Solicitors:
Mr Anthony Booth, solicitor (Registrar-General)
File Number(s): 2016/213128
[2]
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 a contract to sell the property. The plaintiff's selling agent was Raine and Horne Kogarah and that firm holds a deposit of $185,000 being 10% of the purchase price.
Ms Fokas has filed in the proceedings five notices of motion seeking an array of orders to give effect to her contention that she is not a bankrupt and that the plaintiff is not entitled to sell the property. The dates of filing these notices of motion and the orders sought in them as follows:
(1) 12 December 2017, seeking an order that "the person acting as Registrar-General to correct the name of the registered proprietor on the computer folio Certificate of Title 58/2013 [being the title reference of the property]".
(2) 13 December 2017, order that the "Australian Government Australian Financial Security Authority (as its new name) to delete information entered in the National Personal Insolvency Index about Maria Fokas (about me)".
(3) 21 December 2017, order that "the real estate Raine and Horne 25 Regent Street Kogarah 2217 to return the deposit made on 20 December 2017 for the sale of my property at 14 English Street Kogarah New South Wales 2217".
(4) 27 December 2017, order that "the contract for the sale and purchase of land 2017 edition land 14 English Street Kogarah NSW 2217 sale date Wednesday 20 December 2017 to be made void or cancelled".
(5) 28 February 2018, orders that the first four motions be dealt with individually in the order filed, with separate reasons for decision being given, and that this Court "wave [sic] away the need for leave to appeal in case of a requirement of appeal" and grant a stay of any order made. Further that any "irregularities to be disregarded".
Ms Fokas has, on previous occasions, sought to reagitate the plaintiff's vested title to the property and his right to have vacant possession of it and to sell it. First, she applied on notice of motion filed 26 July 2017 for, amongst other things, an order restraining the plaintiff from taking possession or effecting a sale. On 9 August 2017 Wilson J struck out that notice of motion on the ground, so far as presently relevant, that the Court's judgment of 14 December 2016 for possession in favour of the plaintiff had concluded the proceedings. Her Honour's reasons are unreported: David E Mansfield v Fokas (Supreme Court (NSW), Wilson J, 9 August 2017, unrep).
Wilson J held that these proceedings are concluded and at an end. Judgment for possession was given. A writ of possession issued under it. The writ was executed. There is no extant proceeding in which Ms Fokas could in August 2017 (or now) properly file or litigate notices of motion for further relief. The proceedings are and have been since execution of the December 2016 judgment at an end.
Secondly, on 11 August 2017 Ms Fokas filed a notice of motion in the Common Law Division seeking an order that Wilson J's orders be set aside and that the writ of execution be stayed. Registrar Bradford dismissed that on 17 August 2017.
Thirdly, on 10 August 2017, 22 August 2017, 11 September 2017, 9 October 2017 and 16 October 2017 Ms Fokas filed in the Court of Appeal a notice of appeal and then successive notices of motion. All of these filed documents sought, in one way or another, to have the sale of the property restrained. The evidence and arguments in support of these Court of Appeal proceedings are summarised in the judgments, namely Fokas v Mansfield [2017] NSWCA 231, a decision of White JA sitting alone; Fokas v Mansfield (No. 2) [2017] NSWCA 261, another decision of White JA and Fokas v Mansfield (No 3) [2017] NSWCA 315, a decision of three judges of the Court of Appeal.
In all of these proceedings in the Court of Appeal, Ms Fokas contended that she was not a bankrupt because there were no proper grounds upon which a sequestration order could have been made and that the judgment for possession of the property in favour of her trustee in bankruptcy had been given in her absence and without proper evidence of service or evidence of who was in occupation of the property.
In the first of the Court of Appeal decisions (Fokas v Mansfield [2017] NSWCA 231) White JA held at [19] that Wilson J "was not arguably wrong in concluding that the order giving judgment for possession had been spent" by possession having been recovered. His Honour noted that before Wilson J Ms Fokas had not been treated as seeking that the judgment for possession be set aside and that in any event Ms Fokas had not put on any evidence explaining her absence from the hearing at which the judgment was given or showing an arguable defence to the plaintiff's claim for possession or his assertion of vested title.
