Arambatzis v Foundas [2024] NSWSC 400

Supreme Court New South Wales

Medium Neutral Citation: Arambatzis v Foundas [2024] NSWSC 400 Hearing dates: 12 April 2024 Date of orders: 15 April 2024 Decision date: 15 April 2024 Jurisdiction: Equity Before: Kunc J Decision: Leave granted for writ for possession of property to issue; stay pending appeal denied Catchwords: APPEALS — Procedure — Stay pending appeal — No issue of principle LAND LAW — Co-ownership — Statutory trust for sale — Writ for possession Legislation Cited: Conveyancing Act 1919 (NSW) s 66G Cases Cited: Foundas v Arambatzis [2020] NSWCA 47 Foundas v Arambatzis (No 3) [2023] NSWSC 1513 Foundas v Arambatzis (No 4) [2023] NSWSC 1648 Foundas v Arambatzis (No 5) (2022) 109 NSWLR 73; [2022] NSWCA 113 Vaughan v Dawson [2008] NSWCA 169 Category: Consequential orders Parties: Peter Arambatzis (Plaintiff) Cassiani Foundas (Defendant) Representation: Counsel: D Barlin (Plaintiff) Cassiani Foundas (Defendant – self-represented) S Chen, Solicitor (Trustees)

Solicitors: Cutri & Associates (Plaintiff)

William Roberts Lawyers (Trustees and Applicants) File Number(s): 2018/00184682 Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

Summary 1. This judgment is the latest in a series which begins with an October 2018 judgment of Darke J appointing Trustees for sale of a property at Ashcroft under s 66G of the Conveyancing Act 1919 (NSW). The co-owners of the property were the plaintiff, Mr Peter Arambatzis, and the defendant, his sister Ms Cassiani Foundas. Ms Foundas continues to live in the property. 2. Since 2018, there have been numerous judgments both at first instance and on appeal. This judgment resolves two competing motions: 1. A motion filed on 19 January 2024 by the Trustees for leave to issue a writ for possession of the property (possession motion); and 2. A motion filed on 5 April 2024 by Ms Foundas which sought, among other things, a stay of any writ (stay motion) pending an appeal which she has filed from recent decisions of Rees J. 1. For the reasons which follow, the Court has concluded that: 1. There is no proper basis for Ms Foundas' resistance to the possession motion, so leave will be granted for a writ to issue for possession of the property; and 2. The stay motion will be dismissed because Ms Foundas' grounds for appeal do not have any, or any sufficiently serious, prospects of success to warrant granting a stay of the writ, nor has she demonstrated that the balance of convenience favours such a stay. 1. Ms Foundas appeared for herself. She was assisted by her former husband, Mr Bill Foundas, for whom she is still the carer. Mr Foundas also briefly addressed the Court (without objection) in his own right. Importantly in relation to the issue of a writ for possession, Mr Foundas has confirmed more than once to the Court that he does not reside in the property. He also said he had nothing to say himself about the merits of Ms Foundas' contentions before the Court. 2. Mr S Chen, Solicitor, appeared for the Trustees. Mr D Barlin of Counsel appeared for Mr Arambatzis.