SHIELDS v THE COMMONWEALTH BANK OF AUSTRALIA [1996] NSWCA 475

SHIELDS v THE COMMONWEALTH BANK OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 5 February 1996

[1996] NSWCA 475

Mahoney JA. This application which comes before the Court today is in curious form. It seeks that the notice to vacate dated 12 January 1996, apparently given in relation to a judgment, be stayed until further order or, alternatively, be stayed until 12 February. There is a second paragraph which in the alternative seeks 'an injunction until after the appeal'.

I am informed, although the matter does not appear clearly from the evidence before me, that a judgment has been given against Mr Shields in favour of the Bank and that the Bank proposes to execute on that judgment.

It is said that before 12 February it is proposed to execute on the judgment. The application today is, in substance, to adjourn the present matter until 12 February when an application for stay of execution on the judgment which is now pending is listed for hearing.

I propose to stand over the present matter until 12 February so that an application for stay can be dealt with at the same time. The evidence before the Court today is merely an affidavit from Mr Shields of 4 January 1996 and I note the noticeof appeal which has been filed. It may well be that the present application in its form and supported by this evidence would be quite unlikely to succeed. That is not a matter on which I form a final view but as there is an application for a stay of execution on foot to be heard on 12 February, I do not think that I can pre-empt that matter merely by dismissing the present application.

It has been said for the Bank — with or without justification, I do not judge — that the Bank has been delayed unnecessarily for a long time and it proposed to execute on the judgment prior to 12 February. As the matter stands at the moment, as far as the evidence before me is concerned, there is nothing to stop it doing so. If an application can be made for some kind of stay, that application would have to be considered on the basis of the evidence brought in support of it. What the Bank does in the meantime is a matter for it to determine but there is pending an application for stay and that application, the terms of which I do not know, and the evidence to support it which is not before me, should be heard in due course; it should be heard on 12 February 1996.