Mansfield (Trustee), in the matter of Frugtniet v Frugtniet (Stay Applications)

This decision sits inside a broader bankruptcy dispute, but the immediate issue was much narrower. The trustee in bankruptcy had already obtained orders requiring vacant possession of several properties. Two occupants of those properties, Aron Asfoura and David Wai Kwong Fu, then came to the Federal Court urgently to ask for a short delay before the writs of possession were executed.

The properties were residential, not business premises. That matters because the case is not authority on ordinary commercial lease rights. Still, the judgment is useful for business readers because it shows how the Court approaches urgent stay applications when enforcement is imminent and the underlying entitlement to possession has already been decided.

The earlier orders had been made on 15 July 2025. They required the respondents and any occupants to give vacant possession within 60 days, and they allowed a warrant of possession to issue if that did not happen. The compliance period expired on 16 September 2025. The NSW Sheriff’s Office later confirmed execution of the writs on 22 October 2025.

By the time Perry J heard these applications on 21 October 2025, the question was not who owned the properties or whether the trustee was entitled to possession. That had already been determined in the earlier proceeding. The practical question was whether these two occupants should get a short extension before being forced out.

The applicant in the main proceeding was David Ian Mansfield, the trustee for the bankrupt estate of Jerome Frugtniet. The respondents were Brian and Suzanne Frugtniet, the bankrupt’s separated parents. In the earlier judgment, Stewart J rejected the respondents’ contention that the properties were held on trust for one or other of them and held that the trustee was entitled to the properties.

Mr Asfoura and Mr Fu were not parties to that earlier litigation. They were tenants of two of the residential properties. Mr Asfoura occupied the Lidcombe property. Mr Fu occupied the Rosehill property with his daughter. When the writs of possession were about to be executed, each filed an urgent interlocutory application seeking a stay.

Both applicants appeared in person. That is a useful practical detail for business readers considering self-representation. The Court heard them, but it still required proper evidence. Each relied on an affidavit, gave oral evidence on additional matters, and was cross-examined. The trustee also filed affidavit evidence in response.

The respondents in the main proceeding did not take part in the hearing of these stay applications. That reinforces how focused the hearing was. The Court was not revisiting the broader family and bankruptcy dispute. It was deciding whether these two occupants should be given a short period of extra time before enforcement occurred.

The legal issue was whether the Court should exercise its discretion to stay execution of the writs of possession for a limited period. Perry J accepted the general principles relied on by the trustee. A stay is discretionary. It is not granted lightly. A successful party is usually entitled to the fruits of its judgment. The balance of convenience and the interests of justice are central.

There was, however, an important qualification. In an earlier stay application brought by the respondents in the appeal, the merits of the appeal were relevant. Here, they were not. Mr Asfoura and Mr Fu were not appealing the 15 July 2025 orders. They were not asking for a stay pending the determination of the respondents’ appeal. They were asking only for short stays to mitigate personal hardship if the writs were executed on 22 October 2025.

Because of that, Perry J held that the merits of the respondents’ appeal were not relevant to deciding these two applications. The Court instead focused on practical matters: the seriousness of the hardship each applicant would face, whether each had a credible plan to move, the shortness of the delay sought, and the prejudice to the trustee and creditors if enforcement was postponed.

That procedural point is important for businesses. In urgent possession matters, the court may not be interested in every background complaint or every issue in the wider dispute. It may ask a much narrower question: should enforcement be paused right now, for how long, and on what evidence?

Mr Fu gave evidence that he had not previously received the court orders and only realised around 15 or 16 October 2025 that he had to vacate by 22 October after a notice from the Sheriff’s Office was placed in his letterbox. He said the short timeframe caused significant stress because it was very difficult to find accommodation within a week.

After receiving the notice, Mr Fu wrote to the Sheriff’s Office on 18 October 2025 asking for a postponement until 10 November 2025. The Sheriff’s Office replied that it could not postpone the eviction without instructions from the trustee or the Court and suggested that he seek assistance from Link2home or the Tenant’s Advice and Advocacy Service. Mr Fu then made repeated but unsuccessful attempts to obtain emergency accommodation.

He also gave evidence that he and his daughter had lived in the Rosehill property since 2008 and had been actively looking for alternative accommodation. They had just secured a lease of a unit in Parramatta commencing on 10 November 2025, when the current tenants would vacate. Mr Fu explained how the tenancy agreement had been signed, why some information had been entered electronically, and why his daughter had not yet signed. He said he had paid a cash deposit and intended to move in on 10 November 2025.

The trustee challenged the genuineness and reliability of that arrangement, arguing that the daughter had not signed and that the landlord’s involvement appeared limited. Perry J rejected those submissions. Her Honour accepted Mr Fu’s account as clear, detailed and credible, and accepted that the agreement was genuine and that he intended to move into the Parramatta property on 10 November 2025.

