Sebie v Krejci (No 3) - [2023] NSWCA 221

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sebie v Krejci (No 3) [2023] NSWCA 221
Hearing dates: On the papers
Date of orders: 13 September 2023
Decision date: 13 September 2023
Before: Gleeson JA; Basten AJA
Decision:
(1) Grant leave to the applicants pursuant to s 16(3) of the Vexatious Proceedings Act 2008 (NSW) to institute the proceedings the subject of the notice of motion filed 11 August 2023 on condition that such leave is limited to seeking (i) leave to reopen the judgment delivered on 10 August 2023 insofar as the judgment did not deal with par 17 of the applicants’ notice of motion of 21 July 2023, and (ii) a stay of the orders made by Black J on 27 January 2022 until the reopening application is dealt with and the application for special leave to appeal to the High Court filed 15 August 2023 is heard.
(2)   Dismiss par 17 of the amended notice of motion dated 21 July 2023.
(3)   Refuse the application for a stay of the orders made by Black J on 27 January 2022.
(4)   Dismiss the notice of motion filed 11 August 2023.
(5)   Make no order as to costs of that motion.

Catchwords:
COURT OF APPEAL — procedure — application to reopen judgment — where Court inadvertently omitted to deal with application to review decision of Registrar — whether error in case management decision of Registrar
CIVIL PROCEDURE — stay of proceedings — stay pending determination of special leave application to the High Court — whether sufficient prospect of obtaining special leave

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Supreme Court Act 1970 (NSW), s 121(3)
Vexatious Proceedings Act 2008 (NSW), ss 4, 8, 13, 14
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 49.19

Cases Cited:
123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306; [1996] HCA 3
Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11
In the matter of ENA Development Pty Ltd [2022] NSWSC 54
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; [1986] HCA 84
Reinhart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1
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 (First respondent)
Solicitors:
ERA Legal (First respondent)

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);

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: [2023] NSWCA 221
Decision Date: 13 September 2023

CaseChat Overview and Summary

In this matter before the Court of Appeal of New South Wales, the applicants sought to reopen a judgment delivered on 10 August 2023, which they contended inadvertently omitted to address an application to review a Registrar's case management decision. They also sought a stay of orders made by Black J on 27 January 2022, pending the determination of an application for special leave to appeal to the High Court.

The primary legal issues before the Court were whether it should grant leave to the applicants to reopen the judgment to consider their application to review the Registrar's decision, and whether a stay of the existing orders should be granted pending the outcome of their special leave application to the High Court. The Court was required to assess the merits of the applicants' arguments regarding the alleged error in the Registrar's case management decision and the prospects of success in obtaining special leave to appeal to the High Court.

The Court granted leave to the applicants to institute proceedings to reopen the judgment, specifically limited to addressing paragraph 17 of their notice of motion which concerned the review of the Registrar's decision. This leave was granted on the condition that the reopening application would be dealt with, and a stay of Black J's orders was sought pending the determination of the special leave application to the High Court. However, the Court dismissed paragraph 17 of the amended notice of motion and refused the application for a stay of the orders made by Black J. Consequently, the notice of motion filed on 11 August 2023 was dismissed, with no order as to costs.

Orders

Orders of the court

(1) Grant leave to the applicants pursuant to s 16(3) of the Vexatious Proceedings Act 2008 (NSW) to institute the proceedings the subject of the notice of motion filed 11 August 2023 on condition that such leave is limited to seeking (i) leave to reopen the judgment delivered on 10 August 2023 insofar as the judgment did not deal with par 17 of the applicants’ notice of motion of 21 July 2023, and (ii) a stay of the orders made by Black J on 27 January 2022 until the reopening application is dealt with and the application for special leave to appeal to the High Court filed 15 August 2023 is heard.

(2) Dismiss par 17 of the amended notice of motion dated 21 July 2023.

(3) Refuse the application for a stay of the orders made by Black J on 27 January 2022.

(4) Dismiss the notice of motion filed 11 August 2023.

(5) Make no order as to costs of that motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sebie v Krejci (No 3) [2023] NSWCA 221
Hearing dates:	On the papers
Date of orders:	13 September 2023
Decision date:	13 September 2023
Before:	Gleeson JA; Basten AJA
Decision:	(1) Grant leave to the applicants pursuant to s 16(3) of the Vexatious Proceedings Act 2008 (NSW) to institute the proceedings the subject of the notice of motion filed 11 August 2023 on condition that such leave is limited to seeking (i) leave to reopen the judgment delivered on 10 August 2023 insofar as the judgment did not deal with par 17 of the applicants’ notice of motion of 21 July 2023, and (ii) a stay of the orders made by Black J on 27 January 2022 until the reopening application is dealt with and the application for special leave to appeal to the High Court filed 15 August 2023 is heard. (2) Dismiss par 17 of the amended notice of motion dated 21 July 2023. (3) Refuse the application for a stay of the orders made by Black J on 27 January 2022. (4) Dismiss the notice of motion filed 11 August 2023. (5) Make no order as to costs of that motion.
Catchwords:	COURT OF APPEAL — procedure — application to reopen judgment — where Court inadvertently omitted to deal with application to review decision of Registrar — whether error in case management decision of Registrar CIVIL PROCEDURE — stay of proceedings — stay pending determination of special leave application to the High Court — whether sufficient prospect of obtaining special leave
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Supreme Court Act 1970 (NSW), s 121(3) Vexatious Proceedings Act 2008 (NSW), ss 4, 8, 13, 14 Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 49.19
Cases Cited:	123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306; [1996] HCA 3 Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11 In the matter of ENA Development Pty Ltd [2022] NSWSC 54 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; [1986] HCA 84 Reinhart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 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 (First respondent) Solicitors: ERA Legal (First respondent)
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);