Arambatzis v Foundas (No 3) - [2021] NSWCA 189

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Arambatzis v Foundas (No 3) [2021] NSWCA 189
Hearing dates: 16 August 2021
Date of orders: 16 August 2021
Decision date: 16 August 2021
Before: Brereton JA
Decision:
(1) By 6 September 2021, Mrs Foundas file and serve any further affidavit or documentary evidence and submissions in support of her Notice of Motion filed 21 May 2021 and any relief to like effect;
(2) By 27 September 2021, the respondents file and serve any evidence and submissions in response;
(3) The proceedings be adjourned to 11 October 2021 before the Registrar, with a view to allocation of a hearing date;
(4) The stay of execution of the writ for possession issued on 7 January 2021, originally granted on 1 March 2021 and subsequently extended, be further extended to 11 October 2021;
(5) Insofar as it be necessary, in circumstances where prima facie it has been filed in proceedings in the Equity Division, the Notice of Motion be transferred to the Court of Appeal;
(6) Insofar as it be necessary, the applicant is referred for further pro bono assistance generally in the proceedings; and
(7) The Registrar provide a copy of these reasons for judgment to the Executive Director & Principal Registrar of the Supreme Court of New South Wales, the Director & Prothonotary of the Supreme Court of New South Wales, and the President of the Bar Association of New South Wales.

Catchwords:
CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Third referral – Where Bar Association has indicated that no further assistance will be provided without additional referral – No conditions for ceasing to provide ongoing assistance satisfied – Bar Association guidelines not relevant – Further referral made but ongoing effect of previous referral emphasised
JUDGMENTS AND ORDERS – Court of Appeal – Extension of stay of execution of writ for possession – Extension not opposed – Extension granted and orders made with view to progressing matter to hearing
CIVIL PROCEDURE – Jurisdiction – Transfer of Notice of Motion from Supreme Court to Court of Appeal

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 7.34, 7.35, 7.36, 7.37, 7.38, 7.39(1), 7.40; Pt 7, Div 9

Cases Cited:
Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78
Arambatzis v Foundas (No 2) [2021] NSWCA 125
Clark v State of New South Wales [2018] NSWSC 450

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

Proceedings 2020/351791
S Chen (Defendants/Respondents)

Solicitors:
Proceedings 2018/184682
Cutri & Associates (Plaintiff/Respondent)
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 1…

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 3)

Details

AGLC: Arambatzis v Foundas (No 3) [2021] NSWCA 189
Case: [2021] NSWCA 189
Decision Date: 16 August 2021

CaseChat Overview and Summary

In *Arambatzis v Foundas (No 3)*, the Court of Appeal of New South Wales considered an application by Mrs Foundas, an unrepresented litigant, for an extension of a stay of execution of a writ for possession. The proceedings involved a Notice of Motion that had been transferred from the Supreme Court to the Court of Appeal. The Bar Association had previously provided pro bono assistance but indicated that no further assistance would be provided without an additional referral.

The primary legal issues before the court were whether to grant a further extension of the stay of execution, and whether to make a further referral for pro bono assistance. The court also addressed the procedural matter of transferring the Notice of Motion to the Court of Appeal, and the relevance of the Bar Association's guidelines regarding ongoing assistance.

Brereton JA reasoned that the extension of the stay was not opposed and was necessary to allow the matter to progress towards a hearing. Regarding pro bono assistance, the court emphasised the ongoing effect of a previous referral and made a further referral, noting that the conditions for ceasing ongoing assistance had not been satisfied. The court considered the Bar Association's guidelines not to be determinative in this instance.

The court ordered that Mrs Foundas file and serve further evidence and submissions by 6 September 2021, with the respondents to file and serve their response by 27 September 2021. The proceedings were adjourned to 11 October 2021 before the Registrar for the allocation of a hearing date. The stay of execution was further extended to 11 October 2021. The Notice of Motion was formally transferred to the Court of Appeal, and the applicant was referred for further pro bono assistance. The Registrar was directed to provide a copy of the reasons for judgment to specified court officials and the President of the Bar Association.

