Foong v Commonwealth Bank of Australia [2014] NSWCA 246

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Foong v Commonwealth Bank of Australia [2014] NSWCA 246 Hearing dates: 22 July 2014 Decision date: 22 July 2014 Before: Basten JA at [17]; Gleeson JA at [1] Decision: 1. Refuse the application for an extension of time within which to file the summons filed on 12 May 2014 seeking leave to appeal from a judgment of Beech-Jones J in the Common Law Division. 2. Dismiss the summons seeking leave to appeal. 3. The applicants to pay the respondent'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: PRACTICE AND PROCEDURE - Applications - Leave to appeal against dismissal of an application to extend a stay of execution of writ of possession - Ground of hardship - Whether arguable that the primary judge erred in the exercise of his discretion Legislation Cited: Bankruptcy Act 1966 (Cth) s 58 Uniform Civil Procedure Rules 2005 (NSW), r 51.10 Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Chao Joi Foong v Commonwealth Bank of Australia [2014] NSWCA 183 Commonwealth Bank of Australia v Foong (Supreme Court (NSW), Beech-Jones J, 4 April 2014, unreported) Farrow Mortgage Services Pty Ltd v Winfield [1992] 2 Qd R 282 GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889 House v The King [1936] HCA 40; 55 CLR 499 Category: Principal judgment Parties: Chao Joi Foong (First applicant) Yena Suzen Foong (Second applicant) Commonwealth Bank of Australian (Respondent) Representation: Counsel: Applicants (self-represented - Yena Suzen Foong) H P Van Ravels (Respondent) Solicitors: Applicants (self-represented) Gadens Lawyers (Respondent) File Number(s): 2014/144319 Decision under appeal Jurisdiction: 9111 Citation: Commonwealth Bank of Australia v Foong (Supreme Court (NSW)), Beech-Jones J, 4 April 2014, unrep) Date of Decision: 2014-04-04 00:00:00 Before: Beech-Jones J File Number(s): 2012/238493