SALMAAN AND ANOR v ANZ BANKING GROUP LTD [1997] NSWCA 273

SALMAAN v ANZ BANKING GROUP LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P 15 December 1997

[1997] NSWCA 273

Mason P I have decided there should be an additional stay in this matter. It seems to me that there is an arguable case that the bank may not have been entitled to recover, as part of the judgment debt, the full extent of the legal costs which the bank sought and succeeded in obtaining as part of its judgment debt.

Two issues have been raised which support that view. The first is the question whether the costs of pursuing into bankruptcy the principal debtor are covered by the clauses of the mortgage that extend to legal costs and the second is the question of whether proof that a certain sum of money was incurred for costs established that those sums were reasonably incurred. There may be questions of onus involved in that both propositions but it does seem to me there is the basis of an argument on that point.

What I am minded to do is to order a stay up to the end of February on a condition that by 1S February the moneys which are acknowledged to be due and interest thereon be paid and that the appeal be put into order so that a decision can be made as to exactly how long it is going to take. I think it will be obvious from the exchange that has occurred today that I have some concerns about the form of the notice of appeal. I don't think any matter should be left in an ambiguous state and I do think that if there is-any question relating to what did or should have happened in the period up to 22 August and on that date then the matter ought to be clearly raised in the notice of appeal and such evidence as is necessary to consider whether it has any ment and to enable it to be determined at the appeal ought to be available.

What I propose doing is to list the matter before myself for a directions hearing some time in the week after 15 February so that a decision can then be made as to whether it is appropriate to extend the stay beyond the end of February. I would need to be satisfied that the money that is to be paid has been paid and that the appeal has been prosecuted with due diligence and I would need to be armed with material that would enable me to determine what level of expedition to give to the case should expedition be appropriate if it cannot be dealt with as a short matter.