Foundas v Arambatzis (No. 2)

THE COURT: Judgment on the appeal in this matter was delivered on 24 March 2020. One of the consequential orders (order 6) arising from the order dismissing the appeal from the appointment of trustees for sale of the Magee Street property was that the appellant vacate the property within 28 days.

By an email forwarded to the judges of the Court on 25 March 2020 the appellant, in substance, seeks the variation or setting aside of that order and the related order authorising the trustees for sale to obtain a writ for possession forthwith, such writ not to be executed before the expiry of 28 days (order 7).

Pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) the orders in question are capable of being set aside or varied if notice of motion were filed within 14 days after the orders were entered. The orders were entered on 24 March 2020.

The Court can dispense with the requirement that the application to set aside or vary the judgment or order be made by way of notice of motion (Kable v State of New South Wales (No. 2) [2012] NSWCA 361 at [15]; Aukuso v Tahan (No. 2) [2018] NSWCA 302 at [46]-[47], [49]; Boateng v Dharamdas [2019] NSWCA 233 at [23]-[24], [72]-[73]).

The appellant’s email of 25 March 2020 is a sufficient notification of the relief that she seeks. The requirement for her to file and serve a notice of motion should be dispensed with.

In her email the appellant refers, amongst other things, to the impact of the COVID-19 pandemic and says that real estate auctions and house inspections are closed until further notice. If that be so, it may be that the trustees for sale would not seek to obtain vacant possession of the property.

The appellant also states that she is under orders from the Australian government to stay at home, and that in the current circumstances she would be unable to find alternative accommodation.

If the second respondents consent to an indefinite extension of orders 6 and 7 until further order such an order could be made in chambers without the necessity for evidence by way of affidavit. If the extension is opposed by the trustees and the parties are unable to reach an agreement in relation to the appellant’s vacating the property, then directions will be given for the filing and service of affidavits by the appellant and the second respondents and the provision of written submissions.

It is not clear from the terms of the email whether the appellant is seeking the variation or setting aside of order 8 made on 24 March 2020. (Order 8 authorised the trustees to charge an occupation fee from 29 October 2018 to the date of her delivering vacant possession.) If she is, then the appellant should provide written submissions in support of that application within seven days and the first and second respondents should provide written submissions on that question within a further seven days and the appellant should provide any written submissions in reply within a further seven days.

For these reasons the Court orders:

As noted above, if the parties are unable to reach agreement in relation to appropriate orders to be made in relation to the appellant’s vacation of the property, further directions will be given for the provision of affidavits and submissions on that question. The application will be determined on the papers.