SCHNEIDER v NATIONAL AUSTRALIA BANK LTD [1995] NSWCA 420

SCHNEIDER v NATIONAL AUSTRALIA BANK LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 6 February 1995

[1995] NSWCA 420

Priestley JA. In this matter I have taken the view, somewhat to the disregard of the submissions put to me by the representatives of the parties, that the matter is not in proper shape for determination this morning and that it is one where it is of some importance that the Court, in deciding if to grant the stay that Mr Schneider asks for or to refuse it, does so on the basis of the necessary relevant materials. Those include the reasons for the orders made by Windeyer J against which the appeal is brought and a notice of appeal, the grounds of which are related to the reasons upon which Windeyer J based his decision. To enable that to be done I indicated to the parties, and now implement that indication, that the matter should be stood over for a fortnight, to 20 February this year, and that in the meantime I think it preferable that a formal stay be granted of any further execution of the orders made by Windeyer J.

That being so, in the absence of the availability to Miss Gerathy of instructions from her client on the matter, the stay is purely a temporary one in order to preserve the situation until it can be properly disposed of on 20February and is made only until that date. The stay does not prevent the Bank and its advisers taking such steps as between themselves and within the Bank to have documentation ready for use in the process of exercising power of sale if on 20 February the application for a stay is refused.

It is not completely clear to me today where the fault lies for matters not being ready today and because of that I will reserve today's costs until the decision of the notice of motion, which I anticipate should be on 20 February 1995. To that end I recommend that the Reporting Services Branch, if at all possible, make available to Windeyer J for his correction a transcript of his reasons given for Judgment in sufficient time for him to be able to have them corrected and, if necessary, re-engrossed for availability on 20 February 1995.