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Foundas v Arambatzis (No 5)

Foundas v Arambatzis (No 5)

Case [2022] NSWCA 113 1 July 2022

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Foundas v Arambatzis (No. 5) [2022] NSWCA 113
Hearing dates: 24 May 2022
Decision date: 01 July 2022
Before: Bell CJ at [1];
White JA at [2];
Basten AJA at [32]
Decision:
(1) The amended summons seeking leave to appeal is dismissed with costs.
(2) The applicant’s notice of motion filed on 28 May 2021 in proceeding 2018/00184682 to the extent it has not previously been determined, is dismissed with costs.

Catchwords:
CIVIL PROCEDURE — Court of Appeal — Whether the court has the power to reopen an appeal and set aside final orders on the ground of the discovery of new evidence

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 14
Equity Act 1880 (NSW)
Supreme Court Act 1970 (NSW), ss 75A, 101
Uniform Civil Procedure Rules (2005) NSW, rr 36.15 and 36.16

Cases Cited:
Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78
AT v Commissioner of Police NSW (No 2) [2010] NSWCA 337
Aukuso v Tahan[No 2] [2018] NSWCA 302
Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49
Boateng v Dharamdas [2019] NSWCA 233
Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12
DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17
Foundas v Arambatzis (No. 3) [2020] NSWCA 87
Foundas v Arambatzis (No. 4) [2020] NSWCA 100
Foundas v Arambatzis [2020] NSWCA 47
Gamser v Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7
Hancock v Arnold; Dodd v Arnold(No. 2) [2009] NSWCA 19
Harrison v Schipp (2002) 54 NSWLR 612; [2002] NSWCA 78
In re St. Nazaire Company (1879) 12 Ch D 88
Kable v State of New South Wales (No 2) [2012] NSWCA 361
Marshall v Mactiernan [2003] WASCA 67
McDonald v McDonald (1965) 113 CLR 529; [1965] HCA 45
Monroe Schneider Associates (Inc) v No.1 Raberem Pty Ltd (1992) 37 FCR 234; 109 ALR 137; [1992] FCA 367
Motorcycling Events Group Pty Ltd v Kelly (No 2) [2013] NSWCA 399
Re Barrell Enterprises [1973] 1 WLR 19; [1972] 3 All ER 631,CA
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336
Short v Crawley No 45 [2013] NSWSC 1541
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Taylor v Lawrence [2003] QB 528; [2002] 2 All ER 353

Texts Cited:
Edmund Daniell, Chancery Practice (5th ed, 1871, Stevens and Haynes)

Category: Principal judgment
Parties: Cassiani Foundas (Appellant)
Peter Arambatzis (Respondent)
Representation:
Counsel:
M Seymour with C Koikas (Appellant)
D Barlin with T Harris-Roxas (First Respondent)
S Chen (Solicitor) (Second and Third Respondents)
Solicitors:
Cutri & Associates Lawyers (First Respondent)
William Roberts Lawyers (Second and Third Respondents)

File Number(s): 2019/363483; 2021/214357
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Date of Decision:

6 September 2019

Before:

Darke J

File Number(s):

2018/184682

HEADNOTE

[This…

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 5)

Details

AGLC: Foundas v Arambatzis (No 5) [2022] NSWCA 113
Case: [2022] NSWCA 113
Decision Date: 01 July 2022

CaseChat Overview and Summary

In *Foundas v Arambatzis (No 5)*, the Court of Appeal of the Supreme Court of New South Wales considered an application by the applicant seeking to reopen a final appeal and set aside previous orders on the basis of newly discovered evidence. The respondent sought to have this application dismissed.

The central legal issue before the Court was whether it possessed the power to reopen an appeal and set aside final orders after the appeal had been concluded, specifically on the ground of discovering new evidence. This required the Court to examine the principles governing the finality of judgments and the exceptional circumstances under which such finality might be disturbed.

The Court of Appeal ultimately dismissed the applicant's amended summons seeking leave to appeal. The reasoning applied by the Court centred on the established principles of finality in litigation and the high threshold required to justify reopening concluded appeals. The Court found that the applicant had not met this threshold, and therefore, the application for leave to appeal was refused. The applicant's notice of motion was also dismissed to the extent it had not been previously determined.

