GRGIC v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA 8 March 1993 [1993] NSWCA 124 Priestley JA. The matter of Frano Grgic v Australia & New Zealand Banking Group Ltd has come before the court again today after previous occasions when the facts of the matter were recorded in a general way, particularly by Mahoney JA in short reasons which he gave in October last and again on 15 February this year. The situation boils down to one where the bank obtained judgment against a mortgagor in respect of moneys secured by the mortgage to the mortgage bank. At a trial before Lusher J the mortgagor claimed that his signature to the mortgage, and I gather some other document or documents, had been forged. This contention was rejected by Lusher J. It appears to have been one of the main issues at the trial. The mortgagor has appealed and proposes to seek the court's leave to rely on further evidence at the hearing of the appeal beyond what was given at the trial. This evidence will, at least in part, it is said, be given by persons who will say that they took part in or knew of the forging of the mortgagor's signature and the deception of the bank into thinking that a particular person, not the mortgagor, was in fact the mortgagor. Proceedings against the mortgagor's son, and relating to the alleged forgery, have been taken. He has pleaded guilty and is to be sentenced or hissentence rather is listed for 19 March. The daughter-in-law of the mortgagor will be before the court on charges associated with this matter on 24 March. A third person was charged in August 1992 and may be further charged with matters related to the alleged forgery. While these matters are outstanding, it seems difficult to fix a date for the hearing of the appeal. Reasons mentioned in the past have been the possibility of persons pleading or claiming privilege from self incrimination in evidence before this court. A further factor is the desirability in general terms of having the criminal matters disposed of before the same subject matter is in detail in the civil proceedings. In recent years that general principle has been greatly eroded but in the circumstances of this case it seems to me to be appropriate to heed it if at all possible. There are three persons against whom criminal charges or sentencing are outstanding at the moment. In regard to two of those it seems quite likely that the criminal proceedings will have come to an end within the next few weeks. In regard to the third person, whose name is Mr Sierra, the position as to when the proceedings against him will be completed is quite uncertain. I have indicated to the parties that the appropriate thing to do in my opinion is to adjourn the matter to 5 April with the following considerations in mind. On 5 April it may well be possible to give directions to the appellant about filing the affidavit evidence which is proposed to be the subject of the application when the appeal comes on. The directions would supersede the operation of r 2 UNREPORTED JUDGMENTS 13A of Pt 51 of the Rules of the Supreme Court, or, if not superseding the operation of that rule, would certainly supplement its operation. If directions can be given and if the criminal proceedings against the son and the daughter-in-law have come to conclusion, the court may well consider fixing a date for hearing of the appeal notwithstanding that the position in regard to Mr Sierra remains uncertain. This possibility might ripen into actuality if the court were persuaded that the appellant would be able to conduct the appeal in a way enabling the appellant to call all necessary evidence (if given leave to do so) notwithstanding the position concerning Mr Sierra. It may be on the other hand that matters will have developed in regard to Mr Sierra in such a way as to make the court feel that until the position concerning him is further clarified it would be better not to fix a hearing date. The respondent to the appeal has now been in possession of judgment against the appellant for a long time and wishes to have the matter concerning the mortgage, and if not the mortgage at least the amount owing to it, brought to conclusion. At present the judgment is stayed and the respondent has made it clear on a number of occasions that it wishes to have the stay lifted if the appeal cannot be heard within a reasonable time. On previous occasions it has been mentioned that although what would happen upon the hearing of the application to remove the stay was not in any way being prejudged, and it might be that the respondent would not succeed in its application to have the stay removed, nevertheless the respondent is entitled to have the application for removal of the stay heard. After discussion today counsel for the bank indicated the bank would not be seeking to have the application for the stay heard on 5 April next but would on that day, if it did not appear that the appeal could be fixed for hearing within some reasonable time, be asking for a day in the near future for the hearing of its application to remove the stay. So the matter is being stood over with the view first to ascertaining the position on the next occasion concerning the practicality of setting the appeal down for hearing; second, depending on what happens in regard to the first matter, the consideration of directions to the appellant concerning the filing of affidavitevidence; third, considering the possibility of hearing an application to remove the stay of judgment at a date then to be fixed. Other matters were discussed which I do not propose to record in detail. I should mention that there was a brief submission, brief because I indicated that I did not think I should decide it today favourable to the bank, that the matter raised by the bank's notice of contention in answer to the notice of appeal should be heard separately from the balance of the appeal. It was said that the question of the indefeasibility of the mortgage even if the mortgagor's signature were forged could be dealt with quite separately from the rest of the appeal. I indicated that I doubted whether that was necessarily so and that if there were to be further evidence heard in the appeal, the factual situation could possibly change in regard to the bank's position in regard to possible notice either of the forgery or of circumstances which might or should have alerted the bank to something being wrong in what was happening on the day when the alleged impersonator was introduced to the bank officer. In saying what I have said I am not indicating a final view about the notice of contention but my provisional view was it was unsuitable for the matter to be heard separately from that of the main appeal. URJ GRGIC v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD (Priestley JA) 3 I will reserve the costs of today and stand all matters over to 5 April 1993. Orders accordingly.