MILLAR v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD [1995] NSWCA 293

MILLAR v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA

23 October 1995

Priestley J. This is an application for a stay of proceedings upon terms. The claimant is the appellant and has suggested terms which are largely acceptable to the opponent/respondent bank.

The contest between the parties is the length of the stay. The bank says the stay should not go past 29th January 1996, which as it happens would be the first Motion day in this Court next year. The bank says that the amount offered to be paid pursuant to the terms upon which the claimant seeks the stay will not be enough to meet what is due under the bank securities in the meantime upon the assumption that those securities remain valid at the conclusion of the appeal.

The parties did not seek expedition of the hearing of the appeal but this case seems to me to be one where expedition should be granted. On the one hand, you have the opponent bank with its resources and its rights under its security documents, upheld to this point at any rate by Mr Justice McInerney. On the other hand, there are individuals involved living on a property with a family who, if their appeal fails, will undoubtedly have to leave the premises in circumstances causing family disruption, particularly in

relation to their children's schooling. If their appeal succeeds, it is by no means clear what the precise result would be in money terms because there are various permutations and combinations upon which the appeal might succeed in part.

For the parties to be forced to leave their home while the legal position still remains cloudy could be a real hardship to them, even if their prospects on appeal may be thought to be doubtful.

In saying that, I am not making any observation about the actual prospects of these parties but it seems undisputable that by them, or their company, a considerable amount of money is owing to the bank and will remain owing, no matter what happens to the relevant securities, although the amount owing may change significantly if the appeal is successful.