Federal Court of Australia

Pomella v Owners Corporation 1 Plan No. PS648585D [2026] FCA 1062

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 13 July 2026 is dismissed.

2.    The applicant pay the respondent’s costs of the interlocutory application, such costs to be taxed in default of agreement.

3.    The applicant pay the costs of Anna Odrzywolska, the Trustee of the bankrupt estate of the applicant, in relation to the interlocutory application, such costs to be costs of the administration of the bankruptcy.

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

REASONS FOR JUDGMENT

NESKOVCIN J:

1    The present proceeding forms part of a series of challenges brought by the Applicant following the making of a sequestration order against her estate on 12 September 2024.

2    Briefly and by way of background, on 12 September 2024, a Judicial Registrar made a sequestration order against the Applicant’s estate pursuant to s 52 of the Bankruptcy Act 1966 (Cth). The sequestration order was made upon the presentation of a Creditor's Petition by the Respondent arising from a judgment debt obtained in the Magistrates’ Court of Victoria on 23 May 2024 following a contested hearing.

3    On 3 October 2024, the Applicant filed an application for review of the sequestration order, seeking to set aside the sequestration order and dismiss the Creditor’s Petition. That application was heard by Judge Taglieri on 18 November 2024, and, on 26 November 2024, her Honour dismissed the application: Owners Corporation 1 Plan No PS648585D v Pomella, in the matter of Pomella [2024] FedCFamC2G 1275 (Pomella No 1).

4    The present proceeding was commenced on 5 November 2025 seeking an extension of time to appeal the decision in Pomella No 1. It was not in dispute that the Applicant was required to commence an appeal from Pomella No 1 within 28 days and that, having commenced the proceeding almost 11 months out of time, the Applicant required an extension of time to appeal.

5    Although the present proceeding was commenced in November 2025, the Applicant did not effect personal service on the Respondent (or the Trustee in her bankruptcy, Ms Anna Odrzywolska) until May 2026.

6    Separately, on 5 September 2025, the Applicant filed an originating application seeking, among other things, an order under s 153B of the Bankruptcy Act for the annulment of the sequestration order made against the Applicant’s estate. That application was heard by Judge Corbett on 19 February 2026 and, on 22 April 2026, his Honour dismissed the application: Pomella v Odrzywolkska (Trustee), in the matter of Pomella (Bankrupt) (No 2) [2026] FedCFamC2G 631 (Pomella No 2). On 14 November 2025, Judge Corbett also heard and dismissed an interlocutory application brought by the Applicant in that proceeding seeking, among other things, to restrain the Trustee from taking certain steps, including selling, transferring, reletting, vacating or otherwise dealing with properties which are part of the Applicant’s bankrupt estate: Pomella v Odrzywolkska (Trustee), in the matter of Pomella (Bankrupt) [2025] FedCFamC2G 1893.

7    On 21 May 2026, the Applicant commenced an appeal in this Court from the orders of Judge Corbett in Pomella No 2 (VID 658 of 2026). The present proceeding, involving the application for an extension of time to appeal the decision in Pomella No 1, and the appeal from the decision in Pomella No 2 (VID 658 of 2026) have both been docketed to me, but neither proceeding has been listed for hearing.

8    This brings us to the present application. On 13 July 2026, the Applicant filed an interlocutory application seeking, among other things, orders restraining the Trustee from “selling, entering into any contract for the sale of, listing or advertising for sale, transferring, further encumbering or otherwise dealing with” four properties in the Applicant’s bankrupt estate (the Properties). The Applicant requested an urgent hearing on the basis that the Trustee had advertised one of the Properties for sale and the property was scheduled for viewing by prospective purchasers.

9    On 21 July 2026, the Court listed the interlocutory application for hearing on 7 August 2026. On the same day, the Applicant sought an undertaking from the Trustee not to enter into contracts for the sale of the Properties or otherwise deal with the Properties pending the hearing of the interlocutory application.

