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. As I said, a settlement was reached in those proceedings on 29 June 1992 which included, amongst other things, that the bank had possession of property and leave to issue writs of possession forthwith, and judgment for $1,000,000. The challenge to this settlement failed before Giles J in proceedings which he heard in November 1992, and it failed on appeal to this Court from Giles J's judgment and orders. In my opinion the failure of those proceedings was not in any way related to the giving or otherwise of a notice under s 57 of the Real Property Act. That notice was entirely irrelevant to the proceedings which were commenced by the bank and settled before Cole J. Apart from anything else, those proceedings went ahead on the basis that there was no issue about the debt owing by Mrs Benecke to the bank beyond those matters that she sought to raise by way of cross claim. The proceedings were to obtain possession, not to exercise any powers under s 58 of the Real Property Act. Accordingly, in myopinion this application must fail. I do not see any basis upon which at this stage, the hearing of the appeal 2 UNREPORTED JUDGMENTS having been concluded and judgment given by this Court, Mrs Benecke should now be entitled to raise matters in regard to what, in my opinion, is an earlier issue, namely, whether or not a notice was given under s 57 of the Real Property Act. Accordingly, I would propose that the notice of motion be dismissed. Mahoney JA. I agree. The notice to which reference has been made in argument, which is annexure 'A' to the affidavit of Mrs Benecke of 2 May 1993, may be a notice going rather to the demand for payment than the sections in question. It appears to be a mixture of the two, but however that be, if and when the bank comes to exercise any power of sale in respect of the premises then it will have to consider its position in relation to the sections in question. But at the present stage I do not think that those sections have the kind of application which is sought to be invoked. I agree with the orders proposed. Handley JA. I agree with both the previous judgments. Orders accordingly.