ARNOYA HOLDINGS PTY LIMITED v METWAY LEASING LIMITED [1995] NSWCA 22

ARNOYA HOLDINGS PTY LIMITED v METWAY LEASING LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 18 September 1995

[1995] NSWCA 22

Priestley JA. This is an application for a stay of a judgment which the second mortgagee obtained earlier this year against three parties apparently, two of whom were Mr and Mrs Campbell. One consequence of the orders made by the Court in the earlier judgment is that the judgment creditor has been able to issue a writ of possession which when executed will give possession to the judgment creditor, the second mortgagee, of the house in which Mr and Mrs Campbell are living. Mentioned in various places in papers that I have seen is the fact that Mrs Campbell is ill and also that Mr Campbell has had periods of ill health in the course of this litigation.

As frequently happens in these cases the people living in the house are very anxious not to be turned out of their home. That led to an application for a stay of execution being made to Mr Justice Sheller in July 1995. He gave judgment on 17 July. In the course of his reasons he set out the very adverse financial position of Mr and Mrs Campbell at the present time. He also cameto the conclusion after examining the grounds of appeal which had been filed against the judgment of Mr Justice Barr that he did not regard their appeal as having any real chance of success. He took into account other matters proper to consider in the course of exercising discretion whether or not to grant a stay of execution and refused to grant a stay.

Since then negotiations have been going on between Mr and Mrs Campbell and the second mortgagee. Some of the details of those negotiations have been put before me and it appears that what has been going on is an attempt to reach some practical solution to the predicament in which Mr and Mrs Campbell find themselves. The parties have not been able to agree.