Australia, Nov. 30 -- New South Wales Land and Environment Court issued text of the following judgement on Nov. 29:

1. 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.

2. 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.

3. 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").

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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".

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1937512ae368bf15cb787cf1)

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