PAGE v COMMONWEALTH BANK OF AUSTRALIA [1995] NSWCA 349

PAGE v COMMONWEALTH BANK OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 27 February 1995

[1995] NSWCA 349

Mahoney JA. This is an application which comes before the Court following a judgment having been obtained on 15 November 1994 in the Commercial Division. The bank lent money to a company and Mr and Mrs Page, the present applicants, gave the bank a mortgage of their home at Ryde to secure the indebtedness of the company. The bank claimed possession of their property and judgment for some $400,000. In the event, as appears from his Honour's detailed judgment of 15 November 1994, his Honour held that the bank was entitled to possession of the Ryde property and to the moneys claimed. His Honour gave judgment for $394,748.63, with liberty to the bank to apply for an amount in relation to additional interest. I understand that a writ of possession has been issued and the present application is to secure an effective stay of the order for possession and the matters incidental thereto until the appeal can be heard.

The principles on which the law acts in this matter have been discussed in other cases. I will not repeat them. I refer to what was said today by me in relation to that matter. In the end, the grant of stays often depends upon discretionary elements of abroad kind. This is a case of that kind. The applicants, Mr and Mrs Page, are, I will not say, elderly people, because their ages are only 69 or thereabouts. I should not wish it to be thought that people of that age are elderly. However, they have lived in the present house for many years and their income is not of a large order. Mr Page has indicated that he receives $454 net of tax per week from the superannuation fund and a part pension of $31 per week. Reference has been made in the evidence to the usual kind of medical problems that may be expected of a person who has reached that mature state.