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

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

The appeal was incompetent because the order appealed from was interlocutory and leave to appeal was neither sought nor obtained, as required by s 101(2)(e) of the Supreme Court Act 1970 (NSW). In any event, the applicant provided no arguable basis to set aside the possession order or restrain the trustee.

Jurisdiction
Australia
Judgment Date
09 October 2017
Procedural Posture
Appeal / Judgment on Competency of Appeal and Related Motions
Outcome
Amended notice of appeal dismissed; notice of motion dismissed; injunction not extended; costs orders made.
Legal Topics
['competency of Appeal' 'interlocutory Orders' 'leave to Appeal' 'injunctions' 'bankruptcy']
['civil Procedure'] ['competency of Appeal' 'interlocutory Orders' 'leave to Appeal' 'injunctions' 'bankruptcy']

Case Brief

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Procedural Posture

Appeal / Judgment on Competency of Appeal and Related Motions

Legal Issues

  1. 1 ['Whether the appeal from the interlocutory order was competent without leave' 'Whether the order striking out the notice of motion was interlocutory' 'Whether an injunction restraining the trustee in bankruptcy from sale should be granted']

Ratio Decidendi

The appeal was incompetent because the order appealed from was interlocutory and leave to appeal was neither sought nor obtained, as required by s 101(2)(e) of the Supreme Court Act 1970 (NSW). In any event, the applicant provided no arguable basis to set aside the possession order or restrain the trustee.

Court Disposition

Amended notice of appeal dismissed; notice of motion dismissed; injunction not extended; costs orders made.

Orders

  • ['Order that the amended notice of appeal be dismissed.' "Order that the applicant's notice of motion filed 11 September 2017 be dismissed." 'Decline to further extend the order made by the Registrar on 18 September 2017.' "Order that the applicant pay the costs of the 1st Respondent of the applicant's notice of...