10    On 22 July 2026, the Trustee advised that she was not prepared to provide the undertaking sought and it was possible that an offer might be received within one to two weeks, with two further Properties due to commence marketing later that week. As a result, on 23 July 2026, I listed the interlocutory application for an urgent hearing on 29 July 2026.

11    I had made a referral for the Applicant to receive pro bono assistance in relation to the present proceeding, on 30 June 2026, and counsel later accepted the brief. However, on about 13 July 2026, a Registrar allowed counsel to return the brief. On 14 July 2026, I made a further referral for pro bono assistance, this time in relation to the interlocutory application. On 27 July 2026, the Registry advised that it had been unable to identify appropriate counsel in time for the hearing and, as a result, the Applicant did not obtain legal representation at the time the interlocutory application was heard. Nevertheless, the Applicant said she relied on her affidavit affirmed on 13 July 2026, a further affidavit affirmed on 28 July 2026 and her written submissions dated 28 July 2026, and she made oral submissions at the hearing. The Court also had regard to the Applicant’s affidavit in support of her application for an extension of time in light of the submissions made by the Trustee (see below at paragraph 26).

12    The Respondent, who is the petitioner creditor, relied on an affidavit of Ms Louise Hinchen, the Owners Corporation Manager of the Respondent, affirmed on 28 July 2026 and a written outline of submissions dated 28 July 2026 with respect to the interlocutory application.

13    The Trustee is not a party to the present proceeding, however, given her interest in the interlocutory application, I granted leave to the Trustee to appear and make submissions. The Trustee relied on an affidavit which she affirmed on 28 July 2026 and written submissions dated 28 July 2026.

14    After hearing from the parties, I made orders dismissing the interlocutory application, with costs, and indicated that reasons would follow. These are my reasons for making those orders.

The Applicant’s challenges to the sequestration order

15    Due to the overlapping issues and arguments in the various proceedings instituted by the Applicant ultimately seeking to challenge the sequestration order made against her estate on 12 September 2024, including the present proceeding, it is convenient to summarise the grounds on which the Applicant sought review of the sequestration order before Judge Taglieri, the grounds on which the Applicant sought an annulment of her bankruptcy before Judge Corbett and the grounds on which the Applicant seeks to appeal the decision in Pomella No 1.

Application for review of the sequestration order

16    The Applicant sought review of the sequestration order, and to have it set aside, on the basis that:

(a)    the Bankruptcy Notice was defective because it failed to account for a payment of $2,000 made towards the judgment debt on 3 April 2024; and

(b)    the Applicant was solvent and she was able to pay her debts as they fell due.

See Pomella No 1 at [15] – [16].

17    At the hearing before Judge Taglieri, the Applicant’s counsel abandoned contentions that the sequestration order should be set aside due to:

(a)    an error in the assessment of the amount due to the Respondent in the underlying Magistrates' Court judgment debt;

(b)    defects in relation to the Applicant’s name recorded in the Bankruptcy Notice or documents filed by the petitioning creditor for the purpose of the sequestration order; and

(c)    a claim that she was solvent and able to pay her debts based on her Centrelink income.

See Pomella No 1 at [17].

18    Judge Taglieri found that the requirements for the sequestration order were satisfied and dismissed the application for review of the sequestration order. Her Honour found that the Applicant’s evidence as to solvency was unsatisfactory and she was not persuaded that the Applicant was solvent and had the capacity to meet her expenses: [42], [43] and [46]. In dismissing the application, her Honour took into account that the Applicant had not applied for a stay of the sequestration order or fully cooperated in providing information to the Trustee: [47].

Application for annulment of the bankruptcy

19    The Applicant sought an annulment of her bankruptcy on the following grounds:

(a)    the Applicant was not served personally with the Bankruptcy Notice or Creditor’s Petition upon which the sequestration order was made;

(b)    the debt due was incorrectly stated;

(c)    the Creditor’s Petition and sequestration order were issued in the wrong name and were not issued in the Applicant’s correct legal name; and

(d)    at the time the sequestration order was made, the Applicant was solvent and had not been given the opportunity to establish her solvency.

See Pomella No 2 at [2], [15].

