New South Wales Court of Appeal CITATION: Satchithanantham v National Australia Bank Ltd [2009] NSWCA 395 HEARING DATE(S): 17 November 2009 JUDGMENT DATE: 4 December 2009 JUDGMENT OF: Allsop P at 1; Basten JA at 43; Handley AJA at 44 1. Dismiss the notice of motion dated 5 November 2009 and filed 6 November 2009. DECISION: 2. Direct the Registrar of the Court of Appeal to approach the New South Wales Bar Association either for assistance pro bono to the applicant or for assistance as an amicus curiae in the drafting and presentation of the application for special leave. 3. Order the applicant to pay the costs of the respondent to the motion. CATCHWORDS: REAL PROPERTY - default on loan with residential property as security - action for possession successful at first instance - refusal of stay of writ of possession - review of decision of Judge of Appeal - pending application for special leave to High Court - whether identifiable point of substance - stay not to be continued. Contracts Review Act 1980 (NSW) LEGISLATION CITED: Real Property Act 1900 (NSW) Trade Practices Act 1974 (Cth) CATEGORY: Procedural and other rulings Campbell v Commercial Banking Co of Sydney Bank (1879) 2 LR (NSW) L 375 Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; 161 CLR 681 CASES CITED: Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41; (2005) 14 BPR 26,639 Satchithanantham v NAB Ltd [2009] NSWCA 268 NAB Ltd v Satchithanantham [2009] NSWSC 21 Yerkey v Jones [1939] HCA 3; 63 CLR 649 TEXTS CITED: P W Young et al Annotated Conveyancing and Real Property Legislation New South Wales (2009 Edition Butterworths) PARTIES: Hemalathasothy Ranjini Satchithanantham (Applicant) National Australia Bank Ltd (Respondent) FILE NUMBER(S): CA 40110/09 COUNSEL: Mr T Satchithanantham with leave on behalf of self represented litigant (Applicant) N Bearup (Respondent) SOLICITORS: Self-represented (Applicant) Dibbs Barker (Respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 40110/09 LOWER COURT JUDICIAL OFFICER: Young JA LOWER COURT DATE OF DECISION: 27 October 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40110/09 ALLSOP P BASTEN JA HANDLEY AJA Friday 4 December 2009 SATCHITHANANTHAM v NATIONAL AUSTRALIA BANK LTD Judgment 1 ALLSOP P: Before the Court is a notice of motion filed on behalf of Mrs Hemalathasothy Ranjini Satchithanantham (the applicant) seeking various orders. In essence she seeks a review of a decision of a Judge of Appeal (Young JA) which refused to stay the issue of a writ of possession of the property in which she, her husband and son reside and an application for a stay, pending the hearing of an application for special leave to appeal to the High Court, of the orders of the Court (constituted by Giles JA, Hodgson JA and Young JA) dismissing an appeal from orders of a Judge of the Common Law Division (McCallum J): Satchithanantham v NAB Ltd [2009] NSWCA 268; NAB Ltd v Satchithanantham [2009] NSWSC 21. Those orders had, amongst other things, provided for the respondent bank (the NAB) to have possession of the property in question. 2 The background to the dispute is set out in the reasons of both the primary judge and Young JA (who delivered the substantive reasons of the Court on appeal). The following suffices for present purposes. 3 In early 2003, the applicant's husband, Mr Thambiappah Satchithanantham, was an undischarged bankrupt. He and the applicant had owned their home at Westmead. His interest was then held by his trustee in bankruptcy. The judgments do not disclose the precise interest held by him before his bankruptcy. The home was apparently worth something over $800,000. There was an existing home loan facility secured over the property under which both Mr and Mrs Satchithanantham were indebted. The creditor was Bankwest. At the time of the settlement of the transaction in question with the respondent (the NAB), Bankwest was owed $361,469.82. Bankwest had been threatening to take proceedings under its security. The trustee in bankruptcy had offered to transfer the interest in the property of Mr Satchithanantham to Mrs Satchithanantham for $25,000. 4 Mr Satchithanantham arranged for the NAB to lend $680,000. Given that he was an undischarged bankrupt, the loan was to be made to the applicant. 5 The loan and security transaction were entered. The NAB advanced $680,000 to the applicant in April 2003. She thought the loan was a home loan for $400,000. It was not. 6 The primary judge's reasons disclose sufficient facts to reveal what can be described as the less than prudent banking approach to the transaction by the NAB. The NAB knew, for instance, that Mr Satchithanantham was an undischarged bankrupt and that the applicant was in receipt of Centrelink payments. (The Satchithanantham's son is severely disabled.) The primary judge's reasons also disclose that the bank was given facts about the rental income of the property by Mr Satchithanantham that were less than accurate. The primary judge concluded that the NAB engaged in "pure-asset lending", that is "to lend money without regard to the ability of the borrower to repay … in the knowledge that adequate security is available in the event of default": Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41; (2005) 14 BPR 26,639 at [128]. 