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Fokas v Mansfield (No 2)

Fokas v Mansfield (No 2)

Case [2017] NSWCA 261 9 October 2017

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fokas v Mansfield (No. 2) [2017] NSWCA 261
Hearing dates: 9 October 2017
Date of orders: 09 October 2017
Decision date: 09 October 2017
Before: White JA
Decision:
1. Order that the amended notice of appeal be dismissed.
2. Order that the applicant’s notice of motion filed 11 September 2017 be dismissed.
3. Decline to further extend the order made by the Registrar on 18 September 2017.
4. Order that the applicant pay the costs of the 1st Respondent of the applicant’s notice of motion filed 11 September 2017 and that there otherwise be no further order as to the costs of the purported appeal between the applicant and the 1st Respondent.
5. Order that the applicant pay the 3rd Respondent’s costs of the purported appeal between the applicant and the 3rd Respondent including the notice of motion filed 11 September 2017.

Catchwords:
CIVIL PROCEDURE — Court of Appeal — Objections to competency of appeal — purported appeal from interlocutory order — leave to appeal not sought — whether order striking out notice of motion is interlocutory — applicant seeks to re-litigate matters — no arguable case — purported appeal dismissed as incompetent on court’s own motion
CIVIL PROCEDURE — Court of Appeal — Application — Injunction — not in the interests of justice to restrain trustee in bankruptcy from exercising power of sale
Legislation Cited: Civil Procedure Act 2005 (NSW) s 10
Supreme Court Act 1970 (NSW) ss 46, 101
Uniform Civil Procedure Rules 2005 (NSW) r 51.41
Cases Cited: Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101
Fokas v Mansfield [2017] NSWCA 231
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
McGinn v Cranbrook School [2016] NSWCA 226
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)
S Mullette (3rd Respondent)
Solicitors:
n/a (Applicant)
Grace Lawyers (1st Respondent)
n/a (2nd Respondent)
Matthews Folbigg (3rd Respondent)

File Number(s): 2017/243631

Judgment

HIS HONOUR: The background to the present applications appears from my reasons of 4 September 2017 (Fokas v Mansfield [2017] NSWCA 231). The applicant had filed a notice of motion in proceedings in the Common Law Division of the Court on 26 July 2017. On a generous reading of that notice of motion, she sought an order setting aside an order made on 14 December 2016 giving the first respondent possession of the property in English Street, Kogarah. The first respondent is the trustee of the applicant's bankrupt estate. On 1 November 2012 the Federal Magistrates Court made a sequestration order against the applicant's estate.
The applicant's notice of motion filed on 26 July 2017 was struck out, that is, it was summarily dismissed, by Wilson J on 9 August 2017. On 10 August 2017 the applicant filed a notice of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fokas v Mansfield (No 2)

Details

AGLC: Fokas v Mansfield (No 2) [2017] NSWCA 261
Case: [2017] NSWCA 261
Decision Date: 09 October 2017

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an application by the applicant, Mr. Fokas, to appeal an interlocutory order made by the primary judge. The dispute concerned Mr. Fokas's attempt to re-litigate matters that had already been determined, specifically in relation to a trustee in bankruptcy's power of sale. The primary judge had struck out a notice of motion filed by Mr. Fokas.

The central legal issue before the Court of Appeal was whether the order striking out the notice of motion was an interlocutory order, and if so, whether leave to appeal had been sought and granted. The Court also had to determine if there was an arguable case for the appeal to proceed and whether it was in the interests of justice to restrain the trustee in bankruptcy from exercising their power of sale.

The Court of Appeal determined that the order striking out the notice of motion was indeed interlocutory. As leave to appeal had not been sought, the Court found the purported appeal to be incompetent and dismissed it on its own motion. The Court reasoned that Mr. Fokas was attempting to re-litigate issues already decided and that there was no arguable case. Furthermore, the Court declined to grant an injunction to restrain the trustee in bankruptcy, finding it not to be in the interests of justice.

Consequently, the Court ordered that the amended notice of appeal be dismissed. The applicant's notice of motion filed on 11 September 2017 was also dismissed. The Court declined to extend an earlier order made by the Registrar and made specific orders regarding the costs of the proceedings, with the applicant ordered to pay the costs of the first and third respondents in relation to the notice of motion and the purported appeal.

