ARBEST Pty Ltd and ORS v STATE BANK OF NEW SOUTH WALES [1994] NSWCA 6

ARBEST PTY LTD v STATE BANK OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY J 24 March 1994, 24 March 1994

[1994] NSWCA 6

Mahoney J This is an application which comes before the court as a matter of considerable urgency. It involves issues of a little complication and I would ordinarily have preferred to reserve my decision to ensure that all of them were adequately referred to in my judgment. However, the basis of the application is that an auction is to take place in respect of the property in question tomorrow and it is necessary therefore that I give judgment immediately.

The application is an application on motion for two things: for a stay of execution of the sale of the relevant property, being property at 3A Chatham Road, West Ryde and for an injunction restraining the respondent, the State Bank of New South Wales, from taking further steps to effect a sale by auction or private treaty of that property.

In the circumstances the application for stay of execution is, of course, inappropriate and has not, I think, seriously been pressed. It is the application for injunction which is the matter to be determined.

The background of the matter is important and I shall state it as shortly as may be. Mr and Mrs Patsiadas have been apparently successful in acquiring over a period considerable real estate. As at 1 May 1989 they were registered proprietors of five separate properties in various parts of Sydney and suburbs, the details of which are listed in the affidavit of Mr Patsiadas of 23 March 1994. I am informed by Mr Cowdroy QC, for the applicants, and I shall assume, that in the course of acquiring and developing a property at Yagoona arrangements were made to borrow moneys from the respondent bank. It was proposed, it is said, to develop that property; moneys were advanced to purchase it; steps were taken towards development; the bank decided it would not advance moneys, or relevant moneys, for the development; and, as a result of that, Mr and Mrs Patsiadas and the company in question, Arbest Pty Ltd, fell into financial difficulties. It is not necessary to pursue the details of that further.