Fokas v Mansfield (No 2)

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.