Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Hammond v J P Morgan Trust Australia Ltd [2012] NSWCA 188
• Hearing dates: 15 June 2012
• Decision date: 15 June 2012
• Before: Basten JA at 10; Sackville AJA at 11; Young AJA at 1

Decision

(1) Dismiss the notice of motion filed 22 May 2012.

(2) Extend the stay granted on 28 May 2012 of the execution of the writ of possession issued on 12 April 2012 until the hearing of the appeal.

(3) In the appeal:

(a) if the appellant proposes to rely on evidence not before Johnson J, she is to file and serve a notice of motion within 14 days together with an affidavit annexing copies of evidentiary material upon which she intends to rely, confined to the ground identified by the Court of Appeal in 2011;

(b) if the respondent wishes to rely on a subsequent notice of default, it is to file and serve a notice of contention or other appropriate document, together with an affidavit annexing copies of evidentiary material upon which it intends to rely;

(c) stand the matter over to the Registrar's list for directions with respect to written submissions and an early listing of the appeal for hearing.

(5) Costs of today are to be costs in the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - civil - application for stay pending appeal - whether appeal arguable - whether appeal arguable if further evidence adduced; APPEAL - civil - application to review a decision of a single Judge of Appeal - whether submissions made for the first time on review application would have led to different result before single judge - Supreme Court Act 1970 (NSW), s 46(4); Civil Procedure Act 2005 (NSW), s 56
• Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
• Category: Principal judgment
• Parties: Tracie Hammond (Applicant); J P Morgan Trust Australia Ltd (Respondent)
• Representation: No appearance (Applicant); P T Newton (Respondent); C A Moore SC/F T Roughley (Amicus Curiae); Applicant unrepresented; Kemp Strang (Respondent)
• File Number(s): CA 2012/124059

Decision under appeal

• Jurisdiction: 9003
• Citation: Hammond v J P Morgan Trust Australia Limited [2012] NSWCA 156
• Date of Decision: 2012-05-14 00:00:00
• Before: Tobias AJA
• File Number(s): CA 2012/124059

Judgment

1 YOUNG AJA: This is a motion to review a decision of Tobias AJA delivered on 14 May 2012 which dismissed with costs the applicant's notice of motion of 4 May 2012.

2 The current litigation arose out of a loan in the sum of $486,000 lent to the applicant to enable her to purchase a home in Faulconbridge which she and her husband, Mr Patrick Hammond, intended to reside. Settlement occurred on 8 April 2005 and moneys were disbursed generally in favour of the vendor of the property. The applicant and her husband moved into the property and apparently are still in occupation.

3 The respondent sought possession of the property because of alleged defaults and commenced these proceedings for possession in 2008. It is unnecessary to deal with what has happened over the last four years. Essentially Johnson J made an order for possession. A notice of appeal has been filed by Mrs Hammond, the applicant. It contains a large number of grounds but one can really reduce those to nine.

4 After Tobias AJA dismissed the motion of 4 May a further notice of motion was filed on behalf of the applicant which is before us today. That notice of motion first came on before Beazley JA and her Honour granted a stay which expires today. The notice of motion which is before us today contains an application for stay pending the hearing of the appeal, the appeal said to be as of right.

5 In the past the applicant has either been represented by her husband or alternatively has had no representation because Johnson J and Tobias AJA thought it proper that he not have leave to appear for the reasons that they set out. It is unnecessary today to go into those matters because we were treated to a very sound and logical set of submissions by Mr Moore of senior counsel (who, with Ms Roughley, appeared as amicus curiae) as to why the appeal that has been lodged is arguable, or at least is arguable if the appellant makes an application to adduce further evidence, which application arguably may be allowed.

6 The Court is very much indebted to Mr Moore and his junior for the way in which they have put the case. Indeed, it would seem to me that had these matters been put to Tobias AJA, rather than the matters which were not sound reasons which were put to his Honour, a different result would have occurred. Though the question before us really is whether to spend time dealing with a whole set of technical points or alternatively just take the simple and just approach which is mandated by s 56 of the Civil Procedure Act 2005 (NSW). But we have before us an application to stay pending the hearing of an appeal. That appeal appears that it is arguable and the reason why one can say that fairly confidently is that this Court in a previous decision held that it was so arguable.

7 The result is, it seems to me, that the Court should further extend the stay given by Beazley JA until the hearing of the appeal. The appeal is arguable but it is only arguable in respect to the ground identified by the Court of Appeal in its earliest decision which is picked up in, I think, para 76 of the notice of appeal.

8 The appeal, I understand, is in the Registrar's list within the next week so there is no need to make any order for expedition. It does not reflect well on the system that this matter has taken four years to get to this stage already.

9 There will need to be further directions made which I think we should make today:

(1) That the applicant herself must, if she is going to rely on further evidence, file a notice of motion within fourteen days together with an affidavit annexing copies of the evidentiary matter upon which she intends to rely confined to the ground identified previously by the Court of Appeal.

(2) That may mean that the respondent will need also to file further documents. If it wishes to rely on a subsequent notice of default then it will need to file probably a notice of contention or some equivalent raising that point fairly and it may also need to identify by the appropriate affidavit any further evidence it intends to tender to meet that point. The affidavit should annex that evidence.

(3) The costs of today's motion should be costs in the appeal and as I say the stay should continue until the hearing of the appeal.

10 BASTEN JA: I agree with the reasons and directions given by Young AJA. I would only add that the Court is indebted to both Mr Moore and Ms Roughley for their appearance today and that we should note, at least for the benefit of the Registrar before whom they may not be appearing, that Mr Moore has indicated his willingness to provide further assistance to the Court at the hearing of the appeal. Obviously the need for the matter to be resolved expeditiously will limit the attention that can be given to the convenience of counsel but we invite the Registrar to consider the position of both Mr Newton appearing for the respondent and Mr Moore and Ms Roughley if they are able to continue to act as amicus before the Court in this matter.

11 SACKVILLE AJA: I agree with the orders proposed by Young AJA and with his Honour's reasons. I also agree with the additional remarks of the presiding judge.

**********

Decision last updated: 26 June 2012