MILLER v BONYHADY [1995] NSWCA 294

MILLER v BONYHADY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER JA 9 October 1995

[1995] NSWCA 294

Sheller JA The claimant, Charles Harold Miller, applies by amended summons dated 5 October 1995 for an extension of time within which to file a notice of appeal from a decision of Master Macready given on 22 August 1995. The claimant also, by notice of motion dated 4 October 1995, seeks a stay of execution of a writ of possession of unit premises situate at 12/35 Jeffrey Street, Canterbury, pending determination of the appeal.

The opponents, Eric and Vera Bonyhady, oppose both applications substantially on the basis that any appeal would be hopeless.

The application is supported by an affidavit of Mr Miller filed in the Common Law Division of 21 September 1995 and an affidavit of Mr Miller filed in this Law Division of 21 September 1995 and an affidavit of Mr Miller filed in this Court of 4 October 1995. Court of 4 October 1995.

The opponents rely upon an affidavit of their solicitor, Mr Schneider, filed in the Common Law Division of 22 September 1995 and an affidavit of Mr the Common Law Division of 22 September 1995 and an affidavit of Mr Schneider filed in Court of 9 October 1995.

The dispute between the parties arises from a loan made by Mr and Mrs Bonyhady to Mr Miller in April 1993. The loan which was secured by way of first mortgage over the unit premises was repayable on 30 April 1995. Default occurred in interest payments. Proceedings for possession and other relief were commenced on 31 August 1994 and served on Mr Miller on 7 September 1994. commenced on 31 August 1994 and served on Mr Miller on 7 September 1994.

On 21 September 1994 he filed an appearance. On 7 October 1994 judgment for possession and payment of $96,040.58 was entered by default against him. On 21 October 1994 a writ of possession issued in respect of the judgment. On 27 October 1994 a notice to vacate issued to the defendant.