Revised from transcript; issued on 29 November 2024
This afternoon the defendant in these proceedings approached me as the Duty Judge seeking orders for the stay of a writ of possession which had previously been issued in the proceedings. The Court was provided with an unsigned notice of motion and an unsworn affidavit in support from the plaintiff. I was told that the writ of possession is due to be executed tomorrow morning at 9 am. In view of the urgency, I have dealt with the application on the basis of the documents presented even though they have not been signed or sworn.
The proceedings have a long and unfortunate history. They concern a property at Ashcroft in suburban Sydney. The property was formerly registered in the names of the defendant, Ms Cassiani Foundas, and the plaintiff, Mr Peter Arambatzis, who is her brother.
The proceedings began as an application by Mr Arambatzis for an order for the appointment of trustees for sale of the property under the Conveyancing Act 1919 (NSW), s 66G. That order was made by Darke J in October 2018. His Honour appointed as the Trustees for sale Mr Sean Magnus Wengel and Mr Robert William Whitton ("the Trustees").
Since the order was made, the Trustees have apparently registered themselves as the proprietors of the property. But they have been unable to effect the sale owing to opposition from Ms Foundas and her husband Mr Bill Foundas, who were occupying the property in 2018 and continue to live there.
Ms Foundas launched appeal proceedings against the October 2018 orders which resulted in five separate judgments of the Court of Appeal, the fifth of which was delivered in July 2022: Foundas v Arambatzis (No 5) (2022) 109 NSWLR 73. It seems that Ms Foundas had not been represented on the occasion on which Darke J made his order in 2018. Her appeal was allowed in part, but as a matter of substance it was unsuccessful. The orders made by Darke J appointing the Trustees remain undisturbed.
But Ms Foundas then produced a document, apparently pre-dating the 2018 orders, and purporting to be signed by Mr Arambatzis. The document contained an acknowledgement that he had no financial or beneficial interest in the property.
Arambatzis v Foundas [2024] NSWSC 1530 | Case summary | Zoe
On the strength of this document, Ms Foundas commenced separate proceedings at first instance in 2021 seeking to have the October 2018 orders set aside on the ground of fraud. Those proceedings eventually went to trial before Rees J in November last year.
Her Honour delivered her decision early in December, dismissing the application: Foundas v Arambatzis (No 3) [2023] NSWSC 1513. In doing so, she found on the evidence before her that the document relied upon by Ms Foundas was a forgery. She referred the papers for consideration by the prosecuting authorities.
Ms Foundas launched an appeal against her Honour's judgment in the 2021 proceedings. In April this year, while the appeal was still pending, the Trustees made an application for leave to issue a writ of possession of the property. The application came before Kunc J and was opposed by Ms Foundas who made her own application to stay the execution of any writ of possession which might be issued until after the determination of her appeal from the decision of Rees J.
Ms Foundas was unsuccessful. Kunc J found that there was no proper basis for Ms Foundas' resistance to the possession motion, and a writ of possession should be issued. He also decided to dismiss the stay motion because Ms Foundas' grounds of appeal did not have any sufficiently serious prospects of success to warrant the grant of a stay. Nor had Ms Foundas demonstrated that the balance of convenience favoured such a stay: Arambatzis v Foundas [2024] NSWSC 400.
It seems that the appeal proceedings originally launched by Ms Foundas to challenge the judgment of Rees J have been expanded to include a challenge to the judgment of Kunc J. In September this year, about five months after Kunc J made his order granting leave to issue a writ of possession, Ms Foundas made an application to the Court of Appeal for a stay of its execution. By this stage, criminal proceedings had been begun to prosecute Ms Foundas, alleging that she had falsified the document used as the foundation for her 2021 proceedings. On 26 September, the Court of Appeal dismissed Ms Foundas' application: Foundas v Arambatzis (No 6) [2024] NSWCA 231.
