Australia & New Zealand Banking Group Ltd v Hubner & Anor [1999] QSC 168

) ) ) )',.' 36303 IN THE SUPREME COURT OF QUEENSLAND CAIRNS No. 131 of 1999 [AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED -v- COLIN RICHARD HUBNER and YVONNE HUBNER] BETWEEN: Australia & New Zealand Banking Group Limited PlaintifflRespondent Colin Richard Hubner and Yvonne Hubner Defendants/Applicants JONES J Judgment delivered 15th day of July, 1999 Application dismissed. A copy of the Application and these reasons be here served on the solicitors for the respondent. Catchwords: PRACTICE - STAY OF EXECUTION - Applicants seeking stay of execution of Court's Judgement - Subject of Special Leave to Appeal to High Court - Action has Significant History - Question of Jurisdiction - Balance of Convenience does not Favour the Granting of a Stay of Execution. Counsel: Self for the Plaintiff/Applicants No Appearance for the Defendant -- 1 of 7 -- ) ) ) ) IN THE SUPREME COURT OF QUEENSLAND CAIRNS Writ No. 131 of 1999 BETWEEN: AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED PlaintifflRespondent AND: COLIN RICHARD HUBNER and YVONNE HUBNER Defendants/Applicants REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE JONES DELIVERJ;D THE 15TH DAY OF JULY, 1999 1. This is an application by Mr. And Mrs. Hubner ("the applicants") seeking a stay on the execution of a judgment of this Court pronounced on 19 June, 1997 which is now the subject of an, .a]?plication to the High Court of Australia for special leave to appeal. This application is brought as a matter of urgency because in the execution of the judgment the respondent proposes on Saturday, 17 July, 1999 to sell, by auction, a parcel of land owned by the applicants situated at 333 Draper Street, Cairns and described as Lot 1 R.P. 701366 in the County of Nares, Parish of Cairns. 2. By this application the applicants seek to defer that sale pending the determination of proceedings in the High Court. -- 2 of 7 -- 2 .3. The applicants intended that this application be served on the respondent bank but in the time available were not able to do so. I embarked upon the hearing on the basis that if persuaded that a stay should be considered I would adjourn further hearing to allow the respondent to be served and then heard. Upon the view that I have taken of the matter having listened to the applicants this step has not become necessary. 4. This action has a significant history. The respondent (plaintiff) commenced the action by writ of summons issued pursuant to 0.6 r.7 of the Rules of Court as ) mortgagee seeking recovering of the land. On 9 April, 1997 judgment in default of ) 5. ) ) the defence was entered by the Registrar of the Court at Townsville on 19 June, 1997. Since then the following applications have been determined - On 16 September, 1997 an application to have the judgment set aside was refused. On 13 October, 1997 the applicants lodged a caveat over the subject land. Coincident with this step on 14 October, 1997 the applicant commenced proceedings in the F.ederal Court of Australia seeking relief against the Irespondent under the Trade Practices Act 1974 (Cwth) and the Cheques and Payment Orders Act 1986 (Cwth). On 16 October, 1997 the applicants sought the stay of a Writ of Execution based on the default judgment until the Federal Court proceedings were determined. On 6 November, 1997 the application for the stay of execution was dismissed and an order made removing the caveat. On 3 April, 1998 an application that the respondent be restrained from dealing with the subject property was dismissed. On 28 May, 1998 a further application to set aside the judgment was refused. On 7 May, 1999 an appeal against that decision was dismissed by the Court of Appeal. -- 3 of 7 -- 3 6. Since the hearing of those applications the applicants' position has been considered by the Court of Appeal which has upheld the validity of the original judgment. 7. In that history it is seen that I have previously considered on 2 earlier applications the very issue which now arises for determination. This application presents a greater challenge to the applicants because it is to be considered according to principles applicable to the stay of execution pending the hearir!g of an application for special leave to appeal to the High Court. These principles have ) been conveniently set out in the judgment of Kirby J in Bryant v Commonwealth Bank of Australia 1 and again in Ampolex Pty Ltd v Perpetual Trustee Co ) (Canberra) Ltd 2. The relevant principles were identified to Mr. Hubner, the first named applicant, who appeared without legal representation and a copy of the decision in Bryant's case was made available to him. 8. Since the applicants seek a stay in respect of a judgment entered by the -, Supreme Court of Queensland, it seems to me that I have jurisdiction to deal with ) the matter notwithstanding the existence of the application for special