PAGE v COMMONWEALTH BANK OF AUSTRALIA [1995] NSWCA 352

PAGE v COMMONWEALTH BANK OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 4 December 1995

[1995] NSWCA 352

Sheller JA. Leslie Edward Page and Marjorie Patricia Page have, apparently, filed an application in the High Court for special leave to appeal from a decision of this Court given on 6 October 1995 dismissing their appeal from a decision of Giles J in the Commercial Division of the Court given on 15 November 1994. This is an application by Mr and Mrs Page for a stay of Giles J's judgment pending the determination of the application for special leave.

The opponent, Commonwealth Bank of Australia, which was the plaintiff in the proceedings in the Commercial Division and which opposes the application for a stay, lent money to Rosehall Pty Limited (Rosehall) for the purchase of the Murray River Hotel in Wodonga. Mr and Mrs Page gave the bank a mortgage of their home at Ryde to secure the indebtedness of Rosehall and by that mortgage also covenanted to pay on demand money due to the bank fromRosehall. In the proceedings the bank claimed possession of the Ryde property and judgments for nearly $400,000. The defence was that the mortgage should be set aside or was unenforceable. Giles J's formal orders were judgment for the bank against Mr and Mrs Page for $394,748.63 and for possession of the Ryde property. Leave to issue a writ of possession to enforce the judgment was given with the writ to lie in the office for four months from the date of judgment. Mr and Mrs Page were ordered to pay the bank's costs of the claims against them.

Mr and Mrs Page's application for a stay was supported by an affidavit made by their solicitor, Peter Alan Jackson, to which were annexed copies of affidavits sworn by Mr and Mrs Page on 15 February 1995 in support of an application for a stay of Giles J's judgment pending the appeal to this Court. Mahoney JA granted a stay on condition that Mr and Mrs Page pay to the bank an amount of $150 per week. This amount was paid regularly and Mr and Mrs Page offer to continue paying that amount should a further stay now be granted. Mr Jackson is also instructed to give an undertaking that the application for special leave to appeal will be prosecuted with all reasonable expedition.