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. His Honour, the President, said: There must be, I think, an end to litigation. There is a public interest in finality. I do not think that, having regard to all the circumstances of this case, it is appropriate to allow this further evidence to be adduced for the purpose of securing an amendment to the notice of appeal so as to enable the court to consider again whether, even if the suggested facts were satisfactorily proved and their absence at the trial before Cole JA explained, it would provide a satisfactory reason for setting aside judgment. Tam of the opinion that the court should refuse leave to adduce that evidence on that basis. There is, in my opinion, no satisfactory basis for the application as put before the court. I would propose that the application be dismissed with costs. Thereafter there was filed on | March 1996 the notice of motion that comes before me today. There was sought to be tendered and relied upon the following affidavits: that of Susan Maree Frugtneit of 8 March 1996; the affidavit of Susan Maree Frugtneit of 10March 1996; the affidavit of Brian Frugtneit of 9 March 1996; the affidavit of David Camm of 25 February 1996, which was before the Full Court 2 UNREPORTED JUDGMENTS of Appeal on 26 February; the affidavit of Timothy Kitchen of 28 November 1995, which was referred to by Hunter J. In my opinion, for the reasons given by the learned President, this matter should not be re-litigated. It may well be that the court has jurisdiction to entertain a notice of motion such as this. However, where the substance of the orders sought in the notice of motion is the same as that which was sought initially before Mahoney JA, and after adjournment before me, was declined, and where there was then a review of that decision by a court comprising three Judges of Appeal, which declined to receive further evidence, and in effect dismissing the review of the decision which I gave 12 February, I should not now entertain yet another application which is seeking to do precisely the same as was sought before me on 12 February, and was sought, in substance, before the Full Court of the Court of Appeal on 26 November. The notice of motion is dismissed with costs. Orders accordingly.