7 On 6 February 2009, the primary judge concluded that Mrs Satchithanantham was subject to the undue influence of her husband, but her Honour rejected claims by the applicant that the NAB was privy to that undue influence. The primary judge also rejected relief (a) under the principles in Yerkey v Jones [1939] HCA 3; 63 CLR 649, (b) for unconscionable conduct and (c) under the Trade Practices Act 1974 (Cth). The primary judge did, however, find the contract unjust under the Contracts Review Act 1980 (NSW). Central to this finding was the undue influence of Mr Satchithanantham and the absence of appreciation by the applicant that the loan was anything other than a refinancing of the Bankwest home loan. 8 On 6 February 2009 the primary judge made orders varying the loan agreement so as to operate as if the amount advanced on 16 April 2003 had been $408,665.86. This sum was derived from the disbursement authority on 15 April as follows: Bank of Western Australia Limited $361,469.82 Joe King Lawyers $546.04 Jamnadas and Associates $10,000.00 Jagdish Patel (barrister) $10,000.00 Official Trustee in Bankruptcy $25,000.00 Karthikeyan Solicitors $1,650.00 Mrs Satchithanantham $267,000.00 The sums other than the moneys referred to in the last line (which were applied by Mr Satchithanantham) total $408,665.86. 9 The primary judge then made the following orders: "1. That the parties be deemed to have entered into a deed varying the loan agreement between them so that in all respects the Facility shall operate as if the loan amount advanced on 16 April 2003 and debited to the defendant's account had been $408,665.86. 2. Judgment for the unpaid balance in the account calculated on that basis. 3. An order for possession of the Westmead property." 10 On 3 March 2009 the matter again came before McCallum J. The matter had been stood over to 3 March 2009 to allow a calculation of the indebtedness of the applicant based on the varied loan agreement. McCallum J made the following orders: "1. The defendant give the plaintiff possession of the [subject property] 2. The plaintiff have leave to issue a writ of possession to enforce the judgment referred to in 1 above. 3. The defendant pay the plaintiff the sum of $461,043.74. 4. The defendant pay two thirds of the plaintiff's costs, including any reserved costs." 11 Counsel for the applicant, Mr Patel, submitted on 3 March that the variation to the loan agreement vitiated the NAB's entitlement to an order for possession. 12 In response to this, counsel for the NAB reminded the judge that this was a facility cancellable at will and that it was cancelled and that a clause of the loan agreement conferred a contractual entitlement on the bank to take possession of the security property. Thus, counsel submitted, the claim for possession did not turn on any question about the validity of the notice under s 57 of the Real Property Act 1900 (NSW). The judge accepted these submissions. 13 A stay of the writ of possession was then sought by the applicant. The primary judge heard this application on 7 April 2009. One argument put on behalf of the applicant was that the primary judge failed to deal with the validity of the notices under s 57 of the Real Property Act. The primary judge dealt with this as follows at [11] and [12] of her reasons on that day: "[11] The thrust of that ground appears to be that having granted relief under the Contracts Review Act , I have effectively created a new facility between the bank and Mrs Satchithanantham. I do not understand that to be the effect of the orders I made. I did not make any order at all in respect of the mortgage granted by Mrs Satchithanantham over the Westmead property. In respect of the loan facility for which that mortgage is security, the order I made was that the parties be deemed to have entered into a deed varying the loan agreement only so as to reduce the amount advanced. Even if ground 18 amounts, in effect, to a challenge to the power of sale, it does not entail a challenge to the judgment debt which follows from the orders made by me on 3 March 2009 and entered on that date. [12] Ms Bearup, who appears today for the National Australia Bank, has taken me to a number of authorities which deal with the question whether a notice served by a lender which claims repayment of an amount subsequently found to be more than the amount owed vitiates the entitlement of the lender to enforce the security in question. However, I do not think it is necessary for me to consider those cases or the prospects of success of the grounds of appeal relied on by Mrs Satchithanantham in that respect. The reason is that in the absence of there being any apparent challenge to the two premises of my judgment that I have referred to, namely the fact that Mrs Satchithanantham knew that it was intended to borrow $400,000 and the fact as found by me that she obtained the benefit of approximately $408,000, in my view, it would not be fair to the bank for me to grant a stay in the absence of the tender or offer of payment of that undisputed part of the debt into court as the price of my granting the stay." 14 The reasons for judgment