Smith v RHG Mortgage Corporation Ltd [2009] NSWCA 243

New South Wales Court of Appeal

CITATION: Smith v RHG Mortgage Corporation Ltd [2009] NSWCA 243

HEARING DATE(S): 3 August 2009 JUDGMENT OF: Macfarlan JA at 1

EX TEMPORE JUDGMENT DATE: 3 August 2009

DECISION: The Notice of Motion filed by Mr Smith on 3 August 2009 is dismissed. No order made as to costs.

CATCHWORDS: PROCEDURE - application for stay pending hearing of application for leave to appeal - no question of principle

CATEGORY: Procedural and other rulings

PARTIES: Peter Smith (Applicant) RHG Mortgage Corporation Ltd (Respondent)

FILE NUMBER(S): CA 4059/09

SOLICITORS: Peter Smith (Applicant - in person) Kemp Strang (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 15388/08

LOWER COURT JUDICIAL OFFICER: McClellan CJ in CL

LOWER COURT DATE OF DECISION: 31 July 2009

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 4059/09

MACFARLAN JA

MONDAY 3 AUGUST 2009 PETER SMITH v RHG MORTGAGE CORPORATION LIMITED Judgment 1 HIS HONOUR: This is an application by Mr Smith for a stay of execution of a judgment, primarily for the purpose of preventing his financier taking possession of a mortgaged property. The writ of execution was to be executed today and the respondent financier has informed the Court that the execution has in fact proceeded. 2 The original borrowing made by Mr Smith was for an amount of some $500,000. That occurred in August 2005. Subsequently $275,000 was borrowed. The present amount owing under the mortgage as recorded by the judge at first instance, McClellan CJ at CL, is $935,176, there being arrears of interest in the amount of $85,176. The primary judge noted that the defendant, Mr Smith, conceded that there had been default and also conceded the extent of the monies owing. 3 A stay application was made to the primary judge, on last Friday, 31 July 2009. That application was refused by his Honour. A previous application had been heard and granted by Registrar Bradford on 26 June 2009. He granted a stay until 8 July 2009. Mr Smith's affidavit records that there were conditions attached to the grant of that stay being, as described by Mr Smith, that Mr Smith obtain "better time estimates of the expected payouts" owing to him and that he obtain a "more current medical report" on his wife's condition. 4 Mr Smith said in his affidavit that he was unable to attend court on the morning of the resumed hearing, that is 8 July 2009, as a result of which his application for a stay was dismissed. Subsequently he brought the further motion which was heard and decided by Justice McClellan on Friday. Following his Honour's decision to decline the stay, Mr Smith filed a summons in this Court seeking leave to appeal against that decision and also filed in this Court a notice of motion seeking a stay of Justice McClellan's decision. I treat that motion as effectively seeking a stay of execution of the judgment pending the determination of the application for leave to appeal. 5 Justice McClellan delivered an ex tempore judgment last Friday. Notes of his reasons for judgment have been made available by his Associate. They have been made available by me to the parties who have indicated that they do not have any reason to think that the notes depart from what his Honour said on Friday. 6 His Honour referred to three bases advanced by Mr Smith for the grant of a stay. The first related to the serious ill health of his wife. As his Honour said, she is suffering from a number of medical conditions and requires ongoing care. His Honour also noted that the family circumstances have been exacerbated by the death of Mr Smith's father-in-law. 7 The other two matters relied upon related to a prospective improvement in Mr Smith's financial circumstances. The first was an expectation of a receipt of a sum of money by his wife from a deceased estate. His Honour said there was however nothing to indicate the amount of these monies and nothing to suggest that they could satisfy the outstanding liability to the financier, or any significant part of it.