Sebie v Krejci

Case [2023] NSWCA 187

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Sebie v Krejci [2023] NSWCA 187
Hearing dates: 9 August 2023
Date of orders: 10 August 2023
Decision date: 10 August 2023
Before: Gleeson JA; Basten AJA
Decision:

(1)   Refuse an extension of time for leave to appeal.

(2)   Dismiss the amended summons seeking leave to appeal filed 15 June 2023.

(3)   Dismiss the amended notice of motion filed 14 June 2023.

(4)   The applicants pay the liquidator’s costs in this Court.

Catchwords:

APPEALS — Leave to appeal — From order for winding up — From orders for possession of property and removal of caveat — From refusal of stay of writ of possession — Where presumption of insolvency based on failure to comply with statutory demand — Where extension of time to appeal required — Where no explanation for delay — Whether proposed appeal raises a fairly arguable case

Legislation Cited:

Corporations Act 2001 (Cth), ss 135, 198G, 201K, 459E, 459P, 465C

Supreme Court Act 1970 (NSW), ss 75A(8), 101

Vexatious Proceedings Act 2008 (NSW), s 8

Uniform Civil Procedure Rules 2005 (NSW), rr 6.3(f), 6.8, 6.8A, 7.1, 7.2, 14.4, 45.4

Cases Cited:

Accordent Pty Ltd v RMVL Investments Ltd [2009] SASC 248; (2009) 74 ACSR 17

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39

Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118

House v The King (1936) 55 CLR 499; [1936] HCA 40

Masri Apartments Pty Ltd (in liq) v Perpetual Nominees Ltd [2004] NSWCA 471; (2004) 52 ACSR 136

One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd [2023] NSWCA 120

In re the Will of Gilbert (1946) 46 SR (NSW) 318

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Category:Procedural rulings
Parties: Robert Sebie (First applicant)
Ronald Jemmott (Second applicant)
One T Development Pty Ltd (Third applicant)
Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (First respondent)
Andy Vuong Duc Pham (Second respondent)
Thi Huong Giang Pham (Third respondent)
Representation:

Counsel:
M L Rose (Respondent)

Solicitors:
Robert Sebie (Self-represented – First applicant)
Ronald Jemmott (Self-represented – Second applicant)
ERA Legal (First respondent)
Andy Vuong Duc Pham (Self-represented - second and third respondents)
File Number(s): 2023/115895
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity Division / Common Law Division
Citation:

[2022] NSWSC 54 (Black J); [2022] NSWSC 1478 (Black J); [2023] NSWSC 162 (Ierace J)

Date of Decision:
21-22 October 2022; 15 August 2022; 27 January 2022; 6 January 2023; 28 February 2023
Before:
Black J; Ierace J
File Number(s):
2021/303982; 2022/32115

JUDGMENT

  1. THE COURT: Before the Court is an application for leave to appeal from decisions of Black J in proceedings for the winding up of ENA Development Pty Ltd…

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AGLC
Sebie v Krejci [2023] NSWCA 187
Case
[2023] NSWCA 187
Decision Date

CaseChat Overview and Summary

Sebie and Krejci were the parties involved in this matter before the Court of Appeal of New South Wales. The dispute concerned appeals from various orders made by the primary judge, including an order for the winding up of a company, orders for possession of property and removal of a caveat, and a refusal to grant a stay of a writ of possession. The applicants sought leave to appeal these orders.

The central legal issues before the Court of Appeal were whether the applicants had established a fairly arguable case to warrant an extension of time for leave to appeal, and whether the presumption of insolvency arising from a failure to comply with a statutory demand was properly applied. The Court also considered the applicants' failure to provide an explanation for the significant delay in filing their application for leave to appeal.

The Court determined that the applicants had not demonstrated a fairly arguable case. It noted the absence of any explanation for the substantial delay in seeking an extension of time to appeal, which was a critical factor in its decision. The Court applied the principles that an applicant for an extension of time must show both a fairly arguable case and a good reason for the delay.

Consequently, the Court refused the extension of time for leave to appeal and dismissed the amended summons and amended notice of motion. The applicants were ordered to pay the liquidator’s costs in the Court.

Orders

Orders of the court

(1) Refuse an extension of time for leave to appeal.

(2) Dismiss the amended summons seeking leave to appeal filed 15 June 2023.

(3) Dismiss the amended notice of motion filed 14 June 2023.

(4) The applicants pay the liquidator’s costs in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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