BENECKE v THE NATIONAL AUSTRALIA BANK LIMITED [1993] NSWCA 23

BENECKE v THE NATIONAL AUSTRALIA BANK LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHoNney JA, HANDLEY JA and SHELLER JA 3 May 1993

[1993] NSWCA 23

Sheller JA. [No 1]

This matter was listed before a single judge of the Court as an application for a stay pending the disposal of an application for special leave to appeal to the High Court. The matter came on before me sitting as a single judge this morning. I was told that the application for special leave had been filed in the High Court this morning.

When the matter was called on before me Mr Hoins, who I allowed to speak on behalf of the applicant, Mrs Benecke, filed a further notice of motion on her behalf in which she applied for an order that this Court discharge the orders that it had made as a result of the hearing of the appeal by Mrs Benecke against the opponent, National Australia Bank.

This application was said to be based on fresh evidence, wherein Mrs Benecke denied that a notice had been given by the opponent bank under s 57 (2) (b) of the Real Property Act 1900.

It seemed to me that as these were proceedings with which I sitting as a single judge could not deal, the matter should be referred to a Court comprising three members, and it is in that way it has come on this afternoon.

The proceedings with which the Court was concerned in the appeal related to a challenge made by Mrs Benecke to terms of settlement made in proceedings between the bank and Mrs Benecke on 29 June 1992. The proceedings so settled were instituted by the bank seeking possession of certain properties owned by Mrs Benecke and mortgaged to the bank as security for loans made by the bank to her. As appears from the principal judgments given in this Court by Clarke JA in those proceedings there did not seem to be any issue as to the amount of the debt owing to the bank, but Mrs Benecke raised a number of matters by way of cross claim.