20    Judge Corbett was satisfied that the sequestration order was entirely appropriate and was in the interests of all creditors because the Applicant was and is insolvent. His Honour further observed that the Applicant was not only unable to pay her debts when due, but was unwilling to do so unless she could negotiate favourable terms: Pomella No 2 at [40]. His Honour was not persuaded that the Applicant had not been served with the Creditor’s Petition or that she was unaware of the application to obtain a sequestration order: at [41].

21    Judge Corbett stated, at [43] – [45]:

43.    Further, I am not satisfied that the applicant has discharged the heavy burden to place before the Court all relevant material concerning her financial position to allow the Court to exercise the discretion to annul. At the time of making the sequestration order, there was no evidence that the applicant could satisfy her debts as and when they fell due, or that the applicant was even prepared to do so, even with the assistance of her uncle’s superannuation funds.

44.    The applicant’s creditors are still unknown but there is clear evidence provided by the respondent that the creditors are substantial and will not be paid from available assets unless there is an orderly realisation of available assets, without the interference of the applicant.

45.    Further, the applicant has shown an unwillingness to cooperate with the respondent in the orderly resolution of the payment of the debts, including statutory debts, payable by the applicant and therefore, it is not in the interests of the creditors of the applicant’s estate or to the interests of the public to grant an annulment pursuant to s 153B of the Act.

The grounds to appeal Pomella No 1

22    As best as the Applicant’s affidavits and submissions can be understood, it appears that the Applicant would seek to raise the following points or grounds in the appeal:

(a)    The proceedings against the Applicant were conducted under an incorrect legal name.

(b)    The underlying Magistrates' Court judgment debt was incorrect because it did not consider payments made by the Applicant to reduce the debt.

(c)    Payments made by the Applicant were not properly considered.

(d)    The review hearing was affected by procedural unfairness because it was not adjourned at the request of the Applicant.

(e)    The Court in Pomella No 1 erred in finding that the Applicant was insolvent and in concluding that the requirements for maintaining the sequestration order were satisfied.

(f)    The act of bankruptcy relied upon to support the sequestration order, under s 40(1)(g) of the Bankruptcy Act, did not exist because the Applicant contends that she has such a set-off and cross-claim, which was not determined.

23    I will return to the merits of the appeal later.

The interlocutory application for injunctive relief

24    In the interlocutory application filed on 13 July 2026, the Applicant sought interlocutory orders restraining the Trustee from selling or otherwise dealing with the Properties pending the determination of the Applicant’s extension of time application and appeal. Although at the hearing of the interlocutory application the Applicant said she was only seeking an injunction until 5 November 2026, she seemed to be under a misapprehension that her cases in this Court and/or the proceedings she has brought in the Supreme Court mentioned below at paragraph 36, would be finalised by that date. As a result, the hearing proceeded on the basis of the interlocutory application as filed.

25    The Applicant sought the interlocutory injunction against the Trustee on the following grounds:

(a)    if the Properties are sold before the appeal is determined, the sales would be effectively irreversible, and the appeal could be rendered nugatory;

(b)    there is a serious question to be tried as to whether the sequestration order ought to have been made, including for the reasons described at paragraph 22 above;

(c)    the balance of convenience favoured preserving the Properties until the appeal is determined because any prejudice to the Trustee and/or creditors could be compensated from the bankrupt estate, whereas a completed sale could not readily be unwound.

26    The Trustee opposed the interlocutory application. In addition to contending that the Applicant had not provided an acceptable explanation for the delay in bringing the extension of time application, or established that the appeal is arguable, the Trustee submitted that:

(a)    the Applicant is seeking to revisit issues that have already been considered and determined in previous proceedings, including matters concerning her solvency;

(b)    the balance of convenience weighs against granting the relief sought because the administration of the bankrupt estate has already been delayed for almost two years as a result of multiple unsuccessful applications brought by the Applicant;

(c)    further delay would prejudice creditors, whose debts continued to increase through ongoing interest, costs and other liabilities;

(d)    additional delay in administering the bankrupt estate would diminish the funds potentially available for distribution to unsecured creditors, noting that there remained unquantified liabilities, including potential liabilities to the Australian Taxation Office (ATO);

(e)    there is no status quo requiring preservation given the sale processes in relation to several of the Properties are already well advanced, with agents having been engaged, marketing having commenced for one property and leases having expired in relation to others; and

(f)    damages would not provide adequate protection because the Applicant is insolvent and, if the injunction were granted but ultimately found to be unwarranted, the Applicant would have no capacity to compensate the estate or creditors for the loss occasioned by the delay.

