WATT v STATE BANK OF NEW SOUTH WALES [1993] NSWCA 283

WATT v STATE BANK OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER JA 7 December 1993

[1993] NSWCA 283

Sheller JA This is an application by notice of motion by Oswald Gilchrist Wattthat there be a stay of execution of a judgment given by Cole J on 27 October 1993 pending the hearing of the claimant's appeal.

The matter carne on for hearing before me on 29 November 1993 when I read affidavits of Mr Watt and an affidavit on behalf of the opponent, the successful plaintiff, the State Bank of New South Wales. The matter was adjourned to today's date to give the claimant an opportunity to furnish further information to the Court which the claimant has now done in an affidavit of 3 December 1993.

The judgment against the claimant was in the sum of $2 million and costs and also a judgment for the plaintiff for possession of land at 53 Hunter Street, Hornsby with leave to issue a writ of possession.

The claim was based upon guarantees given by the claimant and a personal covenant in a mortgage in favour of the opponent over the land at Hunter Street, Hornsby. It is, I think, unnecessary in the circumstances for me to go in detail to the background which gave rise to these claims.

During the course of argument I was taken to Cole J's judgment. I was also informed that his Honour had refused an application for a stay of execution. Since judgment was given there has been correspondence between the solicitors for the parties concerning whether or not there should be a stay, and in the course of that correspondence the opponent's solicitors sought information about the current asset and liability position of the claimant and asked questions about whether there had been a disposal of assets.

The response to these requests in the correspondence was not to my mind satisfactory. However, as I have said, most of this information has now been provided in affidavit sworn by the claimant.