Enterprise ICT Pty Ltd v Pham (No 2) - [2018] NSWCA 185

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185
Hearing dates: 1 August 2018
Date of orders: 15 August 2018
Decision date: 15 August 2018
Before: Basten JA; Meagher JA; Emmett AJA
Decision:
1. Dismiss paragraph 2 of the appellants’ notice of motion dated 24 July 2018.
2. Dismiss the amended notice of appeal.
3. Order the appellants pay the first and second respondents’ and the third respondent’s costs of the appeal, including the notice of motion.

Catchwords:
LAND LAW – Torrens title – exceptions to indefeasibility – fraud – where purchasers seek specific performance of contract for sale of land – where vendor then transfers land to company of which his brother was sole director purportedly in accordance with consent judgment obtained by another, related company upon non-repayment of alleged secured loan – whether secured loan existed – whether fraud brought home to transferee company
CIVIL PROCEDURE – Court of Appeal – application to receive additional evidence – where expert reports available at or could have obtained before trial
Legislation Cited: Duties Act 1997 (NSW), s 13
Real Property Act 1900 (NSW), ss 42, 74J
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), r 35.2
Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155
Assets Co v Mere Roihi [1905] AC 176
Chesterfield v Janssen (1751) 2 Ves Sen 125; 28 ER 82
Collins v Godefroy (1831) 1 B & Ad 951; 109 ER 1040
Hamilton v Whitehead (1988) 166 CLR 121
Sharp v Rangott (2008) 167 FCR 225
Tesco Ltd v Nattrass [1972] AC 153
Tjiong v Tjiong [2012] NSWCA 201
Waimiha Sawmilling Co v Waione Timber Co [1926] AC 101
Texts Cited: JD Heydon, Cross on Evidence, (11th ed 2017, LexisNexis)
Category: Principal judgment
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

Headnote

[This headnote is not to be read as part of the decision]

The second appellant (the vendor) agreed to sell a residential property to the first and second respondents (the purchasers). He failed to complete, purportedly because he was unable to discharge a loan given in 2005 by a company owned and controlled by members of his immediate family (the lending company). In response to requests for evidence supporting the loan’s existence, he sent the purchasers a document dated 5 September 2005, entitled “Secured Loan Agreement” and apparently executed by himself and the lending company.…

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 185
Decision Date: 15 August 2018

CaseChat Overview and Summary

Enterprise ICT Pty Ltd and others (appellants) appealed a decision concerning a contract for the sale of land. The purchasers sought specific performance of this contract. The vendor subsequently transferred the land to a company, Enterprise ICT Pty Ltd, purportedly under a consent judgment obtained by a related company, following the alleged non-repayment of a secured loan. The purchasers contended that the secured loan did not exist and that the transfer to Enterprise ICT Pty Ltd was fraudulent. The appeal was heard by Basten and Meagher JJA and Emmett AJA.

The primary legal issues before the Court of Appeal were whether a secured loan, upon which the transfer of the land was based, actually existed, and if not, whether the fraud in the transaction could be attributed to the transferee company, Enterprise ICT Pty Ltd. The court also considered an application by the appellants to adduce additional evidence, specifically expert reports that were available or could have been obtained before the trial.

The court dismissed the appellants' application to adduce additional evidence, finding that such evidence was available or could have been obtained prior to the trial. Consequently, the amended notice of appeal was also dismissed. The court found that the fraud alleged in the transaction could not be brought home to the transferee company. The appellants were ordered to pay the costs of the first and second respondents, and the third respondent, in relation to both the appeal and the notice of motion.

Orders

Orders of the court

1. Dismiss paragraph 2 of the appellants’ notice of motion dated 24 July 2018.

2. Dismiss the amended notice of appeal.

3. Order the appellants pay the first and second respondents’ and the third respondent’s costs of the appeal, including the notice of motion.

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 Pham (No 2) [2018] NSWCA 185
Hearing dates:	1 August 2018
Date of orders:	15 August 2018
Decision date:	15 August 2018
Before:	Basten JA; Meagher JA; Emmett AJA
Decision:	1. Dismiss paragraph 2 of the appellants’ notice of motion dated 24 July 2018. 2. Dismiss the amended notice of appeal. 3. Order the appellants pay the first and second respondents’ and the third respondent’s costs of the appeal, including the notice of motion.
Catchwords:	LAND LAW – Torrens title – exceptions to indefeasibility – fraud – where purchasers seek specific performance of contract for sale of land – where vendor then transfers land to company of which his brother was sole director purportedly in accordance with consent judgment obtained by another, related company upon non-repayment of alleged secured loan – whether secured loan existed – whether fraud brought home to transferee company CIVIL PROCEDURE – Court of Appeal – application to receive additional evidence – where expert reports available at or could have obtained before trial
Legislation Cited:	Duties Act 1997 (NSW), s 13 Real Property Act 1900 (NSW), ss 42, 74J Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 35.2
Cases Cited:	Akins v National Australia Bank (1994) 34 NSWLR 155 Assets Co v Mere Roihi [1905] AC 176 Chesterfield v Janssen (1751) 2 Ves Sen 125; 28 ER 82 Collins v Godefroy (1831) 1 B & Ad 951; 109 ER 1040 Hamilton v Whitehead (1988) 166 CLR 121 Sharp v Rangott (2008) 167 FCR 225 Tesco Ltd v Nattrass [1972] AC 153 Tjiong v Tjiong [2012] NSWCA 201 Waimiha Sawmilling Co v Waione Timber Co [1926] AC 101
Texts Cited:	JD Heydon, Cross on Evidence, (11th ed 2017, LexisNexis)
Category:	Principal judgment
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