HACIDE PTY LTD v COMMONWEALTH BANK [1991] NSWCA 133

HACIDE PTY LTD v COMMONWEALTH BANK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER JA 19 February 1991

[1991] NSWCA 133

Meagher JA This is an application by the appellant, Hacide Pty Ltd, against the respondent, the Commonwealth Bank of Australia, for a stay of an order granted by his Honour Sully J, awarding possession of certain premises known as 52 Taloombi Street, Cronulla, to the Bank.

The matter was heard over a period of nine days, commencing 25 July and ending November 9, 1989 and resulting in a judgment on 28 November, 1989. His Honour found, in substance, in favour of the Bank.

The matter was one in which, on the face of the documents, the present appellant was indebted to the bank; that indebtedness was secured by a mortgage in the bank's favour. It follows that if the documents had their face value, the bank was entitled to an order for possession.

Various defences were apparently raised by Hacide Pty Ltd, the net effect of which was that the documents either did not have their face value or else were, for one reason or another, defective or invalid.

His Honour found against these defences. Indeed, Hacide's defences were such, I am informed, that they depended for an acceptance on the upholding of a version of the facts which was given by one witness only, a Mrs Poulos, on behalf of Hacide Pty Ltd, and his Honour made some disparaging remarks about that lady's credibility. The present position is that some fifteen months or so have elapsed and the appeal still has not come on for hearing. The value of the property in question may have sunk to the position where it is no longer an adequate security for the amount of the indebtedness. Hacide, as I understand it, now seeks a stay of the order. Why this application was not made many, many months ago I cannot imagine.