Fokas v Mansfield (No 3)

1. [1]

   JUDGMENT of THE COURT delivered by PAYNE JA: This is an application for review under s 46(4) of the Supreme Court Act 1970 (NSW) of a decision of White JA delivered on 9 October 2017: Fokas v Mansfield (No 2) [2017] NSWCA 261.

Background

1. [2]

   The applicant was formerly the registered proprietor of a property in English Street, Kogarah. On 1 November 2012, the Federal Magistrates Court made an order in the following terms:

2. [3]

   On 14 December 2016, the first respondent, the trustee of the applicant’s bankrupt estate, obtained an order in proceedings brought in the Common Law Division of this Court (2016/213128) for possession of the property in English Street, Kogarah and the Court issued a writ of possession.

3. [4]

   On 30 January 2017, the Sheriff executed the writ of possession and the first respondent entered into possession of the English Street property.

Procedural history

1. [5]

   On 26 July 2017, the applicant filed a notice of motion in the proceedings in the Common Law Division. On a generous reading of that notice it sought an order setting aside the order for possession which had been made on 14 December 2016.

2. [6]

   On 9 August 2017, Wilson J dismissed the applicant’s notice of motion.

3. [7]

   On 10 August 2017, by notice of appeal filed that day, the applicant appealed against the orders of Wilson J dismissing the notice of motion filed on 26 July 2017.

4. [8]

   On 22 August 2017, the applicant filed a notice of motion in that (albeit incompetent) appeal proceeding seeking orders, in substance, restraining the first respondent from entering into an agreement for the sale of the English Street, Kogarah property. In terms the following order was sought:

5. [9]

   On 4 September 2017, White JA heard argument on that notice of motion and made the following orders:

6. [10]

   During the course of argument and in his Honour’s reasons, White JA raised with the applicant the fact that her notice of appeal appeared to be incompetent (see Supreme Court Act, s 101(2)(e)) and that she needed to seek leave to appeal: Fokas v Mansfield [2017] NSWCA 231 at [16].

The motion before White JA

1. [11]

   On 11 September 2017, the applicant filed a further notice of motion in which she sought "an order for recovery of possession of land", being the English Street, Kogarah, property or "any other order the Court would think appropriate."

2. [12]

   On 18 September 2017, the Registrar of the Court of Appeal stood over the applicant's notice of motion for hearing before White JA on 9 October 2017. The Registrar also made orders as follows:

3. [13]

   On 3 October 2017, the applicant filed an amended notice of appeal. The applicant did not file any summons seeking leave to appeal. In an affidavit dated 15 September 2017 read before White JA (at the hearing on 9 October 2017), the applicant repeated the contention made at the hearing on 4 September 2017 that she was not insolvent and had not been declared bankrupt.

4. [14]

   At the conclusion of that hearing, White JA held that 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 Wilson J’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 from that order. His Honour observed that notwithstanding his explanation to the applicant on 4 September 2017 about the necessity for the applicant to seek leave to appeal, the applicant had not sought that leave.

5. [15]

   The applicant contended before White JA that leave was not required. She submitted that she was entitled to appeal as of right pursuant to s 101(1)(a) of the Supreme Court Act. White JA rejected that submission. His Honour observed that the right of appeal conferred by s 101(1)(a) is expressed to be “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. His Honour held that, 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.

6. [16]

   Accordingly, White JA ordered that the applicant’s amended notice of appeal be dismissed and that the applicant's notice of motion filed on 11 September 2017 also be dismissed.

