Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 5)

[2018] NSWSC 567

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 5) [2018] NSWSC 567

Hearing dates:

18, 24, 26 April 2018 and 1 May 2018

Date of orders:

01 May 2018

Decision date:

01 May 2018

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Caveator ordered under Real Property Act 1990, s 74MA to withdraw the caveat. Caveator restrained under Real Property Act, s 74O from lodging further caveats. Caveator ordered to pay the plaintiffs’ costs on the indemnity basis.

Catchwords:

REAL PROPERTY - caveats - withdrawal of caveats - Real Property Act, s 74MA - contract for sale of land made in October 2014 - specific performance of the contract for sale ordered in May 2017 - settlement scheduled before the Registrar in Equity on 11 April 2018 - caveat lodged on 4 April 2018 - plaintiffs apply on 18 April 2018 for orders under Real Property Act, s 74MA that the caveator withdraw the caveat and for orders under Real Property Act, s 74O that the caveator be restrained from lodging further caveats - whether the Court should exercise its discretion under Real Property Act, s 74MA to order the withdrawal of the caveat - whether there is a serious question to be tried - what is the balance of convenience - whether an order restraining the caveator from lodging further caveats should be made - whether caveators should pay the plaintiffs’ costs and if so on the indemnity basis.

Legislation Cited:

Civil Procedure Act 2005, ss 56, 98
Real Property Act 1900, ss 74O, 74MA
Uniform Civil Procedure Rules 2005, rr 42.1, 42.2

Cases Cited:

Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506
Circuit Finance Pty Ltd v Crown and Gleeson Securities Pty Ltd (2005) 12 BPR 23,403
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1
Harrison v Schipp (2002) 54 NSWLR 738
Oshlack v Richmond River Council (1998) 193 CLR 72
Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie [2017] NSWSC 1509
Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 2) [2018] NSWSC 22
Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 3) [2018] NSWSC 381
Pham v Mazen Zraika; Pham v Sebie (No. 4) [2018] NSWSC 566
Schibaia v Elias [2013] NSWSC 1485

Category:

Procedural and other rulings

Parties:

Counsel:

In proceedings 2015/325044:

Plaintiffs: B. Zipser

Solicitors

Plaintiffs: John Bui, Bui Lawyers
For Ramzy Sebie: Clay Muir, Oliveri Lawyers
For Registrar General of New South Wales: Anthony Hugh Foster Booth

In proceedings 2015/56505:

Counsel:

Plaintiffs B. Zipser

Solicitors:

Plaintiffs: John Bui, Bui Lawyers
For Registrar General of New South Wales: Anthony Hugh Foster Booth

Representation:

Counsel:

 

In proceedings 2015/325044:

 

Plaintiffs: B. Zipser

 

Solicitors

 

Plaintiffs: John Bui, Bui Lawyers
For Ramzy Sebie: Clay Muir, Oliveri Lawyers
For Registrar General of New South Wales: Anthony Hugh Foster Booth

 

In proceedings 2015/56505:

 

Counsel:

 

Plaintiffs B. Zipser

 

Solicitors:

  Plaintiffs: John Bui, Bui Lawyers
For Registrar General of New South Wales: Anthony Hugh Foster Booth

File Number(s):

(2015/325044); (2015/56505)

Publication restriction:

No

Judgment

1. This is my fifth judgment in these proceedings. My first judgment was given on 8 November 2017: Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie [2017] NSWSC 1509. My second judgment was given on 30 January 2018: Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 2) [2018] NSWSC 22. My third judgment was given on 29 March 2018: Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 3) [2018] NSWSC 381. My fourth judgment was given on 24 April 2018: Pham v Mazen Zraika; Pham v Sebie (No. 4) [2018] NSWSC 566. This judgment should be read together with my four previous judgments.

