Arambatzis v Foundas

No 3

1. At the five day hearing before Rees J, Ms Foundas was unrepresented but, as before me, was assisted by Mr Foundas. In her detailed judgment of 121 paragraphs delivered on 6 December 2023, Rees J dismissed the proceedings, largely (but not exclusively) based on her conclusion that the Deed was a forgery. Her Honour directed the Prothonotary to refer the matter to the relevant law enforcement authorities.
2. As to the witnesses, her Honour made the following observations (see No 3 [6] to [10]): (1) Ms Foundas was "an evasive, guarded and non-responsive witness" to whose evidence no weight was to be given unless it was corroborated by a reliable source. (2) Ms Holt, the forensic document examiner who had examined the Deed, was "an impressive witness" whose evidence her Honour accepted. (3) Mr Arambatzis, who suffers from an intellectual impairment, "gave fair answers which were, on occasion, against his own interests". Her Honour "comfortably" preferred his evidence to that of Ms Foundas where there was a contest between them.
3. Ms Foundas also called Ms Cox to give evidence. Because of a submission made to me by Ms Foundas (see [39(4)] below), I reproduce her Honour's findings about Ms Cox in full: "5. Ms Cox is a pleasant woman, now retired, who has been a Justice of the Peace for some 20 years. No issues of credit arose. I accept her evidence, as far as it went. Ms Cox was not told by Ms Foundas that the authenticity of the deed was in question in these proceedings. Ms Cox was simply told that "no-one would acknowledge I'm who I am and that was my signature. So I offered to do a stat dec to confirm that that was my signature." After being taken through the report of forensIc document examiner, Melanie Holt, however, Ms Cox did not voice disagreement with Ms Holt's conclusion, "I can only agree that they look like my signature and that's it, that's all I was saying that yeah, that's my signature."
4. Her Honour gave six reasons for her conclusion that the Deed was a forgery (No 3 at [104] - [120]) which may be summarised as: 1. Contemporaneous solicitors' correspondence was inconsistent with the proposition advanced by Ms Foundas that the Deed had been executed on 3 or 4 December 2013. 2. Ms Foundas had never mentioned the existence of the Deed in the ensuing seven years until the week before she was due to be evicted from the property. There had been numerous occasions in evidence and before the Court where it would have been expected she would have mentioned the Deed, and her explanations now as to why she had failed to do so did not withstand scrutiny. 3. Ms Holt's expert evidence that Mr Arambatzis' signature had been "cut and pasted" from another identified document onto the Deed was "compelling" and unaffected by Ms Cox's evidence, which went no further than proving that they were Ms Cox's signatures on the Deed. 4. Ms Foundas had continually failed to produce the original of the Deed. Ms Holt's opinion, by reason of the cutting and pasting, was that there was no original of the Deed. Her Honour accepted Ms Holt's conclusion. Ms Foundas' reasons for the failure were "obscure" including telling the Court that she had sent an "original copy" and asking "what's to say what's an original?". 5. Ms Foundas' evidence of the circumstances in which the Deed was executed materially changed, without adequate explanation. 6. Her Honour preferred Mr Arambatzis' evidence that he had never signed the Deed.
5. On 15 December 2023, the Trustees wrote to Ms Foundas asking that she give them vacant possession of the property by 8 February 2023 so they could proceed to sell it. Ms Foundas replied that she had filed a notice of intention to appeal, thereby implicity rejecting the Trustees' request.
6. By a judgment on the papers delivered on 22 December 2023, her Honour ordered Ms Foundas to pay Mr Arambatzis' costs assessed on the indemnity basis in the gross sum of $210,000: Foundas v Arambatzis (No 4) [2023] NSWSC 1648. In what follows, I shall refer to No 3 and this costs judgment as the decisions.

