Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Caporale v National Australia Bank [2012] NSWCA 427 Hearing dates: 12 December 2012 Decision date: 12 December 2012 Before: Young AJA Decision: Notice of Motion dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROPERTY - application for stay of execution of Writs of Possession - injunction sought to prevent sale of properties in bank's possession Cases Cited: National Australia Bank v Caporale [2012] NSWSC 1014 Category: Interlocutory applications Parties: R Caporale (Appellant) National Australia Bank (Respondent) Representation: Counsel: D C Price (Respondent) Solicitors: R Caporale (Appellant in person) Gadens Lawyers (Respondent) File Number(s): CA150149 of 2010 Decision under appeal Citation: [2012] NSWSC 1014 Date of Decision: 2012-08-31 00:00:00 Before: Beech-Jones J File Number(s): 150075 of 2010 150085 of 2010 150096 of 2010 150119 of 2010 150149 of 2010 018301 of 2012 EX TEMPORE Judgment 1HIS HONOUR: This is an application made by a proposed Notice of Motion to grant a stay of execution of Writs of Possession over a series of properties and also to grant an injunction to prevent the respondent Bank from selling three other properties of which it already has possession. 2It would seem, and I use that word advisedly because the matter has come up urgently and I have had insufficient time to acquaint myself fully with the details, that one property, namely, Lot 750 Princes Highway, Darkes Forest, is the critical property in a group of properties which are the prime developments of the proposed appellant company. 3The proposed appellants have been represented by Miss Caporale and there is the appropriate resolutions passed by the corporation, which is the real proposed appellant, for her to appear for them. Not being a lawyer, she has not been able to address me as to the legal principles, but virtually she has said that if there is no order made on her motion, her appeal will become nugatory and that the Bank will have no chance of being repaid the $11 million that the proposed appellant owes it and that, if given a little time, the Bank will be paid in full. 4It would seem that no money has actually been paid to the Bank since 2008. It was alleged that this was because there was a variation of the original arrangement because the Bank saw some financial benefit in giving further time for the development to be completed. It did not insist on that and that either by contract or by estoppel the Bank should not be permitted to reverse its attitude. 5There are a number of different pieces of litigation between the parties or their associated interests. One was matter No 150149 of 2010 involving Zippoz Pty Limited. I heard an urgent application for a stay on 29 November 2012 in that case and did in fact grant a stay. The principal reasons were that it was the actual home of the people behind the proposed appellant in this case, that it was due for a Writ of Possession to be executed the next morning and the probabilities were that, even if the Bank was put into possession, the property could not be realised until February 2013. It seemed to me that, in an urgent application, if one had to err, as one often does in a very urgent application, it was better to err on the side of keeping people in their home over the Christmas/January period and I made an order staying on conditions. It may be that that has spurred Miss Caporale into making the present applications. She seems to suggest that we should follow the result of the Zippoz case, but unfortunately for her they are not similar cases. The present properties are not the homes of any of the officers of the company. These are properties that could be called investment properties or alternatively properties involved in a commercial development. 6There seems to be no doubt that the Bank is owed about $11 million. There is no doubt that the Bank has not received any money since about 2008. Miss Caporale says that if the project goes ahead contracts will be exchanged and the Bank will be paid but there is nothing, except her say so, really to back that up. 7When one looks at the legal principles involved, so far as getting an injunction against a mortgagee in possession to stop it selling is concerned, the rules are that apart from various exceptional cases, the mortgagor must pay into Court the full amount owing. Even if the present case comes within an exception such as the power of sale did not arise because of the alleged agreement or estoppel binding Mr Vale of the Bank, even so, the Court would usually look for a far stronger case to grant an injunction than has been put up to date. There does not appear to have been any application at first instance for any such order. 8So far as the restraining of the Writs of Possession of the other properties are concerned, I understand these are due to be executed some time early January 2013. They are based on Justice Beech-Jones's decision of 31 August 2012 (National Australia Bank v Caporale [2012] NSWSC 1014). 9There are 16 grounds of appeal in the draft Notice of Appeal but all these really say are that his Honour should have found X and was in error finding anti-X for about eight different facts. There is no assertion that his Honour failed to take into account relevant matters or took into account irrelevant matters or other propositions which would make one wonder whether there is any real likelihood of his Honour's decision being set aside on appeal. 10Furthermore, the summons seeks leave to appeal out of time because the decision was given on 31 August 2012 and here it is mid December and the appeal has not been filed. The reason given by Miss Caporale is that she has been far too occupied with other pieces of litigation, particularly the Zippoz litigation. But the fact that she now seeks leave to appeal and that, on the material before me to date, there is very little ground to show that there is a viable appeal, the chances of that application succeeding are slim. Of course, when it comes on for hearing it may be there is far more material to support it than there is today, but at present I cannot see any reason in law why I should interfere with the rights of the parties by granting either an injunction or a stay. 11Accordingly, I direct that the Notice of Motion, which I have initialled and dated, should be filed but that Notice of Motion is dismissed with costs. ***** 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. Decision last updated: 14 December 2012