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

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

The stay was granted as the new purported deed of acknowledgment, if authentic, raised a serious question of a miscarriage of justice warranting exploration before irreversible enforcement and eviction; however, Mr Bill Foundas failed to show any entitlement to possession, so his application for a stay was dismissed.

Parties
Plaintiff/applicant: Peter Arambatzis; Defendant/respondent: Cassiani Foundas; Plaintiff/applicant: Bill Foundas; First Defendant/first Respondent: Sean Magnus Wengel; Second Defendant/second Respondent: Robert William Whitton
Jurisdiction
Australia
Judgment Date
01 March 2021
Procedural Posture
Appeal and Interlocutory Applications / Orders on Stay, Pro Bono Referral, and Production of Documents; Dismissal of Notice of Motion
Outcome
Part-stay granted and pro bono referral for Mrs Foundas; Mr Bill Foundas' motion dismissed.
Legal Topics
Stay of Execution, Pro Bono Referral, Trustees for Sale, Beneficial Interest, Constructive Trust
Civil Procedure Property Law Stay of Execution Pro Bono Referral Trustees for Sale Beneficial Interest Constructive Trust

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Parties

Peter Arambatzis

Plaintiff/applicant

Cassiani Foundas

Defendant/respondent

Bill Foundas

Plaintiff/applicant

Sean Magnus Wengel

First Defendant/first Respondent

Robert William Whitton

Second Defendant/second Respondent

Procedural Posture

Appeal and Interlocutory Applications / Orders on Stay, Pro Bono Referral, and Production of Documents; Dismissal of Notice of Motion

Legal Issues

  1. 1 Whether stay of execution of writ for possession should be granted in light of purported fresh evidence
  2. 2 Eligibility for pro bono referral under UCPR r 7.36
  3. 3 Whether sufficient grounds exist for Mr Bill Foundas to remain in possession of the property

Ratio Decidendi

The stay was granted as the new purported deed of acknowledgment, if authentic, raised a serious question of a miscarriage of justice warranting exploration before irreversible enforcement and eviction; however, Mr Bill Foundas failed to show any entitlement to possession, so his application for a stay was dismissed.

Court Disposition

Part-stay granted and pro bono referral for Mrs Foundas; Mr Bill Foundas' motion dismissed.

Orders

  • Execution of the writ for possession in proceedings 2018/184682 stayed until 2 June 2021 or earlier order.
  • Referral of Mrs Foundas for pro bono assistance under UCPR r 7.36.