SCHEIBNER v NATIONAL AUSTRALIA BANK LTD [1993] NSWCA 243

SCHEIBNER v NATIONAL AUSTRALIA BANK LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P 13 December 1993 [1993] NSWCA 243

PRACTICE & PROCEDURE — Court of Appeal — stay of execution of judgment — stay of writ of possession pending appeal — absence of evidence to provide proper basis for stay — necessity to provide evidence — stays not granted by the Court merely because asked for — necessity to consider apparent prospects of success in the appeal and balance of convenience between the parties — held: (1) Upon the material provided, no proper basis was afforded upon which to grant a stay; (2) Expedition ordered; (3) Motion dismissed.

Kirby P. Before the Court is an application for a stay of execution of a judgment entered by Ireland J on 24 September 1993. By that judgment, his Honour gave judgment to the National Australia Bank Limited (the opponent) for possession of two properties. He gave liberty to the opponent to issue a writ of possession in respect of each property. He ordered the claimant, Dr Viera Scheibner to pay the bank's costs of the proceedings.

The only material which has been placed before me by Dr Scheibner in support of her application to stay the execution of those orders is an affidavit in which she deposes to the fact that the Sheriff, on 2 December 1993, acting pursuant to the orders of Ireland J, served tenants in each of the two properties with notices to vacate not later than noon on this day.

The purpose of the application now before me is to provide relief to Dr Scheibner and by inference, to her tenants, against the pursuit by the Sheriff of the orders authorising the issue of the writ of possession.

The affidavit indicates the great inconvenience to the claimant and to her tenants which would be involved in the execution of the writ of possession. I fullyaccept such inconvenience. However, the execution is authorised by the judgment of Ireland J. That is a valid judgment. It has not been set aside although Dr Scheibner has appealed to this Court to secure such an order.