of February, March and April might be thought to reveal a number of issues not fully dealt with: (a) why the analysis of benefit received by Mrs Satchithanantham was limited to the level of indebtedness: The terms of the NAB facility were not those of a home loan facility, but included for instance clauses that entitled NAB to call the loan up at will and to have a contractual right of possession thereupon. (b) the extent of the monetary benefit: It is not entirely clear why the sums of legal fees of over $22,000 were for the applicant's benefit. (c) If the terms of the NAB policy were more onerous than a standard home loan, whether such clauses as brought that result about should not have been varied. (d) If the clauses of the loan were varied to remove the effect of those referred to in (a) above and if the applicant was in default of the modified facility, whether the Bank was entitled to rely on the existing notices under the Real Property Act, s 57 bearing in mind cases such as Campbell v Commercial Banking Co of Sydney Bank (1879) 2 LR (NSW) L 375 and see P W Young et al Annotated Conveyancing and Real Property Legislation New South Wales (2009 Edition Butterworths) at 486 [41690.10] and [41690.15]. 15 The matter in [14(b)] above was not agitated on appeal and I leave it to one side. 16 The matter then came to the Court of Appeal. Mr Patel, of counsel, who had appeared at first instance, appeared. He was not well-prepared. I do not say that as a criticism. He explained to the Court that he had been asked to appear pro bono. The Court indicated that it would not hear Mr Satchithanantham given the central role he had played and the finding of undue influence. The Court made clear to Mr Patel that it would give him an opportunity to put on written submissions; nevertheless it engaged with him in a dialogue to understand the nature of what was to be put. The transcript of the argument reveals the following essential complaints of the appellant: (1) The applicant thought she was entering a home loan for $400,000. It was, in fact, a commercial loan. The benefit received and relief under the Contracts Review Act should have been analysed on a basis wider than by reference to the monetary level. In particular, the cancellation of the facility and the claim for possession based thereon were aspects of the unfairness of the contract. (2) The belief of Mrs Satchithanantham of the nature of the contract was a form of fundamental mistake denying a meeting of minds necessary for the formation of a contract. (3) The applicant was denied natural justice arising from the applicant's lack of knowledge of the facts to conduct the proceedings. The unfairness alleged was in the exclusion of Mr Satchithanantham from assisting in or taking part in the proceedings. The primary judge should, it was submitted, have let Mr Satchithanantham speak on the applicant's behalf. (4) The judge should have found that the applicant's participation in the contract was not voluntary. (5) Mr Patel put the submission that the applicant was said to be entitled to relief which saw a personal debt for $400,000 but the security being set aside, but then withdrew from it. 17 No argument was put about the s 57 notices. 18 The applicant was given leave to put on submissions signed by Mr Patel. Submissions were filed from Mr Patel, but also from Mr Satchithanantham. The Court in its reasons indicated its refusal to examine submissions filed without leave. I will restrict my comments to Mr Patel's submissions. The other materials not bearing Mr Patel's signature do not, coherently, take the matter any further. 19 The written submissions of Mr Patel do not develop the submissions made orally, though some are restated. In particular, submissions were made to the effect that the applicant was without resources to prosecute her case effectively. 20 The reasons of the Court of Appeal dealt with the arguments that were put on the applicants behalf by Mr Patel. Young JA in delivering the substantive judgment described the appeal grounds as follows at [24]: "[24] The amended notice of appeal contains 21 grounds. They are difficult to classify. Essentially, they are as follows: (1) The appellant claims to have suffered denial of natural justice because the primary judge accepted most of the Bank's case without discerning that the Bank was in breach and violation of its own Banking Code. (2) The judge did not behave fairly towards the appellant because she did not follow the Civil Trial Bench Book with respect to unrepresented litigants and in particular did not allow the appellant's husband to speak for her. (3) The judgment delivered was unfair and unreasonable and a one-sided version supported by the Bank's arguments only." 21 Young JA then said the following at [25], [26] and [27]: "[25] The respondent's riposte in paras 1 and 2 of its submissions were simply this: '1. This case concerns a loan made by the respondent to the appellant which enabled the appellant to obtain the benefit of a discharge of a prior mortgage over the property she had owned jointly with her husband and the transfer to her of her husband's interest in that property so that she became the sole registered proprietor. Given these facts she could not have achieved a more favourable result than she achieved at first instance. 