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Petrou v Vassiliadis

Petrou v Vassiliadis

Case [2025] NSWCA 174 1 August 2025

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Petrou v Vassiliadis [2025] NSWCA 174
Hearing dates: 25 July 2025
Date of orders: 1 August 2025
Decision date: 01 August 2025
Before: Stern JA;
Free JA
Decision:
(1) Leave to appeal refused.
(2) The applicants are to pay the costs of the first respondent.

Catchwords:
CIVIL PROCEDURE – undefended judgment – setting aside – where respondent did not appear at hearing of proceedings – whether primary judge erred in describing the principles for setting aside an undefended judgment under r 36.16(2)(b) – primary judge did not err having regard to the transcript of the hearing as a whole
CIVIL PROCEDURE – undefended judgment – setting aside – explanation for non-attendance – whether primary judge erred in taking into account or giving inappropriate weight to the medical evidence – primary judge did not err

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Family Law Act 1975 (Cth), s 79
Supreme Court Act 1970 (NSW), s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), r 36.16(1), (2)(b), 36.16(3A)

Cases Cited:
AHB v NSW Trustee and Guardian [2014] NSWCA 40
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 2
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Macedonian Orthodox Community Church StPetkaIncv His EminencePetarthe Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
McEvoy v Wagglens Pty Ltd [2021] NSWCA 104
Nguyen v Northern Sydney Local Health District (No 2) [2025] NSWCA 129
Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116
Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239
Wakim v Senworth Capital Pty Ltd [2024] NSWCA 102

Category: Principal judgment
Parties:
Peter Petrou (First Applicant)
Helen Petrou (Second Applicant)
Jim Vassiliadis (First Respondent)
Kali Vassiliadis (Second Respondent)
Representation:
Counsel:
Q Rares, S Hanscomb (Applicants)
F Maghami, T Ross (First Respondent)
Solicitors:
McEvoy Legal (Applicants)
Branston Neville Lawyers (First Respondent)
St. Clair and Associates (Second Respondent)

File Number(s): 2025/104274
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity Division

Date of Decision:

19 February 2025

Before:

Lindsay J

File Number(s):

2021/350671

JUDGMENT

THE COURT: By summons filed on 28 April 2025 Peter and Helen Petrou (the applicants) seek leave to appeal under s 101(2)(e) of the Supreme Court Act 1970 (NSW) against orders dated 19 February 2025 of Lindsay J (19 February 2025 orders) setting aside earlier orders his Honour had made on 18 November 2024 (18…

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 Petrou v Vassiliadis

Details

AGLC: Petrou v Vassiliadis [2025] NSWCA 174
Case: [2025] NSWCA 174
Decision Date: 01 August 2025

CaseChat Overview and Summary

The applicants, Petrou and Vassiliadis, sought to set aside an undefended judgment entered against them in favour of the first respondent. The primary judge had refused their application to set aside the judgment, and the applicants sought leave to appeal this refusal to the Court of Appeal of the Supreme Court of Victoria.

The central legal issues before the Court of Appeal were whether the primary judge had erred in describing the principles for setting aside an undefended judgment under rule 36.16(2)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), and whether the primary judge had erred in taking into account or giving inappropriate weight to the medical evidence provided as an explanation for the applicants' non-attendance at the hearing.

The Court of Appeal, comprising Stern and Free JJA, found that the primary judge had not erred in either respect. Their Honours considered the transcript of the hearing as a whole and concluded that the primary judge had correctly articulated the principles governing the setting aside of undefended judgments. Furthermore, the Court found no error in the primary judge's assessment and weighting of the medical evidence presented to explain the applicants' absence.

Consequently, the Court of Appeal made orders refusing leave to appeal and ordering the applicants to pay the costs of the first respondent.

Orders

Orders of the court

(1) Leave to appeal refused.

(2) The applicants are to pay the costs of the first respondent.

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

Petrou v Vassiliadis [2025] NSWCA 174

Most Recent Citation

Seek Justice Pty Ltd v Blue Mountains Local Planning Panel/Blue Mountains City Council; Seek Justice Pty Ltd v Minister for Planning [2025] NSWCA 201

Cases citing this decision · 1 of 1 shown

Seek Justice Pty Ltd v Blue Mountains Local Planning Panel/Blue Mountains City Council; Seek Justice Pty Ltd v Minister for Planning
[2025] NSWCA 201 Para 2

…enial of procedural fairness in relying upon information the substance of which is well-known by the affected person: [41]-[43]. Petrou v Vassiliadis [2025] NSWCA 174; Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45; Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403, appli…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

Nguyen v Northern Sydney Local Health District (No 2)
[2025] NSWCA 129 Para 10

…this Court following Pham v Gall the applicants rely upon the recent decision of this Court in Nguyen v Northern Sydney Local Health District (No 2) [2025] NSWCA 129 and the Court’s emphasis there upon the power conferred by UCPR, r 36.16(1) being exercised “sparingly and with caution, having regard to the importa…
Wakim v Senworth Capital Pty Ltd
[2024] NSWCA 102 Para 8

…significant aspect of that is whether the applicant has at least a reasonably arguable defence: [99]-[102] (see also Wakim v Senworth Capital Pty Ltd [2024] NSWCA 102 at [62] (Griffiths AJA, White JA and Basten AJA agreeing)). As to this, the applicants conceded before Lindsay J that the respondent had an arguable…
McEvoy v Wagglens Pty Ltd
[2021] NSWCA 104 Para 12

