LACEY v BANK OF NEW ZEALAND SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY P, MEAGHER JA and BEAZLEY JA 22 July 1996 [1996] NSWCA 311 Mahoney P. This is an application by Ms Lacey to have this Court review the decision given by Waddell AJA on 22 April 1996. Ms Lacey was a defendant in proceedings before the District Court. The proceedings were essentially to recover from her what the plaintiff, the Bank of New Zealand, claims is the amount owing to the bank on the mortgage which it gave to her and which it claims has not been repaid. The matter was heard before his Honour Judge Herron QC. On 13 September 1995 his Honour gave judgment. He made findings against Ms Lacey and gave judgment for the bank. I do not pursue the amounts that were the subject of the judgment. Ms Lacey appeared for herself in those proceedings. The judge, in a long and detailed judgment of some 20 pages or so, dealt with a number of the matters that were before him. Some of these involved the determination of the credibility, that isthe acceptability, as witnesses of some of the witnesses before him. His Honour in effect gave judgment for the bank. Ms Lacey has appealed to this Court against the judgment. Appeal books have been prepared and filed. The Court does not know when the appeal is likely to come on for hearing. The grounds of appeal which are set forth in the ordinary way in the appeal books cover a number of allegations, some relating to the way in which the trial was conducted, some relating to matters arising from the evidence, some suggesting, eg, that the judge had had prior discussions with a Mr Stratton, described as 'a hostile witness for the defence'. There are, in the grounds of appeal, a number of allegations of various kinds. An application was made by Ms Lacey for a stay of proceedings pending the determination of the appeal. The application was determined by Waddell AJA on 22 April 1996. His Honour, in a judgment which he then gave and which is before the Court, came to the conclusion that there was no sufficient chance of the appeal succeeding. He said that there was no sufficient case made out on the grounds or the additional grounds of appeal and that a stay should not be granted. The matter has come before this Court pursuant, as I understand it, to s 46(4) of the Supreme Court Act 1970. The Court is presently composed of three judges. It is not necessary for present purposes to pursue the question whether it was necessary for three judges to sit, but as a matter of precaution that is the course that has been followed. The Court has heard what Ms Lacey has had to say in relation to the matter. Essentially she has put matters which were matters that were or should have been put before the trial judge at the trial. She has claimed that she has been treated unfairly at the trial and she has made a number of allegations, some of them not dissimilar from some of the allegations in the notice of appeal. The Court must deal with the matter in accordance with justice but justice as settled by the law. The question is whether, within the proper principles, properground has been shown for interfering with the conclusion in the order of 2 UNREPORTED JUDGMENTS Waddell AJA of 22 April 1996. It is not necessary for present purposes to detail all of the matters which could or may have been argued or which by inference may be involved in what Ms Lacey has put to the Court. It is sufficient to say that applying the principles applicable to a s 46(4) review, I am not satisfied that there has been any such error by the judge as would warrant or indeed authorise this Court to interfere with the order that he has made. I do not wish to comment upon what may happen in relation to the conduct of the appeal, as and when it comes before this Court. What Ms Lacey will have to do, if she wants to pursue her allegations, is to consider carefully the possibility that some or most of the allegations she has made may not be supported or supportable by the evidence in the appeal books. Some of them may. I say merely that she must give consideration to the manner in which, if at all, her allegations can be relied upon on the hearing of the appeal. In all the circumstances I do not think that this is a case in which the Court should interfere and I would propose that the application be dismissed. However, before parting with the matter, I would say this. Ms Lacey claims that she has no money to pay the judgment and the contrary does not appear to have been suggested. The essential reason for her pressing this application appears to be, I make no specific finding about it, that she fears that if there is no stay, the bank will attempt to make her bankrupt and do this for the purpose not of recovering money from her but of preventing her pursuing the appeal. There has been no argument on this application as to whether that is a proper or commendable course to be followed by a judgment creditor. No doubt the matter has been considered in other cases in other contexts. The Court inquired of Mr Walton, for the bank, whether it was the intention of the bank in opposing the stay to attempt to take such a course with a view to preventing the appeal proceeding. The Court was told that no decision had been made on that point. That is a matter upon which, ofcourse, the Court was not entitled to force an answer from the bank and it was made clear that the Court was not doing so. But whether that is an appropriate procedure to be adopted is a matter which may have to be considered by an appropriate Court if that be the course that is followed by the bank. I say those things merely to record what has happened and to place them upon record. I do not propose by what I have said that any judgment be made by this Court upon the propriety of proceedings of that kind or upon the use of bankruptcy proceedings simply for such a purpose. That is a matter which may have to be considered elsewhere in due course should the circumstances arise. For the reasons to which I have referred I am of the opinion that the application should be refused. Meagher JA. I agree. Beazley JA. I agree. Mahoney P. If the application is refused, it would appear inevitable, Ms Lacey, that it be refused with costs and the order of the Court will therefore be that the application is refused with costs. LACEY: May I just please ask for expedition your Honour because they are intending to bankrupt me, they have told me, they might not tell the Court, but they have told me. MAHONEY P: Ms Lacey, that's why I asked initially what the position is. The Court does not grant expedition as it were off the top of its head. You will understand what I mean by that. If you want expedition of the case you can make URJ LACEY v BANK OF NEW ZEALAND (Meagher JA) 3 an application for that. Speak to the Registrar and he will no doubt give you some indication of what is appropriate for the purpose. He won't act as your solicitor but at least he may give you some indication of what is necessary. Meagher JA. Mr Walton has said that he will not oppose that application. LACEY: I don't understand. MEAGHER JA: Mr Walton has said that he will not oppose that application. LACEY: For expedition you mean?MEAGHER JA: Yes. LACEY: That's very decent of him I'm sure. Orders accordingly.