The present applications

1. The possession motion was filed on 19 January 2024. On 27 February 2024, at a hearing at which all parties including Ms Foundas appeared, a registrar ordered the motion to be served by 29 February 2024 on both Ms Foundas and Mr Arambatzis, and to be returnable on 11 March 2024. On that return date, all of the parties, including Ms Foundas, again appeared before the registrar. The possession motion was referred to me for directions in the Applications List on 15 March 2024.
2. When all of the parties came before me on 15 March 2024, the time for Ms Foundas to file her appeal against the decisions had not quite expired. I stood the matter over for directions after that date. By the time of the next occasion on 5 April 2024, Ms Foundas had filed appeal papers (as to which I will say more below). On that date I fixed the possession motion for hearing before me and directed Ms Foundas to file a motion for a stay of any writ that might be issued, in order to crystallise the issues between the parties.
3. Ms Foundas filed the stay motion (which was dated 25 March 2024) on 5 April 2024 together with her affidavit in support made on 25 March 2024. That affidavit, which she read, repeated the relief she sought in her appeal and the stay motion, and asserted that unspecified critical information had been withheld from Rees J by Mr Arambatzis and Ms Holt.
4. In addition to addressing me at the hearing, Ms Foundas relied on written submissions dated 8 and 13 March 2024 and 11 April 2024. I have taken each of those submissions into account in reaching this decision.

Ms Foundas' appeal against the decisions

1. The other parties indicated, properly in my respectful view, that they would not take any point now or later as to: 1. Ms Foundas' appeal papers not having yet been formally filed. There was no dispute that they were in the registry pending fee waiver issues being determined. 2. At least as to No 3, Ms Foundas' appeal was a few days out of time. 3. The form of the appeal papers, being a summons for leave to appeal accompanied by a draft notice of appeal. The other parties accepted that Ms Foundas had an appeal as of right from the decisions. 4. The papers erroneously describe Mr Foundas as a second plaintiff or applicant.
2. The argument before me proceeded on the basis that Ms Foundas' appeal papers should be treated as a summons for an appeal by her alone. I should also record that today Ms Foundas emailed to my chambers (and copied to the other parties) her summary of argument in support of her purported leave to appeal application. While not the subject of submissions by the other parties, I have taken that summary into account. It does not change any of the views I had already come to about the prospects of success for Ms Foundas' appeal from the decisions which I set out below.
3. The orders Ms Foundas seeks on appeal are: 1 Leave to appeal from the whole of the decision below. 2 Extend time for the filing of this summons seeking leave to appeal UCPR 2005 r 51.10 or r 1.12. 3 Appeal allowed. 4 Orders of the Court made on 6th December 2023 and 22nd December 2023 be set aside or in the alternative be STAYED. 5 Initial orders made on 15th October 2018 be dismissed at first instance or in the alternative be STAYED. 6 Stay any pending proceedings or Writ of Possession against XXXX Ashcroft NSW 2168 until this Appeal process has been exhausted 7 Order of the first respondent to pay costs of the appeal and all the proceedings in the Court from initiation to date. 8 Seeking costs if successful be awarded to the first and second applicants.
4. There are sixteen, somewhat discursive, grounds of appeal. While I have reviewed them all, the most relevant appear to be: "3 A breach of natural Justice as the first applicants' comments and contributions were of no value and not taken as submitted context against her claims in the Trial. She was subjected to leading questions by the opposition barrister which painted a false picture of the true events. 4 Founding evidence used in the trial of 6th - 9th November 2023 by the respondents was an error of law as the facts at the time of 2018 were withheld which this would have given a different outcome today. 5 The decision was induced or affected by professional misconduct and apprehended bias by the respondents. As the truth is being constantly distorted by the respondent and his Iegal team. 6 A failure of the first respondent to pay his legal team anything monetary as this matter progresses. Instead his legal counsel is waiting to be paid their fees and costs by the sale of XXXX Ashcroft and proceeds of XXXX Ashcroft. 7 Decision making procedures were not observed. As evidence and facts that were quoted and spoken of even giving [sic] evidence were all ignored and unfounded. The first respondent on the other hand was found to be telling the truth even though he was coached by his legal team by stating that he doesn't remember anything at all or he doesn't know but he remembered [sic] 2018 application and his personal affidavit but not it's contents. Foul play here. 8 Injustice in the trial. Misuse and abuse of legal privilege against the first applicant. 9 Of importance to the public to demonstrate such abhorrent practices. 10 Language that has been expressly written in the Judgements of the 6th December 2023 and 22nd December 2023 is at best contradictory and dismissive. 11 The granting of this leave to appeal and appeal is of significance for the justice that is sought and not be prejudiced [sic] because of a divide in the legal sector against self represented litigants."

