Child v Commonwealth Development Bank of Australia Ltd [2000] NSWCA 367

Child v Commonwealth Development Bank of Australia Ltd [2000] NSWCA 367

Although Mr Child's prospects in the High Court were not strong and writs of possession had already been executed, the special leave application could not be described as vexatious; sale of the properties before determination of the High Court process would destroy the essential subject matter of the proceedings from Mr Child's point of view and might adversely affect sale prices, so the balance of convenience strongly supported a limited stay and restraint on exercise of the mortgagee power of sale until 16 February 2001.

Jurisdiction
Australia
Judgment Date
15 December 2000
Procedural Posture
Application for Stay of Execution of Judgment / Court of Appeal Application After Dismissal of Defence and Cross Claim, Pending Application for Special Leave to Appeal to the High Court
Outcome
Application allowed in part; limited stay and restraint granted until 16 February 2001, with liberty to apply.
Legal Topics
['stay of Execution' 'mortgagee Power of Sale' 'possession of Mortgaged Property' 'special Leave to Appeal' 'balance of Convenience']
['civil Procedure' 'banking and Finance' 'real Property'] ['stay of Execution' 'mortgagee Power of Sale' 'possession of Mortgaged Property' 'special Leave to Appeal' 'balance of Convenience']

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Procedural Posture

Application for Stay of Execution of Judgment / Court of Appeal Application After Dismissal of Defence and Cross Claim, Pending Application for Special Leave to Appeal to the High Court

Legal Issues

  1. 1 ["Whether further execution of Adams J's judgment should be stayed pending steps in the High Court concerning Mr Child's application for special leave to appeal." 'Whether the Bank should be restrained from exercising its power of sale as mortgagee over "Bennetts" and "Sneaths" until 16 February 2001.' 'Whether possession of the properties should be returned to Mr Child or the Bank should be restrained from taking preparatory sale steps.']

Ratio Decidendi

Although Mr Child's prospects in the High Court were not strong and writs of possession had already been executed, the special leave application could not be described as vexatious; sale of the properties before determination of the High Court process would destroy the essential subject matter of the proceedings from Mr Child's point of view and might adversely affect sale prices, so the balance of convenience strongly supported a limited stay and restraint on exercise of the mortgagee power of sale until 16 February 2001.

Court Disposition

Application allowed in part; limited stay and restraint granted until 16 February 2001, with liberty to apply.

Orders

  • ['Stay of any further execution of the judgment of Adams J entered 17 February 2000 until 16 February 2001.' 'The stay of any further execution of all proceedings under the judgment of Adams J entered 17 February 2000 until 16 February 2001.' 'The plaintiff be restrained from exercising its power of sale as...