Federal Court of Australia

Stolyar v Scott (Trustee), in the matter of Stolyar (Bankrupt) (No 10) [2025] FCA 344

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application be dismissed.

2.    The applicant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

THAWLEY J:

1    By an urgent interlocutory application styled “Urgent Application Before Start of a Proceeding”, Ms Faina Stolyar seeks an order that Mr Scott of PricewaterhouseCoopers is not to sell or attend to the settlement of a property located at 5/41 Francis Street, Bondi, New South Wales 2026 (Francis Street property), and that she be given access to the Francis Street property. Ms Stolyar relies on an affidavit dated 31 March 2025, sworn on that day. Mr Scott was appointed as receiver of the Francis Street property by orders made by Markovic J on 17 September 2024 in proceeding NSD861 of 2019. The Francis Street property was sold in February 2025, and settlement is scheduled to take place today.

2    The orders made on 17 September 2024 ultimately stem from Ms Stolyar’s loss at trial in the primary proceedings, namely: Scott (Trustee), in the matter of Stolyar (Bankrupt) v Stolyar [2022] FCA 691. This judgment was given on 16 June 2022 and was upheld by the Full Court on 27 April 2023: Stolyar v Scott (Trustee) [2023] FCAFC 61. An application for special leave to appeal was dismissed by the High Court on 7 September 2023: Stolyar v Scott in his capacity as the Trustee of the bankrupt estates of Ian Stolyar and Beth Ngoc Nguyen [2023] HCASL 129.

3    Ms Stolyar attended court for the hearing of her urgent application. As she explained in her affidavit, she is 84 years old, and she sometimes has difficulty reading and understanding complicated documents in English. Ms Stolyar was assisted during the hearing by her son, Mr Ian Stolyar, who was granted leave to make submissions on behalf of Ms Stolyar for the purposes of addressing her application.

4    There are two principal questions which arise on an application to stay orders. The first is whether there is a prima facie case for relief, and the second is whether the balance of convenience favours granting the relief:  Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [65] (and see also at [19] per Gleeson CJ and Crennan J). Those two questions are interrelated: Boost Tel Pty Ltd v Singtel Optus Pty Ltd [2023] FCA 213; 170 IPR 246 at [12].

5    The basis of the application, and the prima facie case articulated for Ms Stolyar, was that a judgment of this Court had been procured by fraud. Ms Stolyar proposes to commence proceedings seeking to have that judgment set aside. The relevant judgment is that given in the primary proceedings, namely [2022] FCA 691, on 16 June 2022. The proceedings have a long and complex history, see for example: Scott (Trustee), in the matter of Stolyar (Bankrupt) v Stolyar (No 3) [2023] FCA 1529; Scott (Trustee), in the matter of Stolyar (Bankrupt) v Stolyar (No 4) [2023] FCA 1555; Scott (Trustee), in the matter of Stolyar (Bankrupt) v Stolyar (No 7) [2024] FCA 1068; Stolyar v Scott (Trustee), in the matter of Stolyar (Bankrupt) (Leave to Appeal) [2024] FCA 1425.

6    The basis of this application, however, is clear to the following extent. First of all, the proposed case which Ms Stolyar wishes to bring is one which challenges and seeks to set aside the orders made in [2022] FCA 691. The basis for the application is said to be that it was procured by fraud. This is not the first time such an allegation has been made in relation to that judgment. It was also made and addressed in Stolyar (No 3) at [26] to [46].

7    What is important for present purposes is that it was made clear by Mr Stolyar that the incidents of alleged fraud upon which Ms Stolyar relies each occurred between January and September 2024.

8    In my view, it cannot be said that Ms Stolyar’s proposed claim has any real prospect of success. Given that the asserted fraud is said to have occurred after judgment was delivered, it cannot be said that Ms Stolyar has demonstrated a prima facie case in the sense of a sufficient likelihood of success to justify the granting of interlocutory relief – see: O’Neill at [65].

9    On the question of balance of convenience, I note that the sale is scheduled to proceed today, and that, if the sale is lost, there will be additional costs involved in rearranging a sale. I note that Ms Stolyar presently has accommodation provided by the government and that, for some considerable time, the Francis Street property has not been one in which she lived. Rather, it was apparently rented out.

10    Ms Stolyar’s position, as stated in argument today, was that the stay was only being sought on a temporary basis until the proceedings alleging that the judgment was procured by fraud are commenced, and that, in due course, the proposal was to seek a stay for the Francis Street property not to be completed or sold until the final determination of the proceedings to be commenced. Those proceedings could be anticipated to be lengthy, if they are commenced, and a stay of a sale for that length of time is unlikely to be granted.

11    Given that I am not satisfied that there is a prima facie case, and I am not satisfied that the balance of convenience weighs in favour of Ms Stolyar, I decline the relief sought.

Associate:

Dated:    9 April 2025