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Foundas v Arambatzis (No 6)

Foundas v Arambatzis (No 6)

Case [2024] NSWCA 231 26 September 2024

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Foundas v Arambatzis (No 6) [2024] NSWCA 231
Hearing dates: 17 September 2024
Date of orders: 17 September 2024
Decision date: 26 September 2024
Before: Ward P; White JA; Kirk JA
Decision:
Notice of motion filed 20 May 2024 by Cassiani Foundas and Bill Foundas for a stay of execution of the writ of possession in relation to the property in Magee Street, Ashcroft is dismissed with costs.

Catchwords:
JUDGMENTS AND ORDERS — Enforcement — Application for stay of writ of possession — Where execution of writ previously stayed based on evidence later found to be a forgery — Where concurrent hearing of application for leave to appeal and substantive appeal was stayed until determination of criminal proceedings against first applicant relating to the forged evidence — Whether writ of possession ought be stayed pending determination of appeal — No reasonable arguable grounds for appeal — Stay least likely to lead to injustice when all relevant factors balanced — Application rejected and notice of motion dismissed

Legislation Cited:
Crimes Act 1900 (NSW), s 317(c)
Supreme Court Act 1970 (NSW), s 85
Uniform Civil Procedure Rules 2005 (NSW) rr 36.15, 36.16

Cases Cited:
Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685
Arambatzis v Foundas (No 2) [2021] NSWCA 125
Arambatzis v Foundas (No 3) [2021] NSWCA 189
Arambatzis v Foundas [2024] NSWSC 400
Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78
Bobolas v Waverley Council [2014] NSWCA 131
Foundas v Arambatzis [2020] NSWCA 47
Foundas v Arambatzis (No 4) [2020] NSWCA 100
Foundas v Arambatzis (No 5) [2022] NSWCA 113
Foundas v Arambatzis (No 3) [2023] NSWSC 1513
Foundas v Arambatzis (No 4) [2023] NSWSC 1648
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Kable v State of New South Wales [2012] NSWCA 243
Vaughan v Dawson [2008] NSWCA 169
Yeshiva Synagogue Inc v Karimbla Properties (No10) Pty Ltd [2017] NSWCA 331

Category: Principal judgment
Parties: Cassiani Foundas (First Applicant)
Bill Foundas (Second Applicant)
Peter Arambatzis (First Respondent)
Sean Magnus Wengel (Second Respondent)
Robert William Whitton (Third Respondent)
Representation:
Counsel:
First Applicant (Self-represented)
Second Applicant (Self-represented)
D Barlin / T Harris-Roxas (First Respondent)
S Chen (Second and Third Respondents)
Solicitors:
Not applicable (Applicants)
Cutri & Associates (First Respondent)
William Roberts Lawyers (Second and Third Respondents)

File Number(s): 2024/4529
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity – Commercial List

Citation:

Foundas v Arambatzis (No 3) [2023] NSWSC 1513; Foundas v Arambatzis (No 4) [2023] NSWSC 1648; Arambatzis v Foundas [2024] NSWSC 400

Date of Decision:

6 December 2023; 22 December 2023; 15 April 2024

Before:

Rees J; Kunc J

File Number(s):

2021/297960; 2018/184682

JUDGMENT

THE COURT: On 17 September 2024 we heard an application by Ms Cassiani Foundas and Mr Bill Foundas for a stay of execution of a writ of possession of a property in Magee Street, Ashcroft at which Ms Foundas resides.
After the conclusion…

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 6)

Details

AGLC: Foundas v Arambatzis (No 6) [2024] NSWCA 231
Case: [2024] NSWCA 231
Decision Date: 26 September 2024

CaseChat Overview and Summary

In *Foundas v Arambatzis (No 6)*, the applicants, Cassiani Foundas and Bill Foundas, sought a stay of execution of a writ of possession concerning a property at Magee Street, Ashcroft. The application for the stay arose in circumstances where the execution of the writ had previously been stayed due to evidence that was later discovered to be forged. A concurrent hearing of an application for leave to appeal and the substantive appeal had itself been stayed pending the determination of criminal proceedings against the first applicant concerning this forged evidence. The matter came before the Court of Appeal of New South Wales, constituted by Ward P, White and Kirk JJA.

The primary legal issue before the Court was whether the writ of possession ought to be stayed pending the determination of the appeal. This required the Court to consider the strength of the grounds of appeal and to balance the potential for injustice to the parties in granting or refusing the stay.

The Court reasoned that there were no reasonable arguable grounds for the appeal. In applying the principles for granting a stay, the Court determined that a stay was least likely to lead to injustice when all relevant factors were balanced. Consequently, the Court dismissed the applicants' notice of motion.

The notice of motion filed by Cassiani Foundas and Bill Foundas for a stay of execution of the writ of possession was dismissed with costs.

