Ramzy Sebie v Andy Duong Duc Pham - [2021] NSWSC 1433

Supreme Court

New South Wales

Medium Neutral Citation: Ramzy Sebie v Andy Duong Duc Pham [2021] NSWSC 1433
Hearing dates: 4 November 2021
Date of orders: 5 November 2021
Decision date: 04 November 2021
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See [51]-[52]

Catchwords:
PROCEDURE – dismissal of proceedings for want of prosecution – where one plaintiff deceased and no information available as to his estate – where the second plaintiff is under legal incapacity – where no tutor has been appointed

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) rr.12.7, 12.10, 13.6, 36.16, 42.20

Cases Cited:
Andy Vuong Duc Pham v Enterprise ICT Pty Limited [2021] NSWSC 1132
Ghosh v Ninemsm Pty Ltd (2015) 90 NSWLR 595
Green v Healthscope Ltd t/as The Hills Private Hospital [2015] NSWCA 325
Kapoor v State Transit Authority of NSW [2010] NSWCA 143
Sebie v Pham [2018] NSWCA 333
Sebie v Pham [2021] NSWSC 470
Stollznow v Calvert [1980] 2 NSWLR 749
Witten v Lombard Australia Ltd [1968] 2 NSWR 529

Category: Procedural rulings
Parties: Ramzy Sebie (first plaintiff)
Rose Sebie (second plaintiff)
Andy Duong Duc Pham (first defendant)
Thi Huong Giang Pham (second defendant)
Robert Sebie (third defendant)
ENA Development Pty Ltd ACN 105235363 (fourth defendant)
Representation:
Counsel:
B Zipser (1st and 2nd def)
No other appearances
Solicitors:
Pham Lawyers (1st and 2nd def)
No other appearances

File Number(s): 2018/137809
Publication restriction: n/a

Judgment

These proceedings were commenced by Amended Summons dated 30 May 2018. In broad terms the plaintiffs seek a declaration that the first and second defendants’ interest in a property at Chiswick is defeasible for fraud, and that the first defendant holds the property on trust for the plaintiffs and fourth defendant. Further, that the fourth defendant has subrogated the right of a mortgage and has a secured sum of $504,709 in priority to the first and second defendants. There are various other forms of relief sought in relation to the other defendants.
The current matter concerns whether the proceedings should be dismissed for want of prosecution.

The pleading is defective

The plaintiffs rely on their Amended Summons on a “trust ownership” in the Chiswick property. It is unclear if this is to be found in a written or oral (or partly oral) agreement but it is clear from the pleading that a purely equitable right is asserted. Although it is claimed that the Commonwealth Bank provided moneys secured by first mortgage there is no specificity of total purchase plus stamp duty and legals, nor the amount the bank advanced and on what terms. The plaintiffs assert that around $1,379,315 was advanced to the third defendant “via their company ENA Development Pty Ltd” although for some reason, ENA is a defendant in the proceeding. There is no specificity of the amount paid by the first and second defendants and nor is it alleged that they have no interest in the property, only that they acquired their interest by fraud (again unspecified). It is by no means clear…

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: [2021] NSWSC 1433
Decision Date: 04 November 2021

CaseChat Overview and Summary

The matter of Ramzy Sebie v Andy Duong Duc Pham involved the dismissal of proceedings due to the plaintiff's failure to prosecute the case. The plaintiff, Ramzy Sebie, was one of two plaintiffs in the action, with the other plaintiff being deceased. There was no information available regarding the deceased plaintiff's estate, and the remaining plaintiff, Ramzy Sebie, was under legal incapacity. As no tutor had been appointed to act on behalf of the incapacitated plaintiff, the case faced significant procedural hurdles. The court was required to determine whether the proceedings should be dismissed due to the lack of prosecution and the absence of representation for the incapacitated plaintiff.

The primary legal issues before the court were whether the court could proceed with the case given the deceased plaintiff's estate was not represented and whether the incapacitated plaintiff, Ramzy Sebie, could be adequately represented in the proceedings. The court considered whether the absence of a tutor for the incapacitated plaintiff constituted a sufficient ground for dismissing the proceedings for want of prosecution. Additionally, the court had to weigh the implications of the deceased plaintiff's non-representation on the overall viability of the case.

The court found that the absence of representation for the deceased plaintiff and the incapacitated plaintiff's incapacity, without a tutor, presented insurmountable procedural barriers. The court ruled that these factors constituted a failure to prosecute the case. Consequently, the court dismissed the proceedings for want of prosecution. The court emphasised that it could not proceed without proper representation for both plaintiffs, and the failure to secure such representation warranted the dismissal of the case.

The final orders of the court were that the proceedings be dismissed with no order as to costs. This decision reflected the court's view that the lack of representation for both plaintiffs and the failure to prosecute the case warranted the dismissal without imposing costs on either party.

Orders