Orders

Orders of the court

(1) By 6 September 2021, Mrs Foundas file and serve any further affidavit or documentary evidence and submissions in support of her Notice of Motion filed 21 May 2021 and any relief to like effect;

(2) By 27 September 2021, the respondents file and serve any evidence and submissions in response;

(3) The proceedings be adjourned to 11 October 2021 before the Registrar, with a view to allocation of a hearing date;

(4) The stay of execution of the writ for possession issued on 7 January 2021, originally granted on 1 March 2021 and subsequently extended, be further extended to 11 October 2021;

(5) Insofar as it be necessary, in circumstances where prima facie it has been filed in proceedings in the Equity Division, the Notice of Motion be transferred to the Court of Appeal;

(6) Insofar as it be necessary, the applicant is referred for further pro bono assistance generally in the proceedings; and

(7) The Registrar provide a copy of these reasons for judgment to the Executive Director & Principal Registrar of the Supreme Court of New South Wales, the Director & Prothonotary of the Supreme Court of New South Wales, and the President of the Bar Association of New South Wales.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Arambatzis v Foundas (No 3) [2021] NSWCA 189
Hearing dates:	16 August 2021
Date of orders:	16 August 2021
Decision date:	16 August 2021
Before:	Brereton JA
Decision:	(1) By 6 September 2021, Mrs Foundas file and serve any further affidavit or documentary evidence and submissions in support of her Notice of Motion filed 21 May 2021 and any relief to like effect; (2) By 27 September 2021, the respondents file and serve any evidence and submissions in response; (3) The proceedings be adjourned to 11 October 2021 before the Registrar, with a view to allocation of a hearing date; (4) The stay of execution of the writ for possession issued on 7 January 2021, originally granted on 1 March 2021 and subsequently extended, be further extended to 11 October 2021; (5) Insofar as it be necessary, in circumstances where prima facie it has been filed in proceedings in the Equity Division, the Notice of Motion be transferred to the Court of Appeal; (6) Insofar as it be necessary, the applicant is referred for further pro bono assistance generally in the proceedings; and (7) The Registrar provide a copy of these reasons for judgment to the Executive Director & Principal Registrar of the Supreme Court of New South Wales, the Director & Prothonotary of the Supreme Court of New South Wales, and the President of the Bar Association of New South Wales.
Catchwords:	CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Third referral – Where Bar Association has indicated that no further assistance will be provided without additional referral – No conditions for ceasing to provide ongoing assistance satisfied – Bar Association guidelines not relevant – Further referral made but ongoing effect of previous referral emphasised JUDGMENTS AND ORDERS – Court of Appeal – Extension of stay of execution of writ for possession – Extension not opposed – Extension granted and orders made with view to progressing matter to hearing CIVIL PROCEDURE – Jurisdiction – Transfer of Notice of Motion from Supreme Court to Court of Appeal
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 7.34, 7.35, 7.36, 7.37, 7.38, 7.39(1), 7.40; Pt 7, Div 9
Cases Cited:	Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78 Arambatzis v Foundas (No 2) [2021] NSWCA 125 Clark v State of New South Wales [2018] NSWSC 450
Category:	Procedural rulings
Parties:	Proceedings 2018/184682 Peter Arambatzis (Plaintiff/Respondent) Cassiani Foundas (Defendant/Applicant) Proceedings 2020/351791 Bill Foundas (Plaintiff) Sean Magnus Wengel (First Defendant/First Respondent) Robert William Whitton (Second Defendant/ First Respondent)
Representation:	Counsel: Proceedings 2018/184682 Ms T Harris-Roxas (Plaintiff/Respondent) Self-represented (Defendant/Applicant) Proceedings 2020/351791 S Chen (Defendants/Respondents) Solicitors: Proceedings 2018/184682 Cutri & Associates (Plaintiff/Respondent) 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