SHIELDS v COMMONWEALTH BANK OF AUSTRALIA [1996] NSWCA 474

SHIELDS v COMMONWEALTH BANK OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 8 February 1996

[1996] NSWCA 474

Mahoney JA. This is an application which comes before the Court as the result of a judgment given in, as I understand it, a mortgage matter.

The material that is on the file appears to show that on 23 May 1995 the Bank took proceedings in this Court to enforce, as I understand it, a mortgage over the subject property.

The parties to the proceeding did not include Mr Shields, the present applicant. They included a Mr Caddis and a Ms King. Apparently so far as the material in the file is concerned — and I acknowledge it is possible that some of this material is not formally before me but I refer to it for the purposes of assisting those who may subsequently have to look at this matter — on 9 June 1995, a tenancy agreement was entered into by Mr Shields in respect of the premises. On 28 July 1995, Mr Shields applied to the Court to be joined in the proceeding. On 8 August 1995, Master Malpass before whom the application came refused to grant that application. He refused to join him in the proceeding.

On 27 October 1995, judgment in the proceeding was given for the Bank. On 3 November 1995, a writ for possession of the premises was issued. On 23 November 1995, a notice to vacate the premises was given presumably as part of the procedure to execute upon the judgment and to enforce the writ of possession. The notice to vacate required vacating, according to the material before me, on 30 November 1995. On 29 November 1995, Mr Shields applied for an extension of the time which — I put the matter in practical terms — was available to him to vacate the premises.

On 19 December 1995, a notice of motion was taken out in relation to the matter. On 22 December 1995, Sperling J before whom the matter had come refused the application.