NAGHTEN v NATIONAL AUSTRALIA SAVINGS BANK LIMITED; NAGHTEN v NATIONAL AUSTRALIA BANK LIMITED [1993] NSWCA 186

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

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 7 July 1993

[1993] NSWCA 186

Sheller JA. On 28 June 1993 I refused an application then made on behalf of the appellants in both these matters for a stay of execution of a writ of possession pending the hearing of the appeal. I then indicated my reasons for taking that step.

After I had done so, an application was made for a stay for a shorter period to enable orderly vacation of the premises. I indicated in the reasons then given that I was not prepared to entertain that application at that point of time in the circumstances. However, I also indicated that if the appellants wished to make such an application I would be available to deal with it.

Today an approach was made to me to deal with an application by the appellants. I sat to do so at 3.45 pm when Mr Reuben, who appears for the appellants, filed in Court a Notice of Motion returnable instanter seeking an order that the execution of the writ of possession be stayed. As I understood the submission, that was to enable orderlyvacation from the property. In support of this application an affidavit by Wayne Vincent Annis-Brown was filed. The application is opposed by Ms Gerathy who appears for the Banks.

The evidence indicates that since 28 June there has been some negotiation between the parties in relation to a possible refinancing of, or some of, the money owing by the appellants to the Banks. Included in this negotiation was an offer by the appellants to act as caretakers of the property. It is apparent that this offer was rejected on 30 June 1993.

There is no evidence at all to support the claim now made that further time is required for orderly vacation from the property. Insofar as there is any problem in this regard, it seems to have resulted from no steps having been taken since 28 June to vacate the property. Insofar as an application is now made to enable the appellants to put on further evidence, there is, to my mind, no reasonable explanation for this not having been done in time for it to be considered by the Banks and dealt with by me in the ordinary course.