leave. In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No.1) 3 ,- ) Brennan J (as he then was) said:- "When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the Court below and it is to that Court - the Court in which the matter is pending and which is familiar with the matter - that an application to stay should first be made. In this case the Court of Appeal not wishing to pre-empt the view that may be expressed in this Court tailored its order accordingly. In future, there should be no inhibition on the Court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity of application to this Court." J (1996) 70 ALJR 306 at p. 308-9 2 (1996) 137 ALR 28 at p. 31-35 3 (1986) 161 CLR 681 at p.684 -- 4 of 7 -- ) ) ) ) 4 It is clear from each of the cases to which I have just referred that the High Court retains an inherent jurisdiction also to order a stay of execution. 9. Given that the application for the stay is one pending the determination of a 10. 11. special leave applicatiop. the application of relevant principles require that a stay will be granted only in very exceptional circumstances. For convenience I set out a passage from the judgment in Bryant's case (supra) 4:_ "The expression of the stringent standard. and a description of some of the matters to be taken into account where a stay is sought before a grant of special leave, may be found in numerous reported and unreported decisions of this Court. Repeatedly, the Court has emphasised that the jurisdiction to grant a stay is exercised only in very exceptional circumstances. It is "extraordinary". In Jennings Construction Ltd v Burgundy Royale Investments Ply Ltd (No.1), Brennan J stated the approach to be taken: "In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies. "" A perusal of the terms of the written outline of argument presented by the applicants would suggest that the applicants were well aware of this test. The litigation in respect of which special leave is sought is concerned with the rights of a mortgagee to possession of property offered as security against default in repayment of a loan. That property is a block of accommodation units none of which has been occupied for sometime. Mr. Hubner, before me, has indicated some emotional attachment to the property on which, in the past, he has expended some energy in its improvement. He has also lived in one unit for a short period whilst recuperating from injury. But this is not a case where a stay or -- 5 of 7 -- 5 an order equivalenj to a stay would be needed to preserve the utility of the subject matter of the litigation. 12. The respondent has been in lawful possession of the premises since approximately April, 1998. The property is not productive of income. The realisation of the asset will reduce the expense of its maintenance and most likely will protect all parties against deterioration in its value. 13. Whilst Mr. Hubner is most sanguine about his prospects of success on the special leave application I do not share his view. The arguments it appears, were ) raised in some detail before the Court of Appeal. The members of that Court were unanimous in rejecting them. In the approach that I have taken it is not necessary ) for the purpose of my decision to canvass further the prospects of the plaintiff s success in the special leave application. 14. Though I have not heard from the respondent, it is beyond doubt that a stay of execution if granted will cause loss to the respondent. From the material relied upon in other applications, there is little likelihood of any appreciation in value of ) unoccupied accommodation units without expenditure on their maintenance. 15. Turning to the balance of convenience issue. The material relied upon by the ) applicants in this instance includes a bank statement which shows the present indebtedness of the applicants to the bank that in excess of $500,000 (see ex. "C"). Some $60,000 odd of that debt was contributed by costs associated with the I unsuccessful applications brought by the applicants. referred to above. Bankruptcy proceedings have been instituted against both applicants. They have moved to have the bankruptcy notices set aside but their application was dismissed at first instance as was an appeal to the Full Court of the Federal Court. The applicants 4 70 ALJR 306 at p.309 -- 6 of 7 -- .' T 6 are now seeking special leave to appeal to the High Court of Australia on this matter. The proceeds from auction of the property would reduce the ultimate indebtedness of the applicants to the respondents. The preservation of the property pending the outcome of the application for special leave has no obvious benefit for anyone of the parties. In my view the balance of convenience does not favour the granting of a stay of execution. 16. I therefore dismiss the application. 17. I direct that a copy of the Application and these Reasons be here served on ) the solicitors for the respondent. ) ) -- 7 of 7 --