White & Anor v State Bank of New South Wales [2002] NSWCA 408

New South Wales Court of Appeal

CITATION : White & Anor v State Bank of New South Wales [2002] NSWCA 408 FILE NUMBER(S) : CA 40012/02 HEARING DATE(S) : 11 December 2002 JUDGMENT DATE : 11 December 2002

PARTIES : Lesleigh White - First Claimant/Appellant State Bank of New South Wales - Opponent/Respondent JUDGMENT OF : Giles JA

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT SC 13264/96; 20139/00 FILE NUMBER(S) : LOWER COURT Cooper AJ JUDICIAL OFFICER :

COUNSEL : A J McQuillan - Claimant/Appellant P Dowdy - Opponent/Respondent SOLICITORS : McKells - Claimant/Appellant Abbott Tout - Opponent/Respondent CATCHWORDS : Stay of execution - pending hearing of application for special leave to appeal to High Court - no prospects of grant of leave - stay refused. ND Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460; Garcia v National Australia Bank Ltd (1998) 194 CLR 395; CASES CITED: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 11 CLR 681; John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 51; Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125. DECISION : Notice of motion discussed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40012/02 SC 13264/96; 20139/00

GILES JA

Wednesday 11 December 2002 WHITE & ANOR v STATE BANK OF NSW Judgment 1 HIS HONOUR: State Bank brought proceedings against Mrs Lesleigh White to recover money secured by a mortgage of the property 23 Shand Close Illawong, in which she and her children lived, and possession of that property. Cooper AJ made orders in favour of State Bank. Mrs White appealed and on 29 July 2002 the appeal was dismissed with costs. 2 On 20 August 2002 Mrs White filed an application for special leave to appeal to the High Court. State Bank brought bankruptcy proceedings against Mrs White, and on 13 November 2002 caused the issue of a writ of possession in respect of the property. This is an application, brought in circumstances of some urgency, for a stay of execution of the order for possession and a more general stay of the judgment and order for possession pending the determination of the application for special leave to appeal to the High Court. 3 If one were to assume prospects of success in that application, the circumstances would favour the stays sought. Mrs White has lived in the property with her children for well over ten years. State Bank intends, if it obtains possession, to sell the property, and the effect of loss of her home would be considerable. It is not something which would readily be compensated for by payment of a sum of money if special leave to appeal were granted and the consequent appeal were successful. Against that, of course, State Bank is losing interest on the value of the property, the value being of the order of $550,000, and will incur costs, and Mrs White having no means to recompense State Bank for the loss of the interest or pay the costs. The information before me is that the special leave application is likely to be heard in May, June or August next year, so that there would be loss of interest for at least something like seven or eight months and depending upon the success of the application a period thereafter until the appeal was heard. Nonetheless it seems to me that, in balancing that against the detriment to Mrs White if the property were sold, the detriment to her would outweigh the detriment to State Bank. 4 That, it seems to me, is the position even if I take into account two further matters. The first is that Mrs White has had a long period of occupation of the property without payment to State Bank, dating from something like 1991, while State Bank first sought to obtain remedies other than against her and then while there was litigation with her. The second is that Mrs White has been less than active in prosecuting her application for special leave to appeal, and even now has not, it seems, complied with the Rules of Court in that respect. 5 The issue before me therefore, in my view, turns on the prospects of success in the application for special leave to appeal. In State Bank's submissions it was suggested that I should approach that matter as part of the mix of considerations described by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 11 CLR 681, on the relatively stringent approach more recently enunciated in the High Court, for example by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at [5]. 6 The approach of the Court of Appeal has not, it seems to me, as yet adopted the stringency which has become evident in recent times in the High Court's own decisions on stay applications pending applications for special leave to appeal. The approach of the Court of Appeal is found in John Fairfax and Sons Limited v Kelly (No 2) (1987) 8 NSWLR 51 and Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125. I am sitting as a single judge exercising the powers of the Court of Appeal, and in those circumstances I think that where the High Court has itself recognised that its approach is somewhat more stringent than that of the Court of Appeal (see Kirby J in Bryant v Commonwealth Bank of Australia), but has not indicated that its approach should be taken by the Court of Appeal, I should follow the approach in the cases last-mentioned. 7 However, I do not think that is determinative of this application. It comes down, as I earlier indicated, to the prospects of success in the application for special leave to appeal. That is something which, with the appropriate diffidence of a member of the court appealed from and indeed one of the members of the court who decided the case appealed from I must attempt to assess, since in the cases to which I have referred the High Court has indicated that generally in the first instance applications of the present kind should be made to the court appealed from rather than to the High Court. 8 I have had the benefit of Mrs White's draft notice of appeal and the summary of argument filed for the purposes of her application for special leave to appeal. I intend no disrespect in saying that the issues in the case decided at first instance and on appeal to the Court of Appeal do not seem to have been everything which is said to arise in the application for special leave to appeal. 9 The points on the application for special leave to appeal were summarised in argument before me, and I think accurately enough, in this way. 10 First, in the Court of Appeal it was held that but for cl 5.1.2 in the Memorandum part of the mortgage Mrs White would have obtained at least partial relief from her liability to State Bank, but that clause precluded any such success in the proceedings. The points were that on its proper construction the clause did not take away from Mrs White the relief which the common law would give her, and that if it did she was entitled to seek to strike down that clause pursuant to the Contracts Review Act or on equitable principles. 11 Secondly, it was proposed to argue that by its reliance on the clause, alternatively by its conduct in assisting in the transfer of money to the company of Mr Gregory White knowing that Mrs White was not agreeable to that transfer of money, State Bank acted unconscionably and so could not rely on the clause or alternatively could not enforce a liability affected by the transfer of the money. In this connection it was proposed to argue that principles of unconscionability considered in Garcia v National Australia Bank Ltd (1998) 194 CLR 395 should be extended beyond the circumstances of that case to the more general situation of unconscionable conduct towards a wife said to have arisen in the manner I have indicated. 12 The difficulty for Mrs White is that Cooper AJ and a unanimous Court of Appeal saw no substance in any of those points. The second argument indeed, depended upon findings of fact favourable to Mrs White's case, and at both levels the Court declined to find the facts as required for that case. With the due diffidence to which I have referred, I have to say that I consider that there is really no substance in the points sought to be argued in the High Court. 13 While I have summarised them from the argument before me, reading the occasionally discursive draft notice of appeal and summary of argument does not it seems to me disclose anything more substantial. Thus I have come to the conclusion that, in full recognition that the consequences for Mrs White will be stark and severe, this is not a situation in which I should grant the stay requested in either respect, that is the stay of execution of the writ of possession or the wider stay which might have some effect on the steps towards bankruptcy. There comes a time when harsh reality must come home and where it would be unjust to inflict on the opposite party, here State Bank, further loss and expense by reason of it being held out of enforcement of the rights which at two levels it has been held to possess. In my judgment, that time has come in the present case. 14 Accordingly, I dismiss the notice of motion with costs. I am grateful to counsel for the way the matter has been able to be dealt with and to the court staff for their remaining beyond the call of duty. **********