Orders

Orders of the court

1. Order that the amended notice of appeal be dismissed.

2. Order that the applicant’s notice of motion filed 11 September 2017 be dismissed.

3. Decline to further extend the order made by the Registrar on 18 September 2017.

4. Order that the applicant pay the costs of the 1st Respondent of the applicant’s notice of motion filed 11 September 2017 and that there otherwise be no further order as to the costs of the purported appeal between the applicant and the 1st Respondent.

5. Order that the applicant pay the 3rd Respondent’s costs of the purported appeal between the applicant and the 3rd Respondent including the notice of motion filed 11 September 2017.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Fokas v Mansfield (No 2) [2017] NSWCA 261

Most Recent Citation

Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas [2019] FCA 1724

Cases citing this decision · 6 of 6 shown

Qin v He
[2020] NSWCA 275 Para 4

…As White JA observed in Fokas v Mansfield (No 2) [2017] NSWCA 261 at [15], so much is recognised by the terms of Uniform Civil Procedure Rules 2005 (NSW), r 51.41(2). I agree also with his Honour’s observation that sitting as a single Judge of Appeal I have the power to do so, on the referral of the matter from the…
Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2)
[2020] FCA 30 Para 10

…d 22 August 2017, dismissed; Fokas v Mansfield [2017] NSWCA 231; (c)notice of motion filed 11 September 2017, dismissed; Fokas v Mansfield (No 2) [2017] NSWCA 261; (d) Fokas v Mansfield (No 3) [2017] NSWCA 315 – (i)notice of motion filed 9 October 2017, dismissed; (ii)notice of motion filed 16 October 2017, dismiss…
Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas
[2019] FCA 1724 Para 9

…iction to restrain the Trustee from exercising his powers, having regard to s 27 of the Bankruptcy Act 1966 (Cth). (4) Fokas v Mansfield (No 2) [2017] NSWCA 261: on 9 October 2017 White JA dismissed an application by Mrs Fokas for recovery of possession of the property and that the orders of Wilson J should be set…
National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority (No 2)
[2018] NSWSC 969 Para 7

…] FCA 218; Page v Mckensey [2004] NSWCA 437 at [30]; Macatangay v State of New South Wales (No 2) [2009] NSWCA 272; at [11]; Fokas v Mansfield (No 2) [2017] NSWCA 261 per White JA at [13]–[14]; Fokas v Mansfield (No 3) [2017] NSWCA 315 at [24]–[26].…
Mansfield v Fokas
[2018] NSWSC 249 Para 7

…oceedings are summarised in the judgments, namely Fokas v Mansfield [2017] NSWCA 231, a decision of White JA sitting alone; Fokas v Mansfield (No. 2) [2017] NSWCA 261, another decision of White JA and Fokas v Mansfield (No 3) [2017] NSWCA 315, a decision of three judges of the Court of Appeal.…
Fokas v Mansfield (No 3)
[2017] NSWCA 315 Para 1

…lication for review under s 46(4) of the Supreme Court Act 1970 (NSW) of a decision of White JA delivered on 9 October 2017: Fokas v Mansfield (No 2) [2017] NSWCA 261.…

View all 6 citing cases →

Cases cited in this decision · 12 of 12 shown

Boensch v Pascoe
[2019] HCA 49 Para 17

…here is authority by which I am bound that the relevant power arises under s 46(2)(b) ( Macatangay (No 2) at [15]; Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 at [23]; and McGinn v Cranbrook School [2016] NSWCA 226 at [3]).…
Fokas v Mansfield
[2017] NSWCA 231 Para 1

…HIS HONOUR : The background to the present applications appears from my reasons of 4 September 2017 ( Fokas v Mansfield [2017] NSWCA 231). The applicant had filed a notice of motion in proceedings in the Common Law Division of the Court on 26 July 2017. On a generous reading of that notice of motion, she sought an…
McGinn v Cranbrook School
[2016] NSWCA 226 Para 17

…wer arises under s 46(2)(b) ( Macatangay (No 2) at [15]; Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 at [23]; and McGinn v Cranbrook School [2016] NSWCA 226 at [3]).…
Boensch v Pascoe
[2016] NSWCA 191 Para 17

