MAILMAN v CHALLENGE BANK LIMITED [1991] NSWCA 181

MAILMAN v CHALLENGE BANK LIMITED

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 24 June 1991, 24 June 1991

[1991] NSWCA 181

Mahoney JA This is an application for a stay of execution upon a judgment given by his Honour Mr Justice Rogers. The circumstances surrounding the matter have been set forth in the affidavit evidence filed in the matter. However, they have been conveniently stated by counsel during the course of the application and I shall state them by reference to what counsel have said to the Court.

The proceedings before the learned judge apparently related primarily to the obligation of a property-owning company. It was said that the obligation of the company was of the order of $16 million or more. The exact amount need not be pursued.

In the course of the dealing with the building owned by that company and the refurbishment of it financial arrangements were entered into with Challenge Bank Limited. As part of that financial arrangement Mr and Mrs Mailman, the parties here in question, gave a guarantee in respect of 25 per cent of the indebtedness. The principal debtor of the property-owning company has defaulted on its obligations and the debt is something of the order of $16 million or more.

Proceedings were taken by the mortgagee, Challenge Bank Limited, for the purposes of the sale of the building. It is not necessary to pursue the precise details of those proceedings. The result has been that the sale has not taken place and the building is still held in the possession of the bank as mortgagee.

The bank then took proceedings before Rogers J against Mr and Mrs Mailman for, as I have described it, the 25 per cent of the debt which they had guaranteed. His Honour, after a hearing, gave judgment for the bank for $4,331,230.84.

Mr and Mrs Mailman desire to appeal against his Honour's judgment. An amended notice of appeal has, without objection, been filed in Court and I have identified that amended notice of appeal and placed it with the papers.