Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mio Amico Pty Ltd v Australia and New Zealand Banking Group Ltd [2013] NSWCA 441 Hearing dates: 13 December 2013 Decision date: 13 December 2013 Before: Basten JA; Macfarlan JA; Emmett JA Decision: (1) Dismiss the notice of motion filed by the applicants on 8 November 2013. (2) Order that the applicants on the motion pay the Bank's costs of the motion. [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: APPEAL - application to review judgment of single judge refusing stay - application abandoned - proposal to amend grounds of appeal and rely on further evidence to be dealt with in the ordinary way Legislation Cited: Supreme Court Act 1970 (NSW), s 46 Category: Principal judgment Parties: Mio Amico Pty Ltd (First Applicant) Ollie Italiano Olivieri (Second Applicant) Australia and New Zealand Banking Group Ltd (Respondent) Representation: Counsel: R M Higgins (Applicant) K Warwick (Solicitor for the Respondent) Solicitors: Oliveri Lawyers (Applicants) Norton Rose Fulbright (Respondent) File Number(s): CA 2013/206925 Application for Review Court / Tribunal: Court of Appeal Before: Gleeson JA Date of Decision: 25 October 2013 Citation: Mio Amico Pty Ltd v Australian and New Zealand Banking Group [2013] NSWCA 353 Court File Number(s): CA 2013/206925 Judgment 1THE COURT: The applicants are owners of property mortgaged to the Australia and New Zealand Banking Group Ltd ("the Bank"). On 13 June 2013 the Bank obtained a judgment against the applicants in the sum of approximately $3.3 million. It also obtained leave to issue a writ of possession. The applicants lodged an appeal in this Court. 2On 21 October 2013 an application for a stay of the orders made by the trial judge (Davies J) was heard by Gleeson JA. On 25 October he made orders refusing the stay: Mio Amico Pty Ltd v Australian and New Zealand Banking Group [2013] NSWCA 353. 3By notice of motion dated 8 November 2013 the applicants sought to discharge or vary that judgment, pursuant to s 46(4) of the Supreme Court Act 1970 (NSW). In place of the judgment of Gleeson JA, they sought an order staying enforcement of the judgment of Davies J pending the resolution of this appeal. 4The applicants did not point to any error in the judgment of Gleeson JA, nor raise any doubt as to the correctness of the decision. Indeed, by communications received by the Court this morning they indicated that they were abandoning the application. Although they provided an unfiled "amended notice of motion", the orders sought were, in substance, for leave to amend the notice of appeal and rely upon fresh evidence in support of the new proposed grounds of appeal. This was not properly an amendment to an extant notice of motion. The notice of motion filed on 8 November 2013 is dismissed. The applicants on the motion must pay the Bank's costs of the motion. 5If the applicants seek to amend the notice of appeal and seek leave to rely upon further evidence, they should make that application in the ordinary way. There is no stay in place. Any motion will be considered by the registry and listed in due course. No further directions or orders are required at this time. ********** 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: 18 December 2013