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Foundas v Arambatzis (No 3)

Foundas v Arambatzis (No 3)

Case [2023] NSWSC 1513 6 December 2023

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Foundas v Arambatzis (No 3) [2023] NSWSC 1513
Hearing dates: 6 – 10 November 2023; last submissions 5 December 2023
Date of orders: 6 December 2023
Decision date: 06 December 2023
Jurisdiction: Equity - Real Property List
Before: Rees J
Decision:
Summons dismissed with costs

Catchwords:
CIVIL PROCEDURE — application to set aside judgment obtained by fraud — r 36.15(1) UCPR — principles at [98]-[101] — brother and sister buy two properties — bank sells one property, with surplus paid to the sister rather than equally to both — brother obtains orders in 2018 to sell remaining property and judgment for his share of proceeds of sale — sister applies to set aside judgment and orders — orders for possession made in 2019 — sister appeals — Court of Appeal makes orders for possession in 2020 — eviction notice — one week before eviction, sister produces deed said to have been executed by brother in 2013, disclaiming his interest in the properties — deed is a forgery — Prothonotary to refer matter to relevant law enforcement authorities.

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) r 36.15

Cases Cited:
McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529
Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241
Spalla v St George Motor Finance Ltd (No 5) [2004] FCA 1262
Toubia v Schwenk (2002) 54 NSWLR 46; [2002] NSWCA 34
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Category: Principal judgment
Parties: Cassini Foundas (Plaintiff)
Peter Arambatzis (First Defendant)
Sean Wengel (Second Defendant)
Robert Whitton (Third Defendant)
Representation:
Counsel:
Mr D Barlin / Ms T Harris-Roxas (First Defendant)
Solicitors:
Plaintiff in person
Cutri & Associates (First Defendant)
William Robert Lawyers (Second and Third Defendants)

File Number(s): 2021/297960

JUDGMENT

HER HONOUR: The plaintiff, Cassini Foundas (the sister), seeks to set aside judgment and orders made in earlier proceedings brought in 2018 by the first defendant, Peter Arambatzis (the brother), under rule 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW) as having been entered irregularly, illegally or against good faith, or obtained by fraud.
In the earlier proceedings, the Court appointed the second and third defendants, Sean Wengel and Robert Whitton (the Trustees), to sell a property in Magee Street, Ashcroft and distribute the proceeds equally between the sister and brother. Judgment was also entered against the sister for some $109,000 (later reduced by the Court of Appeal to some $104,000), being the brother’s share of the proceeds of sale of a property in Stanwell Crescent, Ashcroft.
The sister contends that, when judgment and orders were made on 15 October 2018, a Deed of Acknowledgment was in existence which had been executed by herself and the brother in 2013, in which the brother disclaimed any interest in the properties. In the result, I am satisfied that there has been a fraud, but it is not by the brother. The Deed of Acknowledgment is a forgery.…

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 3)

Details

AGLC: Foundas v Arambatzis (No 3) [2023] NSWSC 1513
Case: [2023] NSWSC 1513
Decision Date: 06 December 2023

CaseChat Overview and Summary

In the case of Foundas v Arambatzis (No 3), the matter involved a dispute between siblings regarding the ownership and sale of two properties. The initial proceedings began in 2018 when the brother obtained orders to sell the remaining property and a judgment for his share of the sale proceeds. The sister subsequently applied to set aside these orders and the judgment, leading to an appeal that was heard by the Court of Appeal in 2020.

The central legal issues in the case revolved around the application to set aside the judgment and orders obtained by fraud, under rule 36.15(1) of the Uniform Civil Procedure Rules. The sister argued that the brother had committed fraud by executing a forged deed in 2013 that disclaimed his interest in the properties. The court had to determine whether the forged deed could be relied upon to set aside the judgment and whether the principles at [98]-[101] of the relevant case law applied.

The court considered the evidence presented, including the forged deed, and concluded that the deed was indeed a forgery. The court found that the brother had obtained the orders and judgment by fraudulent means, and the sister's application to set aside the judgment was successful. The court referred the matter to the relevant law enforcement authorities for further investigation into the forgery.

As a result of the court's decision, the orders for possession made in 2019 were set aside, and the eviction notice was not enforced. The matter was referred to the relevant law enforcement authorities to investigate the forgery.

Orders