Enterprise ICT Pty Ltd v Pham (No 1)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Enterprise ICT Pty Ltd v Pham (No 1) [2018] NSWCA 180

Hearing dates:

1 August 2018

Date of orders:

01 August 2018

Decision date:

15 August 2018

Before:

Basten JA; Meagher JA; Emmett AJA

Decision:

1.   Grant leave for Mr Robert Sebie to appear for the first appellant.
2.   Join Nadine Musabwasoni who was the second defendant below as a respondent to the appeal.
3.   Grant leave to the first and second respondents to file in Court an affidavit of John Bui dated 31 July 2018.
4.   With respect to the orders sought in the notice of motion first filed on 24 July 2018:
(1)   Dismiss the application to adjourn the hearing of the appeal.
(2)   Dismiss the application to add the judgment of Slattery J to these proceedings.
(3)   Otherwise adjourn the application with respect to fresh evidence to the hearing of the appeal.
(4)   Reserve reasons for those orders, those reasons to be provided with the final judgment.
(5)   Order that costs of the application are the respondent’s costs in the appeal.

Catchwords:

CIVIL PROCEDURE – adjournment – hearing of appeal – appellants’ application – relevant factors – application made week before hearing – claimed ill health and competing responsibilities – appellant without legal representation – adjournment sought to brief counsel – whether means to pay for representation recently acquired – prejudice to respondents

Legislation Cited:

Civil Procedure Act 2005 (NSW); Pt 6

Cases Cited:

Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 7) [2018] NSWSC 1063

Category:

Procedural and other rulings

Parties:

Enterprise ICT Pty Ltd (First Appellant)
Robert Sebie (Second Appellant)
Andy Voung Duc Pham (First Respondent)
Thi Huong Giang Pham (Second Respondent)
Nadine Musabwasoni (Third Respondent)

Representation:

R Sebie (self-represented and with leave for First Appellant)

 

Counsel:
B Zipser (First and Second Respondents)
A Duc (Third Respondent)

  Solicitors:
Bui Lawyers (First and Second Respondents)
Remington & Co (Third Respondent)

File Number(s):

2017/172378

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2017] NSWSC 583; [2017] NSWSC 446

Date of Decision:

15 May 2017; 26 April 2017

Before:

Pembroke J

File Number(s):

2015/325044

Judgment

1. THE COURT: On 26 April 2017 Pembroke J delivered a judgment upholding the claims of two purchasers under a contract of sale for specific performance of the contract. The purchasers were the first and second respondents, Andy Voung Duc Pham and Thi Huong Giang Pham. The vendor of the property, Robert Sebie, had, after entering into the contract for sale of land, transferred the property to a company, Enterprise ICT Pty Ltd (“Enterprise”). Pembroke J held that the transfer was fraudulent. On 15 May 2017 Pembroke J made orders made orders requiring the correction of the Register to record Robert Sebie as registered proprietor and that he transfer that title to the purchasers.

2. On 15 August 2017, Robert Sebie and Enterprise filed a notice of appeal. On 7 September 2017 they filed an amended…