COCKBURN v GIO FINANCE LIMITED [1995] NSWCA 81

COCKBURN v GIO FINANCE LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 10 April 1995

[1995] NSWCA 81

Sheller JA. The second respondent and the second opponent Mr McNally, brought proceedings against the claimant and cross appellant, GIO Finance Limited and the appellant and first opponent, which I will refer to compendiously as Craig Manners Cockburn, in relation to a mortgage over properties owned by Mr McNally.

On 14 September 1994 Cohen J made orders which included an order that GIO Finance deliver to Mr McNally, within twenty-one days from the date of the orders, a duly executed discharge of mortgage over a property at 57 Brucedale Drive, Baulkham Hills. He also ordered the appellant Craig Manners Cockburn to pay to GIO Finance damages to be assessed by the Master.

Craig Manners Cockburn has appealed from that order and GIO Finance Limited has cross appealed. In accordance with his Honour's order the mortgage and discharge were delivered up to Mr McNally by GIO Finance on the basis of certain undertakings being given. Ultimately those undertakingstook the form that the property should not be listed for sale without twenty-eight days notice being given to GIO Finance's solicitors. Mr McNally wants to sell the property because he now has available other accommodation.

This application is one brought by GIO Finance by notice of motion for expedition of the proceedings or in the alternative for certain orders to take effect up until such time as the appeal and cross appeal are disposed of.

The background of the matter is that in March 1987 Mr McNally was injured in a motor vehicle accident and became quadriplegic. In proceedings brought by him in respect of that accident he obtained a verdict for $1.49 million. As I understand it, it may be that the property, which is the subject of the mortgage which in turn is the subject of these proceedings, is the remnants of the proceeds of that verdict.