LACEY v. BANK OF NEW ZEALAND [1996] NSWCA 310

LACEY vy. BANK OF NEW ZEALAND SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

WADDELL A.J.A. 22 April 1996

[1996] NSWCA 310

Waddell A.J.A.. MOTION

This is an application for a stay in proceedings which are an appeal by the applicant, Mrs. Lacey, against the decision of the District Court constituted by Judge Herron in proceedings brought by the Bank of New Zealand against Mrs. Lacey to recover the amount due under a mortgage. A notice of appeal has been filed and Mrs. Lacey, who appears for herself, and who appeared for herself in the proceedings before the trial judge, has handed up to the Court a copy of His Honour's reasons as well as the Notice of Appeal setting out the grounds of appeal and a document setting out some further grounds.

The judgment of the District Court was for a sum of approximately $35,000.00 plus interest in an amount of around $13,000.00, which sum has presumably increased since the decision was given on 13 September 1995.

Mrs. Lacey has no assets. She is living on a pension which is a start-up pension, and which will apparently become an aged pension when she turns 60 in about two years time. She is occupying a rented house and earns a little money which she says reduces the amount of her pension depending on how much she earns. She has not assets of any kind. The Bank accepts that that is her financial position.

If the stay is not granted, it would be open to the Bank to apply for her estate to be sequestrated, and for her to be declared bankrupt. In that event, the trustee in bankruptcy would proceed with the appeal only if he was satisfied there were grounds for the appeal, and presumably if he were put in funds to prosecute the appeal.

Mrs. Lacey submits that she has good grounds of appeal, and that she should not be put in the position of being liable to be made bankrupt when she would lose the carriage of the appeal, and not be able to prosecute it herself, which she intends to do if possible. It is her intention to appear for herself on the appeal. Mrs. Lacey tells the Court that the fee ordinarily payable on appeal has been waived until the appeal is determined. This means presumably that if she is successful, she will have to pay the fee, and if she is not, she will not have to pay the ordinary fee.