Karamihos v Bendigo and Adelaide Bank Ltd [2014] NSWCA 221

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Karamihos v Bendigo and Adelaide Bank Ltd [2014] NSWCA 221 Hearing dates: 8 July 2014 Decision date: 11 July 2014 Before: Barrett JA Decision: 1. Order that the notice of motion filed on 7 July 2014 be dismissed; 2. Order that the applicants pay the respondent's costs of the notice of motion; 3. Note that the stay ordered on 8 July 2014 pending delivery of judgment on the notice of motion is no longer operative. 4. Grant liberty to the respondent to apply to me on two business days notice to the applicants (with a copy to my Associate) for exercise of any power of dispensation exercisable by the Court in respect of execution of the writ of possession. [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 - writ of execution issued by the Court of Appeal - application for stay of execution pending determination of application for special leave to appeal to the High Court - whether the fact that the subject property is a family home represents special circumstances for the purposes of the test in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; 161 CLR 681 - whether "substantial prospect" that special leave will be granted - where the dispute was essentially factual - whether stay likely to occasion loss to respondent - balance of convenience considered - all issues determined unfavourably to applicants. Legislation Cited: Contracts Review Act 1980 (NSW) Judiciary Act 1903 (Cth) National Consumer Credit Protection Act 2009 (Cth) Cases Cited: House v The King [1936] HCA 40; 55 CLR 499 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; 161 CLR 681 National Australia Bank Ltd v Savage (No 2) [2013] NSWSC 1927 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41; 14 BPR 26,639 Rinehart v Welker [2012] NSWCA 1; 83 NSWLR 347 Trust Company (Australia) Ltd v Galloway [2013] NSWSC 1571 Category: Interlocutory applications Parties: Steve Karamihos and Arris Karamihos (Applicants) Bendigo and Adelaide Bank Ltd (Respondent) Representation: Counsel: Ms J F Merkel (Applicants) Mr R I Bellamy (Respondent) Solicitors: Margiotta (Applicants) Gadens (Respondent) File Number(s): 2013/154903