The summons seeking review of White JA’s decision

1. [17]

   On 9 October 2017 the applicant filed a notice of motion seeking to review the decision of White JA under s 46(4). The orders sought were:

2. [18]

   On 16 October 2017 the applicant filed a further notice of motion seeking to review the decision of White JA under s 46(4). The orders sought were:

3. [19]

   At the hearing today, the applicant read her affidavits sworn 10 October 2017 and 23 October 2017, in which she repeated her submission that the generality of s 101(1)(a) of the Supreme Court Act meant that she had a right of appeal to this Court from the order made by Wilson J and that leave to appeal was not required. By leave, oral submissions were made to the Court by the applicant’s son Panagiotis Fokas. No submission was addressed orally or in writing to the competency of the appeal beyond the terms of s 101(1)(a) of the Supreme Court Act.

4. [20]

   A number of other submissions were addressed by the applicant to matters relevant to her bankruptcy. Those submissions, although obviously of great importance to the applicant, were not relevant to the competency of her appeal.

5. [21]

   The first and third respondents appeared at the hearing of the motions and made written submissions opposing the relief sought by the applicant. Each pointed out that the applicant had eschewed the opportunities afforded to her to seek leave to appeal and has maintained an entitlement to appeal to this Court as of right from the orders of Wilson J.

Consideration

1. [22]

   An application under s 46(4) is not an appeal to the Court: see Supreme Court Act, s 19(2); and Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 51.2 for the definition of “appeal”. It has been generally accepted that the applicant for review must show that, in the decision sought to be reviewed, there has been a material error of law or fact, a disregard of some material consideration or the taking into account of an irrelevant consideration, or that the decision was plainly unreasonable and therefore wrong: McGinn v Cranbrook School [2016] NSWCA 226 at [1], [4] and [42]; Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 at [4] and [6].

2. [23]

   It is possible that the approach to such a review may vary depending on the nature of the issues raised: Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2014] NSWCA 417 at [3]-[6]; Pi v Zhou [2017] NSWCA 16 at [3]-[6]. Even if a less constrained view were taken of the powers potentially available on such a review, no different conclusion would be reached in relation to the matters addressed below.

3. [24]

   There is no doubt that White JA had jurisdiction to make the order dismissing the applicant’s amended notice of appeal and notice of motion filed on 11 September 2017 under s 46(2)(b) of the Supreme Court Act: Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [15]; McGinn v Cranbrook School at [3].

4. [25]

   The order made by Wilson J was interlocutory. A summary dismissal order is interlocutory notwithstanding that it brings the proceedings to an end. The decision of White JA that the appeal from the decision of Wilson J was incompetent was correct and in accordance with this Court’s decisions in Macatangay and McGinn.

5. [26]

   The applicant required leave to appeal pursuant to s 101(2)(e) of the Supreme Court Act from the decision of Wilson J. The amended notice of appeal was incompetent. White JA was correct so to conclude.

6. [27]

   The applicant submitted before White JA that notwithstanding the dismissal of the appeal as incompetent, the Court should nonetheless continue a then existing injunction restraining the first respondent from entering into an agreement for the sale of the English Street, Kogarah property.

7. [28]

   His Honour declined to do so 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 power as trustee in bankruptcy. Nothing in the evidence or submissions on this review raises any doubt as to the correctness of that reasoning. His Honour was correct to decline to extend the interlocutory order made by the Registrar on 18 September 2017.

8. [29]

   The final matter raised was costs. White JA ordered as to costs:

9. [30]

   No basis has been shown for disturbing the discretionary costs orders made by White JA.

10. [31]

    The applicant in submissions today also sought orders against the Registrar-General seeking correction of the certificate of title in relation to the property at English Street, Kogarah. It is sufficient to observe that the Registrar-General was not a party to this application or the application before White JA. Accordingly, no such orders will be made.

11. [32]

    The Court makes the following orders:

    1. (1)

       The applicant’s notice of motion dated 9 October 2017 for review of the orders made by White JA on 9 October 2017 be dismissed;

    2. (2)

       The applicant’s notice of motion dated 16 October 2017 for review of the orders made by White JA on 9 October 2017 be dismissed;

    3. (3)

       The applicant pay the first and third respondents’ costs of the notices of motion dated 9 October 2017 and 16 October 2017 as agreed or assessed.