Foundas v Arambatzis (No. 5) [2022] NSWCA 113

Foundas v Arambatzis (No. 5) [2022] NSWCA 113

The Court of Appeal had no power to reopen the earlier appeal or set aside the final orders entered on 24 March 2020 on the basis of newly discovered evidence. Rule 36.16 did not assist because no application was made within 14 days and the orders determined claims for relief. The former Chancery bill of review jurisdiction to set aside an enrolled decree for fresh evidence did not survive the statutory appellate regime introduced by the Equity Act 1880 (NSW), now reflected in ss 75A and 101 of the Supreme Court Act 1970 (NSW).

Jurisdiction
Australia
Judgment Date
01 July 2022
Procedural Posture
Civil Procedure Application Concerning Leave to Appeal and Reopening of an Appeal / Amended Summons Seeking Leave to Appeal and Notice of Motion Before the Court of Appeal After Final Appeal Orders Had Been Entered
Outcome
The amended summons seeking leave to appeal was dismissed with costs, and the applicant's notice of motion filed on 28 May 2021 was dismissed with costs to the extent it had not previously been determined.
Legal Topics
['power to Reopen an Appeal' 'fresh Evidence After Final Orders' 'setting Aside or Varying Judgments or Orders' 'uniform Civil Procedure Rules 2005 (nsw) R 36.16' 'bill of Review' 'fraud as a Ground to Set Aside Judgment']
['civil Procedure' 'appellate Procedure' 'equity'] ['power to Reopen an Appeal' 'fresh Evidence After Final Orders' 'setting Aside or Varying Judgments or Orders' 'uniform Civil Procedure Rules 2005 (nsw) R 36.16' 'bill of Review' 'fraud as a Ground to Set Aside Judgment']

Case Brief

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Procedural Posture

Civil Procedure Application Concerning Leave to Appeal and Reopening of an Appeal / Amended Summons Seeking Leave to Appeal and Notice of Motion Before the Court of Appeal After Final Appeal Orders Had Been Entered

Legal Issues

  1. 1 ['Whether the Court of Appeal had power to reopen an earlier appeal and set aside final entered orders on the ground of newly discovered evidence.' 'Whether r 36.16(4) of the Uniform Civil Procedure Rules 2005 (NSW) preserved a former Chancery power to set aside an enrolled decree on the ground of fresh evidence.' 'Whether the former Chancery bill of review jurisdiction survived the statutory appellate provisions introduced by the Equity Act 1880 (NSW) and continued under the Supreme Court Act 1970 (NSW).']

Ratio Decidendi

The Court of Appeal had no power to reopen the earlier appeal or set aside the final orders entered on 24 March 2020 on the basis of newly discovered evidence. Rule 36.16 did not assist because no application was made within 14 days and the orders determined claims for relief. The former Chancery bill of review jurisdiction to set aside an enrolled decree for fresh evidence did not survive the statutory appellate regime introduced by the Equity Act 1880 (NSW), now reflected in ss 75A and 101 of the Supreme Court Act 1970 (NSW).

Court Disposition

The amended summons seeking leave to appeal was dismissed with costs, and the applicant's notice of motion filed on 28 May 2021 was dismissed with costs to the extent it had not previously been determined.

Orders

  • ['The amended summons seeking leave to appeal is dismissed with costs.' "The applicant's notice of motion filed on 28 May 2021 in proceeding 2018/00184682 to the extent it has not previously been determined, is dismissed with costs."]