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. I have been furnished by counsel for both parties with the relevant correspondence. As early as December 1989 Hacide's solicitor was, in effect, asked for its consent to a stay and in the same month the bank said: "Notwithstanding the expiry of the time provided for the orders of Sully J, the bank will not seek to issue or enforce the writ of possession without prior notice... However, the bank will ultimately not consent to the continuance of the stay pending the appeal, without some provision being made for the payment of ongoing interest. If that situation is not acceptable to your client, then it seems inevitable that an application for a continuance of the stay will have to be argued." It has never been argued. No provision for the payment of interest has ever been made and counsel for Hacide, Mr van Aalst, has very properly said to me that there is no point in my imposing any condition of the stay about a payment of interest, as it would amount to the imposition of a condition which Hacide could not comply with. The Bank in due course in March 1990 did inform Hacide's solicitors that it intended to take steps for the issue of a writ within 7 days of 8 March 1990. 2 UNREPORTED JUDGMENTS The position therefore is that Hacide has had ample warning of the Bank's attitude and ample notice of what steps it was inclined to take. Hacide, for its part, at no stage since December 1989 has approached the court for a stay or has approached the court for expedition of the appeal. It is perfectly true, as Mr van Aalst in his very reasonable submissions for Hacide has pointed out, that unless a stay is granted the appeal becomes of at least dubious value, if of any value. On the other hand, if a stay is granted and can only be done so on an unconditional basis, it seems to me to do very serious injury to the Bank if the Bank's judgment is correct, because if a stay is granted it will mean that the amount of the deficiency of the Bank's security over its debt will increase very considerably. In all the circumstances therefore I am of the view that no stay should be granted and the application made on behalf of Hacide should be dismissed with costs.