Arambatzis v Foundas (No 2)

[2021] NSWCA 125

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Arambatzis v Foundas (No 2) [2021] NSWCA 125

Hearing dates:

1 June 2021

Date of orders:

1 June 2021

Decision date:

01 June 2021

Before:

Brereton JA

Decision:

(1) Execution of the writ for possession issued under the order made on 7 January 2021 be further stayed until 6 July 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, and directs the Registrar to provide to the barrister or solicitor appointed a copy of my judgment of 1 March 2021; and

(3) The proceedings be adjourned to the Court of Appeal Registrar's List on 5 July 2021.

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – Stay of execution of writ for possession – Further stay – Where little progress made since initial stay – Where pro bono referral unavailing – Where applicant did not have published reasons for judgment regarding previous stay – Where original document constituting fresh evidence with indicia of authenticity raising serious question of miscarriage of justice in decision below said to have been sent to Court – Stay extended – Where any further extension will require very prompt steps to progress proceedings

CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Second referral – Special reasons – Where barrister on first referral did not have benefit of published reasons for judgment regarding previous stay – Referral made

Legislation Cited:

Conveyancing Act 1919 (NSW), s 66G

Uniform Civil Procedure Rules 2005 (NSW), r 7.36

Cases Cited:

Arambatzis v Foundas; Foundas v Wengel [2020] NSWCA 78

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
Ms T Harris-Roxas (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)

1. For the reasons I am about to give, I propose to extend the stay of execution of the writ of possession for a period of one month, and to make a further referral for pro bono assistance. It will be essential, if that stay is to be further extended, for Mrs Foundas to have taken appropriate action well in advance of the date on which it expires.

2. On 1 March 2021, for reasons given orally that day,^[1] I ordered that execution of a writ of possession which had issued under an order for possession made on 7 January 2021 be stayed until 2…