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. The property subject to the order for possession is valuable. While there is some debate as to its precise valuation, this seems to be probably at the least just under $1,000,000. Apparently the earnings from the use of those properties are at the present time being enjoyed by the applicant. In my opinion, having carefully considered the ground put on behalf of this application, and the judgments both of Giles J at first instance and of this Court, I do not regard there as being any real prospect of success on the application for special leave to the High Court. I realise that it is not a matter upon which this Court should ordinarily speculate but it seems to me that this is a powerful case for saying that leave is likely to be refused. It seems to me that, bearing in mind the grounds of appeal relied upon, bearing in mind that in substantial measure the matter went off on the basis of the acceptance by Giles J of particular evidence, thatacceptance being upheld in this Court, and bearing in mind the grounds relied upon as matters of law, this is not a case in which this Court should grant the stay applied for. 2 UNREPORTED JUDGMENTS Accordingly, I would propose that this application be refused. Mahoney JA. I would agree and I would only add this. The application for leave to appeal is, it has been said today, to be supported by reference to other and additional matters which have not been before this Court in any of the proceedings. Whether it is open to a party to support an application for leave to appeal to the High Court in that way is a matter which, of course, the High Court will have to determine but, dealing with the application by reference to what appears before this Court at the moment, I would agree, within the principles which the High Court itself has established, this is not an appropriate case for this Court to grant leave to appeal. I would only add by way of completeness, and not by way of invitation, that it is of course open to any party who has made an application for leave to appeal to the High Court to apply to the High Court for a stay. I do not suggest, in saying this, that the High Court would, on the facts now before this Court, be any more likely to grant a stay than this Court has been, but I record that fact so the position may be clear. I agree with the order proposed. Handley JA. I agree with both the previous judgments. Orders accordingly.