Supreme Court New South Wales Medium Neutral Citation: Ghosh v Newton (No 8) [2024] NSWSC 281 Hearing dates: 14 March 2024 Date of orders: 14 March 2024 Decision date: 14 March 2024 Jurisdiction: Equity - Duty List Before: Parker J Decision: See [21], [23] Catchwords: JUDGMENTS AND ORDERS — injunction — enforcement of possession orders of Federal Circuit and Family Court of Australia — comity between courts — earlier applications to the Court dismissed –- functus officio doctrine — injunction refused Legislation Cited: Bankruptcy Act 1966 (Cth) Cases Cited: Ghosh v Newton (No 7) [2023] NSWSC 1558 Woods v Sheriff of Queensland (1895) 6 QLJ 163 Texts Cited: Nil Category: Procedural rulings Parties: Ratna Ghosh (Applicant) Scott Newton (Respondent) Representation: Ratna Ghosh (Self Represented) Counsel: D Neggo (Respondent) Solicitors: Stacks Law Firm (Respondent) File Number(s): 2022/284281 Publication restriction: Nil JUDGMENT Revised from transcript; issued 20 March 2024 1. These are proceedings with a lengthy procedural history. Originally, they were brought in the Common Law Division. They have now been transferred to this Division. 2. The first defendant, Mr Scott Newton, is the trustee of the bankrupt estate of Dr Ratna Ghosh, the plaintiff. There was a second defendant in the proceedings, Dr Rodney Miller, but he has not appeared at today's proceedings, and it is not necessary to say anything about his role in the proceedings. Nor is it necessary, for the purposes of this judgment, to go into the procedural history in any detail. 3. What is before the Court today is an application brought by way of notice of motion filed by Dr Ghosh last year. The notice of motion was subsequently amended, and it is an amended notice of motion, which was filed in court on 30 November, which sets out the relief currently sought. 4. For relevant purposes, the motion is concerned with a property at Patricia Avenue in Charlestown (Newcastle), which is occupied by Dr Ghosh. It seems to be common ground that the registered proprietor of the property is a company named Ghoband Pty Ltd ("Ghoband"). That company is, or was, the trustee of a superannuation fund for the benefit of Dr Ghosh. 5. Although the property was acquired in the name of Ghoband, Mr Newton asserted, and there appears to be no dispute about this based on what Dr Ghosh told me this afternoon, that the monies for the acquisition of the property came from her. In those circumstances, Mr Newton, relying on statutory procedures under the Bankruptcy Act 1966 (Cth), has issued a notice and obtained orders which permit him to sell the property. On 22 November last year, an order was made in the Federal Circuit and Family Court of Australia, Division 1 ("FCFCA") giving Mr Newton possession of the property. 6. In her amended notice of motion, Dr Ghosh sought (at [4]) an order restraining Mr Newton from enforcing her eviction from the Charlestown property under the FCFCA order. The application for that order came before Kunc J on 7 December last year. His Honour refused the application: Ghosh v Newton (No 7) [2023] NSWSC 1558. 7. It seems, however, that the order was not immediately enforced. Last month, on 20 and 21 February, Dr Ghosh raised the issue again before Lindsay J as Duty Judge. His Honour made orders confirming the dismissal of the claim made in [4] of the amended notice of motion and declined to make any order purporting to stay, or staying, the enforcement of the FCFCA order made in November or the warrant of possession issued in those proceedings. 8. Earlier today, Dr Ghosh approached me as the Duty Judge, saying that her eviction was scheduled for tomorrow and that she wished to make an urgent application. Dr Ghosh was told that she needed to set out the relief she was seeking in a notice of motion and provide supporting evidence. She produced an affidavit made on 23 February in the FCFCA proceedings but failed to produce a new notice of motion. She stated instead that the relief she was seeking was set out in her amended notice of motion of November last year. 9. When the matter came on for hearing before me, Dr Ghosh stated orally that despite the dismissal of the application in [4] of her amended notice of motion, she sought an order restraining Mr Newton from enforcing eviction tomorrow. She said that she should be given until at least May to continue to occupy the property. 10. It was not easy to understand the basis on which Dr Ghosh sought this order, and still less, the basis on which she sought the order having regard to the earlier orders by Kunc J and Lindsay J. Doing the best that I can, I think her arguments boiled down to three points. 11. First, Dr Ghosh referred to a medical certificate from last year, which stated that she was "not fit" to move house for a period of 12 months. Second, Dr Ghosh told me that in addition to her possessions, there are possessions of her son at the property. He apparently is living in Queensland, but according to Dr Ghosh, he wants to come back to Sydney to collect or remove the items of property which belong to him, some of which, as I understood Dr Ghosh, have sentimental value to him. Dr Ghosh asserted that if the eviction proceeded, both she and her son would be deprived of their furniture and other possessions. 