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. The claimant is prepared to give an undertaking, which I will spell out in due course in more detail, not to dispose of assets. I have indicated that if a stay is granted the hearing of the appeal will be expedited for hearing on 9 March 1994. While I do not on my limited understanding of them find the grounds of appeal suggested, or for that matter the matters of defence raised before Cole J, compelling, I am of the opinion that the claimant is entitled to pursue them uninhibited by the intervening enforcement of the judgment with the possibility of prejudice to the claimant if he ultimately succeeds in his appeal. On that basis I am prepared to grant a stay of execution. Upon the claimant undertaking not to dispose of assets otherwise than in the ordinary course of business and to ensure that payments are made as required by the first mortgage over the premises at 53 Hunter Street, Hornsby, a further undertaking within 14 days of today's date being provided to the opponent with copies of his bank statements for the period commencing | May 1993: I make O.1, O.2 and O.3 with the alteration that O.1 should read "be stayed pending the determination of the appeal hearing" in the Notice of Motion. 2 UNREPORTED JUDGMENTS I order that the hearing of the appeal be expedited and that it be listed for hearing on 9 March 1994. I order that the claimant file and serve the appeal books on or before 31 January 1994. I order that the claimant file and serve written submissions on or before 25 February 1994. l order the opponent to file and serve written submissions on or before 4 March 1994. The costs of this application will be costs in the appeal. Tadd to O.1 "provided that this order shall not prevent the opponent presenting a petition for the sequestration of the claimant's estate but taking no further steps therein". Counsel are given such leave as is necessary to approach the Registrar for settling of the appeal book and to make such application as to the form which the appeal book should take. If there is any problem about that counsel may approach me in Chambers. I note the claimant gives the undertakings and that the claimant is in Court.