Foundas v Arambatzis (No. 4) [2020] NSWCA 100

Foundas v Arambatzis (No. 4) [2020] NSWCA 100

The application failed because no legislation or Ministerial Order precluded the appellant from seeking new residential accommodation or precluded execution of a writ for possession; COVID-19 residential tenancy protections did not apply because the appellant was not a party to a residential tenancy agreement and had not shown she was an impacted tenant; and there was no evidence that she could not obtain or afford alternative accommodation. The need to implement the trust for sale required vacant possession to be delivered to the trustees for sale.

Jurisdiction
Australia
Judgment Date
28 May 2020
Procedural Posture
Application to Set Aside, Vary or Stay Orders for Delivery of Vacant Possession and Liberty to Obtain a Writ for Possession / Court of Appeal Determination on the Papers Following Final Orders Made on 24 March 2020
Outcome
Application refused; order 7 varied; appellant ordered to pay the respondents' costs of the application.
Legal Topics
['variation or Setting Aside of Orders' 'stay of Orders' 'vacant Possession' 'trustees for Sale' 'covid 19 Public Health and Tenancy Measures' 'residential Tenancy Moratorium']
['civil Procedure' 'property Law' 'judgments and Orders'] ['variation or Setting Aside of Orders' 'stay of Orders' 'vacant Possession' 'trustees for Sale' 'covid 19 Public Health and Tenancy Measures' 'residential Tenancy Moratorium']

Case Brief

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Procedural Posture

Application to Set Aside, Vary or Stay Orders for Delivery of Vacant Possession and Liberty to Obtain a Writ for Possession / Court of Appeal Determination on the Papers Following Final Orders Made on 24 March 2020

Legal Issues

  1. 1 ['Whether orders 6 and 7 made on 24 March 2020 requiring delivery of vacant possession and permitting a writ for possession should be set aside, varied or stayed in light of the COVID-19 pandemic.' 'Whether COVID-19 legislative or executive measures precluded the appellant from seeking alternative accommodation or precluded execution of a writ for possession.' 'Whether COVID-19 residential tenancy protections applied to the appellant.' 'Whether the appellant had shown evidentiary grounds justifying a stay beyond 28 May 2020.']

Ratio Decidendi

The application failed because no legislation or Ministerial Order precluded the appellant from seeking new residential accommodation or precluded execution of a writ for possession; COVID-19 residential tenancy protections did not apply because the appellant was not a party to a residential tenancy agreement and had not shown she was an impacted tenant; and there was no evidence that she could not obtain or afford alternative accommodation. The need to implement the trust for sale required vacant possession to be delivered to the trustees for sale.

Court Disposition

Application refused; order 7 varied; appellant ordered to pay the respondents' costs of the application.

Orders

  • ["Refuse the appellant's application to set aside or vary orders 6 and 7 made on 24 March 2020." 'Note that orders 6 and 7 made on 24 March 2020 are not stayed.' 'Vary order 7 made on 24 March 2020 by deleting the requirement that a writ for possession not be executed before the expiry of 28 days.' "Order that the...