27    The Trustee’s affidavit estimates that the realisable value of the Properties is between $3,550,000 and $4,130,000. Based on her investigations to date, the Trustee estimates the debts owed to secured creditors total approximately $3,030,000, including a debt owed to National Australia Bank (NAB) of approximately $2,500,000, which is continuing to accrue interest. The debts owed to unsecured creditors are estimated to be approximately $213,000, however, the Trustee noted that the Applicant has not filed tax returns for over 20 years and the Court was told that the Trustee is unable to estimate the amount owed to the ATO because the Applicant has refused to provide all of her financial records. The Trustee states that while there may be an estimated surplus following the sale of the Properties of between $150,000 and $770,000, that surplus will need to be applied towards the Trustee’s remuneration and costs (approximately $480,000, including legal costs), capital gains tax and any remaining unsecured creditors. Based on her investigations to date, the Trustee does not believe that there is any prospect the Applicant is solvent.

28    The Trustee further states that while she has been able to undertake certain investigations, the administration of the bankruptcy has been hampered by the Applicant’s interference, refusal to comply with requests for information and general lack of cooperation.

29    The Respondent essentially adopted the Trustee's submissions, submitting that the application for an extension of time and the underlying appeal both lack merit.

Relevant principles

30    The principles governing the Court's discretion to grant interlocutory injunctive relief are well-established. To qualify for such relief, the applicant must demonstrate that they have a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [65] – [72] (Gummow and Hayne JJ), [19] (Gleeson CJ and Crennan J). Whether the applicant has made out a prima facie case, and whether the balance of convenience and justice favours the grant of an injunction, are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [67] (Dowsett, Foster and Yates JJ), citing Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (2009) 81 IPR 339; [2009] FCA 595 at [15] (Sundberg J).

31    An apparently strong claim may cause the court to grant an injunction if the balance of convenience is fairly even, and a more doubtful but prima facie claim may still result in an injunction if the balance of convenience tilts strongly in favour of it: Bradto Pty Ltd v State of Victoria (2006) 15 VR 65; [2006] VSCA 89 at [39] (Maxwell P and Charles JA) and Samsung Electronics at [67] (Dowsett, Foster and Yates JJ).

32    The purpose of interlocutory relief is to preserve the status quo in order to ensure the effective exercise of the jurisdiction invoked by the parties: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [35] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ). Interlocutory relief does so by preventing the practical destruction of rights to be determined before there has been the opportunity to have those rights finally established: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [9] – [12] (Gleeson CJ).

Disposition

33    The Applicant’s affidavits containing her explanation for the delay in commencing the present proceeding to seek an extension of time to appeal the decision in Pomella No 1 were difficult to understand. The Applicant contended that she was advised of the “incorrect appeal deadline” by her former solicitors, although she did not proffer any specifics regarding the “appeal deadline”, and she said that because of that error and “the December – January court closures” she believed she had missed the appeal window. The Applicant said that she has since learned that an extension of time to appeal may be granted and has acted promptly upon receiving that advice. However, she did not say when she received the relevant advice, she has not produced any documents evidencing the advice and she has not produced any material that evidences that she acted promptly once she received the relevant advice.

34    The Applicant acknowledged candidly “that [her] application for an extension of time faces a real hurdle, both as to the explanation for the delay and as to the ultimate merits”. Nonetheless, she submitted that there is a serious question to be tried and the balance of convenience favoured preserving the properties until the substantive application is heard.