2. The first and second judgments set out the history of these unusual proceedings from September 2017 until late January 2018. The third judgment deals with the course of the proceedings between late January 2018 and 29 March 2018. The fourth judgment brings the matter up to 24 April 2018, and this judgment extends that to today, 1 May 2018. Because of the complex array of procedural and other applications involving the conveyancing transaction the subject of these proceedings, the Court has taken the course of setting out as much of the procedural history as possible. Events, matters and persons are referred to in this fifth judgment in the same way that they are in each of my previous judgments.

3. Mr Ramzy Sebie, the father of Mr Robert Sebie, lodged caveat no. AN232813 on the title to the Chiswick property on 4 April 2018 (“the Ramzy Sebie caveat”). This was only a few days after the Court made orders on 26 March 2018 and published reasons on 29 March 2018: Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 3) [2018] NSWSC 381 in which the Court struck out the caveat filed by ENA on 18 January 2018. Interestingly, the caveat the subject of the present application (AN232813), though not filed until 4 April 2018, seems to have been kept in reserve by the caveator against the possibility that ENA might be unsuccessful. Mr Ramzy Sebie signed the statutory declaration on the present caveat (AN217443) on 27 January 2018 but it was not filed until 17 April 2018.

4. The Phams’ motion of 18 April 2018 seeks orders pursuant to Real Property Act1900, s 74MA that Mr Ramzy Sebie withdraw caveat AN217443 and other consequential relief as follows:

“11. Pursuant to s 74MA of the Real Property Act, by 4 pm on the day after this order is made Ramzy Sebie shall withdraw the caveat with dealing number AN217443.

12.   If Ramzy Sebie fails to withdraw the caveat by the specified date, the caveat will lapse and the Registrar General is thereafter authorised to remove it from the Register.

13. Pursuant to s 74O of the Real Property Act, Ramzy Sebie is restrained from lodging, or causing to be lodged, any further caveat or other dealing on the title to the Chiswick Property.

14.   Ramzy Sebie shall pay the plaintiffs’ costs of and incidental to this motion on an indemnity basis or, in the alternative, on a party-party basis.”

5. At the hearing of the motion an amended motion in substantially identical terms was relied upon. But for the purposes of these reasons, the motion will simply be referred to in its original form.

6. The filing of the Ramzy Sebie caveat bears an important relationship to the scheduling of the completion of the sale of the Chiswick property. In the Court’s orders made on 26 March 2018, the Court extended the date for settlement of the contract for sale of the Chiswick property to 2pm on 11 April 2018. The Ramzy Sebie caveat was filed between these dates. In the end, the parties were not in a position to settle by 11 April 2018, so the Registrar amended the date for settlement to 2 May 2018 at 2pm.

The Course of Proceedings on the 18 April 2018 Motion

7. The Phams approached the Court on 18 April 2018 on an ex parte basis. It was, in substance, a duty judge application. But because of my familiarity with the matter, and having given several previous judgments, I decided to deal with it myself.

8. The motion was filed in Court and made returnable instanter. In support of the motion, the Phams filed the affidavit of Mr Andy Pham of 18 April 2018. Orders were made to serve the motion and supporting affidavit and a copy of those orders on Mr Ramzy Sebie by 5pm that same day.

9. Another party was also joined to the motion, Mr Mazen Zraika, as well as the Registrar General of New South Wales. Relief on the 18 April 2018 motion against Mr Zraika and the Registrar General was dealt with in the Court’s fourth judgment: Pham v Mazen Zraika; Pham v Sebie (No. 4) [2018] NSWSC 566.

10. I am satisfied that the orders for service upon Mr Ramzy Sebie were complied with by the Phams. The 18 April 2018 motion for relief against Mr Ramzy Sebie and the other respondents was listed for hearing before me on Tuesday, 24 April 2018 at 9.30am.

11. Two caveats were lodged over the Chiswick property in the period 26 March to 11 April 2018: one in the name of Mazen Zraika (AN232813) and the other in the name of Mr Ramzy Sebie (AN217443). When the matter came before the Court on 24 April 2018, the Court ordered the removal of Mazen Zraika’s caveat.

