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. As I have explained to Dr Scheibner, Ireland J's judgment is in force until it is lawfully set aside relevantly by an order of this Court. The filing of the notice of appeal does not provide a stay. A person who is the subject of an adverse judgment must seek an order of stay of execution of that judgment. That person must provide grounds to the Court which indicate that it is appropriate in the circumstances to order the stay. (Alexander & Ors v Cambridge Credit (In Liquidation) Receivers Appointed (1985) 2 NSWLR 265 (CA) Those grounds typically include a consideration of the merits of the matter, the prospects of the appellant in the appeal and the convenience as between the parties. Stays are often granted to ensure that the appeal is not rendered a futility by the prior execution of the judgment before the appellate court has had time to review it. The Court is required to pay respect to the judgment of a judge of the Supreme Court. Such judgment, and the orders involved in it, are not to be set aside, or stayed, simply for the asking. 2 UNREPORTED JUDGMENTS When I explained the difficulties presented for the application for a stay by the terse and brief nature of the affidavit which was filed, I was handed without objection the judgment of Ireland J. I have read that judgment. The judgment indicates that the dispute between the bank and Dr Scheibner relates to moneys secured pursuant to mortgages which were executed by Dr Scheibner over land which stands in her name. The judge faced applications for relief from the established debt to the bank based upon the provision of the Trade Practices Act, s 52, the Fair Trading Act, s 42, and the Contracts Review Act, s 7. He rejected each of those applications for relief. The notice of appeal which is in the file, and which I have also read without objection, appears to indicate that his Honour's determination in this regard will be challenged in the appeal. I have been informed this morning that it is the intention of Dr Scheibner to move the Court to enlarge the grounds of appeal to raise further grounds which challenge the power of sale which is claimed by the bank. It is asserted that this ground was canvassed in the trial. I do not see references to it in the reasons of Ireland J. If it was not canvassed at the trial it will nonetheless be raised in the appeal. If all that is required is the determination of a question of law concerning the proper construction of the Real Property Act and of the mortgages which were in evidence in this case, the Court might permit the amendment although the point was not run at the trial. This will remain for the future. In the meantime, the central grounds upon which Ireland J rejected the claim for relief of Dr Scheibner appear to be found in the following passage in his Honour's reasons: ... I find that the defendant, who is a highly intelligent woman with a doctorate in the natural sciences, and who shows a clear grasp of technical material and of the English language, knew that the documents she was signing on 22 March and 28 March 1988 were mortgages; that mortgages are a means of securing borrowings and thereby guaranteeing the borrower's obligation to repay capital and interest, and that these particular mortgages secured the amount owing to the Bank at the relevant times; that the properties could not be disposed of until the loans securing the mortgages had been repaid; and that if the lender were not repaid, that lender would have the right of recourse to the property, to enter it, possess it and sell it. I would form an identical impression to that which Ireland J records there, although my encounter with Dr Scheibner has been much briefer that his Honour's. It is clear that Dr Scheibner is an intelligent woman. Her command of the English language appears to be perfectly adequate for the purposes of these proceedings. I hope that such command has permitted her to understand that it is she who must prove the entitlement to a stay. That she must do so on material much more ample than has been placed before this Court today. And that, even if such material be taken to be elaborated by the facts set out in the judgment of Ireland J which I have read (ie the facts in that judgment accepted as facts in the application), the application for a stay falls far short of establishing a basis uponwhich the Court could lawfully and properly provide a stay of execution at this stage. Nevertheless, because Dr Scheibner appears in person and because the matter is of great importance to her, it is appropriate that I should order a measure of expedition of the hearing of her appeal. In that way, one way or the other, her position and that of the bank will be finally determined as quickly as possible. The bank raises no objection to such an order. I therefore order expedition, category B, to the intent that the appeal will be heard in February or March 1994. I note that the matter is shortly for callover before the Registrar for the purposes of the preparation of the appeal books. The URJ SCHEIBNER v NATIONAL AUSTRALIA BANK LTD (Kirby P) 3 order for expedition will, of course, depend upon compliance by Dr Scheibner with the directions of the Registrar in that regard. It is possible that the bank, faced with an appeal to be heard early in the new Term, will take that fact into account in the pursuit of its legal rights under the judgment of Ireland J. However, that will be a matter entirely for the bank. It is not a matter upon which I would say any more. It is certainly not a matter upon which I would make an order sought on the evidence now before me. The bank is a large corporation. In the event that Dr Scheibner were to succeed in the appeal, no doubt orders can be fashioned by the court which, so far as is possible, would put her in the position of the status quo ante. The hearing is expedited as stated. However, the motion for a stay is dismissed with costs. 1. Order expedition of the hearing of the appeal category B to the intent that the appeal will be heard in February or March 1994 on a date fixed by the Registrar; and 2. Motion for a stay dismissed with costs. Counsel for the claimant: In person Solicitors for the claimant: In person Counsel for the opponent: M Walton Solicitors for the opponent: Dibbs Crowther and Osborne