Foundas v Arambatzis (No. 2) [2020] NSWCA 51

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Foundas v Arambatzis (No. 2) [2020] NSWCA 51 Hearing dates: On the papers Decision date: 26 March 2020 Before: Bell P; Basten JA; White JA Decision: Refer to para 10 of judgment. Catchwords: JUDGMENTS AND ORDERS — application to vary orders – directions given – no issue of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 18.1, 36.16(3A) Cases Cited: Aukuso v Tahan (No. 2) [2018] NSWCA 302 Boateng v Dharamdas [2019] NSWCA 233 Kable v State of New South Wales (No. 2) [2012] NSWCA 361 Category: Procedural and other rulings Parties: Cassiani Foundas (Appellant) Peter Arambatzis (Respondent) Sean Magnus Wengel and Robert William Whitton (Second Respondents) Representation: Solicitors: n/a (Appellant) Cutri & Associates (First Respondent) William Roberts Lawyers (Second Respondents) File Number(s): 2019/363483

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment 1. THE COURT: Judgment on the appeal in this matter was delivered on 24 March 2020. One of the consequential orders (order 6) arising from the order dismissing the appeal from the appointment of trustees for sale of the Magee Street property was that the appellant vacate the property within 28 days. 2. By an email forwarded to the judges of the Court on 25 March 2020 the appellant, in substance, seeks the variation or setting aside of that order and the related order authorising the trustees for sale to obtain a writ for possession forthwith, such writ not to be executed before the expiry of 28 days (order 7). 3. Pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) the orders in question are capable of being set aside or varied if notice of motion were filed within 14 days after the orders were entered. The orders were entered on 24 March 2020. 4. The Court can dispense with the requirement that the application to set aside or vary the judgment or order be made by way of notice of motion (Kable v State of New South Wales (No. 2) [2012] NSWCA 361 at [15]; Aukuso v Tahan (No. 2) [2018] NSWCA 302 at [46]-[47], [49]; Boateng v Dharamdas [2019] NSWCA 233 at [23]-[24], [72]-[73]). 5. The appellant's email of 25 March 2020 is a sufficient notification of the relief that she seeks. The requirement for her to file and serve a notice of motion should be dispensed with. 6. In her email the appellant refers, amongst other things, to the impact of the COVID-19 pandemic and says that real estate auctions and house inspections are closed until further notice. If that be so, it may be that the trustees for sale would not seek to obtain vacant possession of the property. 7. The appellant also states that she is under orders from the Australian government to stay at home, and that in the current circumstances she would be unable to find alternative accommodation. 8. If the second respondents consent to an indefinite extension of orders 6 and 7 until further order such an order could be made in chambers without the necessity for evidence by way of affidavit. If the extension is opposed by the trustees and the parties are unable to reach an agreement in relation to the appellant's vacating the property, then directions will be given for the filing and service of affidavits by the appellant and the second respondents and the provision of written submissions. 9. It is not clear from the terms of the email whether the appellant is seeking the variation or setting aside of order 8 made on 24 March 2020. (Order 8 authorised the trustees to charge an occupation fee from 29 October 2018 to the date of her delivering vacant possession.) If she is, then the appellant should provide written submissions in support of that application within seven days and the first and second respondents should provide written submissions on that question within a further seven days and the appellant should provide any written submissions in reply within a further seven days. 10. For these reasons the Court orders: 1. Dispense with the requirements of rr 18.1 and 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) that the appellant's application to vary the orders made on 24 March 2020 be made by way of notice of motion. 2. Direct that within seven days the second respondents (the trustees for sale) advise the other parties and the Court whether they consent to or oppose the variation of order 6 made on 24 March 2020 so as to extend the time by which the appellant is to deliver vacant possession of the property at 12 Magee Street, Ashcroft until further order, and to vary order 7 to provide that the writ for possession not be executed until further order. 3. If the appellant is seeking the variation or setting aside of order 8 made on 24 March 2020, then: 1. by 2 April 2020 the appellant provide by email to the Court and serve written submissions and any affidavit sought to be relied upon in support of any such application; 2. any submissions or affidavit in response by the first or second respondents are to be provided to the Court by email and served by 9 April 2020; and 3. any submissions in reply by the appellant are to be provided to the court by email and served by 16 April 2020. 1. As noted above, if the parties are unable to reach agreement in relation to appropriate orders to be made in relation to the appellant's vacation of the property, further directions will be given for the provision of affidavits and submissions on that question. The application will be determined on the papers.