New South Wales Court of Appeal CITATION: Satchithanantham v National Australia Bank [2010] NSWCA 118 HEARING DATE(S): 24 May 2010 JUDGMENT DATE: 24 May 2010 JUDGMENT OF: Hodgson JA EX TEMPORE JUDGMENT DATE: 24 May 2010 DECISION: Notice of motion dismissed with costs. CATCHWORDS: PROCEDURE – Application to reopen appeal and for stay – Application refused. CATEGORY: Procedural and other rulings PARTIES: Hemalathasothy Ranjini SATCHITHANANTHAM (applicant) NATIONAL AUSTRALIA BANK LIMITED (respondent) FILE NUMBER(S): CA 2009/298148 COUNSEL: APPELLANT in person with her husband Ms N BEARUP (respondent) SOLICITORS: Dibbs Baker (respondent) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 15249/05 LOWER COURT JUDICIAL OFFICER: McCallum J LOWER COURT DATE OF DECISION: 6 February 2009 LOWER COURT MEDIUM NEUTRAL CITATION: National Australia Bank v Satchithanantham [2009] NSWSC 21 - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/298148 HODGSON JA Monday 24 MAY 2010 H R SATCHITHANANTHAM v NATIONAL AUSTRALIA BANK Judgment 1 HIS HONOUR: I am dealing with a notice of motion filed on 19 May 2010, seeking a number of orders, but particularly seeking orders that will have the effect that orders for possession of the applicant's property not be given effect to. 2 The grounds of the notice of motion come down, it seems to me, to three points that are sought to be made. The first two points concern two previous notices of motion which the applicant claims have never been dealt with, namely, a notice of motion at first instance dated 12 February 2009 and a notice of motion in the Court of Appeal dated 14 May 2009. The other ground is a challenge to the calculation of the debt secured on the applicant's property. The claim appears to be that payments of $335,000 or thereabouts made have not been taken into account. 3 In my opinion, the notice of motion should be dismissed. The matters relied on were all matters that could (and should, if they were to be relied on) have been raised in the appeal proceedings which resulted in a judgment of the Court of Appeal on 2 September 2009. The merits of the appeal were also further considered to some extent in a further judgment of the Court of Appeal on 4 December 2009. A special leave application to the High Court of Australia was dismissed on 23 April 2010. 4 In my opinion, these matters cannot now be sought to be agitated in the light of that history. 5 I would add, however, that it does not seem to me that there could be any substantial merit in the matters now sought to be raised. The primary judge gave her principal judgment on 6 February 2009. The matter was stood over to 3 March 2009, inter alia for the purposes of establishing the amount due under the mortgage. Evidence was led by the bank as to the amount due, showing credits and debits, and on the basis of that evidence the primary judge made the determination she did, that the amount owing was $461,043.74. That calculation was the subject of a ground of appeal, but that ground was not substantively pursued. 6 I would make the additional comment that the effect of the court's decision was that Mrs Satchithanantham should be considered liable for $408,000 of $680,000 that was actually advanced, and that Mr Satchithanantham got the benefit of an additional $272,000. In those circumstances money paid to the bank by Mr Satchithanantham could be attributed by the bank to the $272,000 of which Mr Satchithanantham got the benefit. It seems to me that the material put before this court does not suggest any significant error in the calculation that was made by the primary judge. 7 For these reasons, my order is notice of motion dismissed with costs. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.