12. The Court also made orders against the Registrar General in the fourth judgment. The Court ordered that until the registration of an instrument of transfer in respect of the Chiswick property from Mr Robert Sebie to the Phams, or until the Court otherwise orders, the Registrar General “shall not accept for lodgement any caveat presented for lodgement which prohibits or purports to prohibit the Registrar General from registering the transfer unless such caveat is lodged by a local, state or federal government authority, otherwise than with the leave of the Supreme Court”.

13. On 24 April 2018, Ms J. Kayrouz from Streeterlaw sought to appear on behalf of Mr Ramzy Sebie. Ms Kayrouz frankly conceded that whether Streeterlaw would be appearing further in the proceedings was uncertain and that it was unclear to her whether or not Streeterlaw would be filing a Notice of Appearance on Mr Ramzy Sebie’s behalf. Cautious about the prior manipulative behaviour of the Sebie interests in changing lawyers to procure adjournments, the Court approached Ms Kayrouz’s application to appear. The Court decided to allow Streeterlaw leave to appear on behalf of Mr Ramzy Sebie, who is the second respondent on the motion, notwithstanding that Streeterlaw had not filed an appearance on his behalf. But after formally recording that grant of leave, the Court made the following further directions and orders to Streeterlaw and Mr Ramzy Sebie:

“10.   Direct Streeterlaw to file a notice of appearance on behalf of the second respondent, Ramzy Sebie, by 10am on Thursday, 26 April 2018

11.   If Order 10 of these orders is not been complied with, grant liberty to the plaintiffs to immediately re-list these proceedings between 2pm and 4pm on Thursday, 26 April 2018 with a view to the Court making final orders that day against the second respondent to the 18 April 2018 motion.”

14. The Court gave Mr Ramzy Sebie, upon his application, further time to prepare and serve affidavits. He was given until 2.30pm on Friday, 27 April 2018.

15. On 24 April 2018 the 18 April 2018 motion was adjourned for further hearing to Monday, 30 April 2018 before me. At the time the orders were made on 24 April 2018, the Court had a matter listed for hearing all day between 10am and 4pm on 30 April 2018. So a 4pm hearing time was set.

16. The Court was prepared to give Mr Ramzy Sebie a further opportunity to prepare his evidence for a hearing late on 30 April 2018. But if he was not prepared to instruct solicitors to file a Notice of Appearance on his behalf, then the matter could be re-listed on 26 April 2018.

17. Streeterlaw did not file a Notice of Appearance on Mr Ramzy Sebie’s behalf by 10am on Thursday, 26 April 2018. The Phams took up the leave given to them on 24 April 2018 to re-list the matter if a Notice of Appearance were not filed by 10am on 26 April 2018. At the Phams’ request, the matter was re-listed for 3.45pm on 26 April 2018. At that time, Mr Ramzy Sebie appeared in person and requested an adjournment of the proceedings. The Phams submitted that, as no Notice of Appearance had been filed, the Court should proceed that day to make orders for the withdrawal of Mr Ramzy Sebie’s caveat.

18. The Court acceded to Mr Ramzy Sebie’s application. The Court adjourned the hearing of the balance of the Phams’ 18 April 2018 motion to 10am on Tuesday, 1 May 2018, and extended the time for Mr Ramzy Sebie to provide his evidence to 4pm on Friday, 27 April 2018.

19. These reasonably tight timetables were the product of the fact that Mr Ramzy Sebie had been aware since early April 2018 that the contract for sale was due to settle before the Registrar in Equity on 2 May 2018. The parties seeking to maintain caveats in those circumstances must act with promptitude to put argument and prepare evidence.

