FRUGTNIET v STATE BANK OF NSW [1996] NSWCA 199

FRUGTNIET v STATE BANK OF NSW

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

COLE JA 12 February 1996

[1996] NSWCA 199 Application for continuation of stay — refused.

Cole JA. (On application for stay of writ of possession)

Application has been made by notice of motion filed in this Court on 25 January 1996 for an order that the writ of possession issued pursuant to a judgment of his Honour Mr Justice Hunter on 30 November be stayed pending hearing of this appeal.

The matter came before Mahoney JA on 31 January 1996. The grounds of appeal then before his Honour, and which in consequence of my refusing to allow them to be amended, are before me, raised five grounds.

The first is that his Honour erred in law in refusing the first appellant Mr Frugtniet, leave to represent himself and refused the second appellant, Mrs Frugtniet, an adjournment despite the circumstance that she was suffering from tonsillitis.

Ground 2 alleges that the appellants were denied as fair hearing. Ground 3 that his Honour erred in law in refusing to disqualify himself although, as I read the material, hewas not asked to. Ground 4 asserts a denial of natural justice. Ground 5 asserts that the trial Judge 'Entered the well of the Court during the dispute' thus denying the appellants a fair trial.

When the matter was before Mr Justice Mahoney on 31 January 1996 his Honour described those grounds of appeal as being 'procedural'.

The difficulty of appealing against a trial Judge's exercise of discretion in relation to the grant or refusal of an adjournment are well known and were accepted by counsel for the applicant. Mr Justice Mahoney indicated that, absent an appeal from the trial Judge's finding that the debt the subject of the first mortgage on which the bank moved the Court for judgment for possession had not been repaid, the procedural aspects which were sought to be challenged in the existing notice of appeal would be insufficient to induce a Court to grant a stay of execution. His Honour said: