COMANOS v WESTPAC BANKING CORPORATION [1993] NSWCA 69

COMANOS v WESTPAC BANKING CORPORATION

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 10 May 1993

[1993] NSWCA 69

Sheller JA. The applicants, George Comanos and Jennifer Mary Comanos, on 29 March 1993 filed a notice of appeal against decisions in favour of the opponent, Westpac Banking Corporation, given by Palmer AJ on 5 December 1991 and Cole J on 26 March 1993.

The applicants at the same time filed a notice of motion seeking a stay of Cole J's judgment pending the disposition of the appeal. This application was opposed substantially on the basis that there was no real prospect that the appeal would succeed.

When the matter came on for hearing on 3 May 1993, Mr Stephenson, who appears for the opponent, submitted that if a stay were to be granted, it should be on the basis that the applicants pay what was said to be an amount of admitted personal indebtedness to the bank, some $98,000. The question as to whether this personal indebtedness was still owing or had been discharged out of proceeds of sale by the bank of a house property was raised by Mr Comanos who sought to cross examine a deponent of an affidavit filed on behalf of theopponent, asserting that the amount of some $98,000 was due on this account.

In order to give Mr Comanos the opportunity to cross examine this bank officer, the matter was adjourned to today. Today a further affidavit was filed by Mr Layt. This affidavit was read and Mr Layt was cross examined. Mr Stephenson, for the bank, fairly referred me to a number of matters which throw at least some doubt on the extent of the personal indebtedness under this particular account to the bank. Accordingly, I indicated that if I was otherwise prepared to grant a stay, I would not be prepared to impose the condition which had been suggested by Mr Stephenson. On that basis, Mr Comanos agreed not to pursue the cross examination of another bank officer, Mr Chand.