20. The failure to file a Notice of Appearance on the morning of 26 April 2018 led to some strangely contradictory email correspondence with the Court on behalf of Mr Ramzy Sebie, which has become Exhibit B. In an email at 11.25am on that day, Mr Zipser requested that the matter be re-listed between 2pm and 4pm because of Mr Ramzy Sebie’s failure to file a Notice of Appearance by 10am. In reply to this, Mr Ramzy Sebie emailed to my Associate and other parties that, “I have provided instructions to Streeterlaw to file a Notice of Appearance which have failed to do so by 10am, there has been several phone calls to their office this morning. I have now provided instructions to Oliveri Lawyers to file a Notice of Appearance which they stated they can do so today”. Mr Ramzy Sebie then requested that orders be made in chambers to give leave to Oliveri Lawyers to file a Notice of Appearance by the close of business that day. Mr Ramzy Sebie then said “I will comply with order 7 for my affidavit to be served by 2.30pm tomorrow”.

21. Despite the representation that Oliveri Lawyers had been instructed, the Court received an email from Mr Clay Muir at Oliveri Lawyers at 2.11pm referring to the previous emails and stating, “We wish to inform the Court that our firm does not have instructions to file a Notice of Appearance for Ramzy Sebie and does not intend to appear at the listing of this matter this afternoon”. Mr Muir’s email directly contradicted Mr Ramzy Sebie’s statement that Oliveri Lawyers had been instructed. For that and other reasons, the Court declined to make orders in chambers and required Mr Ramzy Sebie to appear that afternoon.

22. Despite his email promise, Mr Ramzy Sebie did not file his evidence by 4pm on 27 April 2018. Nor did he file it by the end of Monday, 30 April 2018. Mr Zipser on behalf of the Phams filed supplementary submissions in the absence of opposing evidence.

23. When the matter was called on for hearing at 10am today, Mr Ramzy Sebie was not in court. But Mr C. Muir of Oliveri Lawyers appeared. He sought a temporary adjournment, so he could confer with Mr Ramzy Sebie before the hearing commenced. Mr Ramzy Sebie arrived about 10.10am. The Court granted an adjournment until 10.40am to allow Mr Muir to get instructions and, if necessary, to serve any affidavits upon which he sought to rely upon the Phams. Mr Booth also continued to appear for the Registrar General today as he had on 24 April 2018.

24. Before the Court convened today, Mr Ramzy Sebie had sent emails to my Associate and to some of the other parties foreshadowing that he would be adducing affidavit evidence and requesting a short adjournment. But Mr Muir explained that any evidence that might be advanced by Mr Ramzy Sebie would require another week to be put on. He sought an adjournment for that period. The Court declined to grant an adjournment. The reasons for declining the adjournment were the following:

1. An appointment for settlement of the contract for sale had been made for tomorrow, 2 May 2018, so further adjournment was impractical;

2. Mr Ramzy Sebie had already been given adequate time to instruct solicitors and prepare his evidence in any event; and

3. Were an adjournment to be granted, given the past history of this case, there was no guarantee that Mr Ramzy Sebie would retain solicitors or that any additional evidence would be put on.

25. This was clearly a matter in which the dictates of Civil Procedure Act 2005, s 56 require the Court to decline an adjournment and the Court did. These reasons now proceed to deal with the substance of the application.

Application to Withdraw the Caveats

26. The principles governing the Court’s discretion to make orders under Real Property Act, s 74MA for the withdrawal of a caveat may be shortly stated. The Court will normally order the withdrawal of a caveat, unless the caveator can establish an entitlement to an interlocutory injunction restraining the registered proprietor from dealing with the land pending trial of the caveator’s claim: HansonConstruction Materials Pty Ltd v  Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240 (“Hanson Constructions”) (at [77]). The language of Real Property Act, s 74MA is very broad and the generality of the statutory language accommodates a great variety of circumstances, including that the caveator’s claimed interest is spurious, or even accepting that the caveator has a caveatable interest: Hanson Constructions at [60]-[61].

