TYREE vy CHALLENGE FINANCE LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, HANDLEY JA and SHELLER JA 17 August 1992 [1992] NSWCA 256 Clarke JA. This is an application by an appellant for orders discharging a judgment given by Mr Justice Priestley on 31 July 1992 whereby his Honour refused to grant a stay of a judgment given by Mr Justice Rolfe on 10 April 1992 and refused to grant leave to the appellant to amend the defence on which he had relied in the proceedings in the Commercial Division. The claim which had initially been made by the respondent was for moneys due under a guarantee. That claim was defended upon one basis which was in effect that the guarantee had been entered into upon terms that it would only be called upon in specific circumstances and these circumstances had not occurred. Mr Justice Rolfe rejected that defence and granted leave to the respondent to enter judgment against the appellant for the amount claimed. Since Mr Justice Rolfe granted leave to enter judgment the respondent has served a bankruptcy notice upon the appellant and we have been informed that that bankruptcy notice was not extendedbeyond last Monday and on Tuesday of last week Mr Justice Einfeld in the Federal Court refused to set the bankruptcy notice aside. Accordingly, the position is that the appellant has committed an act of bankruptcy. His sole reason for seeking a reversal of Mr Justice Priestley's judgment is that his Honour, although considering the matter prior to the commission of the act of bankruptcy, wrongly declined to grant a stay when it was clear that if one was not granted the act of bankruptcy would become complete. Whether one looks at the matter that way or from another viewpoint which was pressed upon the court by the appellant today, and that is that unless a stay is granted he may not be able to prosecute his appeal, it seems to me that the application should be dismissed. I have read what Mr Justice Priestley had to say in his judgment wherein his Honour paid particular attention to the prospects of the appellant's success in the appeal, presumably in response to submissions which had been made, and I can see no error in his Honour's judgment. In fact, it seems to me to be perfectly correct and I think that the appeal which has been put on stands very little hope of success. Tf one treats the present application somewhat differently as a fresh application for a stay, I would, as I have indicated, reach the same conclusion because I do not think that the fact that a petition may be lodged against the appellant is a sound reason for staying execution of a judgment against which there is an appeal with little hope of success. Accordingly, I would refuse the first application whether it be considered as in the nature of an appeal from Mr Justice Priestley or as a fresh application for a stay. The other application is for an order that the appellant be granted leave to amend the defence at a time after a full hearing of theclaim, the granting of leave to enter judgment and the filing of an appeal. 2 UNREPORTED JUDGMENTS There may be circumstances where an appellate court is both able to and will grant leave to a party to amend a defence, but this is not one of them. There is simply no basis on which in my opinion this Court could grant the leave sought. What the appellant puts forward in support of the application is his lack of legal knowledge. One must accept, of course, that he is not a trained lawyer and that he like other litigants in person suffers from considerable disadvantages in seeking to pursue his remedies in the court. These disadvantages may have been lessened slightly by the fact that he sought some legal advice, but there is no doubt that considerable disadvantage would remain. Notwithstanding, it seems to me to be clear that once judgment has been entered or leave has been granted to enter judgment it is too late for this Court to make amendments to the pleadings upon the basis, presumably, that no leave had been granted to enter judgment. Earlier I indicated that the Court may in exceptional circumstances make orders of the nature sought. Those circumstances, however, would arise only where there had been a full hearing of an appeal and it was felt that leave should be granted to one party to amend a statement of claim or defence to put the record strictly in order. An example is World Hosts Pty Ltd v Mirror Newspapers Limited, (1978) 1 NSWLR 189. There may be other very limited circumstances in which this Court could grant an amendment to a pleading of a court below, but, as I have already said, this is not a case in which this Court could or should do that. In my opinion, the application should be dismissed with costs. Handley JA. I agree. Sheller JA. I agree Clarke JA. The order of the Court is that the application be dismissed with costs. Orders accordingly.