Abram, Joseph & Anor v Bank of New Zealand & Ors [1995] FCA 862

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 622 of 1995 ) GENERAL DIVISION ) BETWEEN: JOSEPH ABRAM First Appellant JANETTE DAWN ABRAM Second Appellant

AND: BANK OF NEW ZEALAND and ANOTHER First Respondent MICHAEL J FITZPATRICK Second Respondent

JUDGE MAKING ORDERS: FOSTER J DATE: 26 SEPTEMBER, 1995 PLACE: SYDNEY MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The Notice of Motion be dismissed.

THE COURT DIRECTS THAT: 2. The Writ of Possession not be enforced until 17 October 1995.

THE COURT FURTHER ORDERS THAT: 3. The Appellants pay the First Respondent's costs of the Notice of Motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 622 of 1995 ) GENERAL DIVISION ) BETWEEN: JOSEPH ABRAM First Appellant JANETTE DAWN ABRAM Second Appellant

AND: BANK OF NEW ZEALAND and ANOTHER First Respondent MICHAEL J FITZPATRICK Second Respondent

CORAM: FOSTER J DATE: 26 SEPTEMBER, 1995 PLACE: SYDNEY REASONS FOR JUDGMENT (Extempore) HIS HONOUR: By this notice of motion, filed on 5 September 1995, the appellants, Joseph Abram and Janette Dawn Abram, seek to stay until the determination of their appeal, orders made by Moore J on 11 August 1995. By those orders, his Honour granted to the first respondent possession of the premises situated at 10 Lexington Avenue, St Clair. These premises are the appellants' family home in which they and their four children reside. It is subject to a mortgage in favour of the first respondent which wishes to exercise its power of sale under that mortgage. His Honour's orders were made after a lengthy hearing in which the appellants sought to impugn the mortgage on a number of grounds. It was alleged that in the obtaining of the mortgage the first respondent, mainly through its agent, the second respondent, had committed breaches of ss 51AB, 52, 53, 55A and 60 of the Trade Practices Act 1974 (Cth). Damages and other relief were sought under ss 82 and 87 of that Act, in respect of the alleged breaches. Damages were also sought in respect of claims for negligence, breach of contract, breach of fiduciary duty and breach of s 57 of the Real Property Act 1900 (NSW). Other relief was sought under the Contracts Review Act 1980 (NSW). All these claims were disputed. The first respondent cross-claimed (inter alia) for an order for possession of the premises pursuant to the mortgage and ss 57, 58 and 60 of the Real Property Act 1900 (NSW). The appellants failed in their action and the first respondent succeeded on the cross-claim. In their appeal, the appellants seek to argue numerous matters which, they assert, should result in the reversal of his Honour's findings. The appellants have taken steps in relation to the appeal, the nature of which are not entirely clear from the evidence. However, I am prepared to accept that they wish to prosecute the appeal and are currently involved in the settlement of the index to the appeal book. They have been, and still are, unrepresented litigants. The stay sought by the appellants is opposed by the first respondent. The second respondent offers no opposition. The first respondent submits that the stay should not be granted because: (a) the appeal has no reasonable prospect of success; (b) the amount secured by the mortgage, including the costs of this litigation and other litigation which have been added to the principal sum, now substantially exceeds what might reasonably be realised on the sale of the property; (c) no payments have been made in respect of the appellant's indebtedness since June 1992; and (d) the property is at significant risk because it is uninsured.