[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[3]
Judgment
HIS HONOUR: The background to the present applications appears from my reasons of 4 September 2017 (Fokas v Mansfield [2017] NSWCA 231). The applicant had filed a notice of motion in proceedings in the Common Law Division of the Court on 26 July 2017. On a generous reading of that notice of motion, she sought an order setting aside an order made on 14 December 2016 giving the first respondent possession of the property in English Street, Kogarah. The first respondent is the trustee of the applicant's bankrupt estate. On 1 November 2012 the Federal Magistrates Court made a sequestration order against the applicant's estate.
Fokas v Mansfield [2017] NSWCA 261 | Case summary | Zoe
The applicant's notice of motion filed on 26 July 2017 was struck out, that is, it was summarily dismissed, by Wilson J on 9 August 2017. On 10 August 2017 the applicant filed a notice of appeal seeking to set aside the order of Wilson J. She purportedly appealed as of right. On 22 August 2017 the applicant sought in substance, orders to restrain any person from taking any action as a result of the first respondent's having been given possession of the property in English Street, Kogarah. That property had been owned by the applicant. As a result of her bankruptcy, the property became vested in the first respondent as her trustee in bankruptcy.
On 4 September 2017, I dismissed the applicant's notice of motion filed on 22 August 2017. In the course of my reasons I observed that it seemed to me, prima facie, that the purported appeal was not competent because the order made by Wilson J was interlocutory. I noted however, that the competence of the notice of appeal was not a matter that was then before me. I said:
"[16] The competence of the notice of appeal is not a matter that is presently in issue before me. Prima facie it seems to me that the appeal is not competent because the orders made by Wilson J were interlocutory. I have raised with Ms Fokas the need for her to seek leave to appeal. She says she does not need leave. But if Ms Fokas has regard to s 101(2)(e) of the Supreme Court Act 1970 (NSW) she may consider that that is a matter that needs further attention from her, particularly having regard to decisions such as Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 and McGinn v Cranbrook School [2016] NSWCA 226."
On 11 September 2017, the applicant filed a further notice of motion in which she seeks "an order for recovery of possession of land" being the English Street, Kogarah, property or "any other order the Court would think appropriate."
On 18 September 2017, the Registrar of the Court of Appeal stood over the applicant's notice of motion for hearing before me today. The Registrar also made orders as follows:
"2. Appeal is listed to show cause why the appeal should not be dismissed as incompetent",
and:
"5. Appellant has leave to amend the appeal or to file a summons for leave in substitute for the notice of appeal by 3 October 2017."
In her amended notice of appeal the applicant seeks to set aside the order of Wilson J of 9 August 2017, namely that the notice of motion filed on 26 July 2017 be struck out. She also sought an order for "release and recover possession of land" (being the English Street, Kogarah property).
In an affidavit dated 15 September 2017 the applicant repeated the contention that she had made at the hearing on 4 September 2017 that she was not insolvent and had not been declared to be a bankrupt. She also deposed that "My home was put for sale on or after 4th September 2017, To sell it by Auction on 4th October 2017!"
On 18 September 2017 the Registrar also made an order restraining the first respondent from entering into an agreement for the sale of the property up to 5pm today. I was told that an order to that effect had originally been made by consent and was extended without opposition. The first respondent opposes its further extension.
The applicant submitted that her notice of motion of 11 September 2017 should be determined first before any adjudication on the competence of her appeal. I do not know that that is right. In any event, as I sought to explain in the course of the applicant's oral submissions, before an order could be made to give possession of the Kogarah property to the applicant it would be necessary for the order of 14 December 2016 that gave possession of that property to the first respondent to be set aside. For that to be done it would be necessary for the applicant not only to show good reason for her non-appearance when the order was made, but also to show an arguable defence to the relief then sought by the first respondent.
