PIANTA and ANOR v NATIONAL AUSTRALIA BANK and ORS [1994] NSWCA 253

PIANTA v NATIONAL AUSTRALIA BANK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and CLARKE JJA 22 June 1994, 22 June 1994 [1994] NSWCA 253

APPLICATION for extension of time to file appeal and for stay of orders pending appeal — No sufficient explanation of failure to lodge appeal in time — No appropriate likelihood of success in appeal to warrant orders. JUDGES — Duty to enforce the law — Otherwise judiciary will be seen as arbitrary in operation.

Mahoney JA This is an application brought on motion seeking two orders: first, that the time be extended to institute an appeal against a decision of Hodgson J handed down on 2 September 1993; and, secondly, that a writ of possession issued in the Supreme Court in that proceeding be stayed, that is, I assume, the execution of it be stayed pending the hearing of the appeal.

The motion was filed, it would appear, on 21 June 1994, that is, yesterday, and arrangements were made to bring it before the court as a matter of urgency, upon representations made to the court; the court was informed this morning that the urgency derives from the fact, it is said, that the writ of possession is to be executed or enforced at noon today.

The facts, as far as they appear from the material which is now before the court, may relevantly be summarised as follows. In January 1989 the Messrs Pianta (as I shall call them for brevity) purchased the subject property for some $240,000 and, it would appear, overdraft facilities were extended in an amount of $30,000.

Subsequently, some months following the purchase, other properties were sold and it is said by Mr Joseph Henry Pianta, whose affidavit of 17 June is before the court, that amounts of some $133,000 were repaid. That, on a rough calculation, would leave a capital indebtedness of some $87,000 and, of course, amounts outstanding for interest.