…lication involving a discretionary decision to set aside orders, an applicant for leave to appeal faces a very high hurdle: McEvoy v Wagglens Pty Ltd [2021] NSWCA 104 at [46] (Bell P and Payne JA).…
Pham v Gall
[2020] NSWCA 116 Para 3

…confers ought to be exercised or expressly identify matters to be taken into account. As Leeming JA observed in Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [2] (relying upon Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 at [5] (Gaudron ACJ, McHugh, Hayne and Callinan JJ)), the meaning of the rule “d…
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd
[2019] NSWCA 61 Para 11

…]-[138] (Gummow ACJ, Kirby, Hayne and Heydon JJ); Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [20] (Bathurst CJ and Leeming JA). Both of these matters constitute substantial impediments to the applicants’ contentions in support of their appli…
AHB v NSW Trustee and Guardian
[2014] NSWCA 40 Para 2

…his Honour wrongly took into account medical evidence, contrary to AHB v NSW Trustee and Guardian [2014] NSWCA 40, or otherwise gave that evidence inappropriate weight; and…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das
[2012] NSWCA 164 Para 12

…what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [6], [32]-[39]). In an application involving a discretionary decision to set aside orders, an applicant for leave to appeal faces a very high hurd…
Jaycar Pty Ltd v Lombardo
[2011] NSWCA 284 Para 12

…general public importance, or an injustice which is reasonably clear in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [6], [32]-[39]). In an application involving a d…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 37

…s’ reliance on the case management principles discussed in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 as supporting their contention of error is misplaced in this context. There is no error.…
Wurridjal v The Commonwealth
[2009] HCA 2

…B v NSW Trustee and Guardian [2014] NSWCA 40 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 2 Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 Be Financial Pty Ltd as Trustee for Be Financial Operat…
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand
[2008] HCA 42 Para 11

…mmunity Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [137]-[138] (Gummow ACJ, Kirby, Hayne and Heydon JJ); Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 4…
Conway v The Queen
[2002] HCA 2 Para 3

…account. As Leeming JA observed in Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [2] (relying upon Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 at [5] (Gaudron ACJ, McHugh, Hayne and Callinan JJ)), the meaning of the rule “depends on a background of concepts, principles, practices and circumstanc…
House v R
[1936] HCA 40 Para 11

…As is well recognised, a House v The King (1936) 55 CLR 499; [1936] HCA 40 error must be established in order to challenge a discretionary judgment such as that made by Lindsay J on 19 February 2025. The applicants’ contention to the contrary must be rejected. Moreover, the weight to be given to the various rele…
House v The King
63 WN 176 Para 11

…As is well recognised, a House v The King (1936) 55 CLR 499; [1936] HCA 40 error must be established in order to challenge a discretionary judgment such as that made by Lindsay J on 19 February 2025. The applicants’ contention to the contrary must be rejected. Moreover, the weight to be given to the various relevant facto…

Legislation cited in this decision · 4

Uniform Civil Procedure Rules 2005 (NSW)
36.16(1), 36.16(2)(b), 36.16(3A) 3 mentions (from Para 3)
Family Law Act 1975 (Cth)
79 2 mentions (from Para 21)
Supreme Court Act 1970 (NSW)
101(2)(e) 2 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
1 mention (from Para 5)

Medium Neutral Citation:	Petrou v Vassiliadis [2025] NSWCA 174
Hearing dates:	25 July 2025
Date of orders:	1 August 2025
Decision date:	01 August 2025
Before:	Stern JA; Free JA
Decision:	(1) Leave to appeal refused. (2) The applicants are to pay the costs of the first respondent.
Catchwords:	CIVIL PROCEDURE – undefended judgment – setting aside – where respondent did not appear at hearing of proceedings – whether primary judge erred in describing the principles for setting aside an undefended judgment under r 36.16(2)(b) – primary judge did not err having regard to the transcript of the hearing as a whole CIVIL PROCEDURE – undefended judgment – setting aside – explanation for non-attendance – whether primary judge erred in taking into account or giving inappropriate weight to the medical evidence – primary judge did not err
Legislation Cited:	Civil Procedure Act 2005 (NSW) Family Law Act 1975 (Cth), s 79 Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW), r 36.16(1), (2)(b), 36.16(3A)
Cases Cited:	AHB v NSW Trustee and Guardian [2014] NSWCA 40 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 2 Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Macedonian Orthodox Community Church StPetkaIncv His EminencePetarthe Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 McEvoy v Wagglens Pty Ltd [2021] NSWCA 104 Nguyen v Northern Sydney Local Health District (No 2) [2025] NSWCA 129 Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239 Wakim v Senworth Capital Pty Ltd [2024] NSWCA 102
Category:	Principal judgment
Parties:	Peter Petrou (First Applicant) Helen Petrou (Second Applicant) Jim Vassiliadis (First Respondent) Kali Vassiliadis (Second Respondent)
Representation:	Counsel: Q Rares, S Hanscomb (Applicants) F Maghami, T Ross (First Respondent) Solicitors: McEvoy Legal (Applicants) Branston Neville Lawyers (First Respondent) St. Clair and Associates (Second Respondent)
File Number(s):	2025/104274
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Division Date of Decision: 19 February 2025 Before: Lindsay J File Number(s): 2021/350671