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: In the circumstances, there being no appeal against that finding, prima facie, it would appear inappropriate to grant a stay of execution. Even if the procedural aspects of the matters before his Honour were attackable, if it be accepted there is outstanding a mortgage securing the amount of the relevant order, and if that amount is unpaid, then there would appear to be no point in granting a stay of execution. I respectfully agree. The Court thus granted the appellants an adjournment to enable them to seek to persuade the Court that there had been repayment of the indebtedness but that endeavour has been unsuccessful. A party obtaining a judgment from a superior Court is entitled to have the benefit of that judgment unless there are significant reasons why there should be a stay of that judgment. In my opinion nothing has been advanced sufficient to justify this Court in granting a stay. There is a finding that the technical process 2 UNREPORTED JUDGMENTS necessary to obtain a judgment for possession has been complied with. There is a finding that the appellants remain indebted to the bank and have been indebted indeed since 1992 if not longer. In those circumstances, in my opinion, the notice of motion seeking a further stay of the order forpossession, the order in that respect having been granted by Mr Justice Hunter, should be dismissed with costs and I so order. Orders accordingly. Counsel for the appellant: R S Hollo Solicitors for the appellant: J J Cullen and Associates Counsel for the respondent: Miss N O'Leary Solicitors for the respondent: Abbott Tout