New South Wales Court of Appeal CITATION: Weller v Williams [2010] NSWCA 201 HEARING DATE(S): 9 August 2010 JUDGMENT DATE: 9 August 2010 JUDGMENT OF: Hodgson JA EX TEMPORE JUDGMENT DATE: 9 August 2010 DECISION: Notice of Motion dismissed with costs. CATCHWORDS: PROCEDURE – Stay – Appeal rendered nugatory if stay not granted – Exceptional circumstances – Stay refused. LEGISLATION CITED: Real Property Act s 43A CATEGORY: Procedural and other rulings Herbert Hugo WELLER (appellant) PARTIES: Barbara Lorraine WILLIAMS (first respondent) Angela Midie WILLIAMS (second respondent) COMMONWEALTH BANK OF AUSTRALIA ABN 48123123124 (third respondent) FILE NUMBER(S): CA 2010/41618 COUNSEL: J E ARMFIELD /(H Weller (in person) (appellant) A A HENSKENS/ A R ZAHRA (third respondent) SOLICITORS: Herbert Weller Solicitor (appellant) Henry Davis York (third respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2010/41618 LOWER COURT JUDICIAL OFFICER: Ball J LOWER COURT DATE OF DECISION: 2 July 2010 LOWER COURT MEDIUM NEUTRAL CITATION: Weller v Williams [2010] NSWSC 716 - 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2010/41618 HODGSON JA Monday 9 AUGUST 2010 Herbert Hugo WELLER v Barbara Lorraine WILLIAMS Judgment 1 HIS HONOUR: I am dealing with an application for an order that orders made by Justice Ball on 2 July 2010 be stayed pending the determination of the appeal in this matter. A very strong consideration in favour of granting this motion is the submission that the appeal would be rendered nugatory if I don't grant it. However, I have decided that I should not grant the stay, because I think the factors against granting the stay in this case have the exceptional effect of outweighing that consideration. 2 The first matter that I would mention is that there was a fundamental deficiency of parties in the proceedings below. The purchasers of the property were not joined as parties, and in those circumstances the case, as it was constituted below, had to be dismissed irrespective of its merits otherwise. Success on the appeal would depend on obtaining orders from the Court of Appeal allowing an amendment of the proceedings at first instance to seek relief against these parties, and the joining of them on appeal. This would be a complex and possibly expensive procedure which, to my mind, would have to be weighed against this application simply by reason of the complexity and possible expense which it could introduce into the appeal. 3 It is to my mind doubtful that the relief of adding these parties would be permitted on appeal. No reason apart from oversight has been advanced for not including them in the first instance. 4 A second reason, apart from the fundamental merits, that introduces a difficulty into the case, is that the instruments relied on by the appellant to claim an equitable interest have up to this time been, and will for some little time in the future be, unenforceable by reason of non-payment of duty. 5 An undertaking has been given that this will be rectified, but the fact remains that delay of 6 months has been achieved already on the basis of unenforceable instruments. Even when duty is paid on these instruments, there will be a question whether the priority of these instruments would date from the date they were given or the date when they first became enforceable upon payment of duty. 6 The third reason, apart from the point decided by the primary judge, standing in the way of success is that prior to the settlement of the purchase the vendors had no equity in the property which would have given any value to the charge claimed by the appellant. 7 The appellant argues that he has a claim against the vendor's legal interest, and once the first mortgagee's legal interest was rendered nugatory by payment out of the first mortgagee, the question then would be the order of equities against the vendor's legal interest, and the appellant claimed that his was the first in time. 8 I have great doubt whether that argument would be successful, particularly in the light of another point raised against the appellant, namely, that the incoming bank paying out the previous first mortgagee would almost certainly be entitled to a subrogation to the rights of that previous mortgagee. I don't suggest that that is an absolutely fatal point, but it is a further difficulty in my mind against the appeal succeeding. 9 Finally, there is the point that was actually decided by the primary judge; and, in my opinion, there is an extremely slight chance that the appellant would succeed in an argument that the purchasers were not entitled to protection of s 43A of the Real Property Act because the transfer to them was not immediately registrable. It seems to me that the existence of the previous mortgage would not prevent the transfer being registrable; and the existence in addition of the discharge of the mortgage would remove any possible obstacle to the transfer being registered. There is no reason that I can see why the transfer could not be registered before the discharge of mortgage. So it seems to me that, giving full weight to the gloss on s 43A that some of the cases seem to have given, there is virtually no chance that those cases would be applied adversely to the purchasers in this case. 10 It is true that the prejudice from the maintenance of the stay is not clear; but, in my opinion, there is some prejudice to the other parties in maintaining a state of the register that doesn't reflect what they say is the underlying position, and that raises the possibility of third parties being misled. I think the circumstances have also prevented the purchasers having a fair chance to express their views on the effect of a stay on them. 11 Primarily, in my mind there is such little prospect of any substantial advantage being gained by the appellant through the appeal, and such likely complexity and expense in attempting to put into order a case that for 6 months had this fundamental deficiency of parties, that it is not appropriate to grant a stay. 12 So for those reasons, I dismiss the notice of motion 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.