ARBEST PTY LIMITED v STATE BANK OF NEW SOUTH WALES

I have heard argument about those orders and will make orders as follows by reference to the draft of the appellants.

Order 2, by amending the draft order in the appellants" draft to accord with the draft order in the respondent's draft. That is, order 2 will be, orders 1 and 4 made by Young J on 22 March 1994 be set aside.

Order 3 in the appellants" draft is the same as order 3 in the respondent's draft, and I make it as in the appellants" draft.

Order 4 was opposed by the respondent as being unnecessary. I agree with that view and will not make order 4.

Order 5 in the appellants" draft is agreed upon by the respondent and I make it as in the appellants" draft, except I renumber it 4.

Order 6 in the appellants" draft was not the subject of any substantive contention and I will make it in a varied form, numbered 5 as follows; order that the determination of any damages pursuant to the Fair Trading Act 1987 and the findings of this court be remitted for inquiry by a Master of the Supreme Court in the Common Law Division at the appellants" risk as to costs.

Order 7 in the appellants" draft was a matter of a substantive kind but one which a single judge of the Court of Appeal can deal with. It arises from the facts that orders 2 and 3, made by Young J on 22 March 1994, entitle the respondent to possession of the premises which are the subject of the mortgage in question, and that those orders are undisturbed. As a result of this court's decision in the appeal the respondent remains entitled at law to possession of the property subject to this court's power to stay any proceedings for possession in regard to it.

Kirby P made an order staying further proceedings for possession in regard to the property upon certain conditions and until the conclusion of the appeal.

Since there is a possibility that the appellants will succeed in obtaining some damages pursuant to the order remitting for inquiry by the Master the question of damages, there is still a possibility, although it may be fairly theoretical, that the

appellants will recover sufficient to enable them to pay out, or to assist them in paying out, the amount owing on the property.

I am not in possession of sufficient material to form any realistic judgment about the likelihood of their success in that respect.

In the circumstances, it seems appropriate to me to continue the existing stay for a period of six months upon the same conditions as those imposed by Kirby P and upon the further condition that within a period of four weeks from today, the amount which I am informed from the bar table has not been paid pursuant to Kirby P's conditions, be brought up to date.

The intention is that at the conclusion of six months, if there is to be any application for a continuation of the stay, that should be made to the Master who will then be in much better possession, although perhaps not complete possession, of the relevant facts to judge whether a further stay would be proper to grant, than I am today.

Returning to the draft, I would renumber the appellants" draft order 7 as order 6 and restate it as follows: proceedings for possession in relation to the property contained in certificate of title, folio identifier 129/15123, known as 26 Dixson Street, Dulwich Hill, be stayed for six months from today upon the conditions imposed by Kirby P when granting the stay which is on foot, as I am told, until today, and upon further condition that any amounts which should have been paid pursuant to the conditions imposed by Kirby P and unpaid at today's date be paid within four weeks from today.