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

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78 Hearing dates: 1 March 2021 Date of orders: 1 March 2021 Decision date: 01 March 2021 Before: Brereton JA Decision: Proceedings 2018/184682: (1) Execution of the writ for possession, issued under the order made on 7 January 2021, be stayed until 2 June 2021 or earlier further order; (2) Pursuant to UCPR r 7.36, the Court refers Mrs Foundas to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance generally in relation to the proceedings; (3) The proceedings be adjourned to the Court of Appeal Registrar's list on 3 May 2021; and (4) The defendant Cassiani Foundas produce to the Registrar by 18 March 2021 the original of the documents which comprise pages 1 through 7 of annexure A to her affidavit of 23 February 2021. Proceedings 2020/351791: The notice of motion filed on 25 February 2021 be dismissed. These proceedings will remain listed on 19 March 2021 before the Real Property List Judge. Catchwords: JUDGMENTS AND ORDERS – Court of Appeal – Stay of execution of writ for possession – Where fresh evidence with indicia of authenticity raising serious question of miscarriage of justice in decision below produced at extremely late stage – Where interests of justice require exploration of evidence before taking irrevocable step of ejectment – Stay granted CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Referral made to allow for legal assistance in exploration of fresh evidence JUDGMENTS AND ORDERS – Court of Appeal – Stay of execution of writ for possession – Where stay also sought by husband of applicant producing fresh evidence – Where husband unable to demonstrate any entitlement to remain in possession – Stay refused Legislation Cited: Conveyancing Act 1919 (NSW), s 66G Uniform Civil Procedure Rules 2005 (NSW), r 7.36 Cases Cited: Arambatzis v Foundas (Supreme Court (NSW), Darke J, 6 September 2019, unrep) Foundas v Arambatzis [2020] NSWCA 47 Foundas v Arambatzis (No 3) (2020) 19 BPR ¶40-357; [2020] NSWCA 87 Foundas v Arambatzis (No 4) [2020] NSWCA 100. Category: Procedural rulings Parties: Proceedings 2018/ 184682 Peter Arambatzis (Plaintiff/Applicant) Cassiani Foundas (Defendant/Respondent)