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. The bank has accepted — I do not wish to place the matter higher than is necessary — that there is a bona fide appeal and it has not suggested that the points to be argued are not arguable points. I do not wish to say that Mr Lee has gone further than is necessary in that regard, but he has not suggested that the points raised by Mr Lawler are not properly arguable. Whether they will succeed, of course, is another matter. I am appreciative of the fact that the bank is being kept out of possession of the property and, therefore, is unable, effectively, to sell it. I appreciate that the market may move up and down and that interest is accruing, with the result that the amount which the bank ultimately secures on sale, as a result partly of this stay, may leave amounts owing to it. But, in all the circumstances, I feel, as a matter of discretion, that there ought to be a stay until the hearing of the appeal or further order of this Court, so that the issue of whether the bank is entitled to possession and, accordingly, to exercise the power of sale and the like can be settled. Mr Lee has properly referred to the fact that nothing has been paid into court to warrant the grant of a stay. There is a distinction, even in these days, between an application to prevent execution of the power of a mortgage where validity of 2 UNREPORTED JUDGMENTS the mortgage is not seriously in question and a case where, as here, the validity of the mortgage is, in fact, in question. In the latter case, the appeal goes to the validity of the bank's claim to possession and, of course, to exercise power of sale. In thosecircumstances, even traditionally, orders for payment into court were not normally or ordinarily made. In the present case, if the applicants succeed upon their application to set aside the mortgage or have it declared unenforceable, then, of course, the bank will not be entitled either to possession or to sell. In all the circumstances, I feel that a stay of the kind to which I have referred should be granted. However, that stay should be granted upon the basis that there be paid to the bank an amount of $150 per week in the circumstances to which I shall refer, and that Mr and Mrs Page pay, from time to time, as they fall owing, the municipal, water and other local government rates payable in respect of the property. When I say 'local government', I mean to include water rates as well as municipal rates. The date for commencement of the payment of this particular amount of $150 should be today, so that the payment should be made in respect of the current week and the payment may be made in arrears; that is, at the end of the week. It will mean that, as of next Monday, the payment should be made in respect of the current week. Reference is made in the letter of 24 February 1995 to the payment of this amount by way of rent. Whether technically the amount is rent — LAWLER: Technically, that is not a correct description. HIS HONOUR: If you agree that this is a payment towards satisfaction of the mortgage, it may avoid any nice question as to whether the bank is in possession, or whether it is not. I will merely say that, although it is described as rent, it is agreed by the parties that the payment to be made will be payment to be taken into account in determining, as on a proper accounting between mortgagor and mortgagees, the amount ultimately to which the bank is entitled under the mortgage. The costs of this application I think should be reserved to the court that hears the appeal. I feel that if the appeal is successful, then the court may well desire to indicate that the bank should pay the costs of today. On the other hand, if the appealis not successful, that court may well be disposed to order Mr and Mrs Page to pay the costs. I think it better, therefore, that the costs be reserved to that court. Orders accordingly.