35    Although it is strictly unnecessary to say anything further in relation to the merits given the Applicant’s concession, I make the following observations. Many of the potential grounds of appeal, mentioned above in paragraph 22, raise issues that were abandoned or determined adversely to the Applicant in the earlier proceedings. The Applicant was legally represented at the hearing of the application to review the sequestration order. To the extent that the Applicant has raised issues concerning the use of the Applicant’s correct legal name, the Applicant does not appear to assert that there has been a mistake as to identity.

36    The Applicant’s issues, at the hearing and as set out in her affidavits, largely related to the quantum of the debts owed to the petitioning creditor and NAB. The Applicant has had ample time to raise issues regarding the debts and calculation of the debts owed to the Respondent and the secured creditors. The Applicant noted, however, that she only filed an application or appeal in the Supreme Court of Victoria in May 2026 to contest the secured debt owed to NAB under the default judgment that was obtained against the Applicant in 2023.

37    In regard to the merits of the appeal, the Applicant raised certain “issues of procedural fairness”. The first issue concerned conduct on the part of her Counsel in abandoning certain arguments before Judge Taglieri. It was not clear how this is said to be a “procedural fairness” issue and, once again, it is noteworthy that the Applicant was legally represented at the hearing of the application for review. The second issue concerned the late filing of an affidavit by the Trustee on the morning of the hearing of the application before Judge Taglieri. The Applicant did not, however, identify any part of the Trustee’s late filed affidavit which she says she was unable to deal with at the hearing.

38    In relation to the appeal ground referred to in paragraph 22(f) above, s 40(1)(g) of the Bankruptcy Act provides that a debtor commits an act of bankruptcy if the creditor has obtained against the debtor “a final judgment ... which has not been stayed” and the debtor does not comply with the requirements of the bankruptcy notice or, relevantly, “satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained”. In assessing the merits, I have considered this potential ground of appeal. Based on the material filed by the Applicant, it is not apparent how s 40(1)(g) would assist the Applicant, noting that she is not legally trained.

39    Ultimately, I am not satisfied that the interests of justice favour the grant of the injunction for the following reasons.

40    Three of the four Properties are rental properties, which until recently have been let to third parties. These Properties are now vacant, or will be vacated soon, so they can be prepared for sale and, as a result, the Properties are not earning income. The Applicant does not reside in any of the Properties.

41    It also appears from correspondence before the Court, sent from the Trustee to the Applicant on 23 June 2026, that the Trustee previously agreed to postpone realising the assets of the bankrupt estate until the annulment application filed on 5 September 2025 was considered.

42    The sequestration order was made almost two years ago. The Applicant has not, at any stage, sought a stay of the sequestration order in order to challenge or negotiate the debts owed to creditors.

43    Since the sequestration order was made, the Applicant has had ample time to pursue claims or court proceedings in relation to the debts owed to the Respondent and NAB.

44    The Applicant has, however, waited until this year to take steps to issue appeals in the Supreme Court of Victoria in relation to the Magistrates’ Court judgment debt in favour of the Respondent, obtained in 2024, and the default judgment obtained in NAB’s favour in 2023. Those proceedings are at an early stage and were commenced without the Trustee’s consent. The Court was told that there is likely to be a contest as to the Applicant’s standing to continue those proceedings.

45    The Trustee does not believe there is any prospect that the Applicant is solvent. On previous occasions when the Applicant had the opportunity to establish her solvency, the court was not satisfied that the Applicant had demonstrated that she was solvent and had the capacity to pay her debts as and when they fell due: Pomella No 1 at [42], [43], [46]; Pomella No 2 at [33], [40] and [43].

46    There is clear evidence that creditors will not be paid unless there is an orderly realisation of the assets in the estate. Given the administration of the bankrupt estate has been on foot for some time, the costs that have been expended in preparing the Properties for sale, the interest that is accumulating on the secured debts and the expense caused by ongoing delays, I am satisfied that there is prejudice to the estate and its creditors from further delays in realising the Properties.

47    For those reasons, the interlocutory application was dismissed, with costs.

Associate:

Dated:    4 August 2026