The possession motion

1. The Trustees relied on the extant orders of the Court of Appeal granting liberty to apply for a writ of possession forthwith (see [10] and [12] above). I accept their submission that there is no proper basis for them to be kept out of an order of which they have had the benefit of since 2020 and that Ms Foundas' appeal against the decisions does not stay those or Darke J's original orders. They did not dispute that the proper locus of any present argument should be Ms Foundas' application for a stay of any writ for which leave to issue might be granted.
2. Ms Foundas' submissions opposing the possession motion may be summarised as: 1. She disagrees with all of the judgments that have been adverse to her, most recently the decisions; 2. She has appealed against the decisions with good prospects of success; 3. If the writ of possession is issued and executed, her appeal will be rendered nugatory; 4. The possession motion was served out of time.
3. While undoubtedly her view, the first reason is irrelevant to the present question.
4. The second and third reasons are potentially relevant to whether leave to issue a writ should be granted. However, they are not decisive in Ms Foundas' favour for two reasons. First, the litigious history which I have set out amply justifies the conclusion that after such a long lapse of time since the Court of Appeal's orders, the Trustees and Mr Arambatzis should have the fruit of them. Second, they are properly relevant to what, because of the first reason, should be the real focus of the argument, namely whether the writ should be stayed pending Ms Foundas' appeal against the decisions.
5. The fourth reason is without substance. There is no evidence as to when Ms Foundas was served with the possession motion. However, she has participated in all the directions hearings including on 27 February 2024, being the hearing at which formal service was ordered. She has sought to comply with the directions made for the hearing before me and has filed multiple submissions. Even if formal service may not have occurred by 29 February 2024 (something about which there is no evidence), Ms Foundas has been at all relevant times on notice of the possession motion and has been given every opportunity to meet it.
6. It follows that leave will be granted for the issue forthwith of a writ of execution against the property in favour of the Trustees.

The stay motion - submissions

1. Many of Ms Foundas' submissions (whether in writing or in address) were not relevant to the question of a stay and conveyed, in various ways, her general sense of grievance at the outcome of the numerous decisions against her (excluding the very limited success she enjoyed in the Court of Appeal referred to in [10] above). Those of her submissions which I understood to be arguably dispositive in her favour or which she especially emphasised in address may be summarised as: 1. She has good grounds of appeal; 2. If a stay was not granted, her appeal against the decisions would be rendered nugatory or stultified; 3. She had been at an unfair disadvantage as a litigant in person who had been refused pro bono legal assistance for the proceedings before Rees J; 4. Her witness, Ms Cox, had been "disrespected" and her evidence ignored.
2. Before me, the Trustees adopted Mr Barlin's submissions. Without disrespect to his thorough address, the essence of those submissions appears in these parts of his written submissions: 2.2. As a general principle, it is conceded that a strong factor weighing in favour of granting a stay is when a refusal of a stay would render any appeal nugatory. It is also conceded that this circumstance applies in this case. The central issue which is the subject of these proceedings and of the Appeal is the property in respect of which a Writ of Possession is now being sought by the Trustees. 2.3. The factors against granting the stay in this case have the exceptional effect of outweighing that consideration. 2.4. It is well-established that consideration [sic] the grounds of appeal is relevant in an application for a stay of judgment pending appeal. Recently, in Piety Developments Pty Ltd v Cumberland City Council [2024] NSWCA 18, Gleeson JA observed at [5] as follows: It is necessary to consider whether the appeal raises a serious question to be tried, in the sense of arguable grounds, and if so, where the balance of convenience lies: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695; Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [17]-[20]. … 2.11. On the basis of the above, submission is made on behalf of Mr Arambatzis that the circumstances of this case are such that the Court should not exercise its discretion to grant a stay as sought by Ms Foundas because: a) Ms Foundas has not articulated any arguable grounds of appeal; b) Orders were made by Darke J pursuant to s 66G of the Conveyancing Act 1919 on 15 October 2018, over 5 years ago; c) Ms Foundas has been unsuccessful in Court of Appeal proceedings against Mr Arambatzis in respect of the relevant property twice before; d) Rees J found that the Deed relied upon by Ms Foundas in the 2021 Proceedings was used by her as a means of delaying eviction; e) Mr Arambatzis, having been successful in the 2021 Proceedings is entitled to fruits of the 2018 Proceedings, given the effect of the outcome of the 2021 Proceedings is that the original orders made by Darke J stand; and f) accordingly, in considering all the relevant factors against each other, those factors which weigh in favour of refusing a stay outweigh those factors in favour of granting a stay.

