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. The bank got judgment for possession in December 1993. Nothing that has been said to us today gives any reason to suppose that that judgment could be set aside. That being so, there is no basis for the Court to grant any of the orders which Ms Wynn asks for in her summons. Ms Wynn also asked the Court for an adjournment. She said that she had been in touch with people from Legal Aid during the day and that they were proposing to give her emergency aid. They suggested to her that she ask for an adjournment so that they could have a look at the position from herpoint of view and then file documents in the present application which might possibly go some way towards supporting a grant of the orders that she seeks. The Bank has opposed this course. On the material before us there is really no basis for granting an adjournment because there is no prospect on the material before us of Ms Wynn getting any of the orders from the Court that she asks for. 2 UNREPORTED JUDGMENTS The Court has explained to her that she should immediately following the dismissal of these proceedings take advice from the Legal Aid people to whom she has been talking during the day. They will be able to get all the details from her relating to her case, some of which she has told us today. As she said to us she has no legal training and she has not been able to put her case as well as a lawyer might be able to do. In case the Legal Aid people should be furnished with a copy of the reasons Iam now giving, I should make it clear that I think it is highly desirable for Ms Wynn to be advised by Legal Aid. I am not suggesting one way or the other whether they will be able to put her case in a shape where she will get the orders that she wants, but they should be able to give her good advice about the best thing to do in the circumstances in which she finds herself. It is impossible not to feel sympathy for the circumstances in which Ms Wynn has been placed but from the Court's point of view the fact of the bank's judgment and the fact that there seems no reason for there to be any stay placed on the bank's judgment, make it impossible for the Court to grant any relief today or to grant the adjournment that is sought. Again, to avoid misunderstanding, I am not saying that if her case is fully investigated and properly presented to the Court that it must fail. The Court simply does not know on the material now before it whether there is any chance for her in her effort to recover the house she lived in. The best thing that can happen is that the Legal Aid people will be able to give her accurate advice about whether there is any sense in her continuing her struggle. The order of the Court is that the summons is dismissed with costs. Orders accordingly.