WYNN v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [1996] NSWCA 569

WYNN v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA and SHELLER JA 12 August 1996

[1996] NSWCA 569

Priestley JA. This is an application by way of summons brought by Ms Wynn as claimant seeking an order granting leave to appeal from the decision of Mr Justice Dunford on 11 June 1996. No reason has appeared from what has been put to us by Ms Wynn why we should grant leave to appeal.

Her summons also asked for a stay and although the order asked for is not particularly clear in itself, what Ms Wynn made clear to us when she was telling us about her case is that what she really wants is for an impending auction of property of which she is one of the mortgagors to be delayed until family law proceedings which will be dealt with in the Family Court in October have been completed. She is hopeful that when those proceedings are completed if the house in which she formerly lived and of which she is one of the mortgagors has not by then been sold she would be able to organiseenough money from another financial institution to be able to pay out the ANZ Bank, the mortgagee which is proposing to exercise its power to sell the property on 22 August.

Other relief was asked for in the summons. I will not read it out because none of it can be granted by the Court on the materials that are before the Court. The situation is one that has become only too familiar in recent years, a home owner who has bought a home with money borrowed from the bank becomes unable to comply with the requirements of the mortgage securing the loan, the bank gets an order for possession and then goes ahead to sell the property pursuant to the power in the mortgage to exercise a power of sale after default. In the present case from what Ms Wynn tells us part of the problem leading to default in payment of the mortgage arose from the separation between herself and her husband and his not having done what she expected him to do in the way of keeping up the mortgage payments.