Stay motion - consideration

1. The Court accepts Mr Barlin's submissions. Before turning to the merits of Ms Foundas' appeal and the issue of stultification, it is convenient first to deal with Ms Foundas' third and fourth submissions that I have identified in [39] above.
2. As to third submission, I note that there is no express ground of appeal challenging Rees J's decision not to make a third referral for pro bono assistance (see [18] above). However, read broadly, grounds 3 and 7 (see [32] above) might be thought to raise complaints about procedural fairness. To the extent complaints of this character are sought to be raised, on the material before me they have no apparent prospect of success.
3. A party does not have a right to legal representation in civil litigation. No appeal is brought against her Honour's decision not to make a third referral and, with respect, as a discretionary decision I am, in any event, unable to identify any arguable House v R error in her Honour's approach to the question. Insofar as the conduct of the hearing is concerned, it appears from the decisions that Ms Foundas was able to call her own evidence (including Ms Cox), cross-examine both her brother and Ms Holt, and was given all proper opportunity to make such submissions as she wished.
4. Beyond the inevitable disadvantage of her being an unrepresented lay person, there is no suggestion that Ms Foundas' ability to present her case was inappropriately curtailed by Rees J in any way. What might be read as Ms Foundas' procedural complaints are really complaints that her evidence and arguments were not accepted, as opposed to her somehow not having been able to make them.
5. As to the fourth submission, this is unsustainable in the face of her Honour's observations about Ms Cox which I have reproduced in [21] above.
6. Turning to prospects of success and stultification, I have been acutely conscious of the seriousness of allowing a step which, if taken, will destroy the subject matter of Ms Foundas' appeal. However, I have no hesitation in concluding that is not a decisive factor in Ms Foundas' favour in this case for the following reasons.
7. First, reading them as generously as I possibly can, Ms Foundas' grounds of appeal do not raise a serious question to be tried in the sense of arguable grounds. They are either irrelevant or amount to no more than vociferous disagreement with the outcome without advancing any credible, legally cognisable reason why the outcome is in error.
8. Her Honour's decision rests on her assessment of the witnesses in circumstances where her Honour had the advantage of seeing them and has given cogent reasons for her conclusions as to credit. Otherwise, her decision depends on the interaction of such contemporaneous evidence as there was, coupled with inconsistencies and lacunae in Ms Foundas' own conduct and evidence that had no satisfactory explanation. In my respectful view, nothing in Ms Foundas' grounds of appeal remotely approaches raising a serious question to be tried, in the sense of being arguable, against the decisions.
9. I accept Mr Barlin's submission that Ms Foundas' notice of appeal meets this description set out by Campbell JA in Vaughan v Dawson [2008] NSWCA 169 in relation to the notice of appeal his Honour was then considering: 23 It is accepted by counsel for the applicant that the case below was one where there were significant credit issues to decide. The various ultimate findings of the judge that are challenged are all ones that would have been affected by his view concerning the credibility of the witnesses. No legal error, in the sense of an application of the wrong principle, rather than the alleged failure to give sufficient weight to the principle in Watson v Foxman, is alleged. Success in such an appeal requires the appellant to show that the finding is contrary to incontrovertibly established facts or uncontested testimony or that the trial judge has failed to use or has palpably misused his advantage or (in rare cases) that the finding is glaringly improbable or contrary to compelling inferences. Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29]; Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479. 24 I invited Ms Rogers, counsel for the applicant, to explain how the Fox v Percy, and Devries tests would be met in the present case. She is not briefed on the appeal, and was unable to identify anything that could be submitted would amount to incontrovertibly established facts or uncontested testimony that were inconsistent with the judge's findings, or any way in which the trial judge had failed to use or had palpably misused his advantage, or to point to any way in which it would be argued that the finding was glaringly improbable or contrary to compelling inferences. One is left with a notice of appeal that contends, simply, that the judge reached the wrong conclusion on matters of disputed fact that were influenced by the views he took concerning the credibility of witnesses. In these circumstances, given what needs to be established for an appeal against credit-based factual findings to succeed, I am not persuaded that the applicant has shown that there is an arguable ground of appeal. Merely filing a document that alleges that the judge came to the wrong conclusion is insufficient to discharge that onus.
10. A party whose case is weak may still be able to rely on the balance of convenience. Ms Foundas' case on appeal is less than weak. But even if there was just a weakly arguable case, the Court has concluded that the balance of convenience favours the Trustees and Mr Arambatzis.
11. For Ms Foundas it can be said that her appeal will be stultified and she will lose her place of residence. Those are very serious consequences.
12. However, for the other parties, granting a stay will keep them out of orders which have been extant in one form or another for several years in circumstances where Ms Foundas has already had multiple, almost completely unsuccessful hearings in the Court of Appeal; has made an attempt to delay execution further by deploying a document which has been found to be a forgery in circumstances where she must have known it to be such; and, has not even weakly arguable grounds for appeal.
13. I should record that I raised with Mr Barlin, on the issue of the balance of convenience, whether I should take into account that I would have required an undertaking as to damages as a condition of any stay in circumstances where Ms Foundas did have an entitlement to half the net proceeds of sale of the property. Two matters flowed from that suggestion.
14. First, while there was no evidence as to the current value of the property or the Trustees' fees, given the long history of the matter the latter were likely to be significant. Furthermore, Ms Foundas was already obliged to pay $103,704.49 with interest (see [10] above), yet to be quantified occupation rent (see [10] above), other unquantified costs orders, and Rees J's gross sum costs order of $210,000 (see [24] above) all of which would come from her net share of the proceeds. I accept Mr Barlin's submission that those matters taken together mean the Court could not have any degree of comfort that any undertaking as to damages could be supported by whatever the balance (if any) may be of Ms Foundas' net share of the proceeds of sale. Ms Foundas told me her only source of income was the carer's pension she received in respect of Mr Foundas. She did not suggest she had any significant assets other than her interest in the property.
15. Second, Mr Barlin suggested that to be of any relevance on the balance of convenience given the weakness of Ms Foundas' prospects on appeal, an order requiring her to pay into Court even half the fixed amounts she already owes (resulting in a sum of about $150,000) would be warranted. I did not pursue this possibility any further, because Ms Foundas indicated she did not have the funds to satisfy such a condition of any stay.
16. I explained to Ms Foundas that, as the chronology in [13] above demonstrates, execution of a writ is not instantaneous and she will have some time to seek alternative accommodation or to approach the Court of Appeal in respect of this decision. She was unable to give me a reasoned answer as to how long she would require to secure alternative accommodation. Nevertheless, given the serious consequences for Ms Foundas of the view to which I have come, I will order the writ to lie in the registry for four weeks for the parties to come to some agreement (if possible) about when she will be required to vacate the property or for her to approach the Court of Appeal.

