Fokas v Mansfield [2017] NSWCA 231

Fokas v Mansfield [2017] NSWCA 231

The notice of motion was dismissed because the writ of possession had already been executed, the applicant disclosed no arguable defence to the possession judgment or basis to deny the sequestration order and trustee's title, the English Street property vested in the trustee and was not exempt household property,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 September 2017
Procedural Posture
Notice of Motion Seeking Interim Injunctive Relief Concerning a Writ of Possession and Bankruptcy Related Possession Proceedings / Court of Appeal Procedural Ruling on Notice of Motion Filed on 22 August 2017
Outcome
Applicant's notice of motion filed on 22 August 2017 dismissed.
Legal Topics
['trustee in Bankruptcy' 'sequestration Order' 'writ of Possession' 'interim Injunction' 'setting Aside Orders Made in Absence' 'special Federal Matter' 'cross Vesting Jurisdiction']
['bankruptcy' 'civil Procedure' 'property'] ['trustee in Bankruptcy' 'sequestration Order' 'writ of Possession' 'interim Injunction' 'setting Aside Orders Made in Absence' 'special Federal Matter' 'cross Vesting Jurisdiction']

Source-derived case record

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Procedural Posture

Notice of Motion Seeking Interim Injunctive Relief Concerning a Writ of Possession and Bankruptcy Related Possession Proceedings / Court of Appeal Procedural Ruling on Notice of Motion Filed on 22 August 2017

Legal Issues

  1. 1 ['Whether the applicant disclosed an arguable basis to restrain action pursuant to the writ of possession issued after judgment for possession.' "Whether the sequestration order and the first respondent's appointment as trustee in bankruptcy could be treated as ineffective in the possession proceedings." 'Whether the English Street property vested in the trustee in bankruptcy or was exempt household property.' 'Whether the applicant had reasonable prospects of setting aside the judgment for possession made in her absence.' 'Whether the Supreme Court could restrain the trustee in bankruptcy from exercising bankruptcy powers and functions in light of federal bankruptcy jurisdiction and special federal matter considerations.']

Ratio Decidendi

The notice of motion was dismissed because the writ of possession had already been executed, the applicant disclosed no arguable defence to the possession judgment or basis to deny the sequestration order and trustee's title, the English Street property vested in the trustee and was not exempt household property, and any application to set aside the possession order had no reasonable prospect of success.

Court Disposition

Applicant's notice of motion filed on 22 August 2017 dismissed.

Orders

  • ["Order that the applicant's notice of motion filed on 22 August 2017 be dismissed." "Order that the applicant pay the first and second respondents' costs of the notice of motion." 'Make no order as to costs in respect of the third respondent.']