KLEISS vy COMMONWEALTH BANK OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA 2 June 1995 [1995] NSWCA 245 Priestley JA. This is an application for an extension of time for leave to appeal. There are two aspects to it. The first is the ordinary legal aspect. The claimant, Mr Kleiss, was formerly a customer of the Commonwealth Bank of Australia. The Bank claimed that he began to borrow in 1983 and came to owe nearly $300,000. Mr Kleiss denied the debt. The Bank brought proceedings, which came before Giles J. Mr Kleiss conducted his own case. Before Giles J the Bank led evidence supporting its claim. The amount claimed was made up of money actually advanced to Mr Kleiss, interest and charges. Mr Kleiss's case was that he had been in credit with the Bank by the end of 1984 (contrary to the Bank's assertion) and that from then on the Bank wrongly made debits to his accounts. In the way in which the case was conducted before Giles J, the Bank was in effect put to proof of a great many of the items composing the sum claimed. The Bank undertook that proof and Giles J considered each component of the total bill. He heard Mr Kleiss's evidence and his arguments. His conclusion was that the greater part of the Bank's claim was proved; he did not accept that $21,803 part of the Bank's claim had been proved. He entered judgment for $251,252, effective from 16 December 1993. He stayed execution for twenty-eight days from 23 February 1994. In conducting his own defence against the Bank's claim for money owing, Mr Kleiss raised a number of matters, basically alleging bad faith and deliberate attempts by the Bank to injure him, which may, if they had any substance, have been the basis of cross claims against the Bank, but which were not defences against the Bank's claim. On 17 November 1994 the Bank caused a bankruptcy notice to be served upon Mr Kleiss. On 8 December 1994 Mr Kleiss commenced proceedings in the Federal Court to establish a set-off, counter claim or cross demand. On 3 April 1995, Mr Kleiss filed the present application for an extension of time to appeal against the judgment of Giles J and for a stay of the judgment. The application has been opposed by the Bank. Mr Kleiss has conducted his own case. Mr Kleiss's explanation for the delay in seeking to pursue an appeal against Giles J's judgment was not very satisfactory. However, it seems to me that the substantial question in his application is whether, if he were given an extension of time, he would have any realistic chance of disturbing the judgment of Giles J in any way. If he had any chance of doing this, I would think that it would be appropriate to give him an extension of time for bringing his appeal, possibly on terms of various kinds. Regrettably from Mr Kleiss's point of view, I do not think that he has any realistic chance of any success in an appeal. 2 UNREPORTED JUDGMENTS The evidence before Giles J consisted of documents tendered by the Bank, oral evidence explaining the Bank's procedures, and oral evidence from Mr Kleiss. The documents tendered by the Bank showed how the accounts were compiled, and included the diary notes of Bank managers. They also contained letters from Mr Kleiss acknowledging indebtedness at dates when he claimed before Giles J that he had owed nothing to the Bank. One, dated 26 July 1986, and mentioned by Giles J seems to be consistent only with the propositions that at its date he had no dispute with the Bank about the amount owing and positively acknowledged it. Simply looking at the documentary material even without Mr Kleiss's written admissions, the Bank had a powerful case. Taken together with the admissions from Mr Kleiss the case became very powerful indeed. The remaining evidence was the oral evidence of Mr Kleiss himself. He made a number of assertions which if believed may have given him the glimmerings of a defence to the Bank's claim or part of it. However, the trial judge did not believe him. It was not because the trial judge thought that Mr Kleiss was deliberately trying to deceive the court with wilfully false evidence but because he had formed the view on the materials before him, including his observation of Mr Kleiss, that Mr Kleiss had come to believe that he had been badly wronged by the Bank, and that in reflecting upon the events that had taken place between him and the Bank had completely persuaded himself of a view of the sequence of happenings quite different from that which objective facts clearly disclosed. I see no prospect of success in any appeal against Giles J's judgment in any material before me. Mr Kleiss has said in this application that in the course of the proceedings concerning the bankruptcy notice in the Federal Court he has had the opportunity to see Bank documents not previously available to himwhich he believes will support his claim that the Bank was acting mala fide and with intent to injure him. In such of the documents that he refers to as I have seen there is nothing, even taking the view of them most favourable to him which would raise a defence to the Bank's debt claim. The Bank's case, accepted after painstaking findings by Giles J, is far too strong. Since I do not think that Mr Kleiss would have any success on an appeal if I were to extend the time for filing a notice of appeal, I do not think I should extend the time. That is, in my opinion, the proper legal result of the legal aspect of the case. The other aspect of the case is a practical one. In Mr Kleiss's final written submission before me, he described himself as being 'ill, unrepresented and without means'. These matters, because of the view I have formed about the fruitlessness of the appeal, are not relevant to my consideration of whether I should extend the time for appeal. If anything, they reinforce the conclusion that the court should not grant him further time to pursue what seems to the court to be a fruitless appeal which would merely involve further expense and distress to him. The question of his means is however a matter relevant to what sensible action the Bank should pursue against him henceforward. From material before the court it seems that the Bank's regular policy is to take bankruptcy proceedings against judgment debtors who do not pay, in order to see whether any assets may be available to unsecured creditors. While such a policy may be understandable in a general way, it would seem to be nothing but wasteful so far as the Bank, the debtor and the public time of the courts are concerned, for URJ KLEISS v COMMONWEALTH BANK OF AUSTRALIA (Priestley JA) 3 proceedings to be pursued against a debtor who it becomes clear has no assets, and will accept no help from others, anddeciding what to do next in the bankruptcy litigation, and in its future relations with Mr Kleiss. However, the result of Mr Kleiss's applications for an extension of time to appeal, and for a stay of judgment, is that they are dismissed with costs. Orders accordingly.