JURY v WESTPAC BANKING CORPORATION [1996] NSWCA 285

JURY v WESTPAC BANKING CORPORATION

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 26 February 1996

[1996] NSWCA 285

Sheller JA. This is an application by fifteen appellants in appeal number 40805 of 1995, from a matter in the Commercial Division, No 50291 of 1994, for a stay of execution of orders made by Rolfe J on 21 November 1995. The application is supported by an affidavit of Harold Warren Baker of 23 February 1996.

The respondents to the appeal and the opponents to the application oppose the stay, and in support of that opposition rely on two affidavits of Mr David Paul Cowling, dated 23 and 25 February 1996.

Mr Hughes of Queen's Counsel objected to a considerable number of the paragraphs in Mr Baker's affidavit but, for reasons which will emerge, I do not think it necessary that I rule upon those objections.

The appeal arose out of proceedings in the Commercial Division to recover substantial sums of money lent to the appellants or one or other of them by the respondents. When I say "by the respondents', there were two separate loans. I have been told that the defendants had no defence to the claim made against them but sought, by a cross claim, to recover damages for alleged breaches of duty by Westpac and BAC. I assume that it was suggested that the damages recoverable on the cross claim would off-set the amounts claimed by Westpac and BAC.

One problem that was raised at the beginning of this application related to separate proceedings commenced in the Equity Division, number 50049 of 1995, by one of the appellants, Justal Pty Limited, against a receiver who had been appointed by either Westpac or BAC, or both.

Those proceedings were referred by the Equity Division to the Commercial Division. Rolfe J noted at the beginning of his judgment that the two proceedings would be heard together, evidence in one treated as evidence in the other.