EVANS v CBFC LIMITED [1993] NSWCA 90

EVANS v CBFC LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KiRBY P, HANDLEY JA and POWELL JA 22 November 1993

[1993] NSWCA 90

Handley JA. CBFC Limited, is the registered proprietor of a mortgage under the Real Property Act over the country property known as Colmena near Boorowa which is the subject of these proceedings. On 11 March this year Hunt CJ at CL made orders entering judgment for possession of Colmena against the present claimants, Mr and Mrs Evans, and their company Tresare Pty Ltd He also entered judgment against Mr and Mrs Evans for the balance of the debt secured by the mortgage.

Mr and Mrs Evans and Tresare appealed as of right to this Court and have applied for a stay of execution on the judgment for possession pending the hearing of the appeal.

On 8 November 1993 Meagher JA refused a stay of execution and dismissed the claimants" motion but gave no reasons. The claimants have now applied to a Full Court under s 46(4) of the Supreme Court Act to vary or rescind the order made by Meagher JA. In my opinion, and with all respect to Mr Evans who had the usual difficulties of a practitioner appearing for himself, this is a hopeless application.

Mr Evans told this Court that $260,000 out of the secured advance of some $300,000 made by the opponent in 1985 was used to pay off prior registered mortgages over the property in favour of a credit union and the National Westminster Bank. He sought in a number of ways to challenge the transaction with the opponent either for fraud or under the Contracts Review Act. The defence or cross-claim for fraud has never been properly pleaded or particularised. This is required by long-standing ethical and legal practice which is now embodied in the rules of this Court. The reasons for this practice were referred to by the High Court in Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1989-90) 169 CLR 279 especially at 285-296.