I dealt with that matter in my reasons of 4 September 2017 in relation to the earlier application. For an order for recovery of possession to be made by the Court of Appeal it would be necessary that the order made by Wilson J on 9 August 2017, dismissing the applicant's notice of motion of 26 July 2017, be set aside. For her Honour's order to be set aside it would be necessary for the applicant either to have brought a competent appeal or to have obtained leave to appeal. Notwithstanding my observations on 4 September 2017, she has not sought that leave.
The applicant contends that leave is not required. She says that she is entitled to appeal as of right pursuant to s 101(1)(a) of the Supreme Court Act 1970 (NSW). That section provides that:
"(1) Subject to this and any other Act and subject to the rules, an appeal shall lie to the Court of Appeal from:
(a) any judgment or order of the Court in a Division; and..."
The applicant rightly says that she is not seeking to appeal from the reasons of Wilson J, but from the order her Honour made that the applicant's notice of motion be struck out.
The right of appeal conferred by s 101(1)(a) is subject to the Supreme Court Act. That includes s 101(2). Section 101(2)(e) provides that an appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from an interlocutory judgment or order in proceedings in the Court. Contrary to the applicant's submission, the order of Wilson J was an interlocutory order. The applicant's notice of motion of 26 July 2017 was itself an interlocutory application. Indeed, an application for final relief would not properly have been brought by notice of motion. But even if the applicant's notice of motion had sought final relief, the order striking out that notice of motion, which in substance was an order for its summary dismissal, was an interlocutory order. That is so notwithstanding that it brought the proceeding, commenced by the notice of motion, to a conclusion.
This was clearly explained by the Court of Appeal in Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 ("Macatangay No. 2") at [10]-[12] where the Court said as follows:
"[10] The order of Grove J for the summary dismissal was made under the UCPR, Part 13 r 13.4 which is in the following terms:
Frivolous and vexatious proceedings
'(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).'
[11] The order of Grove J was interlocutory. This Court decided that in Wickstead v Browne (1992) 30 NSWLR 1 in dealing with the relevantly indistinguishable provisions of Part 13 of the then Supreme Court Rules, citing relevant decisions of the High Court and Privy Council: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 440; Tampion v Anderson (1973) 48 ALJR 11 at 12. The order for dismissal may be seen to have a degree of finality in practical effect, but the test is whether it was final in legal effect: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246 at 248; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104-105. It was not final in legal effect because there was no triable issue, and it did not finally determine the rights of the parties or create res judicata estoppels. Whatever jurisprudential complexities lie behind the analysis, as the Privy Council made clear in Tampion v Anderson, clarity and consistency in approach is vital. The courts have had a consistent approach to the status of orders for, or to the effect of, summary dismissal since the 19th century: they are interlocutory. The High Court most recently reiterated this in In the Matter of An Appeal by Luck [2003] HCA 70; 78 ALJR 177 at 178-179, where the clear rule in Tampion v Anderson was expressly affirmed. The Court (McHugh ACJ, Gummow and Heydon JJ) said at 179:
'An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.'
[12] The principle has been established for over 100 years by decisions some of which are binding on this Court."
The respondents have not applied for an order dismissing the appeal as incompetent under the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 51.41. There is no doubt that the Court can dismiss an appeal as incompetent even though no objection to competence is taken by the respondent. So much is recognised by the terms of r 51.41(2) itself. There is a question as to whether as a single Judge of Appeal I have the power to dismiss the appeal as incompetent on the referral of the matter by the Registrar where the respondent has not made an application under r 51.41. Uninstructed by authority, I would think that there is power to do so pursuant to s 46(1)(b) of the Supreme Court Act that provides that a Judge of Appeal may exercise the powers of the Court of Appeal, "to dismiss an appeal...for...cause specified in the rules".
The "rules" referred to in s 46(1)(b) means the rules of the Court from time to time and in force. The rules of the Court are taken to include the UCPR to the extent to which they are applicable to the Court (Civil Procedure Act 2005 (NSW) s 10). The cause specified in the rules is that the appeal is incompetent. The fact that the application to dismiss the appeal for that cause is made in effect by the Court on its own motion, rather than by the respondents, does not affect the cause.
