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. Experience shows that in many of the cases falling within this broad class of case, honest debtors of a bank do not have the success upon their appeals that they would hope to have. In the circumstances, I am not prepared to grant an indefinite stay pending the hearing of the appeal. That could cause irredeemable prejudice to the bank in the event of the appeal being dismissed. On the other hand, I note that the bank is prepared to agree to a stay up to the end of January on the basis that that will give to the appellants an opportunity for an orderly departure from the property and reorganisation of the children's schooling. The contending interests of the parties seem to me to be legitimate on both sides so far as the stay is concerned, which is why it seems to me that expedition should be granted. I make an order for expedition. The date for hearing will have to be taken up with the Registrar in the ordinary course. At this stage, in the hope that the appeal will have been disposed of before 29th January 1996, I order that there be a stay of execution of the orders made on 29th September 1995 until that date when the matter can be 2 UNREPORTED JUDGMENTS dealt with in the Motion list if necessary. Whether or not the stay would then be continued if the appeal has not by then been decided will be a matter for the Court to decide on that day, in light of the circumstances then obtaining. I would propose, unless anybody wishes to argue about costs today, to reserve the costs of this application so that they can be disposed of by a Court in full possession of all the relevant circumstances. DONOHOE: May I raise one practical matter, that may be dealt with quite simply by reserving liberty to apply? What I apprehend is this: If for example the December date is not available, then the family would be in the position that they would not know their fate until the very last day of the 0 existing stay, and I am just addressing the possibilities that the Registrar discovers for some reason that it cannot be heard in December, we would wish to be able to come back and say well, the stay ought to at least go on to the end of February, or something of that character. I think perhaps the only order would be that liberty to apply perhaps on seven days notice. HIS HONOUR: Yes, very well. DONOHOE: Your Honour may need to say something about that so that it is clear that that was in contemplation. HIS HONOUR: Do you have any objection to that? BLAKE: No your Honour. HIS HONOUR: Mr Donohoe has raised with me what the position would be if the appeal is not heard in December. That could cause practical problems for the reasons he has mentioned. Because of that possibility, I add to the orders already made liberty to apply on two days notice. Orders accordingly.