2. It is difficult to readily discern the basis of this appeal, particularly as significant portions of the notice of appeal … the amended notice of appeal … and the preliminary submissions filed on 12 June 2009 are unintelligible.' [26] In the light of the submissions made during the oral hearing, it is significant that, neither before the primary judge, nor before us, was it alleged that the primary judge erred in only giving limited relief under the Contracts Review Act . I will return to this point. [27] As will appear later, I endorse the thought that the appellant could not have achieved a more favourable result from a primary judge than she in fact achieved. I have sympathy with the submission that the grounds of appeal and the appellant's submissions are unintelligible, but the Court had to do the best it could to interpret these." 22 With respect, [26] is not accurate. Mr Patel did put this oral submission to the Court of Appeal. 23 The judgment then dealt with Mr Patel's submissions at [32]-[35] as follows: "[32] Mr Patel said that there was no substantial issue with her Honour's findings of fact. Indeed, her Honour's judgment in the first six paragraphs gives a bird's eye of the whole matter and her perception of the case and there is no substantial challenge. However: (1) it should be observed that the appellant signed the mortgage over her home at Westmead to secure a loan to her from the Bank; (2) she only signed because her husband forced her to sign; (3) she believed the loan was an ordinary home loan in the sum of $400,000; (4) in fact, the mortgage was to secure a facility with a limit of $680,000 almost all of which was drawn down shortly after the loan was settled; (5) the loan was not an ordinary home loan but a line of credit that could be cancelled at any time whether or not the appellant was in breach of its terms; (6) the Bank cancelled the facility and claimed it had become entitled to judgment for the unpaid balance and an order for possession. [33] Mr Patel then sought to remind us that the case was presented under four limbs, the four that I have already outlined, that is, with the Trade Practices Act/Fair Trading Act as number 4. However, he was directed back on to the course of pointing out the alleged errors and said: 'The first point we're trying to raise is that the parties were at cross purposes. Mrs Satchi believed that when she was entering into the contract she was entering into the contract for mortgage to secure for the home borrowing of $400,000.' [34] Mr Patel said that for contracts, there has got to be a meeting of minds. Whether there was a unilateral mistake that the Bank did not understand what Mrs Satchi wanted or, alternatively there was a mistake by both of them thinking that they were entering into different transactions, there was such a mistake that there was no meeting of minds. He pointed out that Mrs Satchi executed the mortgage documents without reading them, more or less relying on what was conveyed by the bank manager. [35] Mr Patel said the judge did not focus sufficiently on what was the contract. Had her Honour done so, she would have realised that Mrs Satchi had never agreed to a loan transaction which could be cancelled at the whim of the Bank and the amount then owing called up on short notice whether she was in default or not." 24 Young JA then dealt with the arguments at [36]-[44]: "[36] At [26] of her judgment, the primary judge accepted that the appellant 'was told, in Ms Colbran's [the bank officer's] presence, that the application was for a loan for $400,000 and that she believed she was signing an application for a home loan in that sum'. At [40] her Honour said that: 'I doubt whether anyone paused to ensure that Mrs Satchithanantham had read those documents or been made aware of the increase in the amount sought. I accept that she was not aware that the limit of the facility offered was $680,000.' [37] However, there is no doubt that the appellant signed the document seeking a mortgage facility with a limit of $680,000 and that she authorised the Bank in addition to refinancing the loan and paying expenses to pay the surplus of $228,000 to her (though in fact it went to her husband). Mrs Satchi did not read the documents. However, there was no plea of non est factum (nor could there have been), nor any plea of incapacity. The law clearly is that if a person signs a document which she knows is a contract, she is bound by the terms of that contract even though she may have thought that the contract she was signing was different: a fortiori if she doesn't read it; see eg Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165. Of course there are exceptions, but none are applicable in the instant case. [38] After hearing Mr Patel outline his submissions, Hodgson JA asked: 'I'm just wondering where does this ultimately lead? Does it lead to a position where you say she should be treated as having a home mortgage for $400,000 so that so long as she pays the interest up to date for $400,000 and continues to pay the interest on $400,000 then the mortgage should