Fokas v Mansfield

[2017] NSWCA 231

NSW Court of Appeal

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Interrogate

Catchwords

1. Bankruptcy
2. › Administration of property
3. › Trustee in bankruptcy
4. › Order for possession of real estate
5. › Application to set aside judgment for possession given in absence of bankrupt
6. › Whether arguable defence shown
7. › Whether sequestration order validly made
8. › Whether property exempt household property
9. › Bankruptcy Act 1966 (Cth), ss 58(1), 116(2)(b)
10. › Bankruptcy Regulations 1996 (Cth), r 6.03
1. Practice and Procedure
2. › Injunctions
3. › Interim injunction
4. › Application to restrain trustee in bankruptcy
5. › Whether arguable case disclosed
6. › No reasonable prospects of success
1. Practice and Procedure
2. › Judgments and orders
3. › Setting aside judgment given in absence of party
4. › Whether satisfactory explanation and arguable defence required
5. › Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(b)
1. Bankruptcy
2. › Jurisdiction
3. › Special federal matter
4. › Whether exercise of bankruptcy jurisdiction by Supreme Court under cross-vesting legislation involves special federal matter
5. › Whether transfer to Federal Court required
6. › Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 4, 6
7. › Bankruptcy Act 1966 (Cth), s 27

Quick Take

On an application to set aside a judgment for possession obtained by a trustee in bankruptcy, the relevant question is whether the applicant is bankrupt (i.e., whether a sequestration order exists), not whether there were sufficient grounds for the making of the sequestration order. Real property is not 'household property' exempt from division under s 116(2)(b) of the Bankruptcy Act 1966 (Cth). The interaction between s 27 of the Bankruptcy Act and the cross-vesting legislation regarding 'special federal matters' in bankruptcy remains an open question.