…In any event, there is authority by which I am bound that the relevant power arises under s 46(2)(b) ( Macatangay (No 2) at [15]; Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 at [23]; and McGinn v Cranbrook School [2016] NSWCA 226 at [3]).…
Macatangay v State of New South Wales (No 2)
[2009] NSWCA 272 Para 14

…This was clearly explained by the Court of Appeal in Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 (“ Macatangay No. 2 ”) at [10]-[12] where the Court said as follows:…
Re Luck
[2003] HCA 70

…dismissal since the 19th century: they are interlocutory. The High Court most recently reiterated this in In the Matter of An Appeal by Luck [2003] HCA 70; 78 ALJR 177 at 178–179, where the clear rule in Tampion v Anderson was expressly affirmed. The Court (McHugh ACJ, Gummow and Heydon JJ) said at 179: ‘An ord…
Bienstein v Bienstein
[2003] HCA 7 Para 25

…ether it was final in legal effect: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246 at 248; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104–105. It was not final in legal effect because there was no…
Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc
[2000] FCA 660

…1) [1981] HCA 20; 147 CLR 246 at 248; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104–105. It was not final in legal effect because there was no triable issue, and it did not finally determine the rights of the parties or create res j…
Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc
[1998] FCA 1640 Para 25

…Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246 at 248; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104–105. It was not final in legal effect because there was no triable issue, and it did not finally determine the rights of the parties or c…
Wickstead v Browne [No 2]
[1993] NSWCA 289

…g of an application for an order under subrule (1).’ [11] The order of Grove J was interlocutory. This Court decided that in Wickstead v Browne (1992) 30 NSWLR 1 in dealing with the relevantly indistinguishable provisions of Part 13 of the then Supreme Court Rules , citing relevant decisions of the High Court and Pr…
Carr v Finance Corporation of Australia Ltd (No 1)
[1981] HCA 20

…egree of finality in practical effect, but the test is whether it was final in legal effect: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246 at 248; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104–105…
Hall v Nominal Defendant
[1966] HCA 36

…provisions of Part 13 of the then Supreme Court Rules , citing relevant decisions of the High Court and Privy Council: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 440; Tampion v Anderson (1973) 48 ALJR 11 at 12. The order for dismissal may be seen to have a degree of finality in practical effect, but…

Legislation cited in this decision · 3

Supreme Court Act 1970 (NSW)
101, 46 3 mentions (from Para 11)
Civil Procedure Act 2005 (NSW)
10, 10) 2 mentions (from Para 16)
Uniform Civil Procedure Rules 2005 (NSW)
51.41 1 mention (from Para 15)

Medium Neutral Citation:	Fokas v Mansfield (No. 2) [2017] NSWCA 261
Hearing dates:	9 October 2017
Date of orders:	09 October 2017
Decision date:	09 October 2017
Before:	White JA
Decision:	1. Order that the amended notice of appeal be dismissed. 2. Order that the applicant’s notice of motion filed 11 September 2017 be dismissed. 3. Decline to further extend the order made by the Registrar on 18 September 2017. 4. Order that the applicant pay the costs of the 1st Respondent of the applicant’s notice of motion filed 11 September 2017 and that there otherwise be no further order as to the costs of the purported appeal between the applicant and the 1st Respondent. 5. Order that the applicant pay the 3rd Respondent’s costs of the purported appeal between the applicant and the 3rd Respondent including the notice of motion filed 11 September 2017.
Catchwords:	CIVIL PROCEDURE — Court of Appeal — Objections to competency of appeal — purported appeal from interlocutory order — leave to appeal not sought — whether order striking out notice of motion is interlocutory — applicant seeks to re-litigate matters — no arguable case — purported appeal dismissed as incompetent on court’s own motion CIVIL PROCEDURE — Court of Appeal — Application — Injunction — not in the interests of justice to restrain trustee in bankruptcy from exercising power of sale
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 10 Supreme Court Act 1970 (NSW) ss 46, 101 Uniform Civil Procedure Rules 2005 (NSW) r 51.41
Cases Cited:	Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 Fokas v Mansfield [2017] NSWCA 231 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 McGinn v Cranbrook School [2016] NSWCA 226
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) S Mullette (3rd Respondent) Solicitors: n/a (Applicant) Grace Lawyers (1st Respondent) n/a (2nd Respondent) Matthews Folbigg (3rd Respondent)
File Number(s):	2017/243631