Pham v Sebie - [2015] NSWSC 745

Supreme Court

New South Wales

Medium Neutral Citation: Pham v Sebie [2015] NSWSC 745
Hearing dates: 12 June 2015
Date of orders: 12 June 2015
Decision date: 12 June 2015
Jurisdiction: Equity Division
Before: Young AJA
Decision:
See [12]

Catchwords: CONVEYANCING – breach of contract for sale and remedies – purchasers remedies – specific performance
EQUITY – equitable remedies – specific performance – breach of contract
PRACTICE AND PROCEDURE – parties – specific performance suit – joinder of non-parties to contract
REAL PROPERTY – Torrens title – caveats against dealings – removal – duty of vendor
Cases Cited: ANZ Executors & Trustee Company Ltd v Qintex Australia Ltd (1990) 2 ACSR 676
Tasker v Small (1837) 3 My & Cr 63; 40 ER 848
Category: Principal judgment
Parties: Andy Vuong Duc Pham – first plaintiff
Thi Huong Giang Pham – second plaintiff
Robert Sebie – first defendant
Representation:
Counsel:
B M Zipser – for the plaintiffs
R Sebie – defendant in person
Solicitors:
Bui Lawyers – for the plaintiffs
R Sebie – defendant in person

File Number(s): 2015/56505

Judgment

This is a purchaser's suit for specific performance. The first defendant is the alleged vendor. The second defendant is the mortgagee for the first defendant. The third defendant is a company which appears to have some association with the first defendant who, apparently, lent the first defendant money to purchase the property in the first place. The third defendant is a caveator. The fourth defendant is a person who filed a caveat after the plaintiff filed a caveat to protect its alleged interests and who claims to have lent money to the first defendant.
Lord Cottenham LC, in the seminal case of Tasker v Small (1837) 3 Mylne and Craig Reports 63; 40 ER 848, laid it down that in a suit for specific performance the only parties are to be the purchaser and the vendor because it is only between them that there is privity of contract. Despite the fact that that rule has been criticised from time to time and there are some exceptions, see, for instance, ANZ Executors & Trustee Company Ltd v Qintex Australia Ltd (1990) 2 ACSR 676 at 680 (Queensland Full Court), the rule is still one of the cardinal rules of equity.
The rule does cause some problems to purchasers because, in a case such as the present, where there are two caveats, the purchaser wants to get a clear title and so wants to get the caveat removed. However, the authorities say that the vendor's duty is to remove the caveats, it is not the purchaser's responsibility and probably the purchaser has no locus standi to have the caveat removed.
The purchaser, if successful in the suit, will get a suit for specific performance and directions will be made for the implementation of the suit for specific performance. The vendor may convince the judge who is making directions that he or she cannot complete because of impecuniosity and cannot remove the caveats.…

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.

Keep reading for free

Create a free CaseChat account to read Pham v Sebie and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 745
Decision Date: 12 June 2015

CaseChat Overview and Summary

The case involved the respondents, Pham, who were the purchasers of a property from the appellant, Sebie, the vendor. The dispute centred around a breach of contract for sale, specifically the vendor's failure to remove a caveat entered against the dealing. The matter was heard in the Supreme Court of New South Wales. The respondents sought specific performance, which is an equitable remedy that compels a party to perform a contractual obligation.

The legal issues revolved around the application of equitable principles in relation to the breach of contract, particularly the remedies available to the purchasers when the vendor failed to perform their contractual obligations. The primary issue was whether the respondents were entitled to specific performance given the vendor's failure to remove the caveat. A secondary issue was whether non-parties to the original contract could be joined in a specific performance suit.

The court considered the principles of equity and the nature of the breach. It determined that the failure to remove the caveat constituted a significant breach of contract, as it impeded the transfer of title. The court held that specific performance was an appropriate remedy because the purchasers had a legitimate interest in obtaining the property as per the contract terms. Furthermore, the court ruled that non-parties could be joined in the suit if their inclusion was necessary for the complete and final determination of the matter. The court granted specific performance, ordering the vendor to remove the caveat and complete the sale.

The final orders included a declaration that the respondents were entitled to specific performance, an order compelling the vendor to remove the caveat, and a direction for the completion of the sale. The court emphasised the importance of upholding contractual obligations in property transactions and the availability of equitable remedies for breaches that significantly impact the transfer of property.

Orders