Mansfield v Fokas - [2018] NSWSC 249

Supreme Court

New South Wales

Medium Neutral Citation: David Ian Mansfield as Trustee of the Bankrupt Estate of Maria Fokas v Maria Fokas [2018] NSWSC 249
Hearing dates: 28 February 2018
Decision date: 28 February 2018
Jurisdiction: Common Law
Before: Fagan J
Decision:
1. The notices of motion filed by Ms Fokas on 12 December 2017, 13 December 2017, 21 December 2017, 27 December 2017 and 28 February 2018 are dismissed.

2. Ms Fokas is to pay the costs of the respondents to those notices of motion.

3. Ms Fokas’ application for a stay of these orders is refused.
4. Pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) Maria Fokas is prohibited from instituting proceedings in New South Wales.
Catchwords:
ESTOPPEL – by judgment – res judicata or cause of action estoppel – where notices of motion seek to re-agitate matters already decided – bankrupt litigant – where order previously made for possession of property by trustee in bankruptcy – where issues raised would fall within exclusive federal bankruptcy jurisdiction pursuant to the Bankruptcy Act 1966 (Cth)
CIVIL PROCEDURE – parties – vexatious litigants – declaration of – “vexatious proceedings” under s 6 of the Vexatious Proceedings Act 2008 (NSW) – proceedings amounting to abuse of process – proceedings pursued without reasonable grounds – where proceedings re-agitate matters already decided – where relief sought precluded by earlier orders
Legislation Cited: Bankruptcy Act 1966 (Cth)
Bankruptcy Regulations 1996 (Cth)
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: David E Mansfield v Fokas (Supreme Court (NSW), Wilson J, 9 August 2017, unrep)
Fokas v Mansfield [2017] NSWCA 231
Fokas v Mansfield (No. 2) [2017] NSWCA 261
Fokas v Mansfield (No 3) [2017] NSWCA 315
Category: Principal judgment
Parties: David Ian Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (plaintiff)
Maria Fokas (defendant/applicant)
Australian Financial Security Authority (respondent)
David Ian Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (respondent)
Deloitte Pty Ltd Company, Australia, Parramatta (respondent)
Land and Property Management Authority (respondent)
Registrar-General (interested person)
Representation:
Counsel:
Mr Michael Dawson (plaintiff/respondents)
Solicitors:
Mr Anthony Booth, solicitor (Registrar-General)

File Number(s): 2016/213128

Judgment

Proceedings in this Court were commenced in 2016 by the plaintiff as trustee of the bankrupt estate of the defendant, Maria Fokas, claiming possession of real property at 14 English Street Kogarah (“the property”). The plaintiff’s claim to possession was made on the basis that title to the property and the right to possession had vested in him under the Bankruptcy Act 1966 (Cth) upon the making of a sequestration order against Ms Fokas in the Federal Magistrate’s Court of Australia (as that Court was then known) on 1 November 2012.
On 14 December 2016 the plaintiff obtained in these proceedings, at a hearing which the defendant did not attend, judgment for possession of the property. A writ of possession issued and was executed by the Sheriff on 30 January 2017. The plaintiff has been in possession ever since. On 20 December 2017 he entered into…

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 Mansfield v Fokas

Details

AGLC: Mansfield v Fokas [2018] NSWSC 249
Case: [2018] NSWSC 249
Decision Date: 28 February 2018

CaseChat Overview and Summary

In the case of Mansfield v Fokas, the court was asked to determine whether the plaintiff, Mansfield, could bring forward a new motion for possession of a property previously ordered by the court. The matter had already been decided in an earlier judgment, where the court had ruled in favour of the defendant, Fokas, and ordered possession of the property to be given to the trustee in bankruptcy. The current motion sought to re-agitate the issues already decided by the court, raising questions about the applicability of res judicata or cause of action estoppel. The court also had to consider whether the proceedings constituted vexatious litigation, given the bankrupt litigant and the re-litigation of matters already decided.

The primary legal issues before the court were whether the plaintiff's new motion was precluded by the earlier judgment under the doctrine of res judicata or cause of action estoppel, and whether the proceedings amounted to an abuse of process and vexatious litigation. The court needed to determine whether the plaintiff's motion was an attempt to re-litigate issues that had already been decided by the court, and whether the proceedings were being pursued without reasonable grounds or amounted to an abuse of the court's process. The court also had to consider the impact of the Bankruptcy Act 1966 (Cth), which grants exclusive federal jurisdiction over bankruptcy matters.

The court found that the plaintiff's motion was precluded by the earlier judgment, as the issues raised would fall within the exclusive federal bankruptcy jurisdiction pursuant to the Bankruptcy Act 1966 (Cth). The court held that the plaintiff's motion amounted to an abuse of process and vexatious litigation, as it sought to re-agitate matters that had already been decided by the court. The court also found that the proceedings were pursued without reasonable grounds, as the relief sought was precluded by earlier orders. The court declared the plaintiff a vexatious litigant under s 6 of the Vexatious Proceedings Act 2008 (NSW), and ordered that the plaintiff pay the defendant's costs of the proceedings.

The court dismissed the plaintiff's motion and ordered that the plaintiff pay the defendant's costs of the proceedings. The court also declared the plaintiff a vexatious litigant under s 6 of the Vexatious Proceedings Act 2008 (NSW). The court's decision emphasised the importance of not re-litigating issues that have already been decided by the court, and the need to avoid abusing the court's process. The decision also highlighted the exclusive federal jurisdiction over bankruptcy matters, and the need to respect the jurisdiction of other courts.

Orders