27. A caveator’s claim to have an interest in the land must raise a serious question to be tried, as to the existence of the interest claimed in the caveat: Hanson Constructions at [77]. But once the caveator discharges that onus, the continuation or removal of the caveat depends upon the Court’s assessment of the balance of convenience: Hanson Constructions at [77]. The authorities recognise that the strength of the caveator’s claim to an interest in land may be significant in assessing the balance of convenience: Hanson Constructions at [79].

28. The application of these principles to the present case leads the Court to conclude below: that the caveator is not able to discharge the onus of showing there is a serious question to be tried; and that the balance of convenience strongly favours an order to withdraw the caveat. The form of the caveat and other surrounding circumstances show why this is so.

29. The caveat identifies Mr Ramzy Sebie with an address at the Chiswick property, as the caveator, and Mr Robert Sebie, as the registered proprietor. The statutory declaration in support of the caveat was executed by Mr Ramzy Sebie on 27 January 2018 at Blacktown. Schedule 1 of the caveat provides as follows:

Particulars of the estate or interest in the abovementioned land
The Caveator holds an interest in the land of [the Chiswick property] as beneficiary of a trust.
By virtue of the instrument referred to below
Name of Instrument	Date	Parties
Deed Agreement	17/07/2015 15/09/2005	Robert Seibe and Ramzy Seibe (known as Ramzy Raid Seibe) (sic) of [the Chiswick property]
By virtue of the facts stated below
15/09/2005. The Caveator contributed to purchase price of land and therefore holds an interest in the land as a beneficiary a trust declared by Robert Sebie and Created by the deed.

30. The caveator cannot establish a serious question to be tried. The Ramzy Sebie caveat does not comply with the formal requirements to specify a caveatable interest, it is internally contradictory, and no evidence is advanced in support of it.

31. Mr Ramzy Sebie did not adduce any evidence in support of the interest claimed in the caveat, despite being offered many opportunities to do so. As the Court was proposing to give judgment at 3pm today, Mr Ramzy Sebie made a final application to adduce evidence. Because of Mr Ramzy Sebie’s prior defaults in complying with the Court’s orders, the Court declined to allow him any further indulgence and refused to receive any further evidence. This lack of evidence is in itself a sufficient basis for concluding that the caveator did not establish a serious question to be tried and for the claim to fail at the threshold.

32. But the lack of compliance with formalities and the contradictory nature of the Ramzy Sebie caveat deserves to be separately noted. Caveats must adequately particularise the nature of the estate or interest claimed by the caveator in the land: Circuit Finance Pty Ltd v Crown and Gleeson Securities Pty Ltd (2005) 12 BPR 23,403 at [10] - [27]. A caveat that simply describes the caveator’s interest as an “equitable interest” will ordinarily be judged to be insufficiently described: Schibaia v Elias [2013] NSWSC 1485 per McDougall J.

33. There are many problems with Schedule 1 of Ramzy Sebie’s caveat. Its description of the caveator’s interest as “an interest…as beneficiary of the trust” does not distinguish between a number of different kinds of possible interests in the property of the trust: Mr Robert Sebie may be the trustee of the trust but what kind of interest he holds on Mr Ramzy Sebie’s behalf is quite unclear; for example, does he hold a fee simple or some other estate on trust?

30. Schedule 1 also contains many contradictions. The “nature of instruments” section refers to two “deed agreements” so it is unclear which of them creates the beneficiarie’s claimed interest. Other parts of Schedule 1 refer to a single deed without identifying which one. And the facts in the section “By virtue of the facts stated below“ add more uncertainty to the picture. They suggest the caveator acquired an interest in the land not pursuant to a deed at all but by operation of law from the advancement of funds from which a resulting trust may be inferred.

31. Schedule 1 of the Ramzy Sebie caveat is therefore defective in substance and should be removed. But even if the caveat were not defective in form, in my view, the balance of convenience clearly favours the removal of the caveat for several reasons.

