Walter & Anor v National Australia Bank [2004] VSCA 184

9. The material before us today includes, now, three affidavits sworn by Carmen Walter, they being affidavits filed on 24 August, 25 August and today, 1 October. In that material Ms Walter who is the daughter of the applicants and is herself a party in a related proceeding to which I will refer puts forward the case for the stay application which is made to us today.

12. There is an affidavit in reply from the solicitor for the respondent, National Australia Bank, which was filed on 29 September. The applications arise out of two proceedings, firstly proceeding number 2407 of 2002 in which the bank sought to enforce a mortgage which was executed over a residential property at 13 Sanctuary Boulevard, Wodonga of which the applicants were registered proprietors. That was, as I have said, a residential property, the home of the applicants at that time.

15. There was a related proceeding, number 4486 of 2001, in which the applicants and also their daughter Carmen Walter, the Walter Family Trust and Palatinat Brewery Pty Ltd sought to invalidate various loan contracts, mortgages, guarantees and debentures executed by them in favour of the National Australia Bank. Those proceedings were added to by an application made to prevent the sale of land which was filed on 16 February 2001. In that summons it was argued that there was no consideration from the bank for the loans which had been obtained and that the bank took advantage of the lack of English language skills of the applicants and that the Walters had not been given the opportunity to read relevant documents or to obtain independent legal advice. The applicants claimed that they had been forced to agree to the offers under duress and that there was no interpreter present at the time of signing the relevant documents. They contended that they had made payments on time, that there was no default under the mortgage and that the mortgage was unenforceable because it was executed in the personal capacity of the applicants whereas in truth it was the Walter Family Trust which was the owner of the land. All of these were matters addressed before Dodds-Streeton, J. Her Honour held that the Walters individually and collectively were not subject to a special disability and were not in a position of special disadvantage but, rather, they were intelligent, resourceful and experienced business people who had access to legal advice and business advice in entering the transactions in issue. Her Honour rejected the allegation of unconscionable conduct.

18. Her Honour gave judgment that in relation, firstly, to proceeding 4486 of 2001 dismissing the claim of the applicants, and gave judgment that the applicants pay the respondent's costs on an indemnity basis. On the other proceeding number 7407 of 2002, Her Honour gave judgment in favour of the Bank and ordered that the respondent have possession of the land known as and situated at 13 Sanctuary Boulevard, Wodonga. Her order described the land by a Certificate of Title and folio number which contained an error by way of one digit, which error was corrected and ratified by an order of Her Honour and authenticated on 25 August 2004, under the slip rule. Her Honour ordered that the defendants pay the plaintiff's costs of the proceeding including reserved costs on an indemnity basis and Her Honour granted a stay of execution of that judgment until 26 March 2004. From those decisions of Her Honour the applicants gave notice of appeal to the Court of Appeal by a notice filed on 9 March 2004.

21. On 26 March 2004 this court, comprising Phillips, J.A. and Bongiorno, A.J.A., refused an application for a stay brought by the applicants against the orders of Dodds-Streeton, J. pending determination of the applicants' appeal to the Court of Appeal. On an application by the respondent, the applicants were ordered to give security for costs in the sum of $10,000 as to each of those proceedings as a condition of the appeal. The sum of $20,000 was paid into court by the applicants on 14 April 2004.

24. In the hearing before Phillips, J.A. and Bongiorno, A.J.A. the applicants advanced much the same case as was advanced before us in the affidavit material today. They pleaded hardship, in particular hardship that would result if possession of the house property was lost and the property was sold by the bank in execution of its securities. In his judgment Phillips, J.A. (with whom Bongiorno, A.J.A. agreed) dealt with the arguments as to hardship, noting three factors which in his view had to be balanced against the natural sympathy for the applicants with respect to the disposition of the family home. The judgment of his Honour is lengthy and I do not propose to read it, save for the conclusion of Phillips, J.A. that "having considered the material before us and heard what has been said this morning we find ourselves unpersuaded that there are any special circumstances to justify departing from the general rule that this meant the finality of a judgment stands notwithstanding the institution of an appeal. "

