BENECKE v THE NATIONAL AUSTRALIA BANK LIMITED [1993] NSWCA 24

BENECKE v THE NATIONAL AUSTRALIA BANK LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHoNney JA, HANDLEY JA and SHELLER JA 3 May 1993

[1993] NSWCA 24

Sheller JA. [No 2]

This is an application by the applicant, Mrs Benecke, that the orders of this Court made on 9 December 1992 and 22 April 1993 be stayed pending the determination of an application for leave to appeal to the High Court.

The general background matter I have referred to in the judgment that I have already given this afternoon. It is important to emphasise that these proceedings were proceedings challenging what the bank said was a settlement of proceedings before the Court and dealt with by Cole J in accordance with terms of settlement.

The major dispute between the parties was whether or not those terms of settlement were entered into with the consent of Mrs Benecke. Giles J carefully reviewed the evidence on that question which was a contest between witnesses called on behalf of the bank, and witnesses called on behalf of Mrs Benecke. Included amongst the witnesses called on behalf of the bank was counsel then appearing for Mrs Benecke.

His Honour's findings of fact were challenged in the Court of Appeal which refused to disturb them.

There was also a related issue as to whether or not it was open to the bank to call Mrs Benecke's counsel to give evidence against her. That question was also resolved against Mrs Benecke in the Court of Appeal.

The draft notice of appeal filed in the High Court, together with the application, has been placed before the Court. One of the grounds of appeal relates to the alleged failure to serve a notice under s 57 (2) (b) and the alleged defects in that notice. The other grounds of appeal relate to the truthfulness of the transcript and the evidence that was given by counsel who had represented Mrs Benecke before Giles J. A further ground related to what is described as Magna Carta and the Statute of Monopolies.