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. I take his refusal to be a refusal to join Mr Shields in the proceeding and a refusal to grant the stay of the order that Mr Shields wished. There have been other proceedings to which I need not refer. Last Monday, the matter came before me and upon the basis of what I was then told an application which was listed on that day was stood over till next Monday. The purpose of that application — again putting the matter generally — was to seek an extension of the period during which Mr Shields could remain in the premises. Perhaps resulting from inferences which were properly drawn from what I said last Monday, the present motion was taken out yesterday and the motion was returnable today; this upon the basis that the procedure to require Mr Shields to vacate is to be put into operation by midday today or thereabouts. The matter comes before the Court in these circumstances. What is sought is in effect the setting aside or postponement of the vacating of the premises. I have considered carefully the terms of the judgment of Master Malpass and the judgment of Sperling J. Mr Shields no doubt desires to contest that refusal but the fact is he is not presently a party to the proceeding. What, 2 UNREPORTED JUDGMENTS therefore, is in substance the nature of the present application is that it is an application for a stayof the possession proceedings in order that he can appeal against the refusal of the application to make him a party to the proceeding. Ihave considered carefully whether I can and should make an order of the kind referred to. I shall without so deciding assume that I can do so and I propose to act upon that basis. The question is whether I should make any such order. I have considered carefully the terms of the judgments below and the discretionary nature of them and I have considered the information which has been placed before the Court by Mr Shields. As I have informed Mr Shields, what I can do is limited by what the law allows. I can only do what the law indicates that I should do. In all the circumstances I do not think that this is a matter in which I should make any such order as is sought. When the matter came before the Court this morning, Mr Shields indicated to me that steps had been taken to obtain alternative accommodation in the terms of the affidavit of 8 February 1996 which he has placed before the Court. It is, if I may say so, good that that has been done. I propose to make an order in his favour that the procedure for possession be stayed up to and including noon on Monday next. I do so in order that the arrangements for his alternative accommodation may be completed. I appreciate, as Mr Shields has said, that there may be slips between the cup and the lip but in the circumstances I do not think that in proper administration of the law I can go beyond that. I propose to grant in effect an extension of his occupation until that time but I am afraid that by that time he must vacate. I have recorded these matters so that the matter may be clear upon the record. I shall direct that Mr Shields be given a copy of the judgment so that although he is not a lawyer, it may be that he, with his engineering skill, will understand what I have said. I have recorded for the purposes of the record the basis of what I have done. The orders that I make therefore are that execution of the judgment be stayed up to and including noon on Monday next. Strictly, I think, in the circumstances it would be normal to order Mr Shields to pay the costs. In the circumstances, I do not propose to make that order. Orders accordingly.