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. T understand that those proceedings involved an attempt to restrain the receiver from acting as such and, in particular, selling assets belonging to one or other of the appellants. It is sufficient for present purposes to say that in his judgment of 21 November 1995, Rolfe J dismissed those proceedings, and there is no appeal from that order. The problem that emerged from this was that Mr Baker's evidence consisted, in large part, of claims that the assets of the appellant could be sold better if more time were allowed for the selling, or if steps were taken to develop some of the assets, which consisted of land. The problem with this was that these claimswere directed against the receiver. In this appeal, this Court is not concerned with the exercise by the receiver of his powers to sell property. Accordingly, in the appeal that is before the Court, it is in my view quite impossible to make an order which would in any way disturb the due progression of the receiver's powers. The objections Mr Hughes took to the affidavit were, in large measure, directed to the relevance of the material in it because of this fact. 2 UNREPORTED JUDGMENTS I think it not unfair to say that apart from that material in the affidavit, there was no other material which the claimants relied upon in support of this application. However, during the course of argument, counsel for the claimants, who pursued his application with vigour and candour, submitted that there was an arguable appeal against Rolfe J's decision. There is no doubt that the amount involved is considerable. However, although I have not had the opportunity to read his Honour's judgment, the evidence of Mr Cowling in his affidavit of 23 February 1996 makes it plain what counsel for the claimant accepts, that, in large measure, if not entirely, his Honour's conclusions depended upon his views as to the credibility of the claimant's witnesses. Counsel submitted that there was a live issue as to the nature of the duty that was owed by the cross defendants to his clients, but accepted that he had no finding of reliance; indeed, his Honour found against the claimants on reliance. Alternatively, it was submitted that, even without reliance, it may be possible to advance an argument that damages should have been assessed for the loss of achance. However, it was conceded that during the trial damages were not claimed on this basis. Bearing in mind the difficult task which any appellant faces in seeking to set aside findings of fact based upon the credibility of witnesses, I am not persuaded that this appeal has any real prospects of success. In all the circumstances the claimants have failed to persuade me that this is an appropriate case in which the court should grant a stay of execution. Accordingly, the application is dismissed with costs. Counsel has referred me now to s 55 of the Supreme Court Act. I do not think that assists to overcome the situation that the only appeal before the Court is that from the matter in the Commercial Division, No 50291 of 1994. Orders accordingly.