Orders

Orders of the court

(1) The amended summons seeking leave to appeal is dismissed with costs.

(2) The applicant’s notice of motion filed on 28 May 2021 in proceeding 2018/00184682 to the extent it has not previously been determined, is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Foundas v Arambatzis (No 5) [2022] NSWCA 113

Most Recent Citation

Euromark Limited v Smash Enterprises Pty Ltd (in liq) [No 2] [2024] VSCA 152

Cases citing this decision · 9 of 9 shown

Wilcox v Chapple
[2025] NSWCA 155 Para 134

…ar an application to reopen a decision of the Court of Appeal that was said to have been procured by fraud: Foundas v Arambatzis (2022) 109 NSWLR 73; [2022] NSWCA 113 at [30]. After a review of the equitable origins of the power, the primary judge concluded that the reference in r 36.15(1) to the order being made “…
Arambatzis v Foundas (No 2)
[2024] NSWSC 1530 Para 5

…Ms Foundas launched appeal proceedings against the October 2018 orders which resulted in five separate judgments of the Court of Appeal, the fifth of which was delivered in July 2022: Foundas v Arambatzis (No 5) (2022) 109 NSWLR 73. It seems that Ms Foundas had not been represented on the occasion o…
Wilcox v Chapple
[2024] NSWSC 1394

…Commissioner for Railways (NSW) (1957) 99 CLR 285; [1957] HCA 92 Foundas v Arambatzis (2022) 109 NSWLR 73; [2022] NSWCA 113 Fysh v Page (1956) 96 CLR 233; [1956] HCA 13 Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190 Gamser v Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7 GPI Leisure Corporation Ltd (i…
Foundas v Arambatzis (No 6)
[2024] NSWCA 231 Para 19

…2022 this Court held that it did not have power to re-open the earlier appeal and set aside the orders of 24 March 2020 ( Foundas v Arambatzis (No 5) [2022] NSWCA 113).…
Euromark Limited v Smash Enterprises Pty Ltd (in liq) [No 2]
[2024] VSCA 152 Para 17

…CA 67; Foundas v Arambatzis (No 5) (2022) 109 NSWLR 113, 77–9 [20]–[30] (White JA, Bell CJ agreeing at 74 [1] and Basten JA agreeing at 81 [32]); [2022] NSWCA 113; Jafari v 23 Developments Pty Ltd [No 2] [2020] VSCA 187, [13] (Niall JA). [19] Clone (2018) 264 CLR 165, 175 [2], 189 [48], 193–4 [56], 197–8 [69]–[70]…
Arambatzis v Foundas
[2024] NSWSC 400 Para 15

…rereton JA. Those hearings culminated in a decision of the Court of Appeal delivered on 1 July 2022: Foundas v Arambatzis (No 5) (2022) 109 NSWLR 73; [2022] NSWCA 113 . In that decision, the Court concluded that it did not have power to reopen the earlier appeal or set aside its orders.…
Foundas v Arambatzis (No 4)
[2023] NSWSC 1648 Para 27

…and White JJA). On 1 July 2022, the Court of Appeal dismissed the sister’s summons and notice of motion with costs: Foundas v Arambatzis (No 5) [2022] NSWCA 113. Mr Cutri said these costs orders had not been paid by the sister.…
Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2)
[2023] NSWCA 311 Para 15

…an application has been given during the 14-day period. She relied on the authorities referred to in Foundas v Arambatzis (No 5) (2022) 109 NSWLR 73; [2022] NSWCA 113 (which did not concern an application that costs be specified in a gross sum) at [19] (White JA, Bell CJ and Basten AJA agreeing) in support of such…
Foundas v Arambatzis (No 3)
[2023] NSWSC 1513 Para 75

…filed in the earlier proceedings were heard by the Court of Appeal on 24 May 2022. Judgment was delivered on 1 July 2022: Foundas v Arambatzis (No 5) [2022] NSWCA 113. The Court (White JA, Bell CJ and Basten AJA agreeing) concluded that the Court did not have power to reopen the earlier appeal or set aside its orde…

