Enterprise ICT Pty Ltd v Pham (No 1)

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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…

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Details
Case
[2018] NSWCA 180
Decision Date

CaseChat Overview and Summary

Enterprise ICT Pty Ltd and another (appellants) sought an adjournment of an appeal hearing against the respondents, citing ill health and competing responsibilities, and the first appellant's lack of legal representation. The application was made approximately one week before the scheduled hearing. The court was required to determine whether to grant the adjournment, considering factors such as the timing of the application, the appellants' alleged ill health and competing responsibilities, the first appellant's lack of legal representation, and whether the appellants had recently acquired the means to pay for representation. The court also had to consider the prejudice to the respondents.

The Court of Appeal of New South Wales, comprising Basten and Meagher JJA and Emmett AJA, dismissed the application to adjourn the hearing of the appeal. The court's reasoning, which was reserved for the final judgment, focused on the relevant factors for granting an adjournment, including the prejudice to the respondents. The court also dismissed an application to add a judgment of Slattery J to the proceedings, while otherwise adjourning an application concerning fresh evidence to the hearing of the appeal.

Leave was granted for Mr Robert Sebie to appear for the first appellant, and Nadine Musabwasoni was joined as a respondent to the appeal. Leave was also granted for the first and second respondents to file an affidavit of John Bui. The costs of the application were ordered to be the respondents' costs in the appeal.

Orders

Orders of the court

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.

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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