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

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

The appellant's email of 25 March 2020 sufficiently notified the relief sought, so the requirement to file and serve a notice of motion should be dispensed with; the Court made directions for the second respondents to indicate whether they consent to or oppose variations concerning vacant possession and the writ for possession, and for submissions and evidence if variation or setting aside of the occupation fee order is sought.

Jurisdiction
Australia
Judgment Date
26 March 2020
Procedural Posture
Application to Vary or Set Aside Orders / On the Papers
Outcome
Requirements for a notice of motion dispensed with and directions made; application to be determined on the papers.
Legal Topics
['judgments and Orders' 'application to Vary Orders' 'notice of Motion' 'writ for Possession' 'vacant Possession']
['civil Procedure'] ['judgments and Orders' 'application to Vary Orders' 'notice of Motion' 'writ for Possession' 'vacant Possession']

Case Brief

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Procedural Posture

Application to Vary or Set Aside Orders / On the Papers

Legal Issues

  1. 1 ["Whether the appellant's application to vary orders made on 24 March 2020 should be required to be made by notice of motion." 'Whether directions should be made for the second respondents to state whether they consent to or oppose variation of orders concerning vacant possession and execution of a writ for possession.' 'Whether directions should be made if the appellant seeks variation or setting aside of the order authorising the trustees to charge an occupation fee.']

Ratio Decidendi

The appellant's email of 25 March 2020 sufficiently notified the relief sought, so the requirement to file and serve a notice of motion should be dispensed with; the Court made directions for the second respondents to indicate whether they consent to or oppose variations concerning vacant possession and the writ for possession, and for submissions and evidence if variation or setting aside of the occupation fee order is sought.

Court Disposition

Requirements for a notice of motion dispensed with and directions made; application to be determined on the papers.

Orders

  • ["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." 'Direct that within seven days the second respondents (the trustees for sale) advise the other...