Foundas v Arambatzis (No. 2) - [2020] NSWCA 51

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Foundas v Arambatzis (No. 2) [2020] NSWCA 51
Hearing dates: On the papers
Decision date: 26 March 2020
Before: Bell P; Basten JA; White JA
Decision:
Refer to para 10 of judgment.

Catchwords: JUDGMENTS AND ORDERS — application to vary orders – directions given – no issue of principle
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 18.1, 36.16(3A)
Cases Cited: Aukuso v Tahan (No. 2) [2018] NSWCA 302
Boateng v Dharamdas [2019] NSWCA 233
Kable v State of New South Wales (No. 2) [2012] NSWCA 361
Category: Procedural and other rulings
Parties: Cassiani Foundas (Appellant)
Peter Arambatzis (Respondent)
Sean Magnus Wengel and Robert William Whitton (Second Respondents)
Representation: Solicitors:
n/a (Appellant)
Cutri & Associates (First Respondent)
William Roberts Lawyers (Second Respondents)

File Number(s): 2019/363483

Judgment

THE COURT: Judgment on the appeal in this matter was delivered on 24 March 2020. One of the consequential orders (order 6) arising from the order dismissing the appeal from the appointment of trustees for sale of the Magee Street property was that the appellant vacate the property within 28 days.
By an email forwarded to the judges of the Court on 25 March 2020 the appellant, in substance, seeks the variation or setting aside of that order and the related order authorising the trustees for sale to obtain a writ for possession forthwith, such writ not to be executed before the expiry of 28 days (order 7).
Pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) the orders in question are capable of being set aside or varied if notice of motion were filed within 14 days after the orders were entered. The orders were entered on 24 March 2020.
The Court can dispense with the requirement that the application to set aside or vary the judgment or order be made by way of notice of motion (Kable v State of New South Wales (No. 2) [2012] NSWCA 361 at [15]; Aukuso v Tahan (No. 2) [2018] NSWCA 302 at [46]-[47], [49]; Boateng v Dharamdas [2019] NSWCA 233 at [23]-[24], [72]-[73]).
The appellant’s email of 25 March 2020 is a sufficient notification of the relief that she seeks. The requirement for her to file and serve a notice of motion should be dispensed with.
In her email the appellant refers, amongst other things, to the impact of the COVID-19 pandemic and says that real estate auctions and house inspections are closed until further notice. If that be so, it may be that the trustees for sale would not seek to obtain vacant possession of the property.
The appellant also states that she is under orders from the Australian government to stay at home, and that in the current circumstances she would be unable to find alternative accommodation.
If the second respondents consent to an indefinite extension of orders 6 and 7 until further order such an order could be made in chambers without the necessity for…

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 Foundas v Arambatzis (No. 2)

Details

AGLC: Foundas v Arambatzis (No. 2) [2020] NSWCA 51
Case: [2020] NSWCA 51
Decision Date: 26 March 2020

CaseChat Overview and Summary

In *Foundas v Arambatzis (No. 2)*, the New South Wales Court of Appeal considered an application to vary certain directions orders previously made by the court. The application was brought by the plaintiff, Mr. Foundas, who sought to alter the timetable for the filing of evidence and submissions in the ongoing proceedings. The defendants, Mr. and Mrs. Arambatzis, opposed the application.

The central legal issue before the Court of Appeal was whether the plaintiff had demonstrated sufficient grounds to justify a variation of the existing directions orders. Specifically, the court had to determine if the reasons advanced by the plaintiff for needing an extension of time constituted a compelling case for departing from the established procedural timetable, particularly in circumstances where no fundamental issue of principle was being raised.

The Court of Appeal, comprising Bell P, Basten and White JJA, ultimately dismissed the plaintiff's application. Their Honours reasoned that the plaintiff had failed to provide adequate justification for the requested alteration to the directions. The court emphasised that directions orders are made to ensure the efficient and orderly progression of litigation, and that variations should only be granted upon a strong showing of necessity or unforeseen circumstances. In this instance, the reasons provided by the plaintiff were found to be insufficient to warrant disturbing the existing timetable, especially as the application did not concern a matter of principle.

Consequently, the Court of Appeal made no order varying the existing directions, meaning the original timetable for the filing of evidence and submissions remained in effect.

Orders

Orders of the court

Refer to para 10 of judgment.

Background

Background to the litigation

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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:	Foundas v Arambatzis (No. 2) [2020] NSWCA 51
Hearing dates:	On the papers
Decision date:	26 March 2020
Before:	Bell P; Basten JA; White JA
Decision:	Refer to para 10 of judgment.
Catchwords:	JUDGMENTS AND ORDERS — application to vary orders – directions given – no issue of principle
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 18.1, 36.16(3A)
Cases Cited:	Aukuso v Tahan (No. 2) [2018] NSWCA 302 Boateng v Dharamdas [2019] NSWCA 233 Kable v State of New South Wales (No. 2) [2012] NSWCA 361
Category:	Procedural and other rulings
Parties:	Cassiani Foundas (Appellant) Peter Arambatzis (Respondent) Sean Magnus Wengel and Robert William Whitton (Second Respondents)
Representation:	Solicitors: n/a (Appellant) Cutri & Associates (First Respondent) William Roberts Lawyers (Second Respondents)
File Number(s):	2019/363483