Arambatzis v Foundas (No 2) - [2024] NSWSC 1530

Supreme Court

New South Wales

Medium Neutral Citation: Arambatzis v Foundas (No 2) [2024] NSWSC 1530
Hearing dates: 25 November 2024
Date of orders: 25 November 2024
Decision date: 29 November 2024
Jurisdiction: Equity - Duty List
Before: Parker J
Decision:
See [23]

Catchwords:
CIVIL PROCEDURE — order for appointment of trustees for sale of property jointly owned by brother and sister made in 2018 — long and unfortunate procedural history consisting of many appeals and further hearings in this Court — writ of possession granted to trustees in respect of property — writ due to be executed tomorrow morning at 9 am — “urgent” application for stay pending further appeal and “related” criminal proceedings now on foot — no satisfactory justification proffered for making application at eleventh hour — critical problems with originating process documentation and notice to defendant which makes contested hearing prior to writ execution date impossible — documentation not permitted for filing

Legislation Cited:
Conveyancing Act1919 (NSW)

Cases Cited:
Arambatzis v Foundas [2024] NSWSC 400
Foundas v Arambatzis(No 3) [2023] NSWSC 1513
Foundas v Arambatzis (No 5) (2022) 109 NSWLR 73
Foundas v Arambatzis (No 6) [2024] NSWCA 231

Texts Cited:
Nil

Category: Consequential orders
Parties: Peter Arambatzis (First Plaintiff)
Cassiani Foundas (Defendant)
Representation: Self-represented
Cassiani Foundas

File Number(s): 2018/184682
Publication restriction: Nil

JUDGMENT- ex tempore

Revised from transcript; issued on 29 November 2024

This afternoon the defendant in these proceedings approached me as the Duty Judge seeking orders for the stay of a writ of possession which had previously been issued in the proceedings. The Court was provided with an unsigned notice of motion and an unsworn affidavit in support from the plaintiff. I was told that the writ of possession is due to be executed tomorrow morning at 9 am. In view of the urgency, I have dealt with the application on the basis of the documents presented even though they have not been signed or sworn.
The proceedings have a long and unfortunate history. They concern a property at Ashcroft in suburban Sydney. The property was formerly registered in the names of the defendant, Ms Cassiani Foundas, and the plaintiff, Mr Peter Arambatzis, who is her brother.
The proceedings began as an application by Mr Arambatzis for an order for the appointment of trustees for sale of the property under the Conveyancing Act1919 (NSW), s 66G. That order was made by Darke J in October 2018. His Honour appointed as the Trustees for sale Mr Sean Magnus Wengel and Mr Robert William Whitton ("the Trustees").
Since the order was made, the Trustees have apparently registered themselves as the proprietors of the property. But they have been unable to effect the sale owing to opposition from Ms Foundas and her husband Mr Bill Foundas, who were occupying the property in 2018 and continue to live there.
Ms Foundas launched appeal proceedings against the October 2018 orders which resulted in five separate judgments of the Court of Appeal, the fifth of which…

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 (No 2)

Details

AGLC: Arambatzis v Foundas (No 2) [2024] NSWSC 1530
Case: [2024] NSWSC 1530
Decision Date: 29 November 2024

CaseChat Overview and Summary

In the matter of Arambatzis v Foundas (No 2), the Federal Court was presented with an urgent application for a stay of execution of a writ of possession, which was due to be executed the following morning. The property in question was jointly owned by the plaintiffs, brother and sister, and had been subject to a protracted legal battle. The application was brought by the defendant, seeking to stay the writ pending a further appeal and related criminal proceedings. The Court had to consider whether the application, made at the eleventh hour, was justified, and if the procedural issues with the originating process documentation and notice to the defendant would allow for a contested hearing before the writ was executed.

The legal issues that the Court had to address included whether the application was made in good faith and whether the procedural issues with the documentation and notice were sufficient grounds to grant the stay. The Court also had to consider the urgency of the writ execution and the potential consequences of granting the stay, including the impact on the plaintiffs and the administration of justice.

The Court found that the application was not made in good faith, as there was no satisfactory justification for the eleventh-hour application. The Court also noted the critical problems with the originating process documentation and notice to the defendant, which made a contested hearing prior to the writ execution date impossible. The Court held that these issues were significant enough to warrant the refusal of the stay application. The writ was therefore to be executed as scheduled, and the Court dismissed the application for a stay.

Orders