Stay applications are common where a borrower wishes to appeal an order for possession in favour of a Bank.  In those circumstances, stay on the order for possession is sought pending the determination of the appeal. 

If the stay is not granted, the borrower may apply for a review of a decision to refuse a stay. 

The recent decision of the three judges of the Court of Appeal of Donnelly v ANZ [2014] NSWCA 43 provides a useful summary of factors taken into account by the Court when determining applications for review. 

The decision is of practical significance to the Banks seeking to enforce judgments for possession, when opposing repeated applications for a stay of the judgment.

Background

In November 2013, ANZ was successful in obtaining a judgment for debt and possession of the security property against Mrs Donnelly.  For our update on that decision click here

In early December 2013, Mrs Donnelly filed a notice of appeal and applied for a stay of the order for possession pending the determination of the appeal. 

The primary judge (Stevenson J) granted a limited stay until 13 January 2014 but (expressly) only because there was evidence establishing the Bank’s policy was not to execute on judgment for possession over the Christmas season. 

The reasons of the primary judge recorded that:

  • Mrs Donnelly did not challenge the mortgage over the property which is the subject of the writ. 
  • Mrs Donnelly and her husband (Mr Donnelly) were the registered proprietors of the property. 
  • The Bank has obtained default judgment against Mr Donnelly. 
  • Mrs Donnelly accepted that the amount advanced under the facility must be repaid, although according to her the amount is to be calculated “in HKD at Hong Kong interest rates”. 

The writ was issued to the Sheriff on 21 January 2014 and the eviction was scheduled on 26 March 2014. 

On 10 February 2014, Mrs Donnelly made another application for a stay of the order for possession; this time in the Court of Appeal.  The application was heard by Basten JA.  Basten JA dismissed Mrs Donnelly’s application. 

On 12 February 2014, the appeal was fixed for hearing on 1 April 2014. 

Shortly thereafter, Mrs Donnelly applied for a review of the decision of Basten JA pursuant to section 46(4) of the Supreme Court Act 1970 (NSW). 

Mrs Donnelly’s application for review was heard by Emmett JA, Gleeson JA and Leeming JA of the Court of Appeal on 5 March 2014.  The Court of Appeal dismissed Mrs Donnelly’s application with costs.

The decision

In dismissing Mrs Donnelly’s application for review, the Court of Appeal held that:

  1. If the application for review under section 46(4) is to succeed, the applicant needs to establish a reviewable error in the reasoning process of the Judge of Appeal.
  2. Contrary to the approach adopted by counsel for Mrs Donnelly, an application for review is not an appeal or a hearing de novo.  It is not sufficient merely to point to the fact that the appeal is listed for hearing on 1 April 2014, four weeks away, such that the duration of the stay, and prejudice to the Bank, are now diminished compared to the position late last year before Stevenson J or earlier this year before Basten JA.
  3. It is well established that the applicant for a review bears a heavy burden.
  4. Ordinarily, a review will not succeed unless the decision turns on an error of law, a material error of fact, a failure to take into account some material consideration or the taking into account of an irrelevant consideration, or unless the decision is so unreasonable as to suggest that one of these types of error has been committed even though it does not appear on the face of the reasoning. 
  5. The decision of Basten JA to refuse a stay involved an exercise of the Court’s discretion.  His Honour dismissed the application for a stay having regard to the prejudice to Mrs Donnelly and to the Bank, his assessment of the strength of the appeal, and the considerations that the Bank was already entitled to possession against Mrs Donnelly’s husband and that Mrs Donnelly admitted substantial indebtedness to it. 
  6. It matters not whether any or all of the Judges of the Court of Appeal hearing the review application might have determined Mrs Donnelly’s application for a stay differently.  The onus in seeking a review of the decision of Basten JA falls on Mrs Donnelly to establish that His Honour has made an error in exercising the discretion to refuse a stay. 
  7. The decisive consideration in the present case was the undisputed indebtedness of Mrs Donnelly to the Bank.  Mrs Donnelly:
    1. Admitted owing a sum of money to the Bank.  On Mrs Donnelly’s case, that amount exceeded $460,000. 
    2. Offered nothing to pay or secure what she accepts she owed, nor to ameliorate the ongoing prejudice, to the Bank. 
  8. Basten JA was correct in having regard to these matters when refusing to grant a stay.  The decision of Basten JA was consistent with Inglis v Commonwealth Trading Bank of Australia.

The Court of Appeal noted that, had Mrs Donnelly tendered payment of the undisputed amount and proffered a reasonable proposal to protect the Bank from the prejudice it suffers from the ongoing delay, the exercise of discretion in granting a stay would have been quite different.

Take outs

The application for a review of a decision to refuse a stay to the Court of Appeal is a reminder to the lenders of the range of possible applications that may arise out of a judgment for debt and possession.

Although the applications for review are less common than the stay applications themselves, they do arise from time to time and often on an urgent basis. 

The borrower applying for a review of a decision to refuse a stay is required to demonstrate an error in the exercise of the discretion of the judge hearing the stay application.

The Court is unlikely to grant a stay if the borrower is unable to tender payment of the undisputed sum.  An application for a review of a decision to refuse a stay in those circumstances is also likely to fail. 

The link to the judgment is here for further detail.