32. Mr Ramzy Sebie’s claimed interest in the land is well protected by the Court’s existing orders. Upon completion of the contract for sale of the Chiswick property from Robert Sebie to the Phams, the Phams are obliged to pay the purchase price of $2,000,000 into Court. It cannot be paid out without the leave of the Court. There was no contest between Ms Musabwasoni and Mr Robert Sebie that the sale to the Phams was not at an undervalue. It is hard to see how Mr Robert Sebie can claim prejudice because his interest in the Chiswick property will now be converted into an interest in the proceeds of sale, if he has such an interest.

33. Any contribution by Ramzy Sebie to the purchase of the Chiswick property is likely to generate a very small interest in the property. In the evidence read before Pembroke J in the trial in April 2017, of the purchase price of $1,820,000 paid by Robert Sebie recorded in the transfer dated 15 September 2015, $1,379,000 was advanced by ENA and $500,000 was lent by the Commonwealth Bank of Australia, secured by registered mortgage. This would seem to account for the whole of the purchase price such that the opportunity for any substantial equitable interest arising by way of resulting trust would appear to be minimal.

34. The Court can take into account the weakness of the Sebie’s case on the balance of convenience. Not only does the Ramzy Sebie caveat exhibit the defects set out earlier in these reasons but no evidence in support of the claim to a beneficial interest of the kind that Ramzy Sebie asserts in the caveat was advanced at any stage, either before Pembroke J in the trial in April 2017 or during the claim made by ENA heard and determined by myself on 26 March 2018. Mr Ramzy Sebie was well aware of his present claim by no later than 27 January 2018, when he signed the statutory declaration on the Ramzy Sebie caveat. This is hardly the conduct of someone who had confidence in the strength and coherence of his case.

Orders under Real Property Act, s 74O

39. The Court should make an order under Real Property Act, s 74O. In an affidavit sworn in February 2018, Mr Ramzy Sebie made clear that he has been a de facto director of ENA since June 2016 because of Rose Sebie’s incapacity. It follows that since June 2016 he has known about ENA’s affairs and about ENA’s involvement in these proceedings. The Ramzy Sebie caveat indicates that such claim as he has may relate to deeds executed in 2005 and 2017 and purchase monies claimed to have been advanced a long time ago.

40. Considering this background, the fact that Mr Ramzy Sebie should lodge a caveat over the property only on 4 April 2018, leads me to infer that the caveat was not designed to protect a genuine interest but rather to disrupt the completion of the settlement of the sale to the Phams. It is equally open to draw this conclusion from the difficulties that Mr Ramzy Sebie has had in formulating proof of his alleged caveatable interest. And despite appearing before me on 26 March 2018 in support of this application to appear for ENA, he did not mention this other caveat, which was filed only a few days later.

41. These circumstances point to a real risk that unless restrained, Mr Ramzy Sebie will lodge other caveats that have no substance to disrupt the orderly settlement of the Chiswick property tomorrow. The Court will therefore make orders under Real Property Act, s 74O.

Costs

42. The Phams apply for an order for costs of the 18 April 2018 motion on the indemnity basis against Mr Ramzy Sebie. The principles that govern the making for indemnity costs in these circumstances are well established.

43. Unless this Court orders otherwise, costs are to follow the event: Uniform Civil Procedure Rules 2005 (“UCPR”), r 42.1. Such costs are to be assessed on the ordinary basis, unless the Court orders otherwise: UCPR, r 42.2.

44. Civil Procedure Act2005, s 98 provides:

“98 Courts powers as to costs

(1)   Subject to rules of court and to this or any other Act:

(a)   costs are in the discretion of the court, and

(b)   the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c)   the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2)   Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3)   An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4)   In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:

(a)   costs up to, or from, a specified stage of the proceedings, or

(b)   a specified proportion of the assessed costs, or

(c)   a specified gross sum instead of assessed costs, or

(d)   such proportion of the assessed costs as does not exceed a specified amount.”

