BERKEMEIER v COMMONWEALTH BANK OF AUSTRALIA [1998] NSWCA 275

BERKEMEIER v COMMONWEALTH BANK OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, GILES and STEIN JJA 14 December 1998, 17 December 1998

Mason P, Giles and Stein JJA The claimant is an appellant as the executrix of her mother's estate. She seeks the discharge of the order of Powell JA made on 30 November 1998 refusing to stay execution on orders made by Austin J on 17 November 1998. Those orders gave effect to the reasons for judgment delivered by Simos J on 2 October 1998. Austin J ordered that the claimant's proceedings be dismissed with costs; that judgment be entered for the opponent against the claimant in the sum of $4,627,789.57 plus interest; and that the opponent have possession of premises at 17 Whiting Beach Road Mosman with leave to issue a writ of possession forthwith. Austin J also refused a stay application.

Upon an application effectively to review the refusal of a stay of execution by a Judge of Appeal, the Court of Appeal applies the principles relating to challenges to the exercise of a judicial discretion (see Australian Consolidated Press Ltd v Baltinos Court of Appeal, unreported, 18 September 1995).

The facts relevant to the matter presently in issue are set out in the judgment of Powell JA. We do not understand it to be suggested that his Honour misapprehended basic facts in any way. Since 30 November 1998 the claimant has formulated her notice of appeal and has formally sought expedition of the hearing of that appeal.

Powell JA declined to order a stay because:

(1) (agreeing with Austin J) he did not consider that the claimant has an arguable case for an appeal;

(2) he held in the alternative that, if there were an arguable case for an appeal, the claimant would be put on terms which it is quite clear that the estate has not the slightest capacity to meet; and