Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Donnelly v Australia and New Zealand Banking Group Ltd [2014] NSWCA 20 Hearing dates: 10 February 2014 Decision date: 10 February 2014 Before: Basten JA Decision: 1. Reject the application for a stay of execution of the order for writ of possession. 2. Applicant to pay the costs of the respondent to 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: PRACTICE AND PROCEDURE - interlocutory application - application for a stay of execution of writ of possession pending appeal - prejudice to applicant if writ executed and appeal succeeds - prospects of success on appeal - prejudice to respondent if appeal fails - co-owner and co-debtor not party to application Category: Interlocutory applications Parties: Fiona Marie-Therese Donnelly (Applicant) Australia and New Zealand Banking Group Ltd (First Respondent) ANZ Asia Limited (Second Respondent) Representation: Counsel: Mr K Ryan (Applicant) Ms A Vetrova (Respondents) Solicitors: Applicant self-represented Gadens Lawyers (Respondents) File Number(s): CA 2013/372887 Decision under appeal Jurisdiction: 9111 Citation: [2013] NSWSC 1760 Date of Decision: 2013-11-29 00:00:00 Before: Stevenson J File Number(s): SC 2011/305340 Judgment 1BASTEN JA: In this matter the appellant seeks a stay of the execution of the writ of possession with respect to property of which she is a joint tenant with her husband and in which she and the children currently live, although the husband from whom she is now separated does not. I was advised that the writ of possession was served last week and that she is required pursuant to it to vacate the premises by 26 March 2014. 2A notice of appeal has been filed against the judgment and orders made by Stevenson J at trial: Australia New Zealand Banking Group v Donnelly [2013] NSWSC 1760. Stevenson J gave judgment on 29 November 2013, orders being entered on 4 December, with the writ to lie in the registry until 20 December 2013. A motion filed last year before the trial judge sought a stay, which was refused. However, Stevenson J directed that the writ lie in the Registry until 13 January 2014. The writ was issued on 21 January 2014. 3The basis upon which the stay is sought includes reference to the personal circumstances of the applicant and her family, the existence of a strong case on appeal and a lack of prejudice to the Bank in the event that the appeal is unsuccessful. 4So far as the personal circumstances of the family are concerned, they do of course weigh in favour of a stay, as to require her to vacate the property would undoubtedly have adverse and prejudicial consequences on the ability of the family to remain together and have suitable accommodation in the immediate future. So far as the lack of prejudice to the Bank is concerned, it will be necessary to say a little more in that regard shortly. 5The appellant submitted that there was a strong case with respect to the appeal. It is always invidious to assess the strength of an appeal in circumstances where it is not possible to have regard to all of the material and in circumstances where the Court hearing the appeal will be required to assess the strength of the appeal on a final basis in a short time. 6It was put by counsel for the appellant that there was no issue with respect to findings of credibility. True it is that Stevenson J accepted that the appellant should be believed in the account she gave of the events preceding the execution of the finance facility which gave rise to the debt and ultimately the application for possession. However, it was necessary for the trial judge to choose between conflicting accounts given by Mr Stuart, an officer of the bank, and Mrs Donnelly. (Mr Donnelly took no part in the proceedings below, judgment having already been signed against him; he did not give evidence for either party.) 7Although the trial judge believed the appellant's account of many of the events that happened, it was necessary that he choose between the accounts given by Mrs Donnelly and Mr Stuart in circumstances where they conflicted. He did that and in certain respects he accepted Mr Stuart and in other respects he accepted Mrs Donnelly. In particular, he rejected Mr Stuart's evidence that he did not tell Mr and Mrs Donnelly that the Australian dollar would "skyrocket", as inconsistent with the objective circumstances as understood by the Bank at that time: at [93] and [94]. 8In other respects, and in particular respects critical to the present appeal, he preferred Mr Stuart's evidence as to what had been said and what explanation had been given prior to the execution of the loan agreement. That acceptance also went to the extent to which Mrs Donnelly was aware of warnings which had been given in the documentation as to the possible risks of a declining position in respect of the value of the Australian dollar in Hong Kong dollars. To a significant extent it appears that the trial judge took account of Mrs Donnelly's responses to events which took place after the facility had been entered into when, far from "skyrocketing", the Australian dollar plunged in value as against the Hong Kong dollar. 9In these circumstances the basis for demonstrating error on an appeal against the factual findings made at trial is not established. In saying that I mean to make no comment on the possibility that she will succeed in her appeal, I merely have before me the material constituted by the grounds of appeal and the judgment below. I have nothing by way of submissions as to the merits of the appeal from either party, nor have I read the evidence. I do, however, conclude that for present purposes the strength of the appeal is not established. No doubt it is arguable, but I would not be able to accept the description of it as a "strong case". 10So far as the potential prejudice to the Bank is concerned, there are a number of matters which need to be taken into account. The Bank says that Mrs Donnelly owes it an amount somewhere in excess of $1 million which in turn is in excess of the value of the property as indicated on the only valuation available to the Court. On Mrs Donnelly's case the Bank is owed something in the vicinity of $575,000, disregarding the question of costs. The loan was for $600,000 Australian dollars and was for a period of five years. Repayments of approximately $100,000 were made, meaning that even disregarding interest there is an amount of $500,000 outstanding. The question of interest and costs must be taken into account. No doubt the result is an amount below the present value of the property, but there should not be an unqualified assumption of success of the appellant in considering the position of the Bank. In the event that the Bank successfully maintains its judgment it will be out of pocket to the extent of the ongoing interest amounts accruing on the debt while it cannot be realised. 11There are two other factors to be taken into account. One is that the calculations undertaken by the appellant appear to have been on the basis that she was entitled to the benefit of any improvement in the exchange rate with the Hong Kong dollar and was not liable for any deterioration in the exchange rate. It is not possible to make calculations picking and choosing dates and interest rates in this manner. The fact is that her conduct after the difficulties arose suggested that she was fully cognisant at relevant times, not merely when things went bad, of the risks that attended the foreign exchange currency loan that she had, with her husband, taken out. 12The other matter to note is that, as expressed by the trial judge in his judgment at [41]ff, Mr Donnelly had a judgment against him and the Bank was (and is) entitled to an order for possession against Mr Donnelly and is entitled to sell his share in the property. In those circumstances it is difficult to say what benefit would arise from staying the current writ of possession so far as the position of the appellant is concerned. (No doubt the Bank has little appetite for such a course.) 13In all the circumstances and having regard to the inadequacy of the material before me to found a contrary conclusion, the balance of convenience does not favour the grant of a stay. Accordingly, I reject the application. 14I order that the applicant on the motion pay the costs of the respondent to the motion. ********** 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: 17 February 2014