In Fokas v Mansfield (No. 2) at [18] White JA said this:
For the reasons I gave in my earlier judgment the applicant has not demonstrated an arguable basis for setting aside the order for possession made on 14 December 2016. Although she denies it, it is clear that the applicant is a bankrupt, the property did become vested in her trustee in bankruptcy and the first respondent, that is Mr Mansfield, is the registered proprietor of the property. No application, it seems, was ever made to set aside the sequestration order made as long ago as 1 November 2012.
Accordingly, his Honour dismissed Ms Fokas' amended notice of appeal from the judgment of Wilson J and dismissed her notice of motion filed on 11 September 2017 in the Court of Appeal seeking an order for recovery of the property.
In Fokas v Mansfield (No 3) the Court of Appeal dismissed Ms Fokas' application for review of the two decisions of White JA. At [28] of their Honours' reasons the Court said that White JA had been correct to decline to continue an earlier interlocutory injunction against sale:
[in] the absence of any arguable defence to the first respondent's right to possession and in the absence of any arguable basis to restrain the first respondent from exercising his powers as trustee in bankruptcy.
Their Honours further said "his Honour was correct to decline to extend the interlocutory order made by the Registrar on 18 September 2017".
In support of the notices of motion now before the Court, Ms Fokas has read seven affidavits, plus a number of additional affidavits of service. Her first affidavit of 6 December 2017 contains extracts from legislation, argument, conclusions (such as "I am not a bankrupt") and other material which is not admissible. Without cataloguing all of the inadmissible aspects, I will simply disregard those parts of that affidavit which are not evidence of facts in issue. I will treat those matters as submissions so far as appropriate.
Most of the other affidavits are quite short. However the affidavit of 23 February 2018 has attached to it a large number of annexures concerning proceedings to which Ms Fokas was a party in the Land and Environment Court and also concerning the bankruptcy proceedings against her. It appears that she contested a planning decision of Kogarah Council in proceedings which were heard in the Land and Environment Court on various dates between 2005 and 2008. She was unsuccessful in those proceedings and the Council obtained orders against her for costs. A bankruptcy notice was eventually served upon her claiming a debt totalling $29,980 for these costs. The petitioning creditor in the Federal Magistrate's Court was Kogarah City Council, relying upon non-compliance with the bankruptcy notice.
Because the principal underlying proceedings are at an end there is, for the reasons given in the Court of Appeal, no basis upon which to entertain any of the applications now made on notices of motion. There are other particular reasons why these applications could not possibly succeed and must be dismissed at the threshold. With respect to the first order sought, that the Registrar-General be directed to correct the name of the registered proprietor on the Certificate of Title of the property, that would of necessity require an inquiry into whether the applicant is the subject of a sequestration order under which the plaintiff was appointed trustee.
Ms Fokas attempted to argue that she has not effectively been made a bankrupt on the grounds there was an irregularity in the bankruptcy notice, that it was not properly served, that there was a failure of the petitioning creditor to enter the sequestration order and that there was a failure to serve the sequestration order on the trustee. All such matters are within the exclusive jurisdiction of the Federal Court and what is now the Federal Circuit Court, by force of section 27 of the Bankruptcy Act. Even if this application were brought in a fresh proceeding, it could not be entertained in the Supreme Court of New South Wales. Because of the procedural impossibility of dealing with such an application on notice of motion in the proceeding in this Court which is at an end, there is no occasion to contemplate transferring this aspect of what Ms Fokas claims to the Federal Court or the Federal Circuit Court. The application for the order that the Registrar-General amend the register of titles must be dismissed.
With respect to the claim for an order that the Australian Financial Security Authority should remove information concerning Ms Fokas from the National Personal Insolvency Index, it is apparent from the legislation which governs that Index that applications for removal of information from it under Regulation 13.04 of the Bankruptcy Regulations 1996 (Cth), are limited to specified grounds. The decision about whether to remove information is to be made in the first instance by the Inspector General, an office which is provided for in the governing legislation. Any decision of the Inspector General may be the subject of an application for review to the Administrative Appeals Tribunal established under Commonwealth legislation. That right of review is provided for in Regulation 13.05 of the Bankruptcy Regulations.
There is no jurisdiction in the Supreme Court to grant relief in relation to entries in the National Personal Insolvency Index. Ms Fokas' application in that respect rests upon her proposition that she is not a bankrupt. It therefore faces in addition the difficulty I have already adverted to, being that her bankrupt status is a matter exclusively within the jurisdiction of the Federal Court and the Federal Circuit Court.
