HODGEKISS v CHALLENGE BANK LTD [1995] NSWCA 195

HODGEKISS v CHALLENGE BANK LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, SHELLER JA and COLE JA 6 November 1995

[1995] NSWCA 195

Priestley JA. This is an application for the review of a decision made by Powell JA on 19 August 1995 dismissing an application by mortgagors for a stay of execution of an order for possession which was made by Young J in respect of mortgaged property which we are told is the residence of the mortgagors.

Having heard the reasons advanced why Powell JA came to a wrong conclusion in deciding to dismiss the mortgagors" application it has become clear, so far as the court can see, that the essence of Powell JA's decision was correct, there has been no evidence available of a substantial kind to support the view that the mortgagors have been in a position actually to have somebody else produce the minimum amount of money that would be necessary, on any view, to pay out the mortgagee.

The court has been told that a gentleman mentioned in an affidavit that was before Powell JA is genuinely believed to be able to finance the mortgagors out of their present problems. There is no evidence that the court can act on to that effect before the court.

In those circumstances the application to review must be dismissed but the court is prepared to take the same attitude as Powell JA did. He concluded his reasons by saying that he would order execution on the order for possession be stayed for a period, that being to enable the mortgagors to seek review of his decision.

This court would not anticipate any viable further proceeding being taken from here, but is prepared to stay execution of the order for possession up to and including 13 November 1995 to give the mortgagors one last chance to produce money of a sufficient order to warrant the granting of a stay. All the material to date indicates that that is unlikely to happen and I would make it clear what the court has in mind is that the application for review is dismissed, the stay I have mentioned will be granted simply for one week. If within the week the mortgagors are able to put themselves in a position to make an application for a stay supported by proof of availability of an appropriate amount of money then it would be up to them to make a further original application for a stay.