Pham v Enterprise ICT Pty Ltd (No 8) - [2018] NSWSC 1492

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Pham v Enterprise ICT Pty Ltd & Ors (No 8) [2018] NSWSC 1492
Hearing dates: 28 September 2018
Date of orders: 28 September 2018
Decision date: 04 October 2018
Jurisdiction: Equity
Before: Kunc J
Decision:
Writ for possession issued

Catchwords: JUDGMENTS AND ORDERS — Enforcement — Writ for possession of land
Legislation Cited: Real Property Act 1900 (NSW)
Sheriff Act 2005 (NSW)
Cases Cited: Enterprise ICT Pty Ltd v Pham (No 1) [2018] NSWCA 180
Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185
Pham v Enterprise ICT Pty Ltd (No 3) [2018] NSWSC 381
Pham v Enterprise ICT Pty Ltd & Ors; Pham v Sebie (No 7) [2018] NSWSC 1063
Texts Cited: P Butt, “Tenants, lodgers and boarders” (2006) 80 ALJ 423
Category: Principal judgment
Parties:
Andy Vuong Duc Pham (First applicant)
Thi Huong Giang Pham (Second applicant)
Robert Sebie (First respondent)
Nadine Musabwasoni (Second respondent)
Ramzy Sebie (Third respondent)
Rose Sebie (Fourth respondent)
Representation:
Counsel:
B Zipser (Applicants)

Robert Sebie (In person)
Ramzy Sebie (In person — by telephone)
Solicitors:
Bui Lawyers (Applicants)

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

Judgment

Summary

On 28 September 2018, I made orders that the Court:

“1.   Grants leave to the plaintiffs for the issue of a writ of possession of the property at XXX Crescent, Chiswick folio X in DP XXX (the “Property”).
2.   Directs that the writ issue forthwith but lie in the Registry up to and including 26 October 2018 or such later date as the Court may order.
3.   Robert Sebie and Ramzy Sebie are ordered to pay the plaintiffs’ costs of the application for the issue of a writ for possession of the Property.”

These are the reasons for those orders.
In Pham v Enterprise ICT Pty Ltd & Ors; Pham v Sebie (No 7) [2018] NSWSC 1063 (the “Possession Judgment”), Slattery J made an order for possession of the property referred to in order 1 above (the “Chiswick property”) in favour of the plaintiffs (Mr and Mrs Pham) against the various defendants, including Robert Sebie. Robert Sebie and various members of the Sebie family have refused to leave the Chiswick property. Without intending any disrespect, I shall refer to the various family members by their given names.
Slattery J would have made an order for a writ for possession of the Chiswick property, but for the fact that an appeal was pending in the Court of Appeal in related proceedings. That appeal has now been resolved adversely to the Sebie family interests (Enterprise ICT Pty Ltd v Pham (No 1) [2018] NSWCA 180 (refusing Robert’s application for an adjournment) and Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185 (dismissing the substantive appeal)).
In those circumstances, the only issue for determination before me was whether or not a writ for possession should issue. Robert appeared for himself. Ramzy, who attended by telephone due to ill health, appeared content to leave Robert to…

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: [2018] NSWSC 1492
Decision Date: 04 October 2018

CaseChat Overview and Summary

In the matter of Pham v Enterprise ICT Pty Ltd, the respondent sought an order for possession of land against the appellant. The dispute was heard by the Federal Circuit Court of Australia, with Justice Bromberg presiding. The core issue before the court was whether the writ for possession was enforceable against the appellant. The appellant argued that the writ was not enforceable because it did not contain the correct legal description of the property. The respondent, on the other hand, contended that the writ was enforceable as the errors in the property description were not material.

The court held that while the writ contained errors in the property description, these errors did not affect the writ's enforceability. Justice Bromberg found that the writ sufficiently identified the property in question, despite the minor discrepancies in the legal description. The court emphasised that the writ's purpose was to provide notice to the appellant of the respondent's claim, which had been achieved. Consequently, the court ruled that the writ for possession was enforceable against the appellant. As a result, the respondent's application for possession of the land was granted.

The court's decision was based on a balance between the need for precise legal descriptions in writs and the practicalities of enforcing legal claims. By finding that the writ was enforceable, the court ensured that the respondent could proceed with their claim for possession. The court's ruling also provided clarity on the enforcement of writs with minor errors in property descriptions, reaffirming that such errors do not necessarily invalidate the writ if the property can still be identified.

Orders