Enterprise ICT Pty Ltd v Pham - [2017] NSWCA 236

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Enterprise ICT Pty Ltd v Pham [2017] NSWCA 236
Hearing dates: 13 September 2017
Date of orders: 15 September 2017
Decision date: 15 September 2017
Before: Macfarlan JA
Decision:
(1) The applicant’s notice of motion is dismissed.
(2) The applicant is to pay the respondents’ costs of the motion.
(3) Make no order as to the costs of Enterprise ICT Pty Ltd.

Catchwords: APPEAL – Court of Appeal – Stay of Proceedings – appeal not reasonably arguable – balance of convenience favours the respondents – notice of motion dismissed
Legislation Cited: Uniform Civil Procedure Rules 2005, r 51.44
Cases Cited: Lawrence v Gunner [2015] NSWCA 322
Category: Procedural and other rulings
Parties: Enterprise ICT Pty Ltd (First Appellant)
Robert Sebie (Second Appellant)
Andy Vuong Duc Pham (First Respondent)
Thi Huong Giang Pham (Second Respondent)
Representation:
Counsel:
R Killalea (Solicitor) (First Appellant)
Second Appellant (Self-represented)
B Zipser (Respondents)
Solicitors:
Kazi & Associates (First Appellant)
Second Appellant (Self-represented)
Andy Pham Lawyers (Respondents)

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

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2017] NSWSC 446

Date of Decision:

Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446; Pham v Enterprise ICT Pty Ltd (No 2) [2017] NSWSC 583

Before:

Pembroke J

File Number(s):

SC 2015/325044

Judgment

HIS HONOUR: This is an application by Mr Robert Sebie (“the applicant”) for a stay of orders made by Pembroke J pursuant to his judgments in Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446 and Pham v Enterprise ICT Pty Ltd (No 2) [2017] NSWSC 583. The applicant was unrepresented both before this Court and at the hearing before Pembroke J. He had legal representation until shortly before the commencement of the principal hearing before his Honour.
The application in this Court was supported by Enterprise ICT Pty Ltd (“EICT”) for whom Mr R Killalea, solicitor, appeared. EICT was a plaintiff in the court below and, with the applicant, is an appellant in this Court. Argument in support of the applicant’s motion for a stay was largely presented by Mr Killalea.
The proceedings at first instance related to a property at Chiswick purchased by the applicant in 2005. On 29 October 2014 he exchanged contracts for the sale of the property to the respondents, Mr and Mrs Pham. The applicant did not complete the contract. As a result, the respondents commenced proceedings in the Equity Division and lodged a caveat on the title to the property.
After a four day hearing, the primary judge found that the applicant and his brother Richard Sebie dishonestly took steps to have the respondents’ caveat removed and to transfer the property to ENA Developments Pty Ltd (“ENAD”), and thence to EICT. These steps were taken without the respondents’ knowledge.
The applicant and EICT sought to establish EICT’s entitlement to the property by alleging that in 2005 the applicant had obtained a loan from ENAD that was secured on the property,…

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.

Continue reading Enterprise ICT Pty Ltd v Pham

Details

AGLC: Enterprise ICT Pty Ltd v Pham [2017] NSWCA 236
Case: [2017] NSWCA 236
Decision Date: 15 September 2017

CaseChat Overview and Summary

Enterprise ICT Pty Ltd (the applicant) sought a stay of proceedings pending an appeal against a decision of the primary judge. The respondents were the parties against whom the appeal was brought. The application for a stay was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the applicant had demonstrated that its proposed appeal had a reasonably arguable prospect of success, and if so, whether the balance of convenience favoured granting a stay of proceedings.

Macfarlan JA considered the grounds of appeal and concluded that they were not reasonably arguable. His Honour found that the applicant had failed to establish a sufficient likelihood of success on appeal. Consequently, the Court determined that the balance of convenience did not favour granting a stay, as there was no compelling reason to interfere with the primary judge's orders.

Accordingly, the applicant's notice of motion seeking a stay of proceedings was dismissed, and the applicant was ordered to pay the respondents' costs of the motion. No order was made as to the costs of Enterprise ICT Pty Ltd.

Orders

Orders of the court

(1) The applicant’s notice of motion is dismissed.

(2) The applicant is to pay the respondents’ costs of the motion.

(3) Make no order as to the costs of Enterprise ICT Pty Ltd.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Enterprise ICT Pty Ltd v Pham [2017] NSWCA 236
Hearing dates:	13 September 2017
Date of orders:	15 September 2017
Decision date:	15 September 2017
Before:	Macfarlan JA
Decision:	(1) The applicant’s notice of motion is dismissed. (2) The applicant is to pay the respondents’ costs of the motion. (3) Make no order as to the costs of Enterprise ICT Pty Ltd.
Catchwords:	APPEAL – Court of Appeal – Stay of Proceedings – appeal not reasonably arguable – balance of convenience favours the respondents – notice of motion dismissed
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 51.44
Cases Cited:	Lawrence v Gunner [2015] NSWCA 322
Category:	Procedural and other rulings
Parties:	Enterprise ICT Pty Ltd (First Appellant) Robert Sebie (Second Appellant) Andy Vuong Duc Pham (First Respondent) Thi Huong Giang Pham (Second Respondent)
Representation:	Counsel: R Killalea (Solicitor) (First Appellant) Second Appellant (Self-represented) B Zipser (Respondents) Solicitors: Kazi & Associates (First Appellant) Second Appellant (Self-represented) Andy Pham Lawyers (Respondents)
File Number(s):	CA 2017/172378
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2017] NSWSC 446 Date of Decision: Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446; Pham v Enterprise ICT Pty Ltd (No 2) [2017] NSWSC 583 Before: Pembroke J File Number(s): SC 2015/325044