Costs

1. I have heard the parties as to costs. Mr Arambatzis and the Trustees sought their costs of the two motions on the basis that costs should follow the event. Ms Foundas did not wish to make any submissions on the question of costs. I will apply the usual rule that costs should follow the event so that Ms Foundas will be ordered to pay the other parties' costs of the two motions.
2. Mr Barlin has foreshadowed that his client wishes to make an application for those costs to be assessed on a gross sum basis and I will directions to enable that application to be heard. These directions extend to the Trustees if the Trustees decide in the meantime that they also wish to bring an application for their costs to be assessed on a gross sum basis.

Conclusion

1. The orders of the Court are: 1. Grants leave for the issue forthwith of the writ of possession referred to in Order 2. 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. 3. Directs that the writ referred to in Order 2 lie in the Registry up to and including 13 May 2024. 4. The defendant Cassiani Foundas is to pay the other parties' costs of both the Trustees' notice of motion filed 19 January 2024 and the defendant's notice of motion filed on 5 April 2024, those costs as agreed or assessed to be payable in the first instance from the defendant's share of the net proceeds of sale of the land referred to in Order 2. 5. Any evidence and submissions by Mr Arambatzis and the Trustees in support of an application for a gross sum costs order is to be served and filed by email to the Asssociate to Kunc J on or before 29 April 2024. 6. Any evidence and submissions in opposition to a gross sum costs order are to be served and filed by email to the Associate to Kunc J by Ms Foundas on or before 27 May 2024. 7. Any submissions in reply by Mr Arambatzis and the Trustees are to be served and filed by email to the Associate to Kunc J on or before 10 June 2024. 8. Notes that unless any party requests it in their submissions or the Court otherwise requires, any application for a gross sum costs order will be dealt with on the papers. 9. Directs these orders be entered forthwith.

Amendments 17 April 2024 - Anonymise address DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2024