SHELLIM v COMMONWEALTH BANK OF AUSTRALIA [1995] NSWCA 424

SHELLIM v COMMONWEALTH BANK OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 6 November 1995

[1995] NSWCA 424

Priestley JA. This notice of motion seeks a stay of orders made by Brownie J on 29 August this year. It also sought other relief about which nothing has been put to me. The subject matter of the proceedings was residential premises over which the opponent bank held a mortgage.

Brownie J found after a contested hearing that the claimant owed an amount to the bank which then put in terms of the judgment entered totalled $485,000. As well as ordering payment of that sum Brownie J ordered the writ of possession should lie in the Registry until 31 October 1995. He also added that he was making that order to enable the claimant to sell the property himself if he wished to do so rather than have it sold by the bank as a mortgagee in possession.

He granted liberty to the claimant to apply for an extension of that period if desired, saying that the application could be dealt with by a Master.

The notice of motion was filed on 31 October 1995. What the motion turned into this morning was an application for an adjournment. The claimant sought an adjournment for four weeks. The basis of the application for the adjournment was that the claimant had not been able to be properly advisedabout his prospects on appeal and he wished to appeal. He has only very recently obtained legal representation different from what which he had at the hearing before Brownie J. He has been unable to get relevant material from his previous solicitor, no doubt because of his own lack of funds, the facts about that aspect of his position being common ground. According to the bank interest is accruing on the outstanding amount at about $140 a day. According to the bank also, on the valuations of the property that it holds it will not recover from the sale of the property an amount which will cover this judgment and costs. Its most recent valuation supporting that view was one made late last year. In evidence tendered today by the claimant were two opinions from estate agents who had looked at the premises from outside very recently and had expressed opinions. Based on that fragmentary observation the property would be sold for an amount in the mid $500,000s according to one valuer, and according to the other the market value would be approximately $550,000.