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. In those circumstances I think it is appropriate that a stay of execution be granted. Counsel for the bank, in support of the submission that the appeal is quite unlikely to succeed, has pointed with some force to the terms of the judgment of Grove J on 22 April 1993. Without cataloguing all of the matters that he has put, it has been suggested that it is quite unlikely that the appeal will succeed. The findingsby the judge, particularly on fact, depend upon the demeanour of the witnesses before him. There is considerable force in that submission having regard to the terms in which the learned judge made his findings. 2 UNREPORTED JUDGMENTS However, I am not completely satisfied that there is no real prospect of success of the appeal. I do not say that by way of a judgment in favour of the appeal. But it may be that, to take an example, relief under the Contracts Review Act may be available to the appellants notwithstanding what the judge has said. At the moment I am not in a position to make a definitive assessment of that aspect of the matter. Therefore in the circumstances, having regard to the fact that the appeal has been expedited, I think it is appropriate to grant a stay of execution on the judgment pending the determination of the appeal and I grant such a stay. I have indicated that the bank may make an application to the court on short notice should events occur which make it appropriate for it to do so. Those events may include matters affecting, for example, the availability of security for the purpose of meeting its debt. In doing so, I do not indicate my opinion that the bank should lightly apply for a variation of the orders which I indicate that I will make. But I reserve the possibility of an application in the event that the circumstances are sufficient to warrant the granting of the application. The orders I make are: the hearing of the appeal be expedited; the matter be referred to the Registrar to settle the appeal papers and to fix a date for hearing of the appealin September next. I grant a stay of execution on the judgment until the determination of the appeal or further order. I reserve liberty to each party to apply on two days" notice. The costs of the applications today are reserved to the court dealing with the appeal. Orders accordingly.