Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Carnemolla v Adelaide Bank Ltd [2013] NSWCA 166 Hearing dates: 3 June 2013 Decision date: 03 June 2013 Before: Barrett JA Decision: 1. The notice of motion filed on 22 May 2013 seeking a stay is dismissed with costs. 2. The exhibits tendered and admitted upon the hearing of the notice of motion may be returned after fourteen days. [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: PROCEDURE - application for stay pending determination of application for special leave to appeal to High Court of Australia - no matter of principle Legislation Cited: Judiciary Act 1903, s 35A Cases Cited: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681 Rinehart v Welker [2012] NSWCA 1; (2012) 185 ALR 191 Category: Interlocutory applications Parties: Sebastian Carnemolla - First Applicant Lucia Carnemolla - Second Applicant Adelaide Bank Ltd - First Respondent Leon Angelopoulos - Second Respondent PC Wholesale - Third Respondent Romavale Pty Corp - Fourth Respondent Representation: Applicants in person Mr S Pearlman - First Respondent Applicants in person Curwoods Lawyers File Number(s): 2012/81298 Judgment 1The applicants, Mr and Mrs Carnemolla, were the unsuccessful appellants in appeal proceedings determined by the Court on 14 May 2013. Their appeal related to proceedings brought against them by the respondent bank in which judgment was given for the bank and it was determined that the bank as mortgagee was entitled to possession of real property owned by the applicants. 2Before me is the applicants' notice of motion seeking a stay of proceedings upon a writ of possession pending determination of an application for special leave to appeal to the High Court of Australia. 3The applicants' application for special leave was filed on 21 May 2013. The grounds are set out in paras 2 to 5: "2. The determination by the 3 Judges failed to comprehend the nature of all the matters brought forward on this case and erred in not taking into consideration of the proof as submitted in detail. 3. Many important files as submitted to the Supreme Court of NSW, before the hearings were missing, when investigations were carried out by the appellants. These missing files were reported as stolen well before the hearing date to the Supreme Court of NSW, but they have not been able to locate these sealed and filed documents even to this day 4. The determination by the 3 judges erred in their findings and consideration of the medical records of the condition of the first appellant, was not taken into consideration. This evidence was submitted many months before the hearing by the primary judge, but was apparently also stolen by someone who had access to the registered and filed documents inside the Supreme Court of NSW. 5. Based on evidence and proof that the meeting at Earlwood never occurred, the Judges erred by not believing the sworn statement/s of the appellants, but only believed the lies as recorded by the respondents." 4Following the decision of this Court in Rinehart v Welker [2012] NSWCA 1; (2012) 185 ALR 191. the approach to be taken upon an application such as the present is that stated in the judgment of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681 at 685 in the following passage: "In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied that a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies." 5In the present context, of course, the second of the questions referred to by Brennan J does not arise and it is necessary to address only the first, third and fourth. 6I consider first, therefore, whether there is a substantial prospect that special leave to appeal will be granted by the High Court. In doing so, I must, of course, limit my consideration to the grounds stated in the application for special leave to which I have already referred and proceed on the basis that the approach the High Court will take is that dictated by s 35A of the Judiciary Act 1903. Under that section, the High Court may have regard to any matter that it considers relevant but is compelled to have regard to two particular matters: first, whether the proceedings involve a question of law that is of public importance (either because of its general application or otherwise) or in respect of which a decision of the High Court is required to settle the state of the law; and, second, whether the interests of the administration of justice either generally or in the particular case require consideration by the High Court of the decision to which the application for special leave relates. 7The ground stated in paragraph 2 of the application for special leave is, in substance, merely that the judges of appeal did not understand the case before them and came to a wrong conclusion. That paragraph does not identify any particular instance of error and it is not possible to say that it is a ground in respect of which there are substantial prospects of a grant of special leave. 8The ground stated in paragraph 3 of the application for special leave was amplified in oral submissions made by Mr Carnemolla and Mrs Carnemolla this morning. They apparently believe that important documents produced on subpoena are missing from the Court Registry and were stolen. But even if that was so (and I must say no evidence is referred to), that fact does nothing to call into question any part of this Court's decision on the appeal. Again therefore there is no substantial prospect that the High Court will grant special leave on that ground. 9The ground specified in paragraph 4 of the application for special leave challenges the refusal by this Court to allow medical evidence to be adduced on the hearing of the appeal. That matter was addressed by the Court at paragraphs 14 to 22 of the judgment of 14 May 2013. The Court declined to receive reports about Mr Carnemolla's health because the reports had been available at the time of the trial before Hislop J but were not tendered at trial and, even if they had been, would in all likelihood not have changed the result. This was because the reports dealt with the state of Mr Carnemolla's health in 2008 and later, whereas any issue of mental health that might conceivably have been relevant at trial went to the situation in December 2004. No basis has been suggested on which the Court's approach or decision was in error in this area. The prospects of leave to appeal being granted on the discretionary matter of refusal of the Court of Appeal to receive further evidence are therefore negligible. 10Paragraph 5 of the application for special leave to appeal seeks to challenge the decision of the Court of Appeal declining to interfere with the primary judge's finding of fact concerning the so-called coffee shop meeting. In taking that course, this Court referred to documents that were in evidence at the trial that fully bore out the primary judge's conclusions. Because it is wholly concerned with factual findings, the matter the subject of paragraph 5 attracts no realistic possibility of a grant of special leave. 11Mr Carnemolla and Mrs Carnemolla referred in their oral submissions this morning to a range of matters outside the scope of the grounds of appeal stand in the their application filed in the High Court. They referred in particular to a "false mortgage" and other underhand or suspicious things. To the extent that these are relevant to the issues raised by the grounds in the application to the High Court, I have already dealt with them. To the extent that they are not so relevant, I need say no more about them. 12In relation to the grounds on which special leave is sought, considered both individually and as a whole, it has not been shown that the applicants have any real prospects of success at all. I proceed nevertheless to the other matters requiring attention upon an application of this kind, namely whether the grant of a stay will cause loss to the respondent and where the balance of convenience lies. 13As to loss to the respondent bank, the position is that, on 22 May 2013, it filed an application for a writ of possession. At that point, the debt was $1,033,897.34. It is increasing at a rate of $177.91 per day at the Court interest rate. 14It is virtually certain that sale of the remaining security property will leave the bank with a significant shortfall. Grant of a stay would therefore cause that shortfall to increase and accordingly be the source of loss or further loss to the respondent bank. 15When it comes to the balance of convenience or the balance of hardship, the position is that the applicants have embarked on an application for special leave that has no evident prospects of success in circumstances where a stay would only increase the bank's loss. The balance of convenience favours the respondent bank. 16The orders are as follows: 1. The notice of motion filed on 22 May 2013 seeking a stay is dismissed with costs. 2. The exhibits tendered and admitted upon the hearing of the notice of motion may be returned after fourteen days. ********** 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: 06 June 2013