WEST WERRIBEE PTY LIMITED v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD [1996] NSWCA 554

WEST WERRIBEE PTY LIMITED v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P 13 November 1996

[1996] NSWCA 554

Mahoney P. This application comes before the Court in somewhat unusual circumstances. At approximately 3.30 pm this afternoon, Wednesday, 13 November 1996, application was made to the Court for the hearing of, I shall describe it compendiously, an application to stay the execution of a judgment and a writ of possession which has been issued pursuant to the judgment.

In the circumstances, the Court having been informed that the writ was to be executed tomorrow 14 November 1996, the matter was heard as a matter of urgency at or about 4 pm this afternoon.

The nature of the applications and the material urged in support of it are not all that clear. I say that not by way of criticism of counsel involved, but because of his answers with engaging frankness to cross-examination of him by me. I say what I have said in order to indicate that I am taking the information, which I shall record, from what has been said and from the papers insofar as they are before the Court. (Itmay be that in respect of some items of detail it will be necessary for corrections to be made to what I say).

The matter arises, it would appear, by reason of a transaction or series of transactions which took place in early 1988. The land in question had, I am informed, for a long time been owned by the two claimant companies. In early 1988 it appears that there was a transaction or transactions which resulted in the present shareholders in these companies purchasing the shares in the companies, therefore becoming effectively beneficial owners of the companies and accordingly of the land in question.

In connection with that transaction or transactions the respondent bank, the Australia and New Zealand Banking Group Ltd, advanced moneys, or presumably advanced moneys, to the present shareholders for the purchase of the shares with a view to enabling them to pay the then holders of the shares the price they required for the shares. I infer from what has been said that those moneys were paid by the shareholder purchasers to the share vendors and that the share vendors have taken the money and used it for their own purposes. There is, it is said, no prospect of that money being recovered.