It is against this background that Ms Foundas has approached the Court. Her notice of motion in effect seeks an order that execution of the writ of possession issued pursuant to the orders made by Kunc J be stayed and she asks to have the "eviction date" (26 November) "dismissed or vacated".
The notice of motion refers to Mr Arambatzis and the Trustees as "defendants" although the Trustees are not formally parties to these proceedings. The grounds for the motion are set out in the notice of motion at [3]-[7]:
That the GROUNDS on the dismissal of the motion for a stay of Writ of Possession by the Appeals Judges 17th September 2024 (Originally: 15th April 2024) have erred and made an assumption of guilty until proven innocent.
That financial hardship and medical hardship should have been a factor in the decision-making process in which my husband was denied.
That personal property to all plaintiffs be protected by the Courts from the First, Second and Third defendants.
That the First, Second and Third defendants NOT giving authority to the utility companies (local council and water) to bypass the situation and allowing them to use their local laws to sell property instead.
That given the state of the housing crisis and homelessness in Australia and given that being able to afford or worst still joining the wait list for public housing be granted a reprieve from such events.
No notice of this application appears to have been given to Mr Arambatzis or the Trustees. Given the lateness of this application, it would be impossible to have a hearing of the proposed motion on proper notice before the scheduled date of execution tomorrow. Unless the Court were prepared to grant an interim ex parte stay of the writ of possession, there is really no utility to the application at all.
Overlooking for the moment that the affidavit has not been sworn, there is still nothing in the material before the Court which would, in my opinion, justify the making of an ex parte order. On the face of it, if grounds existed to stay or set aside the writ of possession after the decisions of Kunc J and the Court of Appeal, there has been ample opportunity for Ms Foundas to have made an application to this effect in the ordinary way, which would have allowed for a contested hearing.
From the Bar Table, Ms Foundas asserted that she and Mr Foundas have financial and health problems and other demands on their time. As I understood her, these include, in particular, the need to prepare to meet the criminal prosecution against her.
But none of that is a proper explanation for approaching the Court on the afternoon before the writ of possession is due to be executed. Despite Ms Foundas' assertions, neither Mr Arambatzis nor the Trustees are responsible for that situation. There is no evidence, and no reason to think, that they have done anything since the writ was issued and the applications to have it stayed were refused which would justify the Court in denying them their entitlement to be heard before orders are made affecting them.
For this reason alone, Ms Foundas' application ought to be refused. But the problems are more fundamental than that. The grounds for the application set out in the notice of motion are all either incoherent or irrelevant for present purposes. Even if Ms Foundas and Mr Foundas are suffering from medical or financial hardship as is claimed, that does not entitle them to continue to occupy property which belongs to the Trustees.
One of the factors mentioned by the Court of Appeal in refusing the stay in September was that Ms Foundas has enjoyed free occupation of the property for more than five years. The legal and administrative costs associated with the sale and the ongoing rates and charges levied on the property now exceed its value.
(Ms Foundas withdrew and delivery of judgment continued in her absence.)
In these circumstances, even to grant short service of an application which might otherwise not come before the Court would be to inflict further irrecoverable costs on Mr Arambatzis and the Trustees.
Furthermore, in the course of argument, Ms Foundas repeatedly stated that she felt impelled to do something about what she characterised as the gross injustice which had been done to her. She seemed oblivious to the effect that this litigation has had on others, and, indeed the financial damage, that it has inflicted on herself.
I have no confidence that, if I were to allow the notice of motion and supporting affidavit (when verified) to be filed, the application could be amended or supplemented so as to make it a sensible or arguable one. In these circumstances, I will not only decline to permit the filing of the documents produced by Ms Foundas but I will order that no notice of motion is to be filed concerning the stay or setting aside of the writ of possession without the prior leave of a Judge of the Court.
The orders of the Court are:
1. Direct that no further application with respect to the stay or setting aside of the writ of possession issued on 15 April 2024 be filed without the prior leave of a Judge of the Court.
[2]
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Decision last updated: 29 November 2024