Foundas v Arambatzis (No 3)

[2020] NSWCA 87

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Foundas v Arambatzis (No. 3) [2020] NSWCA 87
Hearing dates:	On the papers: Appellant’s submissions 2 April 2020; First Respondent’s submissions 8 April 2020; Second Respondent’s submissions 9 April 2020
Decision date:	07 May 2020
Before:	Bell P at [1]; Basten JA at [2]; White JA at [3]
Decision:	Application to set aside order 8 made on 24 March 2020 dismissed with costs.
Catchwords:	LAND LAW — Co-ownership — whether order to pay occupation rent ought to be set aside – where the trustee was not the registered proprietor at the time the demand for occupation rent was made – effect of an order under s 66G Conveyancing Act 1919 (NSW) on the rights of a co-owner – order not set aside
Legislation Cited:	Conveyancing Act 1919 (NSW), s 66G Real Property Act 1900 (NSW), s 86
Cases Cited:	Abbott v Pegler (1980) 1 BPR 9267 Application of Richard Albarran; Harb v Harb [2010] NSWSC 1251 Foundas v Arambatzis (No. 2) [2020] NSWCA 51 Foundas v Arambatzis [2020] NSWCA 47 Luke v Luke (1936) 36 SR(NSW) 310 Nullagine Investments Pty Ltd v Western Australian Club Inc (1992) 177 CLR 635; [1992] HCA 45
Category:	Consequential orders (other than Costs)
Parties:	Cassiani Foundas (Appellant) Peter Arambatzis (First Respondent) Sean Magnus Wengel and Robert William Whitton (Second Respondents)
Representation:	Counsel: Self-represented (Appellant) D Barlin (First Respondent) R Ishak, Solicitor (Second Respondents)   Solicitors: n/a (Appellant) Cutri & Associates (First Respondent) William Roberts Lawyers (Second Respondents)
File Number(s):	2019/363483
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: n/a Date of Decision: 06 September 2019 Before: Darke J File Number(s): 2018/184682

headnote

[This headnote is not to be read as part of the judgment]

The appellant has previously challenged a decision of a judge of the Equity Division who dismissed the appellant’s notice of motion to set aside orders made in her absence. That appeal was allowed in part although the orders of the primary judge were largely confirmed. Amongst those was an order for the appointment of trustees for sale of a property co-owned by the appellant and the first respondent. Consequential orders were made for vacant possession (orders 6 and 7) and for the charging of the appellant with an occupation fee on the taking of an account (order 8). The occupation fee was to be payable from the date the trustees for sale demanded payment of rent (28 October 2018) until possession was provided in accordance with the Court’s orders.

The appellant’s present application was treated as an application under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW). She sought to set aside order 8. Orders 6 and 7 were also challenged in light of the COVID-19 pandemic. The trustees for sale agreed not to seek to enforce those orders before 28 May 2020.

The issue in this application was whether order 8 ought to be set aside…