more than that the Code, the terms of which they were made aware long ago, remained operative. Garling J took the applicants' submissions concerning the Code into account and the applicants have not been able to point to any error in the way in which he did so or, indeed, to any other error in the exercise of his Honour's discretion.

1. It was for these reasons that the applicants' application for leave to appeal against the decision of Garling J was dismissed with costs.

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Decision last updated: 07 May 2013