NAGHTEN v NATIONAL AUSTRALIA SAVINGS BANK LIMITED; NAGHTEN v NATIONAL AUSTRALIA BANK LIMITED [1993] NSWCA 187

NAGHTEN v NATIONAL AUSTRALIA SAVINGS BANK LIMITED; NAGHTEN v NATIONAL AUSTRALIA BANK LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 28 June 1993

[1993] NSWCA 187

Sheller JA. These are applications by the appellants, Mr and Mrs Naghten, for a stay of the execution of writs of possession in two proceedings brought against them, one by the National Australia Savings Bank Limited and the other by the National Australia Bank Limited for possession of certain premises. In both these proceedings on 16 December 1992 Master Greenwood made orders for summary judgment for possession of the land. The appellants appealed from these orders. The appeal came on for hearing before Levine J who dismissed the appeal on 26 May 1993. The appellants have appealed from his Honour's judgment and order. This is an application for stay of execution pending the hearing and determination of that appeal.

On 9 June 1993 the Sheriff gave notice requiring the appellants to vacate the property. The notice of appeal was filed on 11 June 1993. In evidence given by affidavit by Mr Naghten the property, which is referred to as Bellbird Glen Stud, Little Valley Road, Mandalong, is said to be of an area of just under twenty-two hectares with a house inwhich the appellants live with their stepson. The property is apparently being run as a horse stud and has facilities for the spelling of injured and pre-training thoroughbred horses.

The claimants/appellants say that unless this stay is granted the appeal, even if successful, will be of limited value to them and further, that cross claims which they filed in the proceedings would be of limited value if they were to proceed. It has been agreed and I have ordered that both applications should be heard together and the evidence in one taken as evidence in the other.