MANN v WESTPAC BANKING CORPORATION LIMITED [1988] NSWCA 89

MANN v WESTPAC BANKING CORPORATION LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 22 August 1988, 22 August 1988

[1988] NSWCA 89

PRACTICE — appeal — stay of execution — security for costs — appropriateness to review apparent prospects of success on appeal in a preliminary way — dispute about guarantee to Bank — dispute in evidence about what was said when guarantee was signed — trial judge prefers evidence of Bank officers — whether impediment to success on appeal — evidence of serious shortfall of appellants' assets against liabilities — held: (1) "Special circumstances" established to warrant order for security for costs of appeal — such orders not limited to cases of abuse of process, gross delay or where appeal manifestly hopeless. Abdurahman v Field, unreported, CA, 4 March 1986; (1986) NSWJB 30 distinguished. (2) Stay of execution should be granted, conditional upon deposit of security for costs. Supreme Court Rules, Pt51 Rule 11. ORDERS 1. Order a stay of the execution of the orders and judgment of Campbell J dated 15 March 1988, upon condition that the appellants, Christopher Peter Mann and Christine Estelle Mann, provide security to the reasonable satisfaction of the Registrar of the Court of Appeal, and in a form ordered by him in an amount of $7,500. 2. Order that, in default of the provision of such security within twenty-eight days of this date, the matter be relisted before the Court for the purpose of considering the dismissal of the appeal for want of the provision of the security. 3. Order that the costs of the application be the Respondent's costs in the appeal.

Kirby P Christopher Mann and Christine Mann have appealed to this Court from ajudgment and orders of Campbell J. Judgment was delivered on 15 March 1988.

By that judgment, his Honour held Mr and Mrs Mann personally liable to Westpac Banking Corporation (the Bank) under a guarantee dated 3 May 1983. His Honour held that, by the guarantee, they jointly and severally guaranteed certain advances and accommodations given by the Bank to Western Medical Services Pty Limited, a company in which Mrs Mann had an interest.