Henderson v Capita Mortgage Pty Ltd [2022] NSWCA 107

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Henderson v Capita Mortgage Pty Ltd [2022] NSWCA 107 Hearing dates: 6 June 2022 Date of orders: 27 June 2022 Decision date: 27 June 2022 Before: Meagher JA Decision: (1) Direct that the appellant (Mr Henderson) have leave to file his amended notice of motion dated 31 May 2022 and that the copy emailed to the Registrar be treated as the filed copy of that motion. (2) Direct that the copy of the affidavit of the appellant sworn on 30 May 2022 and emailed to the Registrar on the following day be treated as the filed copy of that affidavit. (3) Order that the notice of appeal filed on 4 April 2022 be struck out. (4) Order that the appellant pay the respondent's (Capita Mortgage) costs thrown away in consequence of order 3. (5) Direct that any application of the appellant for leave to file an amended notice of appeal and any affidavit in support of that application be filed no later than 27 July 2022. (6) Order that execution of the judgment entered on 22 December 2021 and the orders made on 4 February 2022 be stayed on condition that on or before 27 July 2022 the appellant pays into Court an amount of $170,000 or otherwise provides security in that amount. Unless the Court otherwise orders, in the event that there is no application in accordance with order 5 or in the event that any such application is made and dismissed, the stay of execution should terminate on the later of 27 July 2022 or the date on which the application is dismissed. In the event that such an application is made and is successful, unless the Court otherwise orders the stay of execution is to continue until the final determination of any appeal. (7) Order that the appellant pay 50% of the respondent's costs of the appellant's amended notice of motion dated 31 May 2022 and the respondent's amended notice of motion filed on 26 May 2022. (8) Otherwise dismiss each of the motions in order 7. Catchwords: APPEALS – procedure – where notice of appeal consists of 50 paragraphs in form of lengthy narrative statements which do not identify asserted errors of primary judge or challenged facts (cf UCPR r 51.18) – where most of those paragraphs vexatious and abuse of process – notice of appeal struck out and direction made for making of application to file an amended notice of appeal APPEALS – stay of execution pending appeal – where appellant seeks stay of orders for possession and sale of real property – where dispute as to amount of interest and costs recoverable – stay of execution conditional on payment into Court of security Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) National Consumer Credit Protection Act 2009 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr 51.2, 51.8, 51.9, 51.16(1), 51.18 Cases Cited: Harvey v McWatters (1948) 49 SR (NSW) 173 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74 K Sheridan v Collin Biggers & Paisley [2019] NSWSC 528 Kowalczuk v Accom Finance Pty Ltd [2007] NSWCA 225 Port Macquarie-Hastings Council v Diveva Pty Ltd t/as Mid Coast Road Services [2017] NSWCA 4 Wichman v Pepper Finance Corporation Limited [2019] NSWCA 195 Category: Procedural rulings Parties: Douglas McGreager Henderson (Appellant) Capita Mortgage Pty Ltd CAN 061 886 584 (Respondent) Representation: Counsel: