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Arambatzis v Foundas

Arambatzis v Foundas

Case [2024] NSWSC 400 15 April 2024

Stay of Proceedings

Co-ownership

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Arambatzis v Foundas [2024] NSWSC 400
Hearing dates: 12 April 2024
Date of orders: 15 April 2024
Decision date: 15 April 2024
Jurisdiction: Equity
Before: Kunc J
Decision:
Leave granted for writ for possession of property to issue; stay pending appeal denied

Catchwords:
APPEALS — Procedure — Stay pending appeal — No issue of principle
LAND LAW — Co-ownership — Statutory trust for sale — Writ for possession

Legislation Cited:
Conveyancing Act 1919 (NSW) s 66G

Cases Cited:
Foundas v Arambatzis [2020] NSWCA 47
Foundas v Arambatzis (No 3) [2023] NSWSC 1513
Foundas v Arambatzis (No 4) [2023] NSWSC 1648
Foundas v Arambatzis (No 5) (2022) 109 NSWLR 73; [2022] NSWCA 113
Vaughan v Dawson [2008] NSWCA 169

Category: Consequential orders
Parties: Peter Arambatzis (Plaintiff)
Cassiani Foundas (Defendant)
Representation:
Counsel: D Barlin (Plaintiff)
Cassiani Foundas (Defendant – self-represented)
S Chen, Solicitor (Trustees)

Solicitors: Cutri & Associates (Plaintiff)
William Roberts Lawyers (Trustees and Applicants)

File Number(s): 2018/00184682
Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

Summary

This judgment is the latest in a series which begins with an October 2018 judgment of Darke J appointing Trustees for sale of a property at Ashcroft under s 66G of the Conveyancing Act 1919 (NSW). The co-owners of the property were the plaintiff, Mr Peter Arambatzis, and the defendant, his sister Ms Cassiani Foundas. Ms Foundas continues to live in the property.
Since 2018, there have been numerous judgments both at first instance and on appeal. This judgment resolves two competing motions:

A motion filed on 19 January 2024 by the Trustees for leave to issue a writ for possession of the property (possession motion); and

A motion filed on 5 April 2024 by Ms Foundas which sought, among other things, a stay of any writ (stay motion) pending an appeal which she has filed from recent decisions of Rees J.

For the reasons which follow, the Court has concluded that:

There is no proper basis for Ms Foundas' resistance to the possession motion, so leave will be granted for a writ to issue for possession of the property; and

The stay motion will be dismissed because Ms Foundas' grounds for appeal do not have any, or any sufficiently serious, prospects of success to warrant granting a stay of the writ, nor has she demonstrated that the balance of convenience favours such a stay.

Ms Foundas appeared for herself. She was assisted by her former husband, Mr Bill Foundas, for whom she is still the carer. Mr Foundas also briefly addressed the Court (without objection) in his own right. Importantly in relation to the issue of a writ for possession, Mr Foundas has confirmed more than once to the Court that he does not reside in the property. He also said he had nothing to say himself about the merits of Ms Foundas' contentions before the Court.
Mr S Chen, Solicitor, appeared for the Trustees. Mr D Barlin…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arambatzis v Foundas

Details

AGLC: Arambatzis v Foundas [2024] NSWSC 400
Case: [2024] NSWSC 400
Decision Date: 15 April 2024

CaseChat Overview and Summary

In the case of Arambatzis v Foundas, the dispute arose from the co-ownership of a property, specifically regarding the sale of the jointly owned property under the statutory trust for sale. The matter was before the court on an appeal, where the respondent sought a stay pending the outcome of the appeal. The court had to determine whether there was an issue of principle that necessitated a stay of the proceedings during the appeal.

The central legal issue before the court was whether the respondent's application for a stay should be granted, considering the nature of the proceedings and the statutory provisions governing the sale of jointly owned property. The court had to balance the principles of justice and efficiency in the administration of property law with the statutory requirements for the sale of jointly owned property.

The court found that there was no issue of principle that warranted a stay of the proceedings. The court reasoned that the statutory trust for sale was a specific mechanism designed to facilitate the sale of jointly owned property, and the statutory provisions did not necessarily require a stay during an appeal. The court concluded that the respondent's application for a stay was not justified and dismissed the application. The court emphasised that the statutory process for sale was designed to provide a clear and efficient pathway to resolving disputes over jointly owned property, and that this process should not be unduly hindered by interlocutory applications.

Orders