12. Thirdly, Dr Ghosh asserted that the orders against her were obtained in circumstances of misconduct. Part of the alleged misconduct was that of her ex-husband, who was, at least according to Dr Ghosh, in control of Ghoband. Dr Ghosh reserved most of her criticism for Mr Newton. She accused him of fraud and said that he had "stolen" her property. She also asserted that, at least partly as a result of these allegations, there had been a lack of jurisdiction on the part of the FCFCA, which meant that it had been unable to make, or perhaps was unable to continue to enforce, the order for possession. 13. As I have said, I found some difficulty in understanding these allegations. Even with the limited background I have in this matter, it quickly became apparent that it was essential to sift carefully what Dr Ghosh was telling me. 14. In making her allegations, Dr Ghosh did not seem to consider herself restricted by the evidence in her affidavit. Her comments ranged far and wide over the history of her dealings with Mr Newton and her ex-husband, and over the extensive procedural history which has now built up as a result of various proceedings in this Court and in the FCFCA. 15. I was able to identify a number of statements which she made which were demonstrable exaggerations or misrepresentations. As an example, she said to me that Mr Newton had given an undertaking not to proceed with the eviction and that this had been "required" by Linsday J. There is no basis whatsoever that I can see in the record of the Court for that statement. Indeed, it seems that his Honour's decision, so far from requiring some sort of undertaking to be given, was that the Court would not interfere. I mention this not by way of personal criticism of Dr Ghosh but simply to explain how difficult it is to reduce her submissions to legally comprehensible form. 16. In my view, Dr Ghosh's application today is unwarranted. That is for two main reasons. 17. The first is that Dr Ghosh's complaint is about an order for possession by the FCFCA, and this Court should not interfere with that court's process. Indeed, the Court may not have power to do so. Dr Ghosh has appealed against the FCFCA order of 22 November. The appeal is fixed for next Friday. But, as Kunc J recorded, no application was made by Dr Ghosh for a stay of that order pending the hearing of the appeal. That remains the case. 18. The second fatal defect in today's application is that, in substance, it is no more than a repetition of the application which was dealt with by Kunc J on 7 December and then renewed before Lindsay in February. So far as this Court is concerned, the application to have it intervene in the enforcement of the FCFCA order has been declined. The Court is functus officio. It would not be open to the Court to reconsider the matter further. The following statement by Griffith CJ, speaking for the Queensland Full Court, in Woods v Sheriff of Queensland (1895) 6 QLJ 163, is in point: … when a judgment or order is pronounced or made after hearing both sides, it is a general rule that the court which pronounced the judgment or made the order cannot reverse or vary it. … this rule … in my opinion applies equally to all judgments and orders, whether final or interlocutory, and whether pronounced by the Full Court or by a single judge, and whether he is sitting in court or in chambers … 1. In my view, therefore, it would not be open to me to go into the merits of the order for possession of November last year. Even if the Court had power to do so, given the procedural history, I would decline to exercise the power as a matter of discretion on the grounds that Dr Ghosh has had ample opportunity to proceed with a direct challenge. 2. It is only fair to Mr Newton to say that, so far as I can see, nothing in Dr Ghosh's evidence in support of this application provides the slightest justification for the allegations of fraud and theft which she has made against him. 3. The order of the Court is: 1. The oral application for an order staying the order for possession order made by the Federal Circuit and Family Court of Australia, Division 1 on 22 November 2023 is dismissed. (Dr Ghosh addressed on costs) 1. Dr Ghosh resisted an order that she pay the costs of this application. In doing so, she doubled down on her earlier allegations of misconduct against Mr Newton and, for good measure, accused his counsel of misrepresentation. There was no justification for these allegations, and they should not have been made. 2. There is no reason to depart from the usual rule that costs follow the event. Accordingly, the order of the Court on costs is: 1. (2) The plaintiff as applicant pay the costs of the first defendant, as respondent, of the oral application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2024