In any event, there is authority by which I am bound that the relevant power arises under s 46(2)(b) (Macatangay (No 2) at [15]; Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 at [23]; and McGinn v Cranbrook School [2016] NSWCA 226 at [3]).
I should add that even if I had concluded that the appeal is competent, I would not have granted the relief sought by the applicant in her notice of motion. The applicant in large measure repeated the submission that I had rejected on 4 September 2017. 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 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.
For these reasons I order that the amended notice of appeal be dismissed and I order that the applicant's notice of motion filed on 11 September 2017 also be dismissed. I will hear the parties on costs. My prima facie view is that there should be no order as to costs, at least in respect of the issues concerning the competence of the appeal (see UCPR 51.41(2)(a)).
The applicant submitted that if I came to this conclusion, as I foreshadowed in the course of oral submissions I would do, that nonetheless the existing injunction restraining the first respondent from entering into an agreement for the sale of the Kogarah property, should be extended until the determination of her foreshadowed application for review of my orders (see Supreme Court Act s 46(4)). She does not offer the usual undertaking as to damages. Indeed it was clear from the course of submissions that the applicant does not understand the concept of an undertaking as to damages. But the first respondent accepted that the Kogarah property would be ample to cover the debts provable in bankruptcy and the trustee's fees and expenses. The question I think is whether the applicant has seriously arguable prospects of obtaining an order discharging or varying the orders I have made and obtaining an order in substance as sought in either her notice of motion of 22 August 2017 or her notice of motion of 11 September 2017.
I do not think that there is any serious prospect of its being held on a review that the applicant's appeal is competent, but I will assume that notwithstanding the stance taken by the applicant, she might belatedly seek leave to appeal and might obtain such leave. Nonetheless, she would, it seems to me, have to demonstrate some arguable ground of defence to the first respondent's claim for possession of the property. None of the lengthy material submitted by the applicant demonstrates any such arguable defence.
In the circumstances it does not seem to me that it would be in the interests of justice to restrain the first respondent from exercising his power of sale. I am prepared to assume, without deciding, that I could make such an order. Nonetheless, in the absence of any arguable defence to the first respondent's right to possession, and in the absence of any arguable basis for seeking to restrain the first respondent from exercising his power as trustee in bankruptcy, I think the extension of the existing injunctive relief is not warranted.
I decline to further extend the order made by the Registrar on 18 September 2017.
[Parties address on costs.]
The third respondent seeks its costs. It was not a party to the proceeding below. It filed a notice of appearance on 14 September 2017. Because on 18 September 2017 the Registrar invited the applicant to file a summons seeking leave to appeal, I do not think that the third respondent's entitlement to costs should be affected by the absence of a notice of motion on its part seeking to dismiss the appeal as incompetent. I accept that costs were incurred by it which might not be insignificant as it has sought to come to grips with the extensive and confused documents on which the applicant relied. I think it is entitled to its costs.
In relation to the first respondent, the position as it obtained from 18 September 2017, or perhaps from 4 September 2017, was that he could also expect that the applicant would have filed a summons seeking leave to appeal. On the other hand, had the first respondent filed a notice of motion challenging the competence of the appeal promptly so that that application could have been dealt with on the previous hearing, then the subsequent proceedings could have been avoided. It is true that the time for bringing such an application had not expired by 4 September 2017. Nonetheless, I think in all the circumstances that there should be no order in respect of the first respondent's costs in relation to the argument concerning competence of the appeal. Nonetheless, the first respondent should be entitled to his costs of the notice of motion of 11 September 2017 that in substance sought to reargue matters that had been determined by my judgment of 4 September 2017.
Accordingly, I order that the applicant pay the costs of the first respondent of the applicant's notice of motion of 11 September 2017 and that otherwise there be no further order as to costs of the purported appeal between the applicant and the first respondent. I order that the applicant pay the third respondent's costs of the purported appeal, including the notice of motion of 11 September 2017.
[4]
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Decision last updated: 16 October 2017