Federal Court of Australia

Gounder v Mansfield as trustee of the bankrupt estate of Gounder [2025] FCA 856

ORDERS

NOTE:

A.    On the Respondent in his capacity as trustee of the bankrupt estate of the Applicant undertaking not to sell or otherwise encumber the property at 6 Windamere Street, Warner in the State of Queensland being more particularly described as Lot 1282 on Survey Plan 232376 for a period of 2 months, or until the Applicant’s appeal in Federal Court proceedings QUD468/2025 is disposed of, whichever is the later, with the Respondent having liberty to apply on 5 days’ notice to vary or be released from this undertaking:

THE COURT ORDERS THAT:

1.    The interlocutory application dated 24 July 2025 is dismissed.

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

REASONS FOR JUDGMENT

HILL J

introduction

1    The Applicant has brought an interlocutory application dated 24 July 2025 for orders to set aside or suspend a warrant for possession issued by a Registrar on 15 July 2025 in Federal Circuit and Family Court of Australia (Div 2) proceedings BRG666/2024 (FCFCOA proceedings). The warrant for possession applies to land at 6 Windamere Street, Warner in Queensland. That application is supported by an affidavit of the Applicant dated 24 July 2025 (Applicant affidavit). The matter was heard by me as duty judge urgently on the afternoon of 24 July 2025, with the Applicant and the Respondent’s lawyer attending remotely.

2    For the following reasons, the application is dismissed.

background

3    This background is principally taken from Mansfield (Trustee) v Gounder, in the matter of Gounder [2025] FedCFamC2G 780 (J).

4    Trustee appointed (Oct 2018): On 11 October 2018, the Respondent in this application (Trustee) was appointed trustee of the Applicant’s bankrupt estate: J [2]. It appears a sequestration order was made on that date in FCFCOA proceedings BRG810/2018. By s 58 of the Bankruptcy Act 1966 (Cth), the sequestration order had the effect of vesting the Applicant’s property in the Trustee from the date of that order.

5    Trustees apply for orders for possession (Oct 2024): On 9 October 2024, the Trustee applied to the FCFCOA for orders by which it could take possession of 6 Windamere Street.

6    FCFCOA orders Trustee have possession (28 May 2025): On 28 May 2025, Judge Egan in the FCFCOA found that the Trustee was entitled to vacant possession of 6 Windamere Street, and entitled to orders facilitating the sale by the Trustee of that property: J [11]. Relevantly, his Honour made orders:

(1)    declaring that the Applicant’s interest in 6 Windamere Street vested in the Trustee on 11 October 2018 (Order 1)

(2)    requiring the Applicant and any other occupants of 6 Windamere Street within 28 days vacate the property and provide vacant possession to the Trustee (Order 2), and

(3)    in the event of the Applicant failing to deliver up vacant possession, authorising a warrant for possession for 6 Windamere Street to be issued forthwith (Order 3).

7    Warrant for possession (15 July 2025): On 15 July 2025, in reliance on the 28 May 2025 orders, a Registrar of the FCFCOA issued a warrant for possession over 6 Windamere Street in favour of the Trustee.

8    Interlocutory application to FCFCOA (20-21 July 2025): On 20 July 2025, the Applicant made an interlocutory application to the FCFCOA objecting to the warrant for possession. That application was heard on 21 July 2025 by Judge Vasta and dismissed on that date.

9    Application for extension of time (22 July 2025): On 22 July 2025, the Applicant filed an application for an extension of time to appeal against the judgment of Judge Egan in Federal Court proceedings QUD468/2025. The accompanying affidavit contains a draft notice of appeal, with the following ground of appeal (without alteration):

1.    The ongoing trustees fees since the time the invoice of the bankruptcy notice was off in December 2019 should be voided. The trustees were fully aware of my personal situation at home and I had suffered so many incidents of domestic violence even till late Mr Gounder (my husband) died and it continued afterwards too, these matters were reported to the police. A woman who suffered domestic violence and now suffers from PTSD, shouldn’t be dragged into the courts like this matter should have been resolved at the time I paid the invoice of Superior Alignments Pty Ltd in full, no act of bankruptcy was ever committed, the mechanic tricked me into paying him for things he had stolen and then repaired after a few days of the having the truck in his yard, a first initial inspection who have helped a mechanic diagnose all the mechanical issues of the truck, I was like over-charged nearly $5,000 more for the work that wasn’t required.

