Donnelly v Australia and New Zealand Banking Group Ltd [2014] NSWCA 43

Donnelly v Australia and New Zealand Banking Group Ltd [2014] NSWCA 43

The application failed because Mrs Donnelly did not identify reviewable House v The King error in Basten JA's refusal of a stay. Basten JA adopted a conventional approach by considering prejudice to both parties, the strength of the appeal, the Bank's entitlement to possession against Mr Donnelly, and Mrs Donnelly's admitted substantial secured indebtedness. The alleged findings about her awareness of warnings were not findings but references to the primary judge's findings. Prejudice to the Bank from ongoing interest and non-payment was relevant, and the admitted secured indebtedness was decisive where the applicant offered no payment or security and none of the recognised exceptions...

Jurisdiction
Australia
Judgment Date
05 March 2014
Procedural Posture
Interlocutory Application for Review Under Supreme Court Act 1970 (nsw), S 46(4), of Refusal to Grant Stay of Execution Pending Appeal / Notice of Motion in the Court of Appeal
Outcome
The applicant's notice of motion filed 24 February 2014 was dismissed with costs.
Legal Topics
['stay of Execution Pending Appeal' 'review of Decision of Judge of Appeal' 'possession of Mortgaged Property' 'secured Indebtedness' 'foreign Currency Loan']
['practice and Procedure' 'banking and Finance' 'mortgages'] ['stay of Execution Pending Appeal' 'review of Decision of Judge of Appeal' 'possession of Mortgaged Property' 'secured Indebtedness' 'foreign Currency Loan']

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

Interlocutory Application for Review Under Supreme Court Act 1970 (nsw), S 46(4), of Refusal to Grant Stay of Execution Pending Appeal / Notice of Motion in the Court of Appeal

Legal Issues

  1. 1 ['Whether Basten JA made reviewable error in refusing a stay of execution of final orders pending appeal.' "Whether alleged findings by Basten JA about the applicant's awareness of warnings and foreign exchange risks caused the exercise of discretion to miscarry." 'Whether prejudice to the Bank from ongoing interest and unpaid secured indebtedness was a relevant consideration.' 'Whether a stay should be granted where the applicant acknowledged substantial secured indebtedness but offered no payment or security.']

Ratio Decidendi

The application failed because Mrs Donnelly did not identify reviewable House v The King error in Basten JA's refusal of a stay. Basten JA adopted a conventional approach by considering prejudice to both parties, the strength of the appeal, the Bank's entitlement to possession against Mr Donnelly, and Mrs Donnelly's admitted substantial secured indebtedness. The alleged findings about her awareness of warnings were not findings but references to the primary judge's findings. Prejudice to the Bank from ongoing interest and non-payment was relevant, and the admitted secured indebtedness was decisive where the applicant offered no payment or security and none of the recognised exceptions...

Court Disposition

The applicant's notice of motion filed 24 February 2014 was dismissed with costs.

Orders

  • ["The applicant's notice of motion filed 24 February 2014 is dismissed, with costs."]