Orders

Orders of the court

Notice of motion filed 20 May 2024 by Cassiani Foundas and Bill Foundas for a stay of execution of the writ of possession in relation to the property in Magee Street, Ashcroft is dismissed with costs.

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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Citations

AGLC Citation

Foundas v Arambatzis (No 6) [2024] NSWCA 231

Most Recent Citation

Lynch v Bredbo Pty Ltd (No 2) [2025] NSWDC 125

Cases citing this decision · 4 of 4 shown

Foundas v Arambatzis (Gross Sum Costs Order)
[2025] NSWCA 208 Para 1

…ty of which the first applicant (Cassiani Foundas) and first respondent were registered proprietors as tenants in common: Foundas v Arambatzis (No 6) [2024] NSWCA 231. The Court ordered that the applicants pay the costs of the motion. The current motion for a gross sum costs order was filed almost a year ago on 26…
Lynch v Bredbo Pty Ltd (No 2)
[2025] NSWDC 125 Para 8

…of the fraud warranted the “exceptional” remedy of indemnity costs of the proceedings (a finding noted on appeal: Foundas v Arambatzis (No 6) [2024] NSWCA 231 at [31]).…
Liristis v White
[2025] NSWCA 19 Para 15

…lso useful to set out the Court of Appeal’s recent summary of the applicable principles for a stay pending an appeal in Foundas v Arambatzis (No 6) [2024] NSWCA 231 at [45]-[47] (Ward P, White and Kirk JJA) (“ Foundas ”):…
Arambatzis v Foundas (No 2)
[2024] NSWSC 1530 Para 11

…used as the foundation for her 2021 proceedings. On 26 September, the Court of Appeal dismissed Ms Foundas' application: Foundas v Arambatzis (No 6) [2024] NSWCA 231.…

View all 4 citing cases →

Cases cited in this decision · 15 of 15 shown

Arambatzis v Foundas
[2024] NSWSC 400 Para 34

…appeal. His Honour ordered that a writ of possession issue forthwith but lie in the registry up to and including 13 May 2024 ( Arambatzis v Foundas [2024] NSWSC 400).…
Foundas v Arambatzis (No 4)
[2023] NSWSC 1648 Para 31

…tzis’ costs of the Fraud Proceedings on an indemnity basis and made a gross sum costs order in the amount of $210,000 ( Foundas v Arambatzis (No 4) [2023] NSWSC 1648).…
Foundas v Arambatzis (No 3)
[2023] NSWSC 1513 Para 21

…d by Rees J over five days between 6-10 November 2023. On 6 December 2023 her Honour dismissed the summons with costs ( Foundas v Arambatzis (No 3) [2023] NSWSC 1513).…
Foundas v Arambatzis (No 5)
[2022] NSWCA 113 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).…
Arambatzis v Foundas (No 3)
[2021] NSWCA 189 Para 15

…20]). There were further extensions on 1 June 2021 ( Arambatzis v Foundas (No 2) [2021] NSWCA 125) and 16 August 2021 ( Arambatzis v Foundas (No 3) [2021] NSWCA 189).…
Arambatzis v Foundas (No 2)
[2021] NSWCA 125 Para 15

…the writ be stayed until 2 June 2021 or earlier further order (at [20]). There were further extensions on 1 June 2021 ( Arambatzis v Foundas (No 2) [2021] NSWCA 125) and 16 August 2021 ( Arambatzis v Foundas (No 3) [2021] NSWCA 189).…
Arambatzis v Foundas; Foundas v Wengel
[2021] NSWCA 78 Para 14

…of motion seeking a stay of execution of the writ. That application came before Brereton JA on 1 March 2021 ( Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78). Brereton JA summarised the effect of Ms Foundas’ affidavit in support of her notice of motion as follows (at [12]):…
Foundas v Arambatzis (No. 4)
[2020] NSWCA 100 Para 12

…r possession and the related order concerning the trustees obtaining a writ of possession were rejected in this Court ( Foundas v Arambatzis (No 4) [2020] NSWCA 100).…
Foundas v Arambatzis
[2020] NSWCA 47 Para 9

…ct to a minor adjustment of the proportions in which the net proceeds of sale should be paid to Ms Foundas and Mr Arambatzis ( Foundas v Arambatzis [2020] NSWCA 47).…
Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd
[2017] NSWCA 331 Para 46

…In Yeshiva Synagogue Inc v Karimbla Properties (No10) Pty Ltd [2017] NSWCA 331 Basten JA said:…
Bobolas v Waverley Council
[2014] NSWCA 131 Para 47

