David Ian Mansfield as Trustee of the Bankrupt Estate of Maria Fokas v Maria Fokas [2018] NSWSC 249

David Ian Mansfield as Trustee of the Bankrupt Estate of Maria Fokas v Maria Fokas [2018] NSWSC 249

The notices of motion were dismissed because the underlying possession proceedings had concluded after judgment and execution of the writ, the motions sought to re-agitate issues already finally resolved concerning the trustee's title, possession and sale of the property, and the Supreme Court lacked jurisdiction over the bankruptcy-status and National Personal Insolvency Index relief sought. The repeated applications were instituted without reasonable grounds and were an abuse of process, justifying a vexatious proceedings order prohibiting Ms Fokas from instituting proceedings in New South Wales.

Jurisdiction
Australia
Judgment Date
28 February 2018
Procedural Posture
Common Law Proceedings Concerning Possession of Property by Trustee in Bankruptcy and Notices of Motion by Bankrupt Litigant / Hearing of Five Notices of Motion After Judgment for Possession; Own Motion Vexatious Proceedings Order
Outcome
All five notices of motion were dismissed; costs ordered against Ms Fokas; stay refused; Maria Fokas prohibited from instituting proceedings in New South Wales.
Legal Topics
['res Judicata or Cause of Action Estoppel' 'abuse of Process' 'exclusive Federal Bankruptcy Jurisdiction' 'trustee in Bankruptcy Possession and Sale of Vested Property' 'national Personal Insolvency Index' 'vexatious Litigant Order']
['bankruptcy' 'civil Procedure' 'estoppel' 'vexatious Proceedings'] ['res Judicata or Cause of Action Estoppel' 'abuse of Process' 'exclusive Federal Bankruptcy Jurisdiction' 'trustee in Bankruptcy Possession and Sale of Vested Property' 'national Personal Insolvency Index' 'vexatious Litigant Order']

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Procedural Posture

Common Law Proceedings Concerning Possession of Property by Trustee in Bankruptcy and Notices of Motion by Bankrupt Litigant / Hearing of Five Notices of Motion After Judgment for Possession; Own Motion Vexatious Proceedings Order

Legal Issues

  1. 1 ['Whether Ms Fokas could pursue notices of motion in proceedings that had ended after judgment for possession and execution of the writ of possession.' "Whether the Supreme Court of New South Wales had jurisdiction to determine challenges to Ms Fokas' bankrupt status or to order changes to the National Personal Insolvency Index." 'Whether orders should be made affecting the registered title, sale deposit, or contract for sale of the property vested in the trustee in bankruptcy.' 'Whether Ms Fokas had frequently instituted or conducted vexatious proceedings warranting an order prohibiting her from instituting proceedings in New South Wales.']

Ratio Decidendi

The notices of motion were dismissed because the underlying possession proceedings had concluded after judgment and execution of the writ, the motions sought to re-agitate issues already finally resolved concerning the trustee's title, possession and sale of the property, and the Supreme Court lacked jurisdiction over the bankruptcy-status and National Personal Insolvency Index relief sought. The repeated applications were instituted without reasonable grounds and were an abuse of process, justifying a vexatious proceedings order prohibiting Ms Fokas from instituting proceedings in New South Wales.

Court Disposition

All five notices of motion were dismissed; costs ordered against Ms Fokas; stay refused; Maria Fokas prohibited from instituting proceedings in New South Wales.

Orders

  • ['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.' 'Ms Fokas is to pay the costs of the respondents to those notices of motion.' "Ms Fokas' application for a stay of these orders is refused." 'Pursuant to s 8(7) of...