View all 9 citing cases →

Cases cited in this decision · 24 of 24 shown

Arambatzis v Foundas; Foundas v Wengel
[2021] NSWCA 78 Para 7

…It appears from the reasons of Brereton JA of 1 March 2021 ( Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78) that the trustees for sale did not apply for a writ of possession until 24 December 2020.…
Foundas v Arambatzis (No. 4)
[2020] NSWCA 100 Para 5

…ications by Ms Foundas were dealt with in this Court and dismissed (see Foundas v Arambatzis (No. 3) [2020] NSWCA 87 and Foundas v Arambatzis (No. 4) [2020] NSWCA 100).…
Foundas v Arambatzis (No 3)
[2020] NSWCA 87 Para 5

…undas v Arambatzis [2020] NSWCA 47). Further applications by Ms Foundas were dealt with in this Court and dismissed (see Foundas v Arambatzis (No. 3) [2020] NSWCA 87 and Foundas v Arambatzis (No. 4) [2020] NSWCA 100).…
Foundas v Arambatzis
[2020] NSWCA 47 Para 5

…al was determined by this Court on 24 March 2020. The appeal was allowed in part but Ms Foundas was substantially unsuccessful ( Foundas v Arambatzis [2020] NSWCA 47). Further applications by Ms Foundas were dealt with in this Court and dismissed (see Foundas v Arambatzis (No. 3) [2020] NSWCA 87 and Foundas v Aram…
Boateng v Dharamdas
[2019] NSWCA 233 Para 19

…ing Events Group Pty Ltd v Kelly (No 2) [2013] NSWCA 399 at [2]; Aukuso v Tahan [No 2] [2018] NSWCA 302 at [4], [43], [45], [46]; Boateng v Dharamdas [2019] NSWCA 233 at [23], [72]. Rightly in my view, Ms Foundas did not seek to argue that the power of dispensation was wider and could extend to entire dispensation…
Aukuso v Tahan (No 2)
[2018] NSWCA 302 Para 19

…ew South Wales (No. 2) [2012] NSWCA 361 at [3], [15]; Motorcycling Events Group Pty Ltd v Kelly (No 2) [2013] NSWCA 399 at [2]; Aukuso v Tahan [No 2] [2018] NSWCA 302 at [4], [43], [45], [46]; Boateng v Dharamdas [2019] NSWCA 233 at [23], [72]. Rightly in my view, Ms Foundas did not seek to argue that the power of…
Clone Pty Ltd v Players Pty Ltd (in liq)
[2018] HCA 12 Para 16

…113 CLR 529; [1965] HCA 45; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691; Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12 at [32]). Ms Foundas has instituted such proceedings. On 20 October 2021 she instituted fresh proceedings in the Equity Division seeking to set aside…
Motorcycling Events Group Australia Pty Ltd v Kelly (No 2)
[2013] NSWCA 399 Para 19

…2) [2009] NSWCA 336 at [10]; Kable v State of New South Wales (No. 2) [2012] NSWCA 361 at [3], [15]; Motorcycling Events Group Pty Ltd v Kelly (No 2) [2013] NSWCA 399 at [2]; Aukuso v Tahan [No 2] [2018] NSWCA 302 at [4], [43], [45], [46]; Boateng v Dharamdas [2019] NSWCA 233 at [23], [72]. Rightly in my view, Ms F…
Short v Crawley (No 45)
[2013] NSWSC 1541 Para 19

…entire dispensation of the limits on the power conferred by r 36.16(3A) ( AT v Commissioner of Police [2010] NSWCA 337 at [10]; Short v Crawley No 45 [2013] NSWSC 1541 at [46]-[47]).…
Kable v State of New South Wales (No 2)
[2012] NSWCA 361 Para 19

…t [11]; Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No. 2) [2009] NSWCA 336 at [10]; Kable v State of New South Wales (No. 2) [2012] NSWCA 361 at [3], [15]; Motorcycling Events Group Pty Ltd v Kelly (No 2) [2013] NSWCA 399 at [2]; Aukuso v Tahan [No 2] [2018] NSWCA 302 at [4], [43], [45], [4…
AT v Commissioner of Police (NSW) (No 2)
[2010] NSWCA 337 Para 19

