Hubner v ANZ Banking Group Limited
[1998] QCA 240
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Hubner v ANZ Banking Group Limited[1998] QCA 240
- Add to List
Hubner v ANZ Banking Group Limited[1998] QCA 240
Hubner v ANZ Banking Group Limited[1998] QCA 240
COURT OF APPEAL
DAVIES JA
THOMAS J
DERRINGTON J
Appeal No 5245 of 1998
COLIN RICHARD HUBNER
and YVONNE HUBNER Applicants (Defendants)
and
ANZ BANKING GROUP LIMITED Respondent (Plaintiff)
BRISBANE
DATE 13/07/98
JUDGMENT
DAVIES JA: This is an application which appears on its face to be an application for a stay of execution of judgment pending appeal but in fact seems to be an application for an injunction restraining the respondent from disposing of or otherwise dealing with the property the subject of the action until this appeal is determined.
The appeal is against an order dismissing an application to set aside default judgment for recovery of land. In fact, there were two such applications. There was an application to set aside the judgment which was made on the merits and which was refused on 15 September last year, then there was a further application against which the appeal to this Court is made on the basis that it was irregularly obtained. That was also refused by Justice Jones on 28 May this year.
The grounds of the appeal against the judgment seem to relate rather to the merits of the judgment than its irregularity as demonstrated by at least one of the matters raised by
Mr Fitzgibbon before us this afternoon, a matter relating to cheques. The other matters to which he refers in support of the application which he has made do not seem to me, with respect, to be relevant to the application, they being that the applicant was not represented below and his pending bankruptcy.
There is no doubt, in my view, that the Court has a discretion to grant a stay of execution of the judgment when in fact the judgment has at least in part been executed in this case in the sense that the bank is already in possession.
As I said earlier what seems to be sought is some sort of injunction until the hearing of this appeal.
Although the Court has a general discretion to grant a stay special circumstances must be shown and generally a stay will not be ordered unless there is a real risk that unless a stay is granted the appellant will be deprived of the fruits of its judgment. But the application here goes well beyond that and, in my view, there is no substance in the application being as it is, as I said, an application seeking an injunction and I would refuse it.
THOMAS J: I agree. I can see no equity or right which could ground an injunction of the kind requested. I also fail to see any ground upon which a stay could be granted and I would refuse the application.
DERRINGTON J: I agree.
DAVIES JA: The application is refused.
DAVIES JA: Do you ask for costs, Mr North?
MR NORTH: I do, Your Honour.
DAVIES JA: You cannot resist that, can you?
MR FITZGIBBON: I cannot be heard on that, Your Honour.
DAVIES JA: Refused with costs.