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. Although not a great deal of weight can be placed on these valuations, I do take them into account particularly as the latest valuation done by the bank is noted as being an internal memorandum containing a valuation dated 8 September 1994, on external inspection, of $380,000, which was an amount of $100,000 more than its previous forced sale valuation of $280,000 dated 5 June 1991. It has been made clear on the claimant's behalf that his legal representatives wish to be fully informed of the materials that were before the trial judge before advising him about his prospects on appeal. In my view they should be able to lay their hands on all the relevant materials one way or another within a period of three weeks from today and to be in a position to advise their client whether there is any sense in going on with his appeal before 27 November. 2 UNREPORTED JUDGMENTS One matter mentioned as a possible ground of appeal about which it is impossible to form any view at the moment is that there was incomplete discovery by the bank and the legal representatives anticipated being able to check that situation before the date I have in mind, 27 November, when the matter would again be before the court. Mr Burton has strongly opposed granting the adjournment on these grounds and his reasons are powerful. They come down in the end to asserting that the prospects the claimant has on appeal are virtually hopeless. One particular reason for saying this is that the case was decided by Brownie J upon an evaluation of the evidence of witnesses called by the bank and the evidence of the claimant about conversations and negotiations that had passed between the officers of the bank and the claimant at around about the time when the transaction was entered into, which the bank was seeking to enforce before Brownie J. Brownie J gave fully considered reasons for preferring, in general, the account of the bank's witnesses and not accepting the account of the claimant. It is only in unusual cases that an appellant has any prospect of overcoming adverse findings of fact of the kind made by Brownie J in this case. Mr Burton's submissions that the claimant is doomed to failure in his appeal have a good deal to commend them. On the other hand it seems to me proper to grant an adjournment for the purpose put forward on behalf of the appellant. Brownie J contemplated, although for a different reason, that an extension of time past 31 October might be granted by an officer of the court. The matter is of importance to the claimant and it is also obviously of importance to the bank, but when one considers the scale of the bank's operation and the prejudice to be caused to it by a three week adjournment, as against the way the matter looms large in the life and affairs of the claimant, I do not think that the prejudice caused to the bank by the grantingof the adjournment is sufficient to outweigh the desirability of the claimant having an opportunity to be properly advised upon his appeal and to make a decision about what his best course is in the light of fuller and better advice than is available to him now. One possible outcome of the granting of an adjournment is that the claimant will accept advice not to proceed with the appeal, to take stock of his position in the light of Brownie J's judgment and get on with doing what is best in the circumstances for him and his mother who is partly dependent upon him and living with him, by methods other than seeking to pursue an appeal which may turn out to be fruitless. In the various observations I have made I have been speaking in the light of the general experience of the court and have not formed any opinion concerning detailed possibilities, to the extent that there are any, of an appeal in this matter succeeding. The general run of the court's experience is something that both Mr Shellim and his advisers ought to take into account in forming their view about what position they should take upon the next occasion. Finally I repeat that I am approaching this as an adjournment application. The possibilities of what will happen when the matter comes on for hearing on the stay application on the next occasion must include the very real possibility that it will then be refused, as well as the alternative possibility that it will be granted, but only on strict conditions and only if there is some real prospect of expedition being granted, which may not be the case. URJ SHELLIM v COMMONWEALTH BANK OF AUSTRALIA (Priestley JA) 3 For this case to obtain expedition it will be necessary for the claimant not only to show very strong grounds why this case should be heard ahead of others but also strong grounds for thinking that there is some reasonableground to appeal. However at the moment I do no more than stand the matter over to 27 November and reserve costs of today. BURTON: Your Honour, there are three matters that I wish to impress on your Honour in this regard, one of them is the question of costs. Would your Honour hear me on that? HIS HONOUR: Yes. BURTON: The first is, and this may be theoretical, that my friend would give an undertaking that the house would not be transferred or sold to other persons and that he would provide security. HIS HONOUR: Have you not got the deed? BURTON: I am not sure — I am told that we won't press that. HIS HONOUR: I do not think he would be able to sell without the bank knowing. BURTON: Yes. The other thing is we think that there may be some difficulty with your Honour doing the application for collateral use, motion number 2. It is normally a matter for the trial judge. It is actually heard in the matter in which the list of documents is filed and is sought to be used and in the sense here your Honour would be hearing it as a single judge of the court, which your Honour could do — HIS HONOUR: I misunderstood something that was said earlier. It was not said very clearly. I had thought that access was going to be granted by your side to the list of documents. BURTON: Certainly to our list of documents in this case. My friend's solicitor has the DOCS and Tobin matter. That is where the allegation arises and to take it further than that would be contempt of court unless they have got leave to use those documents to compare it with the list of documents in this case and make their submissions. We also say that the application is misconceived before your Honour and my friend might need to have an extra application and he may need some guidance in that regard. HIS HONOUR: I think I will have to leave them to attend to what they need to do about the substance of it and then to take into account what you say about the difficulties of using what is obtained in one set of proceedings for the purpose of another. Is there going to be any mechanical difficulty as between the claimant's solicitors and your solicitors in their being granted access to the documents relevant in this case? BURTON: I understand not. I understand they have the list already. HIS HONOUR: If that is so that is not going to be a problem, but it is going to be a matter for the claimant's solicitors to find the best way of saying what they want to say, once they know what the substantial position is, BURTON: We just do not want to be faced on the next occasion with a further application which may not be my friend or his firm, for them to say we want more time to put on an application before a single judge in the Equity Division in the DOCS Tobin matter because it was misconceived and that he was improperly advised and so on. It could just go on and on and on. HIS HONOUR: Well it could, if you get a series of judges who are prepared to grant short adjournments, but those things do come to an end. I have stated a little detail about what has happened here today for the benefit I hope of the next 4 UNREPORTED JUDGMENTS court dealing with the matter; my own way of looking at this matter is that on the next occasion a decision will be made, and although you can never say in advance that an adjournment is not going to be granted, the opportunities for getting adjournments become progressively less step by step and I only refrain from saying there won't be an adjournment next time because I do not think we should ever say never. BURTON: Maybe if your Honour noted that it is the bank's submission that the application before your Honour for collateral use is misconceived. It is in the wrong proceedings. If that could be noted so that everyone is on notice of that. HIS HONOUR: It has been taken down. BURTON: The final matter is costs. We would be asking for the costs of today. Costs usually follow an adjournment and we are here today ready to meet the whole matter. HIS HONOUR: I agree with you in that statement, except for the orders that I will make. I think that costs ought to be reserved bearing in mind the position of the claimant. Orders accordingly.