…r of dispensation was wider and could extend to entire dispensation of the limits on the power conferred by r 36.16(3A) ( AT v Commissioner of Police [2010] NSWCA 337 at [10]; Short v Crawley No 45 [2013] NSWSC 1541 at [46]-[47]).…
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2)
[2009] NSWCA 336 Para 19

…t period ( Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [11]; Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No. 2) [2009] NSWCA 336 at [10]; Kable v State of New South Wales (No. 2) [2012] NSWCA 361 at [3], [15]; Motorcycling Events Group Pty Ltd v Kelly (No 2) [2013] NSWCA 399 at…
Hancock v Arnold; Dodd v Arnold (No 2)
[2009] NSWCA 19 Para 19

…in the 14 day period where notice of intention to make such an application has been given within that period ( Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [11]; Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No. 2) [2009] NSWCA 336 at [10]; Kable v State of New South Wales (No. 2…
Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure
[2003] WASCA 67 Para 28

…wrence [2003] QB 528; [2002] 2 All ER 353, to reopen a final order that had been entered was not the law in Australia (see also Marshall v Mactiernan [2003] WASCA 67 at [30]).…
Harrison v Schipp
[2002] NSWCA 213 Para 27

…Even if the position were unsettled in 2000, when DJL v The Central Authority was decided, it is no longer unsettled. In Harrison v Schipp (2002) 54 NSWLR 612; [2002] NSWCA 78, this court comprehensively reviewed the English and Australian Authorities. Handley JA (at [56]-[61]), Giles JA (at [173]-[176], [181], [191]-[192]…
Harrison v Schipp
[2002] NSWCA 78 Para 27

…e position were unsettled in 2000, when DJL v The Central Authority was decided, it is no longer unsettled. In Harrison v Schipp (2002) 54 NSWLR 612; [2002] NSWCA 78, this court comprehensively reviewed the English and Australian Authorities. Handley JA (at [56]-[61]), Giles JA (at [173]-[176], [181], [191]-[192])…
DJL v Central Authority
[2000] HCA 17

…das [2019] NSWCA 233 Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12 DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 Foundas v Arambatzis (No. 3) [2020] NSWCA 87 Foundas v Arambatzis (No. 4) [2020] NSWCA 100 Foundas v Arambatzis [2020] NSWCA 47 Gamser v Nominal Defendant…
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2)
[1992] FCA 548 Para 24

…erred to the decision of the Full Court of the Federal Court (Spender, Gummow and Lee JJ) in Monroe Schneider Associates (Inc) v No.1 Raberem Pty Ltd (1992) 37 FCR 234; [1992] FCA 367 at 239-240, to suggest that the position was “unsettled” ( DJL v The Central Authority (2000) 201 CLR 226 at 245 [36]). But Monroe Sc…
Alstergren, I.M. v The Owners of the ship Territory Pearl
[1992] FCA 367

…003] WASCA 67 McDonald v McDonald (1965) 113 CLR 529; [1965] HCA 45 Monroe Schneider Associates (Inc) v No.1 Raberem Pty Ltd (1992) 37 FCR 234; 109 ALR 137; [1992] FCA 367 Motorcycling Events Group Pty Ltd v Kelly (No 2) [2013] NSWCA 399 Re Barrell Enterprises [1973] 1 WLR 19; [1972] 3 All ER 631,CA Roads and…
Gamser v Nominal Defendant
[1977] HCA 7 Para 22

…In Gamser v Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7 the position was reiterated. Aickin J (with the approval of Barwick CJ and Stephen J) said (at 153):…
Bailey v Marinoff
[1971] HCA 49

…] NSWCA 78 AT v Commissioner of Police NSW (No 2) [2010] NSWCA 337 Aukuso v Tahan [No 2] [2018] NSWCA 302 Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49 Boateng v Dharamdas [2019] NSWCA 233 Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12 DJL v The Central Authority (2000) 201 CLR…
McDonald v McDonald
[1965] HCA 45 Para 16

…ere obtained by fraud, those orders can be set aside. Such an action should be brought by fresh proceedings ( McDonald v McDonald (1965) 113 CLR 529; [1965] HCA 45; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691; Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12 at [32]). Ms…
[2003] QB 528
[2003] QB 528 Para 28