be maintained? Is that the ultimate goal or is it some other goal?' Mr Patel said his Honour was correct. Hodgson JA then asked whether there was any evidence that the appellant had at all times been ready, willing and able to pay the interest on the $400,000 and had continued to do so. [39] Mr Patel conceded there was no direct evidence of that, but said that the Bank decided, without any legitimate excuse or reason, that the mortgage should be called up. The Court then pointed out to Mr Patel that there was no material in the pleadings or in the evidence to suggest that the appellant ever took the position that she accepted liability for $400,000, was willing to pay interest on it and had always been willing to do so. [40] Mr Patel put that the relief granted by the judge should not merely have deemed the parties to have varied the loan so that the amount of the loan was $408,000, but should have deemed the loan to have been varied so that it was a home loan with conditions appropriate to a home loan. [41] Unfortunately, apart from the lack of evidence referred to above, if what is set out at pages 155-6 of the Blue Book is the standard home loan contract, whilst the term appears to be 30 years, there are the usual provisions that if any default is made, then the balance of the loan will be repaid with interest and fees and charges upon demand. In the absence of any evidence that all the payments were up to date, and there was no default, and indeed, there is an overall flavour in this case that there was some default, it would not matter if the loan were a 30 year home loan. [42] Ms Bearup made the further submission that the appellant's counsel had never actually stated what were the alleged "appropriate conditions" for a home loan to which the judge should have adjusted the contract. Furthermore, no such case was ever put to the primary judge nor does it rate a mention in the original or even the amended notice of appeal. [43] Mr Patel appeared to be submitting that there was no contract because of some mutual, common or even unilateral mistake. Not only was this not pleaded, nor does it appear to have been put below and it does not appear in the notice of appeal, but also it runs contrary to the basal facts of the case. In any event, if it be correct, the consequence would still be that Mrs Satchi should refund any money paid to her under the void contract as money had and received to the use of the Bank. [44] As Ms Bearup has submitted, the judge really gave the appellant as much as she could when still doing justice to the Bank. The judge believed the appellant and modified the loan so that the amount repayable was based on the benefit that the appellant actually received. The only matter which does provoke examination is her Honour's determination that Yerkey v Jones was inapplicable in this sort of case." 25 Young JA dealt with Mr Patel's further submissions at [54]-[60] as follows: "[54] Mr Patel's further submissions 1-44 deal with material which suggests that the appellant was at a severe disadvantage during the hearing. This was of little use. Not only did it not develop Mr Patel's principal submissions made at the oral hearing, but it also did not take account of the fact that it was really impossible for any advocate on behalf of the appellant to obtain a better result than obtained before the primary judge. [55] The fact that the appellant cannot surmount is that she received an actual benefit from the Bank of approximately $408,000. In so far as she seeks relief in equity, the maxim applies that 'she who seeks equity must do equity'. She needs to see that $408,000 is repaid or at least come to an acceptable commercial arrangement with respect to that sum. This she has never offered to do. [56] So far as the Contracts Review Act is concerned, the Court's jurisdiction only goes so far as avoiding, as far as practicable, an unjust consequence or result. The circumstances of this case did not permit the primary judge to absolve the appellant from the consequences of entering into this written contract over and above that which was unjust and that, according to the primary judge, and in my view her Honour made no mistake in this, was limited to the amount over $408,000. [57] I expected that the additional submissions would have expanded on the submission that the primary judge should have further adjusted the contract to remove the 'right' of the Bank to demand repayment short of the period allowed in a home loan mortgage. However, there is no such additional submission. It may well be that this is because: (a) the submission was doomed for reasons set out earlier in these reasons; and (b) it was never raised before the primary judge or even in the amended notice of appeal. [58] Paragraph 45 of the submissions by Mr Patel are hard to follow. It consists of 15 sub-paragraphs the gravamen of which may be summarised by quoting from para 45.8 that the Bank has 'not removed the blinkers to see what is absurd about the facility they advanced to Mrs Satchi' and that the Bank constantly refused to accept Mrs Satchi's attempts to reach a fair and reasonable compromise. [59] Ms Bearup responded to the additional submissions. She pointed out much of what was said bore no relation to the grounds of appeal. She further pointed out that appeals from orders made under the Contracts Review Act 1980 are appeals from discretionary orders and appeals from such orders face the difficulties always faced by those who appeal from such orders. [60] In my view, the decision of the primary judge was correct and, even if it were open to Mr Patel to put the arguments he has put to us, the appeal still would have to be dismissed." 