Foundas v Arambatzis (No. 4) - [2020] NSWCA 100

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Foundas v Arambatzis (No. 4) [2020] NSWCA 100
Hearing dates: On the papers: Appellant’s submissions 15 May 2020; First Respondent’s submissions 21 May 2020; Second Respondents’ submissions 21 May 2020
Decision date: 28 May 2020
Before: Bell P at [1];
Basten JA at [2];
White JA at [3]
Decision:
(1)   Refuse the appellant’s application to set aside or vary orders 6 and 7 made on 24 March 2020.
(2)   Note that orders 6 and 7 made on 24 March 2020 are not stayed.
(3)   Vary order 7 made on 24 March 2020 by deleting the requirement that a writ for possession not be executed before the expiry of 28 days.
(4)   Order that the appellant pay the respondents’ costs of her application.

Catchwords: JUDGMENTS AND ORDERS — application to vary or set aside orders – whether orders for the delivery of vacant possession be set aside or varied in light of the COVID-19 pandemic – whether executive or legislative instruments responding to the COVID-19 pandemic suggest that the orders ought to be set aside or varied – where vacant possession ordered as a consequence of an order under s 66G of the Conveyancing Act 1919 (NSW) prior to the COVID-19 pandemic
Legislation Cited:
COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW)
COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW)
Public Health Act 2010 (NSW)
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2019 (NSW)
Public Health (COVID-19 Restrictions on Gathering and Movement) Amendment (Real Estate) Order 2020
Uniform Civil Procedure Rules 2005 (NSW) rr 18.1, 36.16
Cases Cited: DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
Foundas v Arambatzis (No. 2) [2020] NSWCA 51
Foundas v Arambatzis (No. 3) [2020] NSWCA 87
Foundas v Arambatzis [2020] NSWCA 47
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:

6 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 which included an order for the appellant to deliver vacant possession (order 6) and an order that the trustees be at liberty to obtain a writ 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. 4)

Details

AGLC: Foundas v Arambatzis (No. 4) [2020] NSWCA 100
Case: [2020] NSWCA 100
Decision Date: 28 May 2020

CaseChat Overview and Summary

The appellant, Ms. Foundas, sought to set aside or vary orders made on 24 March 2020, which required her to deliver vacant possession of property. These orders were made in consequence of an order under section 66G of the *Conveyancing Act 1919* (NSW) prior to the onset of the COVID-19 pandemic. The respondents were Mr. Arambatzis and others. The appeal was heard by Bell P, Basten, and White JJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether executive or legislative instruments enacted in response to the COVID-19 pandemic warranted the setting aside or variation of the existing orders for vacant possession. The appellant contended that the pandemic and the subsequent governmental responses created circumstances that justified a departure from the original orders.

The Court of Appeal considered the relevant legislative and executive instruments and concluded that they did not provide a basis for setting aside or varying the orders for vacant possession. The Court reasoned that the existing orders were made prior to the pandemic and that the subsequent measures did not retrospectively alter the rights or obligations established by those orders. Consequently, the Court refused the appellant's application to set aside or vary the orders of 24 March 2020.

The Court ordered that the appellant's application to set aside or vary orders 6 and 7 made on 24 March 2020 be refused. It was noted that these orders were not stayed. Furthermore, order 7 was varied by deleting the provision that a writ for possession not be executed before the expiry of 28 days. The appellant was ordered to pay the respondents' costs of her application.

Orders

Orders of the court

(1) Refuse the appellant’s application to set aside or vary orders 6 and 7 made on 24 March 2020.

(2) Note that orders 6 and 7 made on 24 March 2020 are not stayed.

(3) Vary order 7 made on 24 March 2020 by deleting the requirement that a writ for possession not be executed before the expiry of 28 days.

(4) Order that the appellant pay the respondents’ costs of her application.

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:	Foundas v Arambatzis (No. 4) [2020] NSWCA 100
Hearing dates:	On the papers: Appellant’s submissions 15 May 2020; First Respondent’s submissions 21 May 2020; Second Respondents’ submissions 21 May 2020
Decision date:	28 May 2020
Before:	Bell P at [1]; Basten JA at [2]; White JA at [3]
Decision:	(1) Refuse the appellant’s application to set aside or vary orders 6 and 7 made on 24 March 2020. (2) Note that orders 6 and 7 made on 24 March 2020 are not stayed. (3) Vary order 7 made on 24 March 2020 by deleting the requirement that a writ for possession not be executed before the expiry of 28 days. (4) Order that the appellant pay the respondents’ costs of her application.
Catchwords:	JUDGMENTS AND ORDERS — application to vary or set aside orders – whether orders for the delivery of vacant possession be set aside or varied in light of the COVID-19 pandemic – whether executive or legislative instruments responding to the COVID-19 pandemic suggest that the orders ought to be set aside or varied – where vacant possession ordered as a consequence of an order under s 66G of the Conveyancing Act 1919 (NSW) prior to the COVID-19 pandemic
Legislation Cited:	COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) Public Health Act 2010 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Public Health (COVID-19 Restrictions on Gathering and Movement) Amendment (Real Estate) Order 2020 Uniform Civil Procedure Rules 2005 (NSW) rr 18.1, 36.16
Cases Cited:	DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 Foundas v Arambatzis (No. 2) [2020] NSWCA 51 Foundas v Arambatzis (No. 3) [2020] NSWCA 87 Foundas v Arambatzis [2020] NSWCA 47
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: 6 September 2019 Before: Darke J File Number(s): 2018/184682