Arambatzis v Foundas [2024] NSWSC 400

Arambatzis v Foundas [2024] NSWSC 400

Leave to issue the writ of possession was granted because extant Court of Appeal orders entitled the Trustees to possession, Ms Foundas' appeal from Rees J's decisions did not stay those orders, and there was no proper basis to keep the Trustees and Mr Arambatzis from the benefit of the orders after the lengthy litigation history. The stay was refused because, even accepting that execution would stultify the appeal and cause serious consequences for Ms Foundas, her grounds of appeal raised no serious question to be tried and amounted to disagreement with credit-based factual findings and outcomes; the balance of convenience favoured the Trustees and Mr Arambatzis, who had been kept from...

Jurisdiction
Australia
Judgment Date
15 April 2024
Procedural Posture
Consequential Orders on Motions Concerning Writ of Possession and Stay Pending Appeal / Hearing of Trustees' Notice of Motion Filed 19 January 2024 for Leave to Issue a Writ for Possession and Defendant's Notice of Motion Filed 5 April 2024 for a Stay Pending Appeal
Outcome
Leave granted for the issue forthwith of a writ of possession; the writ was directed to lie in the Registry until 13 May 2024; the defendant's stay motion was dismissed; the defendant was ordered to pay the other parties' costs of both motions.
Legal Topics
['stay Pending Appeal' 'writ for Possession' 'co Ownership' 'statutory Trust for Sale' 'section 66 G Conveyancing Act Orders' 'costs']
['appeals' 'land Law' 'equity' 'civil Procedure'] ['stay Pending Appeal' 'writ for Possession' 'co Ownership' 'statutory Trust for Sale' 'section 66 G Conveyancing Act Orders' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Consequential Orders on Motions Concerning Writ of Possession and Stay Pending Appeal / Hearing of Trustees' Notice of Motion Filed 19 January 2024 for Leave to Issue a Writ for Possession and Defendant's Notice of Motion Filed 5 April 2024 for a Stay Pending Appeal

Legal Issues

  1. 1 ['Whether leave should be granted for the issue of a writ of possession of the Ashcroft property in favour of the Trustees.' "Whether execution of any writ of possession should be stayed pending Ms Foundas' appeal from the decisions of Rees J." "Whether Ms Foundas' proposed appeal raised arguable grounds or a serious question to be tried." 'Whether the balance of convenience favoured a stay notwithstanding that refusal of a stay would stultify the appeal.']

Ratio Decidendi

Leave to issue the writ of possession was granted because extant Court of Appeal orders entitled the Trustees to possession, Ms Foundas' appeal from Rees J's decisions did not stay those orders, and there was no proper basis to keep the Trustees and Mr Arambatzis from the benefit of the orders after the lengthy litigation history. The stay was refused because, even accepting that execution would stultify the appeal and cause serious consequences for Ms Foundas, her grounds of appeal raised no serious question to be tried and amounted to disagreement with credit-based factual findings and outcomes; the balance of convenience favoured the Trustees and Mr Arambatzis, who had been kept from...

Court Disposition

Leave granted for the issue forthwith of a writ of possession; the writ was directed to lie in the Registry until 13 May 2024; the defendant's stay motion was dismissed; the defendant was ordered to pay the other parties' costs of both motions.

Orders

  • ['Grants leave for the issue forthwith of the writ of possession referred to in Order 2.' 'There be issued forthwith a writ of possession of the land in folio identifier XXXX being the land situated at and known as XXXX, Ashcroft NSW 2168.' 'Directs that the writ referred to in Order 2 lie in the Registry up to and...