ZELL v COMMONWEALTH BANK OF AUSTRALIA [1997] NSWCA 356

ZELL vy COMMONWEALTH BANK OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 29 September 1997

[1997] NSWCA 356

Sheller JA. This is an application by Colin Martin Zell and Jennifer Anne Zell that orders made by Sperling J on 17 February 1997 be stayed until the hearing of the claimant's application for special leave to appeal to the High Court of Australia, and if such leave is granted, until the determination of the appeal by the High Court or until further order. This application follows the dismissal of an appeal by Mr and Mrs Zell and another appellant to this Court from Sperling J's decision. That appeal was dismissed on 10 September 1997.

The appellant's appeal challenged the trial Judge's refusal to set aside certain contracts and mortgages said to be unjust within the meaning of the ContractsReview Act 1980 and unconscionable. In the language of his judgment in the Court of Appeal, the President, with whose reasons Handley and Stein JJA agreed, said that if Sperling J's orders remain undisturbed, all of the Zell family's pastoral and farming properties at Gilgandra will be sold up by the respondent bank, the Commonwealth Bank of Australia, in exercise of its mortgage rights.

In broad terms, the contest on the appeal related to an additional loan made by the bank to the Zells in 1985 and a restructuring of their loan arrangements in 1989.

At the present time, the total debt owed to the Commonwealth Bank is of the order of $2 million, carrying a daily rate of interest of $810. The assets available to meet this debt, which are liable to be sold, consist of three properties of a combined value of $886,000, of which one, called 'Gowan Brae' is the family home.

The test I have to apply in deciding whether or not a stay should be granted as asked is most recently set out in the judgment of Kirby P in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306, particularly at 308 and 309. One matter to be considered is the applicant's prospects of success ingaining special leave. In that respect, Kirby P remarked, after referring to the decision of this Court in Alexander v Cambridge Credit Corp Limited, that: