Enterprise ICT Pty Ltd v Pham (No 2)

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.