BRADBURY -v- AUSTRALIAN GUARANTEE CORPORATION LIMITED [1996] NSWCA 64

BRADBURY -v- AUSTRALIAN GUARANTEE CORPORATION LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

REGISTRAR Jupp 3 October 1996

[1996] NSWCA 64

Registrar Jupp. On 6 September 1996 the appellant filed a Notice of Appeal from a decision of Dunford J of 9 August 1996. That decision made a declaration that the plaintiff (Australian Guarantee Corporation — the Ist respondent) was entitled as against Mrs Bradbury (the appellant in these proceedings), to vacant possession of certain company title units in the Astor Building. The proceedings had been brought as a result of a default in payments by Mrs Bradbury and upon a Deed of Mortgage dated 1 November 1985 which secured the moneys payable to AGC over Mrs Bradbury's parcel of shares in The Astor Pty Ltd, which entitled her to occupy a pair of units on the Sth floor of that building which had been combined into a 4 bedroom unit. Orders were made that Mrs Bradbury vacate the premises, and deliver the keys to AGC by 30 September 1996. Orders were also made giving judgment for the cross-defendants in two cross-claims brought by Mrs Bradbury.

On 18 September 1996 the appellant filed a Notice of Motion seeking that 'the proceedings herein be stayed until further order or upon such terms and conditions as the Court may order'. During the course of hearing this motion it was confirmed byMr Blackburn, who was appearing for Mrs Bradbury, that what was in fact being sought was a stay of the Judgment of Dunford J. It was also confirmed that a stay of the costs orders was also being sought.

The Notice of Motion was originally returnable before me on 23 September 1996. Time for service of the motion had been abridged at the request of the claimant. On that day Mr Blackburn sought an adjournment due to the late service of certain affidavits from AGC in respect of which he had not been able to obtain instructions. With some reluctance I granted the adjournment, on the condition that the claimant paid the opponents costs of that day. I heard the motion on 30 September 1996 and indicated that I would reserve judgment to allow me to consider the Judgment of Dunford J. A copy of that Judgment had not been provided by any of the parties until the hearing. I granted a stay of the orders until the delivery of these reasons.