Foundas v Arambatzis (No 3) [2023] NSWSC 1513

Supreme Court New South Wales

Medium Neutral Citation: Foundas v Arambatzis (No 3) [2023] NSWSC 1513 Hearing dates: 6 – 10 November 2023; last submissions 5 December 2023 Date of orders: 6 December 2023 Decision date: 06 December 2023 Jurisdiction: Equity - Real Property List Before: Rees J Decision: Summons dismissed with costs Catchwords: CIVIL PROCEDURE — application to set aside judgment obtained by fraud — r 36.15(1) UCPR — principles at [98]-[101] — brother and sister buy two properties — bank sells one property, with surplus paid to the sister rather than equally to both — brother obtains orders in 2018 to sell remaining property and judgment for his share of proceeds of sale — sister applies to set aside judgment and orders — orders for possession made in 2019 — sister appeals — Court of Appeal makes orders for possession in 2020 — eviction notice — one week before eviction, sister produces deed said to have been executed by brother in 2013, disclaiming his interest in the properties — deed is a forgery — Prothonotary to refer matter to relevant law enforcement authorities. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 36.15 Cases Cited: McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241 Spalla v St George Motor Finance Ltd (No 5) [2004] FCA 1262 Toubia v Schwenk (2002) 54 NSWLR 46; [2002] NSWCA 34 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Category: Principal judgment Parties: Cassini Foundas (Plaintiff) Peter Arambatzis (First Defendant) Sean Wengel (Second Defendant) Robert Whitton (Third Defendant) Representation: Counsel: Mr D Barlin / Ms T Harris-Roxas (First Defendant)