Appellant (First Defendant) : Michell Sillar McPhee

Federal Commissioner of Taxation v Myer Emporium Ltd [1986] HCA 13; (1986) 64 ALR 325

Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395

Hamersley Iron Pty Ltd v Lovell [No 2] (1998) 20 WAR 79

Harvey v McWaters (1948) 49 SR (NSW) 173

McBride v Sandland (No 2) [1918] HCA 59; (1918) 25 CLR 369

National Australia Bank v Nobile & Anor [1988] FCA 72; (1988) 100 ALR 227

Tranchita v Retravision (WA) Pty Ltd [2001] WASCA 265

Wilson v Church (No 2) [1879] 12 Ch 454

1 MASTER BREDMEYER: This is an application for a stay of execution pending an appeal. The application is made under O 63 r 15 and a Master has power to hear this application by virtue of r 18.

2 I granted a summary judgment against Mrs Siglin on 31 August 2001. She was required to pay a money sum of $436,472.67 and she was also required to vacate possession of her property situated at Unit 21, 23 Swan Street, South Perth, within 42 days. I published reasons for decision: Charles & Ors v Siglin & Anor [2001] WASC 234.

3 A stay of execution is only granted in special circumstances. Special circumstances justifying a stay will exist if the appellant shows that, if a stay is not granted, the appeal may be nugatory, or a serious injury will result to the appellant: Seaman, Civil Procedure in Western Australia, par 63.15.1. The appeal must also have some prospects of success. This appeal has some prospects of success. I consider that if a stay of execution is not granted, this appeal may well be nugatory. Mrs Siglin has lived in this property since 1979. She is now 78 years old. She is no doubt attached to her property, and, if it was sold pursuant to the terms of my judgment, and she won the appeal, the property could not be repurchased. I consider that a very special circumstance why a stay should be granted. I note that in Ross & Anor v Carvallio & Anor, unreported; SCt of WA; Library No 960043; 31 January 1996, Anderson J said something to the same effect:

"This is a contract for the sale of land and the general rule is, that if the refusal of a stay of execution will or may result in the land being disposed of, so that the subject matter of the contract will no longer be available, it is generally considered proper to grant a stay of execution or appropriate injunctive relief: Erinford Property Ltd v Cheshire County Council [1974] 1 Ch 261."

That was said on an application for a stay of execution pending an appeal from a judgment of Parker J.

4 My judgment was for the sum of $436,472.67. The property was valued by a valuer, Mr Young, in July 2000 at $390,000. So, if the property is sold, it will not extinguish the debt. Mrs Siglin has deposed to her assets in her affidavit and she has virtually no assets to meet the shortfall. There is, however, another defendant, Mrs Siglin's son David, and a summary judgment has been entered against him. Whether he has any capacity to pay, and whether he has appealed or not, I do not know.

5 I am considering whether a stay of execution should be granted conditional on some payment into court. Mr Giles, in submissions for the respondents, referred me to Commonwealth Development Bank of Australia v Nertec Pty Ltd [1999] WASCA 311, applying Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161, to the effect that, where a mortgagee's power of sale is challenged, the mortgagor must pay a sufficient sum into court to protect the mortgagee. That is good law and prevents a stay of execution or an injunction being granted on the application of the borrower seeking to interfere with the mortgagee's exercise of its powers pre judgment. I do not consider those authorities are relevant, however, on an appeal.

6 Mr Giles also referred me to Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457, Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449 and Vadasz v Pioneer Concrete (SA) Pty Ltd [1995] HCA 14; (1995) 184 CLR 102 for the proposition that, where a borrower under the loan seeks to set it aside, for example, because of unconscionable conduct, the borrower should be required to pay the loan into court as a condition of obtaining leave to defend, on the basis that "he who seeks equity must do equity". It is apparent from Mrs Siglin's affidavit that she cannot pay in a substantial sum. I do not consider that these authorities are particularly relevant on this stay application. None of those cases involved a summary judgment. The law has not developed to the extent that, if a mortgagor has made out an arguable defence of unconscionable conduct on a summary judgment application, he is obliged to pay the money into court as a pre condition for getting leave to defend.

7 In this particular case, I consider that Mrs Siglin has a strong case for obtaining a stay of execution - not on the merits of her appeal so much, as on the fact that she could not be restored to her previous position (living in the unit) if a stay was not granted and she won the appeal. I am mindful of the fact that she has hardly any other assets apart from this property. I am also mindful of the hardship to the respondents who are elderly lenders who loaned this money through a mortgage broker. They have not had any interest, apart from the first year's interest which was paid out of the moneys loaned. I consider that the stay of execution should be made conditional on Mrs Siglin paying into court $1,500. That sum is not an estimate of the extra interest running because of the appeal. It is on account of interest and is my estimate of what I think she can afford to pay.

8 I will order a stay of execution pending the determination of the appeal on the condition that Mrs Siglin pays into court $1,500 within 21 days. I have previously ordered, on 3 October 2001, that the appeal be expedited and the appeal may be entered for hearing without the appeal books. I will also order, today, that the costs of this application be in the cause of the appeal.