LACEY v BANK OF NEW ZEALAND [1997] NSWCA 181

LACEY v BANK OF NEW ZEALAND

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHEPPARD AJA 19 August 1997

[1997] NSWCA 181

Sheppard AJA To be considered is a notice of motion taken out by Ms Lacey, who is the appellant in this matter, seeking an order that a stay of the proceedings be granted. The stay that she seeks is a stay of the judgment which is the subject of the appeal until her appeal is heard. It is expected by both parties that that appeal will come on for hearing within three or four months from today.

Ms Lacey has no assets of any consequence and no means whereby she can meet the judgment which, with the running of interest, is, I understand, in excess of $50,000.

This is not the first occasion upon which she has applied for a stay of proceedings. She made a similar application last year. It came before Waddell AJA, sitting as a single judge of the Court of Appeal, and went then on reference, or perhaps on an application for leave to appeal, I am not sure which, to a Full Court of the Court of Appeal, the court consisting of the then President, Mahoney P, and Meagher and Beazley MA. The application was dismissed.

The matter that has caused Ms Lacey to renew the application is of the fact that she an act of bankruptcy because the Bankruptcy Notice will not be complied with. She seeks the exercise of the court's discretion to prevent that happening, at least until her appeal has been heard.

I have taken very much into account what was said by the judges who dealt with this matter on the previous occasion. I have not had the benefit of Waddell AJA's reasons for judgment, but it is clear that he took a clear view that the appeal was hopeless. That view was also taken by the Court of Appeal, before whom the matter came. However, Mahoney P, in the course of his judgment, said (at p3 to p4):