…[170]) and Ipp AJA (at [216]) also noted that the exceptional jurisdiction accepted by the Court of Appeal of England and Wales in Taylor v Lawrence [2003] QB 528; [2002] 2 All ER 353, to reopen a final order that had been entered was not the law in Australia (see also Marshall v Mactiernan [2003] WASCA 67 at […
[1973] 1 WLR 19
[1973] 1 WLR 19 Para 25

…e Acts, appellate jurisdiction was vested in the Court of Appeal ( In re St. Nazaire Company (1879) 12 Ch D 88 at 100-101). In Re Barrell Enterprises [1973] 1 WLR 19; [1972] 3 All ER 631, CA at 24-25; [1972] 3 All ER 631 at 637, Russell LJ observed that, since the introduction of the Judicature Acts, there had bee…

Legislation cited in this decision · 4

Supreme Court Act 1970 (NSW)
101, 75A 3 mentions (from Para 27)
Civil Procedure Act 2005 (NSW)
14 1 mention
Equity Act 1880 (NSW)
1 mention (from Para 27)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 18)

Medium Neutral Citation:	Foundas v Arambatzis (No. 5) [2022] NSWCA 113
Hearing dates:	24 May 2022
Decision date:	01 July 2022
Before:	Bell CJ at [1]; White JA at [2]; Basten AJA at [32]
Decision:	(1) The amended summons seeking leave to appeal is dismissed with costs. (2) The applicant’s notice of motion filed on 28 May 2021 in proceeding 2018/00184682 to the extent it has not previously been determined, is dismissed with costs.
Catchwords:	CIVIL PROCEDURE — Court of Appeal — Whether the court has the power to reopen an appeal and set aside final orders on the ground of the discovery of new evidence
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 14 Equity Act 1880 (NSW) Supreme Court Act 1970 (NSW), ss 75A, 101 Uniform Civil Procedure Rules (2005) NSW, rr 36.15 and 36.16
Cases Cited:	Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78 AT v Commissioner of Police NSW (No 2) [2010] NSWCA 337 Aukuso v Tahan[No 2] [2018] NSWCA 302 Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49 Boateng v Dharamdas [2019] NSWCA 233 Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12 DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 Foundas v Arambatzis (No. 3) [2020] NSWCA 87 Foundas v Arambatzis (No. 4) [2020] NSWCA 100 Foundas v Arambatzis [2020] NSWCA 47 Gamser v Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7 Hancock v Arnold; Dodd v Arnold(No. 2) [2009] NSWCA 19 Harrison v Schipp (2002) 54 NSWLR 612; [2002] NSWCA 78 In re St. Nazaire Company (1879) 12 Ch D 88 Kable v State of New South Wales (No 2) [2012] NSWCA 361 Marshall v Mactiernan [2003] WASCA 67 McDonald v McDonald (1965) 113 CLR 529; [1965] HCA 45 Monroe Schneider Associates (Inc) v No.1 Raberem Pty Ltd (1992) 37 FCR 234; 109 ALR 137; [1992] FCA 367 Motorcycling Events Group Pty Ltd v Kelly (No 2) [2013] NSWCA 399 Re Barrell Enterprises [1973] 1 WLR 19; [1972] 3 All ER 631,CA Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336 Short v Crawley No 45 [2013] NSWSC 1541 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Taylor v Lawrence [2003] QB 528; [2002] 2 All ER 353
Texts Cited:	Edmund Daniell, Chancery Practice (5th ed, 1871, Stevens and Haynes)
Category:	Principal judgment
Parties:	Cassiani Foundas (Appellant) Peter Arambatzis (Respondent)
Representation:	Counsel: M Seymour with C Koikas (Appellant) D Barlin with T Harris-Roxas (First Respondent) S Chen (Solicitor) (Second and Third Respondents) Solicitors: Cutri & Associates Lawyers (First Respondent) William Roberts Lawyers (Second and Third Respondents)
File Number(s):	2019/363483; 2021/214357
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Date of Decision: 6 September 2019 Before: Darke J File Number(s): 2018/184682