Enterprise ICT Pty Ltd v Andy Vuong Duc Pham - [2018] NSWCA 74

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Enterprise ICT Pty Ltd v Andy Vuong Duc Pham [2018] NSWCA 74
Hearing dates: 9 April 2018
Date of orders: 09 April 2018
Decision date: 12 April 2018
Before: Simpson AJA
Decision:
1. Decline application for adjournment of these proceedings.

2. Decline to order that the appeal be dismissed for want of due despatch.

3. Decline to make orders staying the orders of Slattery J dated 29 March 2018.
4. Reserve costs.
Catchwords:
CIVIL PROCEDURE – judgments and orders – application for stay of judgment pending appeal – whether appeal has any prospect of success
CIVIL PROCEDURE – judgments and orders – application for stay of judgment pending appeal – whether stay should be granted on the balance of convenience
Category: Procedural and other rulings
Parties: Enterprise ICT Pty Ltd (1st Appellant)
Robert Sebie (2nd Appellant)
Andy Vuong Duc Pham (Respondent)
Thi Huong Giang Pham (Respondent)
Representation:
Counsel:
C Muir (Appellant)
R Sebie (self represented)
B Zipser (Respondents)
Solicitors:
Oliveri Lawyers (Appellants)
Robert Sebie – self represented
Bui Lawyers (Respondents)

File Number(s): CA 2017/172378
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity

Citation:

Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446
Pham v Enterprise ICT Pty Ltd [2017] NSWSC 583
Enterprise ICT Pty Ltd & Sebie v Pham [2017] NSWCA 236
Pham v Enterprise ICT Pty Ltd [2017] NSWSC 1509
Pham v Enterprise ICT Pty Ltd [2018] NSWSC 22
Pham v Enterprise ICT Pty Ltd [2018] NSWSC 381

Date of Decision:

26 April 2017; 15 May 2017; (Pembroke J)
15 September 2017 (Macfarlan JA)
8 November 2017; 30 January 2018; 29 March 2018; (Slattery J)

Before:

Macfarlan JAPembroke JSlattery J

File Number(s):

SC 2015/325044

Judgment

SIMPSON AJA: These proceedings came before me as a matter of urgency by way of referral from the Registrar’s list. One consequence of the urgency is that the issues put before me for determination were not defined by any pleadings, notice of motion, or other initiating process. Another is that the evidence upon which reliance was placed was produced in a somewhat haphazard fashion. In some respects, I have had to rely on information provided to me from the bar table. A third consequence is that these reasons are necessarily abbreviated.
The proceedings were further complicated by the fact that counsel who appeared for two of the appellants was briefed only for the purpose of seeking adjournment of the present proceedings, and not to argue any matter of substance. He also asked that the hearing (which commenced at 10.15 am) be delayed until 2 pm so that another (apparently more experienced, counsel, who was more familiar with the issues) could appear. When I ultimately acceded to that application and stood the matter down to 2.15 pm, I was told that that counsel was still unavailable.
The proceedings arise out of a number of judgments of the Equity Division, specifically:

Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446 (26…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWCA 74
Decision Date: 12 April 2018

CaseChat Overview and Summary

Enterprise ICT Pty Ltd (the applicant) sought a stay of judgment pending an appeal against orders made by Slattery J on 29 March 2018. The respondent was Andy Vuong Duc Pham. The application was heard by Simpson AJA in the Court of Appeal of the Supreme Court of New South Wales.

The primary legal issues before the Court of Appeal were whether the appeal had any reasonable prospect of success, and whether a stay of the judgment should be granted on the balance of convenience. The applicant also sought an adjournment of the proceedings and argued that the appeal should not be dismissed for want of due despatch.

Simpson AJA considered the prospects of success of the appeal, noting that the grounds of appeal were not clearly articulated and appeared to lack substance. The court found that the applicant had not demonstrated that the appeal had any reasonable prospect of success. Furthermore, on the balance of convenience, the court determined that a stay of the judgment was not warranted. The court also declined to grant an adjournment or dismiss the appeal for want of due despatch.

Consequently, the Court of Appeal declined the application for an adjournment, declined to order that the appeal be dismissed for want of due despatch, and declined to make orders staying the orders of Slattery J dated 29 March 2018. The costs of the application were reserved.

Orders

Orders of the court

1. Decline application for adjournment of these proceedings.

2. Decline to order that the appeal be dismissed for want of due despatch.

3. Decline to make orders staying the orders of Slattery J dated 29 March 2018.

4. Reserve costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Enterprise ICT Pty Ltd v Andy Vuong Duc Pham [2018] NSWCA 74
Hearing dates:	9 April 2018
Date of orders:	09 April 2018
Decision date:	12 April 2018
Before:	Simpson AJA
Decision:	1. Decline application for adjournment of these proceedings. 2. Decline to order that the appeal be dismissed for want of due despatch. 3. Decline to make orders staying the orders of Slattery J dated 29 March 2018. 4. Reserve costs.
Catchwords:	CIVIL PROCEDURE – judgments and orders – application for stay of judgment pending appeal – whether appeal has any prospect of success CIVIL PROCEDURE – judgments and orders – application for stay of judgment pending appeal – whether stay should be granted on the balance of convenience
Category:	Procedural and other rulings
Parties:	Enterprise ICT Pty Ltd (1st Appellant) Robert Sebie (2nd Appellant) Andy Vuong Duc Pham (Respondent) Thi Huong Giang Pham (Respondent)
Representation:	Counsel: C Muir (Appellant) R Sebie (self represented) B Zipser (Respondents) Solicitors: Oliveri Lawyers (Appellants) Robert Sebie – self represented Bui Lawyers (Respondents)
File Number(s):	CA 2017/172378
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Citation: Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446 Pham v Enterprise ICT Pty Ltd [2017] NSWSC 583 Enterprise ICT Pty Ltd & Sebie v Pham [2017] NSWCA 236 Pham v Enterprise ICT Pty Ltd [2017] NSWSC 1509 Pham v Enterprise ICT Pty Ltd [2018] NSWSC 22 Pham v Enterprise ICT Pty Ltd [2018] NSWSC 381 Date of Decision: 26 April 2017; 15 May 2017; (Pembroke J) 15 September 2017 (Macfarlan JA) 8 November 2017; 30 January 2018; 29 March 2018; (Slattery J) Before: Macfarlan JAPembroke JSlattery J File Number(s): SC 2015/325044