Arambatzis v Foundas; Foundas v Wengel - [2021] NSWCA 78

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78
Hearing dates: 1 March 2021
Date of orders: 1 March 2021
Decision date: 01 March 2021
Before: Brereton JA
Decision:
Proceedings 2018/184682:
(1) Execution of the writ for possession, issued under the order made on 7 January 2021, be stayed until 2 June 2021 or earlier further order;
(2) Pursuant to UCPR r 7.36, the Court refers Mrs Foundas to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance generally in relation to the proceedings;
(3) The proceedings be adjourned to the Court of Appeal Registrar’s list on 3 May 2021; and
(4) The defendant Cassiani Foundas produce to the Registrar by 18 March 2021 the original of the documents which comprise pages 1 through 7 of annexure A to her affidavit of 23 February 2021.
Proceedings 2020/351791:
The notice of motion filed on 25 February 2021 be dismissed. These proceedings will remain listed on 19 March 2021 before the Real Property List Judge.

Catchwords:
JUDGMENTS AND ORDERS – Court of Appeal – Stay of execution of writ for possession – Where fresh evidence with indicia of authenticity raising serious question of miscarriage of justice in decision below produced at extremely late stage – Where interests of justice require exploration of evidence before taking irrevocable step of ejectment – Stay granted
CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Referral made to allow for legal assistance in exploration of fresh evidence
JUDGMENTS AND ORDERS – Court of Appeal – Stay of execution of writ for possession – Where stay also sought by husband of applicant producing fresh evidence – Where husband unable to demonstrate any entitlement to remain in possession – Stay refused

Legislation Cited:
Conveyancing Act1919 (NSW), s 66G
Uniform Civil Procedure Rules 2005 (NSW), r 7.36

Cases Cited:
Arambatzis v Foundas (Supreme Court (NSW), Darke J, 6 September 2019, unrep)
Foundas v Arambatzis [2020] NSWCA 47
Foundas v Arambatzis (No 3) (2020) 19 BPR ¶40-357; [2020] NSWCA 87
Foundas v Arambatzis (No 4) [2020] NSWCA 100.

Category: Procedural rulings
Parties:
Proceedings 2018/ 184682
Peter Arambatzis (Plaintiff/Applicant)
Cassiani Foundas (Defendant/Respondent)
Proceedings 2020/351791
Bill Foundas (Plaintiff/Applicant)
Sean Magnus Wengel (First Defendant/First Respondent)
Robert William Whitton (Second Defendant/Second Respondent)
Representation:
Counsel:
Proceedings 2018/184682
D Barlin (Plaintiff/Applicant)
Self-represented (Defendant/Respondent)

Proceedings 2020/351791
Self-represented (Plaintiff/Applicant)
W K Soon (Second Defendant/Second Respondent)

Solicitors:
Proceedings 2018/ 184682
Cutri & Associates (Plaintiff/Applicant)
Proceedings 2020/351791
William Roberts Lawyers (Defendant/Respondents)

File Number(s): 2018/184682
2020/351791
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

n/a

Date of Decision:

7 January 2021; 11 February 2021

Before:

Darke J

File Number(s):

2018/184682
2020/351791

Judgment (ex tempORE)

On 14 June 2018, Peter Arambatzis commenced proceedings 2018/184682 in the Equity Division, by summons seeking, relevantly, an order for the appointment of trustees for sale pursuant to (NSW) Conveyancing Act1919, s 66G,…

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.

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Details

Case: [2021] NSWCA 78
Decision Date: 01 March 2021

CaseChat Overview and Summary

In *Arambatzis v Foundas; Foundas v Wengel*, the Court of Appeal considered applications for a stay of execution of a writ for possession and for legal assistance. The primary applicant, Mrs Foundas, sought to stay the execution of a writ for possession that had been issued against her. Her husband, Mr Foundas, also sought a stay, producing fresh evidence that he contended raised a serious question of a miscarriage of justice in the decision below.

The Court was required to determine whether to grant a stay of execution of the writ for possession, considering the late production of fresh evidence by Mrs Foundas. It also had to consider whether Mr Foundas had demonstrated an entitlement to remain in possession and, consequently, to a stay. Furthermore, the Court was asked to consider a referral for pro bono legal assistance for Mrs Foundas to explore the fresh evidence.