45. Authority establishes that the question to be asked is whether the circumstances justify an order for indemnity costs in the particular case: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225. The categories of case in which indemnity costs will be awarded are not closed: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233-234 per Sheppard J.

46. There must be some special or unusual feature or circumstance in the case justifying an award of indemnity costs: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 (“Harrison”) at [139]. Such a special or unusual circumstance must involve some relevant delinquency relating to the conduct of the proceedings themselves by the party as litigant: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 (“Oshlack”). Relevant delinquency does not mean moral delinquency but delinquency bearing a relevant relation to the conduct of the case. Although the categories of cases in which indemnity costs may be awarded is not closed, the nature of the cases in which awards are made cover a wide variety of circumstances: pursuing hopeless cases; engaging in an abuse of process; unreasonable conduct in the proceedings, especially conduct prolonging the proceedings or maintaining a knowingly false case, or deliberate high handed aggressive or unco-operative behaviour, leading to delay or incurring needless cost; pursuing unfounded allegations of fraud; and rejecting Calderbank letters and offers of compromise. The case law is well established and need not be covered in any further detail in these reasons.

47. In my view, this is an appropriate case for the making of an indemnity costs order. Mr Ramzy Sebie’s conduct in not filing evidence within the time allowed has unnecessarily and unreasonably protracted these proceedings. But more importantly, Mr Ramzy Sebie’s delay in lodging his caveat until a time when it would disrupt a settlement of the Chiswick property, and his failure to advance any evidence in support of the caveat, and his support of a caveat which was so internally contradictory, all assist the Court to infer that he has been knowingly and deliberately propounding a baseless caveat to occasion delay, inconvenience, and costs to the Phams. In the circumstances it is appropriate to make an indemnity costs order against him.

Conclusion and Orders

48. Accordingly, the Court makes the following orders and directions:

1. Pursuant to s 74MA of the Real Property Act 1900 (NSW), by 4pm on 1 May 2018 Ramzy Sebie shall withdraw the caveat with dealing number AN217443.

2. If Ramzy Sebie fails to withdraw the caveat by the specified time, the caveat will lapse and the Registrar General is thereafter authorised to remove it from the Register.

3. Pursuant to s 74O of the Real Property Act, Ramzy Sebie is restrained from lodging, or causing to be lodged, any further caveat or other dealing on the title to the property at the Chiswick property (folio 2 in DP 241738).

4. Ramzy Sebie shall pay the plaintiffs’ costs of and incidental to the plaintiffs’ Notice of Motion filed on 18 April 2018 on an indemnity basis.

5. Adjourn these proceedings for mention to 28 May 2018 at 10am and grant leave to make returnable on that day any notices of motion filed by the plaintiffs and the Registrar-General in respect of further orders for or concerning costs against Robert Sebie or Ramzy Sebie.

6. These orders may be entered forthwith.

**********

Amendments

02 May 2018 - [2] - fourth line, "the" deleted before "29 March" and "24 April"

[3] second line, "17" changed to "4"

[6] "the date for settlement of the contract for sale of the Chiswick property" moved from fourth line to "29 March 2018,"

[8] second line, a comma added after "the motion"

[13] first line, comma added after "2018"; second last line a comma added after "grant of leave"

[20] fourth line, comma added after "that day"; sixth line, comma added after "In reply to this"

[23] first line, comma added "10am today"

[24] first line, comma added "convened today"

[26] second line, "for withdrawing" changed to "the withdrawal"

[30] third line, delete ";" and in replacement comma added, comma deleted after "and"

[33] third line "s" added after "interest"

[34] first line, "also" added after "Schedule 1"

[35] first line, add "therefore" before "defective"

[40] first line, delete "In" and replace with "Considering", add comma after "background" and "the fact" added after comma with the words "the fact"; second line, delete "is the basis" to replace with "leads me"; fourth line, delete "and I so infer"

[41] first line, add coma after "restrained"

[46] tenth line, add "in" after "cases", delete "s" after "cover"

Decision last updated: 02 May 2018