Pham v Enterprise ICT Pty Ltd (No 2)

Supreme Court

New South Wales

Medium Neutral Citation:	Pham v Enterprise ICT Pty Ltd (No 2) [2017] NSWSC 583
Hearing dates:	10 May 2017
Date of orders:	15 May 2017
Decision date:	15 May 2017
Jurisdiction:	Equity
Before:	Pembroke J
Decision:	See paragraph [16]
Catchwords:	ORDERS – form of orders setting aside fraudulent conveyance COSTS – indemnity costs – litigation resulting from dishonesty
Legislation Cited:	Real Property Act 1900 (NSW)
Cases Cited:	Bull v Wimble [2004] NSWSC 528
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 R Killalea, Solicitor – 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 Kazi & Associates – for the first defendant Remington & Co – for the second defendant Robert Sebie – third defendant in person
File Number(s):	2015/325044

Judgment

Introduction

1. On 26 April 2017, I delivered reasons in which I held that the transfer of certain land at Chiswick from the third defendant (Robert Sebie) to the first defendant (Enterprise ICT Pty Ltd) was fraudulent. I held that both the first and third defendants intended to defeat the plaintiffs’ rights as purchasers pursuant to the contract for sale of land dated 29 October 2014.

2. On 10 May 2017, I heard submissions from the parties as to the appropriate orders that should be made to give effect to those reasons. Some of those orders were contentious. What follows are the orders that I have made and my reasons for doing so.

Fraudulent Transfer

3. There should be a declaration and vesting order in the following terms:

1. Declaration that the transfer of lot 2 in DP 241738, known as 11 Tutt Crescent, Chiswick (the Property), from the third defendant to the first defendant (Enterprise ICT Pty Ltd) registered on 10 August 2015 dealing number AJ713539 was fraudulent, and that the title of the first defendant in the Property is defeasible for fraud, within the meaning of ss 42 and 43 of the Real Property Act 1900.

2. Order that the Property vests in the third defendant (Robert Sebie).

Cancellation and Replacement

4. Given the dishonest conduct of the first and third defendants, the most convenient and appropriate course to regularise the title to the Property is to make orders pursuant to Section 138 of the Real Property Act 1900 (NSW) for cancellation of the existing folio, the creation of a new folio, the issue of a new certificate of title and the delivery up of the existing certificate of title. I gratefully adopt the reasoning of Barrett J in Bull v Wimble [2004] NSWSC 528 at [10]-[12]. I make the following orders:

1. Order that the Registrar General:

1. cancel the existing folio of the register for the Property;

2. create a new…