TYREE vy CHALLENGE FINANCE LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY JA 31 July 1992 [1992] NSWCA 258 Priestley JA On Monday, 27 July 1992 Mr Tyree appeared before me asking for thefollowing orders in an appeal he has initiated against a judgment which Rolfe J, on 10 April 1992, gave leave to be entered against him: "1. That the April 10 judgement of Justice Rolfe be stayed. (or set aside). 2. That directions be given to the Respondent to supply the information requested in the Appellant's Notice to Produce dated March 26, 1992." I indicated that I would not make O.2, for reasons I then gave. I indicated also that on what Mr Tyree had put before me I saw no reason for granting a stay. Mr Tyree asked for time to put further submissions in writing. This request was granted, and the motion adjourned to today, 31 July 1992. Mr Tyree delivered his further written submissions to me, and I have read them. The proceedings before Rolfe J were brought by the plaintiff against Mr Tyree upon a guarantee he had signed. The guarantee was in evidence and proved. The amount owing was proved. The single issue before Rolfe J was one in respect of which the onus of proof lay on Mr Tyree. His defence was that at the time of signing the guarantee a representative of the plaintiff had said things to him which meant that in the events that happened the plaintiff would not seek to enforce the guarantee against him. The only proof suggested of this defence was Mr Tyree's account of the conversation with the plaintiff's representative. Rolfe J did not accept that a conversation in terms supporting the defence had taken place. The materials put before me show that no other conclusion was open to Rolfe J. Apart from other reasons, what Mr Tyree said in cross-examination at p 30 of the transcript of evidence of 3 April 1992, and what he said in the course of making submissions to the judge at p 33 of the transcript of 3 April 1992, made the failure of his defence a certainty. On what has been put before me, I can see no basis on which Mr Tyree's appeal has any hope of success. Mr Tyree has submitted that other evidence may be available which will support his understanding of the conversation he relies on and that the plaintiff wrongfully withheld that evidence at first instance. There is however no evidence before me that suggests the existence of any material which could overcome his inability to prove the conversation he relied on. In my opinion Mr Tyree does not have an arguable ground of appeal. I therefore do not think I should grant his application for a stay. Since writing the above there has been delivered to me a notice of motion by Mr Tyree seeking leave to amend his first instance defence. It is defective in form, but quite apart from that, I do not think I should exercise any discretion allowing it to be filed at this stage of the proceedings. 2 UNREPORTED JUDGMENTS The only orders which can properly be made on Mr Tyree's motions are, in my opinion, that they be dismissed with costs. Accordingly, the motions are dismissed with costs.