MACRI v WESTPAC BANKING CORPORATION [1993] NSWCA 168

MACRI v WESTPAC BANKING CORPORATION

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 12 July 1993

[1993] NSWCA 168

Mahoney JA. This is a matter which comes before the court initially for a stay of execution and subsequently for an order for expedition of the appeal. The matter was dealt with by Grove J in April 1993. His Honour gave judgment for Westpac Banking Corporation, the plaintiff, against the two defendants, the judgment being, as the affidavit evidence suggests, for an amount of some $455,000. The only substantial asset of the defendants, the present claimants, is a house which is the place of residence of themselves and their infant children. If the enforcement of the judgment is not stayed they say, and it is not denied, that the residence will be sold.

The application made is for a stay of execution upon the judgment and therefore sale of the family home pending the determination of the appeal. The appeal would normally not come on for hearing for some time. The appeal papers have not yet been settled but in all of the circumstances and without, I trust, creating a precedent, it seems to me that the presentis a case in which urgency in the hearing of the matter would be appropriate. I propose to order that the matter be dealt with the appropriate degree of priority.

Counsel for the claimants has given the court an undertaking on behalf of his clients that they will do all that is necessary to prepare the appeal papers and otherwise bring the matter on for hearing. If that undertaking is not complied with then, apart from any other consequences, the respondent bank may apply to the court on short notice, two days" notice, to set aside the orders which I propose to make.

Upon the basis that the appeal papers are settled with the appropriate degree of urgency I am told that a date may be given for hearing of the matter in September next. The parties have indicated that the hearing of the matter will occupy approximately one day. On that basis I propose to direct that the matter be dealt with urgently and that the matter be referred to the Registrar to fix a date in September for the hearing of the matter. He may take into account the convenience of the parties but, having regard to the circumstances of this case, should not be bound by that when he comes to fix the date for hearing.