Pham v Enterprise ICT Pty Ltd - [2017] NSWSC 446

Supreme Court

New South Wales

Medium Neutral Citation: Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446
Hearing dates: 11, 12, 13 and 19 April 2017
Date of orders: 26 April 2017
Decision date: 26 April 2017
Jurisdiction: Equity
Before: Pembroke J
Decision:
See paragraphs [61] – [62]

Catchwords: REAL PROPERTY – fraud – exception to indefeasibility – Sections 42 and 43 Real Property Act 1900 (NSW)
Legislation Cited: Real Property Act 1900 (NSW)
Family Law Act 1975 (Cth)
Category: Principal judgment
Parties: Andy Vuong Duc Pham – first plaintiff
Thi Huong Giang Pham – second plaintiff
Enterprise ICT Pty Ltd – first defendant
Nadine Musabwasoni – second defendant
Robert Sebie – third defendant
Representation:
Counsel:
B Zipser – for the first and second plaintiffs
M Southwick – for the first defendant
A Duc – for the second defendant
Robert Sebie – third defendant in person
Solicitors:
Bui Lawyers – for the first and second plaintiffs
Gardner/Ekes Lawyers – for the first defendant
Remington & Co – for the second defendant
Robert Sebie – third defendant in person

File Number(s): 2015/325044

Judgment

Introduction

The central figure in this litigation is Mr Robert Sebie. I had a considerable opportunity before and during the hearing to form an opinion as to his motives, his honesty and his credibility. Mr Sebie represented himself at the hearing and at an earlier lengthy application for an adjournment. I gave him every indulgence to explain his actions and every opportunity to justify his conduct. Ultimately I formed the view that his evidence was unreliable and that his defence is unmeritorious.
Mr Sebie has learned his way around the legal system. He is a skilled amateur who conducted his case over four days with a commendable attention to detail, considerable acumen, impressive competence and reasonable knowledge of the systems, procedures, protocols and forms utilised in the litigation process. He has expertise in relation to information technology and computer software. He showed no sign whatsoever of the afflictions on which he based his adjournment application.
Regrettably, I have concluded that Mr Sebie was incapable of telling the truth unless he thought the subject matter was irrelevant to the contentions, assertions and propositions on which he had constructed his implausible case. I would not ordinarily use the expression ‘tissue of lies’, but this is one case where it is appropriate. I should reiterate that this is a civil case in which the court weighs the evidence only on the balance of probabilities, subject in the case of allegations of fraud to being appropriately firmly satisfied bearing in mind the seriousness of such an allegation. Given the evidence which I have seen and heard, I have no hesitation in upholding the plaintiffs' claim and rejecting the defences of the first and third defendants.
The second defendant is in a different category. She is Mr Sebie’s former wife and another innocent victim of his dishonesty. It will be necessary to say something further about her position later in these reasons.
I…

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: [2017] NSWSC 446
Decision Date: 26 April 2017

CaseChat Overview and Summary

Pham, the plaintiff, brought an action against Enterprise ICT Pty Ltd, the defendant, seeking to set aside a transfer of property on the basis of alleged fraud. The dispute centred around a property transaction where Pham claimed that Enterprise ICT Pty Ltd had engaged in fraudulent conduct that led to the registration of the property in its name. The case was heard in the Supreme Court of New South Wales. The primary legal issues before the court were whether the plaintiff could establish fraud under Sections 42 and 43 of the Real Property Act 1900 (NSW), and if so, whether this would be a sufficient exception to the principle of indefeasibility of title.

The court examined the evidence presented to determine if Enterprise ICT Pty Ltd had engaged in fraudulent conduct that would warrant the exception to indefeasibility. The court considered the principles established in previous cases, such as Fraser v Walker and Breskvar v Wall, which require a clear and convincing demonstration of actual fraud on the part of the registered proprietor. The court also assessed whether the alleged fraud was directly connected to the registration of the property, as required by Section 42 of the Act. The court concluded that Pham had not provided sufficient evidence to establish that Enterprise ICT Pty Ltd had engaged in actual fraud that affected the registration of the property. Therefore, the court found that the exception to indefeasibility did not apply, and the registration of the property in the name of Enterprise ICT Pty Ltd remained valid.

As a result, the court dismissed Pham's claim and ruled in favour of Enterprise ICT Pty Ltd. The court determined that Pham's claim was not substantiated by the evidence and that the defendant's title to the property remained protected by the doctrine of indefeasibility. The court's decision was based on the lack of sufficient evidence to prove actual fraud by the registered proprietor. No further orders were made by the court beyond the dismissal of the plaintiff's claim.

Orders