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 June 2021 or earlier further order. That was a stay of three months. I also made an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 7.36, referring 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 I adjourned the proceedings to the Registrar's list on 3 May 2021.

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

3. In the course of the judgment, I explained that while evidence had emerged which, if authentic, could cast serious doubt on the basis upon which Mrs Foundas’ defence to the Conveyancing Act 1919 (NSW) s 66G application was rejected, that evidence had emerged so late that there were serious difficulties in relying on it now. I explained that possible courses of action might include an application for special leave to appeal out of time to the High Court, which seemed a remote prospect; an application to reopen the judgment of the Court of Appeal on the basis of fresh evidence; an application to set aside the judgment at first instance for fraud; and, potentially, that the Court might, as a matter of discretion in the face of new evidence, merely decline to enforce the existing order for possession. In order to enable those (and any other) possibilities to be explored by Mrs Foundas with the benefit of legal assistance, I ordered, as I have indicated, that she be referred for pro bono assistance.

4. Mrs Foundas now seeks an extension of the stay. Neither Mr Arambatzis nor the trustees adopted a formal position in opposition to Mrs Foundas' application.

5. Mrs Foundas says that she was referred to counsel, and the counsel she identified is a very senior and experienced equity practitioner. She says that they did not establish a good working relationship, and although she did not say so expressly, I infer that she terminated the practitioner’s assistance. This is most regrettable, given that she was afforded the benefit of a pro bono referral, and given also that a second pro bono referral can, by reason of UCPR, r 7.36(2A), be ordered only for special reasons.

6. It seems, however, that the barrister to whom she was referred may not have been provided with my reasons for judgment of 1 March 2021, which were published on Caselaw only on 6 May 2021. In circumstances where the first referral, for one reason or another, appears not to have been progressed, and where counsel may not have had access to the judgment to which I have referred, I am satisfied that there are sufficient special reasons to make a second referral. However, the luxury of time of three months which was afforded on the last occasion can no longer be allowed, and Mrs Foundas must take action very promptly if a further stay after the one month I propose to grant today is to be extended.

7. In the course of argument, reference was made on behalf of the trustees to a pending issue concerning the subject property involving an apparent problem with the sewer. While it is obviously desirable that this be resolved, and while Mrs Foundas says that there are steps underway to do so, it seems to me that it is not really germane to the question of a stay. If the neighbouring owner has rights and remedies, nothing in the orders I propose to make will affect them.

8. Finally, on the last occasion, I made an order that Mrs Foundas produce to the registrar by 18 March 2021 the original of the documents which comprised pages 1 through 7 of annexure A to her affidavit of 23 February 2021. An issue has arisen as to whether she has produced the original of those documents, or only a copy of them. She informs me that the document that she has sent to the Court is originally signed. I am not in a position at present to adjudge whether or not that is so. In any event, as I understand what she says, she confirms that the document that she has sent to the Court is the original in her possession, and if it is not the ultimate original, that is because the ultimate original is not in her possession.

9. The Court orders that:

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.

10. I observe that if the stay is to be further extended, then the Court will expect to see some action with some prospects of success having been instituted along the lines of those indicated in my earlier judgment.

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Endnote

Decision last updated: 10 June 2021