The two further substantive orders sought by Ms Fokas on her notices of motion of 21 December and 27 December 2017 respectively, are both directed to the Court cancelling the contract for sale entered into by the trustee in bankruptcy on 20 December 2017. That application involves an endeavour to re-agitate the question that has already been resolved in these proceedings finally by the Court's order for possession in favour of the trustee made in December 2016, based as it was upon the proposition that he has become the registered proprietor by vesting under the Bankruptcy Act. Documents tendered in the proceedings on the hearing of the notices of motion before me by the solicitor representing the Registrar General show that the trustee's title has been registered.
Involved in Ms Fokas' application for these last two orders is a clear abuse of process. She seeks to re-agitate a matter which has already been finally settled by an order of the Court, which she has never sought to have set aside.
In the course of her submissions before me Ms Fokas dilated at great length upon errors that were made, as she perceives it, in Kogarah City Council's determination of a planning matter over 10 years ago. I stopped her in making those submissions because I found them completely irrelevant. It would be beyond the power of this Court to enquire into the rights or wrongs of a planning decision which has apparently been resolved and settled by judgments of the Land and Environment Court.
What happened in the Land and Environment Court is of no consequence except so far as it resulted in orders for costs being issued and those costs being the basis of a bankruptcy notice and eventually a sequestration order made upon non-compliance with the notice. It is not open to the Court to entertain argument over these much earlier stages in the history which has led to Ms Fokas being declared bankrupt, in circumstances where the trustee has become registered proprietor pursuant to vesting and where an order of this Court has been made for him to have possession of the property, that order having been executed long ago.
All of the notices of motion that I have considered today constitute an abuse of the process of the Court. None of them is viable for the reasons that I have given. All of this should have been apparent to Ms Fokas from previous reasoned decisions of Wilson J, White JA and the three judges of the Court of Appeal who gave the final decision at that level.
I make the following orders:
(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.
Pursuant to the Vexatious Proceedings Act 2008 (NSW) s 6, "vexatious proceedings" include proceedings that are an abuse of the process of the Court and proceedings instituted or pursued without reasonable grounds. I consider that the series of applications that Ms Fokas made in the Court of Appeal following the dismissal of her motion on 9 August 2017 by Wilson J were instituted and pursued without reasonable grounds and that they were an abuse of process of the Court. In so far as they could have any purpose it was only to re-agitate something that had already been decided in December 2016, that is, the right of the plaintiff Mr Mansfield as trustee of the bankrupt estate to be registered proprietor and to have possession of the relevant property.
The applications never sought the setting aside of that judgment on any ground but pursued forms of relief which were necessarily precluded by that judgment. The additional motions that I have heard today are further proceedings instituted without reasonable ground and are again an abuse of the process of the Court for the same reason as already mentioned.
Accordingly, this Court has power to make an order against Ms Fokas under the Vexatious Proceedings Act. Section 8 provides that an order under that section may be made in relation to a person if the Court is satisfied that he or she has frequently instituted or conducted vexatious proceedings in Australia. I am satisfied with respect to Ms Fokas that that is so. It is required that such an order should not be made without hearing the person or giving her an opportunity of being heard. I have heard Ms Fokas and she has said nothing to persuade me against the view that I have formed of the proceedings that she has conducted. It is open to this Court under subs (4) of s 8 to make a vexatious proceedings order of its own motion without application of any party and that is the course that I am now taking.
The form and content of the order that may be made is prescribed in subs (7) of s 8. The form of order I consider appropriate is that prescribed by subpar (b), namely, an order prohibiting the person from instituting proceedings in New South Wales. When such an order has been made, if the person affected (the vexatious litigant) wishes to commence a proceeding, it is necessary for him or her to make an application for leave under s 14. Such an application would have to be made to this Court and would be considered by a judge in chambers.
For the reasons given, I order as follows:
(4) Pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) Maria Fokas is prohibited from instituting proceedings in New South Wales.
[3]
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Decision last updated: 05 March 2018
Parties
Applicant/Plaintiff:
David Ian Mansfield as Trustee of the Bankrupt Estate of Maria Fokas