…that fairly take account of the competing interests of the parties ( Alexander v Cambridge Credit Corporation Ltd at 694; Bobolas v Waverley Council [2014] NSWCA 131). The strength of the proposed appeal can also be a relevant factor if an assessment about the appellant's prospects of success can be assessed havin…
Kable v State of New South Wales
[2012] NSWCA 243 Para 85

…As orders of a superior court of record made in the exercise of judicial power they are valid until set aside ( Kable v State of New South Wales [2012] NSWCA 243 at [139], [141] and cases cited). Prima facie the trustees will be entitled to their costs, expenses and remuneration whatever the outcome of the appeal.…
Vaughan v Dawson
[2008] NSWCA 169 Para 45

…likely to be productive of injustice ( Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 695; Vaughan v Dawson [2008] NSWCA 169 at [17]).…
Fox v Percy
[2003] HCA 22 Para 51

…s could satisfy the criteria for appellate review of a trial judge’s assessment of the credibility of a witness ( Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]).…
Alexander v Cambridge Credit Corporation Ltd
(1987) 9 NSWLR 310 Para 45

…onus is on the applicants to persuade the Court that a stay would be the fairest outcome and the outcome least likely to be productive of injustice ( Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 695; Vaughan v Dawson [2008] NSWCA 169 at [17]).…

Legislation cited in this decision · 6

Uniform Civil Procedure Rules 2005 (NSW)
36.15, 36.16, 36.16(2)(b)) 3 mentions (from Para 7)
Crimes Act 1900 (ACT)
317(c) 2 mentions (from Para 41)
Supreme Court Act 1970 (NSW)
85 2 mentions (from Para 68)
Civil Procedure Act 2005 (NSW)
1 mention
Conveyancing Act 1919 (ACT)
1 mention (from Para 5)
Imperial Acts Application Act 1969 (NSW)
1 mention

Medium Neutral Citation:	Foundas v Arambatzis (No 6) [2024] NSWCA 231
Hearing dates:	17 September 2024
Date of orders:	17 September 2024
Decision date:	26 September 2024
Before:	Ward P; White JA; Kirk JA
Decision:	Notice of motion filed 20 May 2024 by Cassiani Foundas and Bill Foundas for a stay of execution of the writ of possession in relation to the property in Magee Street, Ashcroft is dismissed with costs.
Catchwords:	JUDGMENTS AND ORDERS — Enforcement — Application for stay of writ of possession — Where execution of writ previously stayed based on evidence later found to be a forgery — Where concurrent hearing of application for leave to appeal and substantive appeal was stayed until determination of criminal proceedings against first applicant relating to the forged evidence — Whether writ of possession ought be stayed pending determination of appeal — No reasonable arguable grounds for appeal — Stay least likely to lead to injustice when all relevant factors balanced — Application rejected and notice of motion dismissed
Legislation Cited:	Crimes Act 1900 (NSW), s 317(c) Supreme Court Act 1970 (NSW), s 85 Uniform Civil Procedure Rules 2005 (NSW) rr 36.15, 36.16
Cases Cited:	Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 Arambatzis v Foundas (No 2) [2021] NSWCA 125 Arambatzis v Foundas (No 3) [2021] NSWCA 189 Arambatzis v Foundas [2024] NSWSC 400 Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78 Bobolas v Waverley Council [2014] NSWCA 131 Foundas v Arambatzis [2020] NSWCA 47 Foundas v Arambatzis (No 4) [2020] NSWCA 100 Foundas v Arambatzis (No 5) [2022] NSWCA 113 Foundas v Arambatzis (No 3) [2023] NSWSC 1513 Foundas v Arambatzis (No 4) [2023] NSWSC 1648 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Kable v State of New South Wales [2012] NSWCA 243 Vaughan v Dawson [2008] NSWCA 169 Yeshiva Synagogue Inc v Karimbla Properties (No10) Pty Ltd [2017] NSWCA 331
Category:	Principal judgment
Parties:	Cassiani Foundas (First Applicant) Bill Foundas (Second Applicant) Peter Arambatzis (First Respondent) Sean Magnus Wengel (Second Respondent) Robert William Whitton (Third Respondent)
Representation:	Counsel: First Applicant (Self-represented) Second Applicant (Self-represented) D Barlin / T Harris-Roxas (First Respondent) S Chen (Second and Third Respondents) Solicitors: Not applicable (Applicants) Cutri & Associates (First Respondent) William Roberts Lawyers (Second and Third Respondents)
File Number(s):	2024/4529
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity – Commercial List Citation: Foundas v Arambatzis (No 3) [2023] NSWSC 1513; Foundas v Arambatzis (No 4) [2023] NSWSC 1648; Arambatzis v Foundas [2024] NSWSC 400 Date of Decision: 6 December 2023; 22 December 2023; 15 April 2024 Before: Rees J; Kunc J File Number(s): 2021/297960; 2018/184682