Serobian v Commonwealth Bank of Australia

The applicants, Mr and Mrs Serobian, sought a review of decisions made by single judges of appeal refusing to grant a stay of a writ of possession concerning their family home. The respondent was the Commonwealth Bank of Australia. The applications before the Court of Appeal concerned three separate refusals to grant a stay of the writ of possession.

The legal issues before the Court of Appeal were whether the single judges had erred in their respective refusals to grant a stay of the writ of possession. The applicants relied on four affidavits, all sworn by Mrs Serobian, which detailed the hardship they and their family would suffer if the Bank were to secure possession of the property. These affidavits also contained assertions about the conduct of Bank officers, claims that the applicants' default was attributable to the Bank, and arguments that the primary judge had erred in their handling of the applicants' arguments and evidence, including medical records.

In considering the applications, the Court noted that while the failure to tender payment or offer to submit to a condition of payment is not an absolute bar to granting a stay of judgment for possession, it can be a "very weighty consideration militating against the grant of such relief." The Court acknowledged the hardship the applicants and their family, including a daughter undertaking her Higher School Certificate examinations, would face. However, the Court also noted that to the extent there was a factual controversy regarding the primary judge's treatment of medical records, this would be dealt with in due course on appeal.

The motion was dismissed with costs.