Mr Fu also gave unchallenged evidence that he suffered from serious cardiac illness and had suffered two heart attacks in recent months. His evidence was supported by a patient health summary from his treating doctor. The trustee accepted his medical conditions.

Mr Asfoura’s position was different in one important respect. He accepted that he had received notice of the requirement to vacate the Lidcombe property by 16 September 2025. He had also communicated with the trustee’s solicitor after receiving that notice. So unlike Mr Fu, he could not say he had only just learned of the need to leave.

Even so, Mr Asfoura explained why he had not moved out by the compliance date. He said that after the date passed, and because he understood from Brian Frugtniet that an appeal had been lodged and was ongoing, he assumed he did not have to vacate unless he received further communication. He did not know that Kennett J had dismissed the respondents’ stay application. It was only when he later received the notice that he realised he and his housemate had to vacate on 22 October 2025.

Perry J described that understanding as misguided, but accepted that he had explained it. The Court did not treat his evidence as showing a determination to defy the orders. Instead, the Court accepted that once he realised the position, he acted quickly to secure alternative accommodation.

Mr Asfoura gave evidence that he and his housemate had entered into a residential tenancy agreement for a new property in Granville and were due to move in on Saturday 25 October 2025. That was why he sought a stay only until Monday 27 October 2025. He also gave unchallenged evidence that he had suffered severe third-degree burns to 40 percent of his body in 2024, had been in an induced coma, and had only regained capacity to work over the previous two to three months.

He pointed to practical difficulties if the stay were refused, including the lack of feasible short-term accommodation between 22 and 25 October, the distance to his parents’ home, the fact he had two cats, and the fact that nothing was packed. Perry J accepted that he would likely suffer hardship if the stay were not granted and that his hardship may have been aggravated by his injuries.

Perry J granted both stay applications at the end of the urgent hearing and later published reasons. The writ of possession for the Lidcombe property was stayed until 9.00 am on Monday 27 October 2025. The writ of possession for the Rosehill property was stayed until 11.00 am on Monday 10 November 2025. Costs were reserved.

The Court accepted the trustee’s concerns to a point. There was some risk that the occupants might not vacate when promised. There was also some prejudice to creditors from delay. Perry J accepted, consistently with the earlier stay decision, that the estate’s equity in the properties was being eroded, that the properties did not earn enough income to pay the interest on secured loans, and that an early sale might be in creditors’ interests. The timing of the year was also relevant because Christmas and the summer holiday period were approaching.

But those factors did not end the matter. For Mr Fu, the Court held that the balance of convenience favoured a short stay because he had credible evidence of a genuine tenancy commencing on 10 November 2025, had made unsuccessful attempts to obtain emergency accommodation, and had unchallenged evidence of serious heart-related illness. For Mr Asfoura, the Court held that the balance of convenience also favoured a very short stay because his evidence about the Granville lease was credible, he had acted quickly once he understood he had to move, and immediate eviction would likely cause hardship aggravated by his recovery from severe injuries.

The Court also made its expectations clear. It expected Mr Asfoura to vacate before 27 October 2025 and Mr Fu to vacate before 10 November 2025 in line with their evidence. In Mr Fu’s case, the Court also said that if it had not already occurred, he should use his best endeavours to ensure that his daughter signed the lease naming her as a second tenant.

Although the properties here were residential, the enforcement principles are relevant to business premises in similar procedural settings. If a landlord, trustee in bankruptcy, receiver, mortgagee or other claimant has already obtained possession orders, a business should not assume it can remain in occupation because there is an appeal somewhere in the background or because the broader dispute feels unresolved. Unless a stay is actually granted, enforcement may proceed.

The case also shows what tends to matter when a court is asked for a short pause. The applicants did not ask for open-ended relief. They asked for short, specific periods tied to identified move-in dates. They gave evidence about what they had done to secure alternative accommodation. They explained the hardship that immediate enforcement would cause. And the Court tested that evidence through cross-examination.

For business owners, the practical lesson is that a stay application is not a substitute for planning. If your business may lose access to premises, act early. Confirm exactly what the orders require and whether they apply to your business, your staff, your stock and your equipment. If you need extra time, gather documents showing your relocation arrangements, communications with the other side, and any evidence of serious operational hardship. Ask for a realistic period only. A court is more likely to engage with a narrow, credible request than with a vague plea for more time.

Just as importantly, this decision shows that general hardship is not enough on its own. The Court was persuaded by specific and credible evidence, not by broad assertions. That distinction matters for any business considering urgent relief.

The judgment records that the trustee was appointed on 11 February 2021. The key possession orders were made on 15 July 2025. The 60-day compliance period expired on 16 September 2025. The Sheriff’s Office confirmed execution of the writs for 22 October 2025. Perry J heard the stay applications urgently on 21 October 2025, made orders that day, and published reasons on 28 October 2025.

The case is therefore a final published decision on the stay applications themselves, but it is not the final word on the broader bankruptcy litigation. Its practical significance lies in the Court’s treatment of urgent, evidence-based requests for a short delay in enforcement.