FRUGTNEIT v STATE BANK OF NEW SOUTH WALES LIMITED [1996] NSWCA 196

FRUGTNEIT v STATE BANK OF NEW SOUTH WALES LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

COLE JA 11 March 1996

[1996] NSWCA 196

Cole JA. Application has been made by notice of motion brought on behalf of Adrian Frugtneit and Susan Maree Frugtneit for an order that the writ of possession made by Handley JA on 20 November 1995 be stayed pending hearing of this appeal; that leave to amend the notice of appeal in a particular form be granted, and that the appellant be granted leave to adduce fresh evidence.

The third and fourth orders sought in the notice of motion were not pressed.

This matter has a long history. The order for possession issued in consequence of the decision of Hunter J on 3 November 1995.

There was then an application to this court which was dealt with by Mahoney JA sitting alone in which his Honour indicated that unless it could be established by the claimants that the debt had in fact been paid, as they contended, the prospect of their successfully opposing the grant of an order for possession was remote.

His Honour granted an adjournment to enable the claimants to place before the court material that would establish that matter.

The matter came before me on 12 February 1996, and for reasons I then gave and which I will not repeat, I firstly declined to grant to the claimants leave to amend their notice of appeal and, secondly I declined to grant a stay of the writ of possession. I did that on the basis of the material then placed before the court in consequence of the adjournment granted by Mahoney JA.

The matter then went to a Full Court of the Court of Appeal on 26 February 1996 by way of a review of my decision.

The Court of Appeal, comprising three judges, gave judgment on that day, the leading judgment being that of Mahoney JA with whom Priestley JA and Handley JA agreed.