Sebastian Carnemolla & Anor v Bendigo & Adelaide Bank Ltd

[2014] HCASL 18

SEBASTIAN CARNEMOLLA & ANOR

v

BENDIGO & ADELAIDE BANK LTD & ORS

[2014] HCASL 18
S93/2013

1. The applicants seek special leave to appeal against orders of the Court of Appeal of the Supreme Court of New South Wales.  By those orders the Court of Appeal dismissed the applicants' appeal from orders made by the Supreme Court of New South Wales (Hislop J). 

2. The applicants, husband and wife, owned two adjoining townhouses in Smithfield, New South Wales being Lots 1 and 2 in Strata Plan 63720 ("Lots 1 and 2").  They resided in Lot 1 and held Lot 2 as an investment property. 

3. In December 2004, the applicants successfully applied to refinance a loan securing Lots 1 and 2.  Their application was made to the first respondent ("the Bank") through the third respondent, a mortgage sub-originator, and was witnessed by the second respondent.  The applicants defaulted on their loan on 22 February 2007.

4. On 31 July 2008, the Bank obtained summary judgment for possession of Lots 1 and 2 and for monies owing plus interest.  Judgment was later set aside in respect of Lot 1.  Lot 2 was sold in December 2008, but the amount realised was insufficient to discharge the loan.  The Bank then pursued its claim for possession in respect of Lot 1. 

5. Rejecting the applicants' defences to the Bank's claim, the primary judge ordered that the Bank have possession of Lot 1. 

6. In dismissing the applicants' appeal with costs, the Court of Appeal upheld the findings of the primary judge with respect to both the lack of evidence of any relevant psychiatric condition suffered by the first applicant, and positive credit findings concerning the second respondent.

7. As the applicants do not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

8. An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave.  The application raises no question of principle of public importance which would warrant consideration by this Court.  Further, it would not be in the interests of the administration of justice, either generally or in this particular case, to grant special leave to appeal.

9. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
12 February 2014 S.M. Crennan