SHEARS AND GIDLEY v COMMONWEALTH BANK OF AUSTRALIA [1997] NSWCA 283

SHEARS AND GIDLEY v COMMONWEALTH BANK OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA and SHEPHERD AJA 18 August 1997

[1997] NSWCA 283

Sheller JA. This is an application by notice of motion by Richard John Shears and Alice Isobel Gidley who were the defendants in proceedings commenced by the Commonwealth Bank of placecountry-regionAustralia in the Common Law Division of the Court.

In those proceedings judgment was entered by default on 15 August 1995 for an amount in excess of $4 million together with costs. Following the judgment on 24 May 1996 a bankruptcy notice was served on the claimants and on 28 November 1996 a petition was filed in the Federal Court. On 27 March 1997 an application was made in the Common Law Division to set aside the judgment of August 1995. That application came before his Honour JusticeDowd who dismissed it on 29 July 1997. For reasons which it is unnecessary I think for me to go into, his Honour's reasons for judgment did not become available to the claimants until 14 August 1997.

The summons presently before us was filed today and seeks that the requirement for service be dispensed with and the notice of motion be returnable instanter. In the notice of motion orders are sought that the time for filing a summons for leave to appeal against the orders made by Justice Dowd be extended and execution of the judgment entered against the claimants on 15 August 1995 be stayed pending determination of the appeal from Justice Dowd's decision. Mr Cotton appeared for the claimants and Mr Burton for the opponent bank. Mr Burton told the Court that his client did not consent to the extension of time for leave to appeal but the real point in argument was whether or not there should be any stay pending determination of the appeal.

In the circumstances in which this matter came before the Court constituted by two members, it was not possible in the time available fully to explore the matters for and against the granting of a stay of execution. However it is I think reasonable to say that the need for an application for extension of time for the filing of an application for leave to appeal was brought about by factors outside the control of the claimants. While I appreciate fully the force of what Mr Burton says about matters that ordinarily are taken into account on a stay application which is ordinarily dealt with by a single member of the Court, thecircumstances of this case which are rather unusual, lead me to suppose that it is appropriately dealt with by giving leave to the claimants to file a summons for leave to appeal before 4pm on 19 August 1997 returnable before the Court on the following Monday and in the meanwhile to stay execution of the judgment pending determination of the application for leave to appeal.