Sebie v Pham

Case [2021] NSWCA 115

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Sebie v Pham [2021] NSWCA 115
Hearing dates: 17, 20 May 2021
Date of orders: 31 May 2021
Decision date: 31 May 2021
Before: Brereton JA
Decision:

(1) Upon the applicants Robert Sebie and ENA Development Pty Ltd giving to the Court the usual undertaking as to damages, the stay of the operation of orders 3, 4(a), and 5(d) of 18 March 2021, and of orders 1 and 7 of 30 April 2021, continue until the hearing of the summons for leave to appeal or further order;

(2) The stay in order 1 is conditional upon the applicants filing in the registry within seven days a formal undertaking to the Court to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the stay in order 1 or of any interlocutory continuation (with or without variation) of it;

(3) If leave be granted, the hearing of any consequent appeal from the orders referred to in order 1 above (but not from any other orders impugned in the summons for leave to appeal) be heard concurrently with the application for leave to appeal;

(4) The hearing of the application for leave to appeal be expedited; and

(5) Costs of the motion be costs in the application for leave to appeal.

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Stay of orders for payment out of funds in Court – Where funds represent purchase money of real property – Whether judgment creditor entitled to payment out orders – Where outstanding claim to funds by second applicant – Where such claim not without merits – Stay granted – Stay conditional upon formal undertakings as to damages by applicants

CIVIL PROCEDURE – Court of Appeal – Stay of costs orders – Where application out of time – Where no sufficient prospects of success demonstrated – Stay refused

Legislation Cited:

(CTH) Family Law Act 1975, s 79, Pt VIIIAA

(NSW) Civil Procedure Act 2005, s 101(4)

(NSW) Uniform Civil Procedure Rules 2005, rr 41.3, 41.16

(NT) Supreme Court Rules 1987, r 73.11

(QLD) Uniform Civil Procedure Rules 1999, r 882.

(VIC) Supreme Court (General Civil Procedure) Rules 2015, r 73.11

(WA) Civil Judgments Enforcement Act 2004, s 58.

Cases Cited:

Aquatic Air Pty Ltd v Siewert (No 2) [2016] NSWSC 10

Aquatic Air Pty Ltd v Siewert (No 3) [2018] NSWSC 624

Brereton v Edwards (1888) 21 QBD 488

Church v Arnold (1902) 2 SR (NSW) Eq 127

Commonwealth Bank of Australia, Re (2009) 14 BPR ¶26,819; [2009] NSWSC 81

Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185

Falcone v Mentyn (No 2) (2004) 13 Tas R 384; [2004] TASSC 156

JKB Holdings Pty Ltd v De La Vega [2013] NSWSC 501

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AGLC
Sebie v Pham [2021] NSWCA 115
Case
[2021] NSWCA 115
Decision Date

CaseChat Overview and Summary

The Court of Appeal considered an application for a stay of orders concerning the payment out of funds held in court, which represented the purchase money of real property. The applicants, Robert Sebie and ENA Development Pty Ltd, sought to prevent the judgment creditor from accessing these funds, citing an outstanding claim to the funds by a second applicant, which was considered not without merit. The court also addressed a separate application for a stay of costs orders, which was made out of time and lacked sufficient prospects of success.

The primary legal issue before the court was whether the applicants were entitled to a stay of the orders directing payment out of the funds in court, given the existence of a competing claim. Additionally, the court had to determine whether to grant a stay of the costs orders, considering the lateness of that application and the prospects of the underlying appeal.

Brereton JA granted the stay of the payment out orders, conditional upon the applicants providing the usual undertaking as to damages. This undertaking required the applicants to submit to any order the Court might make for compensation to any person affected by the stay. The court also ordered that if leave to appeal were granted, the appeal concerning the payment out orders would be heard concurrently with the application for leave, and that the hearing of the application for leave be expedited. The stay of the costs orders was refused due to the application being out of time and lacking sufficient prospects of success. The costs of the motion were made costs in the application for leave to appeal.

Orders

Orders of the court

(1) Upon the applicants Robert Sebie and ENA Development Pty Ltd giving to the Court the usual undertaking as to damages, the stay of the operation of orders 3, 4(a), and 5(d) of 18 March 2021, and of orders 1 and 7 of 30 April 2021, continue until the hearing of the summons for leave to appeal or further order;

(2) The stay in order 1 is conditional upon the applicants filing in the registry within seven days a formal undertaking to the Court to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the stay in order 1 or of any interlocutory continuation (with or without variation) of it;

(3) If leave be granted, the hearing of any consequent appeal from the orders referred to in order 1 above (but not from any other orders impugned in the summons for leave to appeal) be heard concurrently with the application for leave to appeal;

(4) The hearing of the application for leave to appeal be expedited; and

(5) Costs of the motion be costs in the application for leave to appeal.

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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