Brereton JA granted the stay of execution of the writ for possession in favour of Mrs Foundas, noting that the fresh evidence, which had indicia of authenticity and was produced at an extremely late stage, raised a serious question of a miscarriage of justice. The interests of justice, in his Honour's view, required an exploration of this evidence before the irrevocable step of ejectment was taken. The Court also granted Mrs Foundas's application for a referral to the Registrar for pro bono legal assistance to aid in the exploration of this evidence. However, Mr Foundas's application for a stay was dismissed, as he was unable to demonstrate any entitlement to remain in possession.

The Court ordered that the execution of the writ for possession be stayed until 2 June 2021 or further order. Mrs Foundas was referred to the Registrar for pro bono legal assistance, and the proceedings were adjourned to the Registrar’s list on 3 May 2021. Mrs Foundas was also ordered to produce the original of certain documents by 18 March 2021. Mr Foundas's notice of motion was dismissed.

Orders

Orders of the court

Proceedings 2018/184682:

(1) Execution of the writ for possession, issued under the order made on 7 January 2021, be stayed until 2 June 2021 or earlier further order;

(2) Pursuant to UCPR r 7.36, the Court refers Mrs Foundas to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance generally in relation to the proceedings;

(3) The proceedings be adjourned to the Court of Appeal Registrar’s list on 3 May 2021; and

(4) The defendant Cassiani Foundas produce to the Registrar by 18 March 2021 the original of the documents which comprise pages 1 through 7 of annexure A to her affidavit of 23 February 2021.

Proceedings 2020/351791:

The notice of motion filed on 25 February 2021 be dismissed. These proceedings will remain listed on 19 March 2021 before the Real Property List Judge.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78
Hearing dates:	1 March 2021
Date of orders:	1 March 2021
Decision date:	01 March 2021
Before:	Brereton JA
Decision:	Proceedings 2018/184682: (1) Execution of the writ for possession, issued under the order made on 7 January 2021, be stayed until 2 June 2021 or earlier further order; (2) Pursuant to UCPR r 7.36, the Court refers Mrs Foundas to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance generally in relation to the proceedings; (3) The proceedings be adjourned to the Court of Appeal Registrar’s list on 3 May 2021; and (4) The defendant Cassiani Foundas produce to the Registrar by 18 March 2021 the original of the documents which comprise pages 1 through 7 of annexure A to her affidavit of 23 February 2021. Proceedings 2020/351791: The notice of motion filed on 25 February 2021 be dismissed. These proceedings will remain listed on 19 March 2021 before the Real Property List Judge.
Catchwords:	JUDGMENTS AND ORDERS – Court of Appeal – Stay of execution of writ for possession – Where fresh evidence with indicia of authenticity raising serious question of miscarriage of justice in decision below produced at extremely late stage – Where interests of justice require exploration of evidence before taking irrevocable step of ejectment – Stay granted CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Referral made to allow for legal assistance in exploration of fresh evidence JUDGMENTS AND ORDERS – Court of Appeal – Stay of execution of writ for possession – Where stay also sought by husband of applicant producing fresh evidence – Where husband unable to demonstrate any entitlement to remain in possession – Stay refused
Legislation Cited:	Conveyancing Act1919 (NSW), s 66G Uniform Civil Procedure Rules 2005 (NSW), r 7.36
Cases Cited:	Arambatzis v Foundas (Supreme Court (NSW), Darke J, 6 September 2019, unrep) Foundas v Arambatzis [2020] NSWCA 47 Foundas v Arambatzis (No 3) (2020) 19 BPR ¶40-357; [2020] NSWCA 87 Foundas v Arambatzis (No 4) [2020] NSWCA 100.
Category:	Procedural rulings
Parties:	Proceedings 2018/ 184682 Peter Arambatzis (Plaintiff/Applicant) Cassiani Foundas (Defendant/Respondent) Proceedings 2020/351791 Bill Foundas (Plaintiff/Applicant) Sean Magnus Wengel (First Defendant/First Respondent) Robert William Whitton (Second Defendant/Second Respondent)
Representation:	Counsel: Proceedings 2018/184682 D Barlin (Plaintiff/Applicant) Self-represented (Defendant/Respondent) Proceedings 2020/351791 Self-represented (Plaintiff/Applicant) W K Soon (Second Defendant/Second Respondent) Solicitors: Proceedings 2018/ 184682 Cutri & Associates (Plaintiff/Applicant) Proceedings 2020/351791 William Roberts Lawyers (Defendant/Respondents)
File Number(s):	2018/184682 2020/351791
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: n/a Date of Decision: 7 January 2021; 11 February 2021 Before: Darke J File Number(s): 2018/184682 2020/351791