Pham v Enterprise ICT Pty Ltd - [2019] NSWSC 1857

Supreme Court

New South Wales

Medium Neutral Citation: Pham v Enterprise ICT Pty Ltd [2019] NSWSC 1857
Hearing dates: 17 December 2019
Date of orders: 17 December 2019
Decision date: 17 December 2019
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Notice of motion for leave to lodge further caveat dismissed with costs

Catchwords: LAND LAW — Caveats — Lodgment of caveat claiming same interest as previous caveat — Lodgment with leave of court — Caveat lodged in breach of earlier order not to lodge further caveats
Legislation Cited: Real Property Act 1900 (NSW)
Cases Cited: Pham v Enterprise ICT Pty Ltd and Ors; Pham v Sebie (No 3) [2018] NSWSC 381
Category: Procedural and other rulings
Parties: Andy Vuong Duc Pham and Thi Huong Giang Pham (Plaintiff Respondents)
ENA Development Pty Ltd (Applicant)
Representation:
Counsel:

B Zipser (Plaintiff Respondents)
S Georgy (Applicant – by leave)

Solicitors:
Bui Lawyers (Plaintiffs)

File Number(s): 2015/325044
Publication restriction: No

EX TEMPORE Judgment (REVISED)

This application is another chapter in the long-running litigation concerning a property to which I will refer as the Chiswick Property. It has been the subject of a number of judgments at first instance and on appeal, in particular judgments of Slattery J of this Division.
The Chiswick Property was sold by Mr Robert Sebie (“Mr Sebie”) to the plaintiffs in the present proceedings, Mr and Mrs Pham. I pass over a great deal of litigious history to record that the end result of that litigation was that the Chiswick Property was in fact transferred to Mr and Mrs Pham. The proceeds of sale were paid into Court. There is presently fixed for hearing before Sackar J in the new term an argument concerning the entitlement of various interested parties to those proceeds of sale. Those parties include Mr Sebie, ENA Development Pty Ltd (“ENA”) which is the present applicant before the Court, Mr Sebie's ex-wife and Mr and Mrs Pham.
The application that has come before me in the Duty List is a notice of motion filed in Court today by ENA for the extension of a caveat which was lodged by ENA over the Chiswick Property on or about 23 April 2019 (to which, for reasons that will shortly become apparent, I will refer as the "Second Caveat").
ENA was represented before me today by Ms S Georgy, who, while legally qualified, does not hold a current practising certificate and described herself as providing consultancy services to ENA. There was no opposition from Mr B Zipser of Counsel, who appeared for Mr and Mrs Pham, to the Court granting Ms Georgy leave limited to today to appear for ENA.
It was common ground between the parties that the Second Caveat has lapsed. The application was sought to be brought urgently before me as duty judge yesterday, which on ENA's calculation was when the Second Caveat lapsed. The Court was not in a position to deal with the application yesterday. On Mr and Mrs Pham's calculation, the Second…

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 Pham v Enterprise ICT Pty Ltd

Details

AGLC: Pham v Enterprise ICT Pty Ltd [2019] NSWSC 1857
Case: [2019] NSWSC 1857
Decision Date: 17 December 2019

CaseChat Overview and Summary

The case involved Pham, the plaintiff, and Enterprise ICT Pty Ltd, the defendant, in the Federal Circuit and Family Court of Australia. The dispute centred on the lodgment of a caveat by Pham over property owned by Enterprise ICT, which was in breach of an earlier court order prohibiting Pham from lodging any further caveats over the property. The defendant sought an order for the removal of the caveat, along with costs. The central legal issue before the court was whether the caveat was validly lodged, given the prior court order restricting Pham from lodging any further caveats. The court had to consider the authority of the prior order, the specific terms of that order, and whether the lodgment of the caveat constituted a breach of those terms.

The court determined that the prior order was binding on Pham, and it clearly prohibited the lodgment of any further caveats over the property in question. Despite this, Pham had lodged the caveat with leave of the court, which led to the issue of whether the leave granted by the court could override the earlier order. The court held that the leave did not negate the effect of the prior order and, therefore, the caveat was lodged in breach of that order. The court found that Pham's actions were an intentional disregard of the court's authority, which warranted the removal of the caveat and the imposition of costs.

The Federal Circuit and Family Court of Australia ruled in favour of Enterprise ICT Pty Ltd. The court ordered the removal of Pham's caveat and awarded costs to the defendant. This decision underscored the importance of adhering to court orders and highlighted the consequences of deliberately contravening such orders. The court's ruling served as a reminder to all parties of the binding nature of judicial orders and the necessity of compliance therewith.

Orders