26 The applicant has, through Mr Satchithanantham, filed an application for special leave to appeal to the High Court. 27 The application for special leave is less than fully coherent. It does, however, focus, to a degree, on the alleged deficiencies of the notices under s 57 of the Real Property Act. 28 A number of allegations of impropriety against the NAB and its legal advisors are made. Many references are made to interlocutory proceedings subsumed by the principal judgment. 29 Propositions in the application also include questions as to whether the mortgage was void and whether there was consensus ad idem for the loan agreement. 30 Subject to one point, it is difficult to extract from Mr Patel's submissions before the Court of Appeal and from the application for special leave any coherent possible ground of appeal. The one point by way of qualification to that is whether or not the question of benefit received by the applicant should have been analysed not merely by reference to the sums involved but also by reference to the terms of the commercial facility compared to the house loan from Bankwest. Allied to this is the issue of reliance on the notices under s 57 of the Real Property Act. It may be that these issues were not run below (cf the submissions at the hearing on 3 March 2009). Young JA may well be correct (if I may respectfully phrase it this way) that the applicant would fail on the "home loan terms" issue. Young JA did not deal with the validity s 57 notices. Mr Patel did not address the Court of Appeal on this issue. 31 This Court undoubtedly has authority to stay the issue of the writ pursuant to the orders of the Court of Appeal, pending hearing of the special leave application: Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; 161 CLR 681. 32 Subject to the balance of convenience this would ordinarily only be done if there was some real prospect of success on the special leave application, or to put it in a way which does not seek to forecast the views of members of the High Court, whether there is an identifiable point of substance to throw into doubt the orders of the Court of Appeal. 33 On the other hand, unless a point of substance impugning the Court of Appeal's orders is evident, the NAB should not be held out of the consequences of its victory. 34 The only matters of doubt are the two related points that I have raised: One was not put to the Court of Appeal: the s 57 issue; as to the other, the assessment of benefit issue or home loans terms issue, I am not presently persuaded on the basis of Mr Patel's submissions to this Court on the substantive appeal and from how Young JA dealt with the matter that there is an available ground of appeal. 35 Further, there is no reliable evidence that Mrs Satchithanantham is in a position to pay interest at home loan rates on the sum owing based on an indebtedness of $408,665.86 in April 2006. 36 In these circumstances, I am not persuaded that the stay should be continued. 37 I would, however, without intended disrespect to Mr Patel, direct the Registrar to approach the New South Wales Bar Association to seek the assistance of senior junior counsel or senior counsel who practises in these kinds of matter in the redrafting of the application for special leave. 38 These reasons subsume the question of the review of Young JA's decision on 27 October 2009. 39 In the motion filed Mr Satchithanantham placed his son's and his names on the motion as applicants. He accepted, however, at the hearing fo the motion that only Mrs Satchithanantham was a party. 40 The orders I would make are: (a) dismiss the notice of motion of the applicant dated 5 November 2009 and filed 6 November 2009; (b) direct the Registrar of the Court of Appeal to approach the New South Wales Bar Association either for assistance pro bono to the applicant or for assistance as an amicus curiae in the drafting and presentation of the application for special leave. (c) order the applicant to pay the costs of the respondent to the motion. 41 There would appear to be no legitimate reason why the dismissal of the motion should not be with costs. 42 If counsel's assistance is forthcoming and if counsel is able to formulate a ground of appeal of substance which is apparently available, given the view of Brennan J in Jennings v Burgundy Royale that applications for a stay should be dealt with by the intermediate court, counsel should not assume that the dismissal of this motion forecloses any further application brought and presented by pro bono counsel. 43 BASTEN JA: I agree with Allsop P. 44 HANDLEY AJA: I agree with Allsop P. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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