27. The applicants then filed application to the High Court seeking special leave to appeal from the decision of the court comprising Phillips, J.A. and Bongiorno, A.J.A. On 25 August 2004 the applicants made an urgent application to Osborn, J. in the Trial Division for a stay of execution of a warrant of possession which was issued by the court on 29 March 2004. In refusing the application Osborn, J. said:

"I am not satisfied that the applicants have demonstrated such special circumstances in a requisite sense and in particular I am not satisfied that new circumstances have arisen since the matter was before the Court of Appeal which would justify a different view from that adopted by it. In that event the application for a stay must be dismissed."

31. His Honour held that the applicant had neither demonstrated special circumstances nor, as I have said, that any new circumstances had arisen since the matter had been before the Court of Appeal.

34. The applicants now renew application to this court and by their summons they seek orders:

(i) that the orders made by Dodds-Streeton, J. on 25 February 2004 are stayed pending the determination of the application for special leave to appeal currently before the High Court of the Commonwealth of Australia;

(ii) any dealing with the land as a matter of this proceeding is stayed pending the determination of the application for special leave to appeal currently before the High Court of the Commonwealth of Australia, and

(iii) until such further and other orders as the court may deem necessary.

40. As I have said, in support of that application we now have three affidavits before us to which the deponent is Carmen Walter. The applicants, in their material, urge that the court should grant the stay. It is urged that the Walter family home should be retained pending the appeal and it is argued there would be no inconvenience to the respondent if the stay was granted and that result flowed.

43. It is contended that the respondent, being a large corporation, a large bank, would suffer no change in its financial position were the order to be made, whereas if the stay was not granted then the appeals in both matters to the High Court and also the appeal with respect to the Court of Appeal would be rendered nugatory.

46. The applicants also contend that the application of the slip rule to correct the orders of Dodds-Streeton, J. was contrary to law and, accordingly, any action to take possession of the property and to execute by way of sale of the property is unlawful. In fact, the Bank has entered into possession of the property and an auction is due to be held tomorrow.

49. The contentions of the appellant were dealt with in the previous judgment of Osborn, J. and His Honour gave long, and, in my respectful opinion, careful reasons, with which I agree. The material which was before His Honour in my view entirely justified his Honour's conclusion that no special circumstances had been shown to justify the granting of the stays which had been sought from him.

52. In my view, nothing has been shown today to alter the position as it appeared then and as it appeared at the time of the previous hearing before Phillips, J.A. And Bongiorno, A.J.A.. to succeed on this application the applicants must show exceptional circumstances. (See Cellante Pty Ltd v. G. Kallis Industries Pty Ltd[1], Jennings Constructions Ltd v. Burgundy Royale Investments Pty Ltd[2]. In my opinion, the analysis made by Phillips, J.A. and Bongiorno, A.J.A. remains entirely apposite.

55. I have had the opportunity to consider the application which has been filed with the High Court and the material which has been filed in response to it. In my view, that material suggests that the prospects of special leave to appeal being granted are extremely limited. In my view, for the reasons given by Osborn, J. on 25 August 2004 (the position in my view not having changed and nothing new having been shown to have arisen since the previous decisions were taken as to stay applications). There are no special circumstances to justify a stay.

58. The case for the applicant has been long and hard fought by them and on their behalf by Carmen Walter for the family, but I see no basis why the auction should not proceed tomorrow possession having been taken. The respondent contends that, in any event, that possession it could be said that there is no matter on which the court could have granted a stay. I do not need to express any view as to that. There having been no special circumstances shown as to why a stay should be adopted, then, in my view, this application should be dismissed.

65. The order of the Court will be that the application filed on 24 August 2004 is refused.

(Discussion ensued re costs.)

BUCHANAN, J.A.:

[1] [1991] VicRp 99; [1991] 2 V.R. 653 at 657

[2] [1986] HCA 84; (1986) 161 C.L.R. 681 at 684