White & Anor v State Bank of New South Wales [2002] NSWCA 408

White & Anor v State Bank of New South Wales [2002] NSWCA 408

Although the balance of hardship would have favoured Mrs White if her special leave application had prospects of success, the proposed grounds had no real substance: Cooper AJ and a unanimous Court of Appeal had rejected the arguments, and the unconscionability argument depended on factual findings that had not been made. It would therefore be unjust to impose further loss and expense on State Bank by restraining enforcement of rights upheld at two levels.

Jurisdiction
Australia
Judgment Date
11 December 2002
Procedural Posture
Application for Stay of Execution and Stay of Judgment and Order for Possession Pending Determination of an Application for Special Leave to Appeal to the High Court / Notice of Motion Before a Single Judge of the Court of Appeal After Dismissal of Appeal
Outcome
Notice of motion dismissed with costs.
Legal Topics
['stay of Execution' 'application for Special Leave to Appeal' 'writ of Possession' 'mortgage Enforcement' 'unconscionability' 'contracts Review Act']
['civil Procedure' 'appellate Procedure' 'banking and Finance' 'property Law'] ['stay of Execution' 'application for Special Leave to Appeal' 'writ of Possession' 'mortgage Enforcement' 'unconscionability' 'contracts Review Act']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Stay of Execution and Stay of Judgment and Order for Possession Pending Determination of an Application for Special Leave to Appeal to the High Court / Notice of Motion Before a Single Judge of the Court of Appeal After Dismissal of Appeal

Legal Issues

  1. 1 ["Whether execution of the order for possession should be stayed pending determination of Mrs White's application for special leave to appeal to the High Court." 'Whether a wider stay of the judgment and order for possession should be granted pending the special leave application.' 'Whether the prospects of success in the application for special leave to appeal justified granting a stay.']

Ratio Decidendi

Although the balance of hardship would have favoured Mrs White if her special leave application had prospects of success, the proposed grounds had no real substance: Cooper AJ and a unanimous Court of Appeal had rejected the arguments, and the unconscionability argument depended on factual findings that had not been made. It would therefore be unjust to impose further loss and expense on State Bank by restraining enforcement of rights upheld at two levels.

Court Disposition

Notice of motion dismissed with costs.

Orders

  • ['The notice of motion is dismissed with costs.']