Fokas v Mansfield

[2017] NSWCA 231

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Fokas v Mansfield [2017] NSWCA 231

Hearing dates:

4 September 2017

Date of orders:

04 September 2017

Decision date:

04 September 2017

Before:

White JA

Decision:

1. Order that the applicant’s notice of motion filed on 22 August 2017 be dismissed.

 

2. Order that the applicant pay the first and second respondents’ costs of the notice of motion.

 3. Make no order as to costs in respect of the third respondent.

Catchwords:

BANKRUPTCY – administration of property – trustee in bankruptcy obtained order for possession of real estate – application for interim injunction – whether sequestration order was made – whether order for possession of property was validly made – whether trustee in bankruptcy can be restrained from exercising powers and functions – consideration of “special federal matter” – no arguable case disclosed – no reasonable prospects of success

Legislation Cited:

Bankruptcy Act 1966 (Cth) ss 27, 58(1), 116(2)(b)
Bankruptcy Regulations 1996 (Cth) rr 6.03, 13.07
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss 4, 6
Supreme Court Act 1970 (NSW) s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW) r 36.16(2)(b)

Cases Cited:

Baykal v Van Der Velde as Trustee for Bankrupt Estate of Tandogan [2017] NSWSC 36
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
Mateljan v HTT Huntley Heritage Pty Ltd [2016] NSWCA 20; (2016) 111 ACSR 277
McGinn v Cranbrook School [2016] NSWCA 226
Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174; [2015] FCAFC 70; (2015) 233 FCR 174
Turner v Gorkowski (2014) 46 VR 609; [2014] VSCA 248

Category:

Procedural and other rulings

Parties:

Maria Fokas (Applicant)
David Ian Mansfield (1st Respondent)
Deloitte Pty Limited (2nd Respondent)
Australian Financial Security Authority (3rd Respondent)

Representation:

Counsel:
Self-represented (Applicant)
M Dawson (1st Respondent)
n/a (2nd Respondent)
J Elisher (3rd Respondent)

  Solicitors:
n/a (Applicant)
Grace Lawyers (1st Respondent)
n/a (2nd Respondent)
n/a (3rd Respondent)

File Number(s):

2017/243631

Judgment

1. HIS HONOUR: By a notice of motion filed on 22 August 2017 the applicant seeks an order that:

“The Court to stop imidiately the exercising of the power of a ‘WRIT OF POSSESSION’ issued 14 December 2016 by the Supreme Court Sydney for the case number bellow 2016/00213128.

As it has NO LEGAL POWER.” [sic]

2. In oral submissions the applicant says that she seeks an order to restrain any person from taking any further action pursuant to the first respondent’s having been given possession of the subject property, that is, a property in English Street, Kogarah of which the applicant was formerly the registered proprietor. The first respondent to this application, Mr David Mansfield, is the trustee in bankruptcy of the applicant’s estate, although the applicant denies this.

3. On 1 November 2012 the Federal Magistrates Court (as it was named at that time) made an order in the following terms:

“1.   A Sequestration Order be made against the estate of Maria Fokas.

2.   The Applicant Creditor’s…