10    Trustee takes possession (23 July 2025): I am informed by the parties that the Trustee took possession of 6 Windamere Street on 23 July 2025.

11    Interlocutory application (24 July 2025): On 24 July 2025, the Applicant applied to this Court for orders:

(1)    To set aside or suspend the warrant for possession;

(2)    To permit the Applicant and her children to be allowed in 6 Windamere Street from 24 July 2025.

12    Applicant’s arguments: The Applicant’s affidavit sets out her arguments: in summary, it is a hardship argument, that she and her children will be homeless unless the order is made; her children are sick; the risk of domestic violence increases; and there are adverse effects on the Applicant’s mental health. She also made arguments at the hearing about the unfairness of her being made bankrupt.

consideration

13    Duties to self-represented litigant: The Applicant is legally unrepresented in this proceeding. The Court therefore has duties to take appropriate steps to ensure that the Applicant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing). However, although the Court may be lenient in the standard of compliance which it expects from a litigant in person, that leniency does not go so far as to confer an advantage on the person who acts on their own behalf: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court).

14    Particular orders cannot be made: In terms, the Applicant seeks orders to set aside or stay the warrant for possession. However, the Trustee has already taken possession of 6 Windamere Street, so the effect of this warrant is spent. There would be no legal effect in setting it aside now: it provided the necessary legal authority for the steps taken on 23 July 2025.

15    Stay of proceedings? What the Applicant really seeks is an order that would give her possession as against the Trustee. Any such order would fly in the face of the orders made by Judge Egan on 28 May 2025. I have therefore considered (consistently with the Court’s duties to unrepresented litigants) whether this application could be treated as an application to stay the orders of Judge Egan, pending the appeal to this Court.

16    Stay pending appeal – general principles: The principles that apply to granting a stay pending an appeal in cases such as this are helpfully summarised by Colvin J in Frigger v Trenfield (Application for Stay Pending Appeal) [2021] FCA 1605 at [10]. A stay pending an appeal is granted to protect the right to an appeal. Therefore, there must be shown to be some risk of an event occurring that may jeopardise the subject matter of the appeal and there must be merit in the appeal. His Honour stated that an applicant for a stay pending an appeal (as with an applicant for injunctive relief) must demonstrate:

(a)    the ultimate benefit of a successful exercise of the appeal right is in jeopardy if there is no injunction;

(b)    there is sufficient strength in the argument to the effect that there was error in the primary decision to contemplate a restraint upon its being given effect; and

(c)    a sufficiently serious consequence for the applicant if an injunction was not granted to justify depriving a party until the outcome of the appeal is known of the benefit of what is a considered determination of the issues after a final hearing.

17    Stay should not be granted: Applying those factors to this proceeding, I would not order a stay of Judge Egan’s judgment.

18    On factor (a) above, the Trustee has provided an undertaking that he will not sell or otherwise encumber 6 Windamere Street for two months, or until the Applicant’s appeal in QUD468/2025 is determined, whichever is the later. That undertaking will ensure that Ms Gounder’s appeal is not rendered nugatory.

19    On factor (b) above, there is no obvious legal merit in the proposed ground of appeal set out in [9] above. Judge Egan considered that the Applicant in this proceeding had not demonstrated any factual or legal basis which might constitute a defence to the Trustee’s claimed relief: J [9]. Even if that judgment is set aside, the underlying sequestration order (which had the effect of vesting the Applicant’s property in the Trustee under s 58 of the Act) would remain in force.

20    On factor (c), the Applicant would contend that the hardship currently faced by her and her children is a serious consequence that justifies depriving the Trustee of the benefit of the judgment until the outcome of the appeal is known. I have no reason to doubt that the Applicant and her children are in a difficult position. On the other hand, the Applicant has been on notice since October 2018 that 6 Windamere Street had vested in the Trustee, and was on notice since October 2024 that the Trustee was taking steps to take possession of that property. Further, the Applicant in this proceeding is re-agitating arguments that were considered and rejected by Judge Vasta.

conclusion

21    For these reasons, the interlocutory application dated 24 July 2025 must be dismissed.

Associate:

Dated:    25 July 2025