Sebie v Pham - [2019] NSWCA 184

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sebie v Pham [2019] NSWCA 184
Hearing dates: 17 July 2019
Date of orders: 17 July 2019
Decision date: 17 July 2019
Before: Bell P at [1];
Emmett AJA at [31]
Decision:
Application for leave to appeal dismissed with costs

Catchwords:
PRACTICE AND PROCEDURE – application for leave to appeal – whether primary judge failed to consider witness’ evidence – where witness’ affidavit read – where witness cross-examined on evidence before primary judge – where witness’ evidence the subject of express analysis by primary judge

PRACTICE AND PROCEDURE – application for leave to appeal – whether primary judge erred in not taking into account documentary evidence – where documents not in evidence before primary judge – where documents sent by email to primary judge’s chambers in purported answer to notice to produce – importance that evidence be formally tendered
PRACTICE AND PROCEDURE – application for leave to appeal – whether party was denied procedure fairness before primary judge – where party did not appear at the hearing – where no evidence that application was made for affidavit of party to be read – where no submissions as to arguments party would have made
Legislation Cited: Real Property Act 1900 (NSW), s 42(1)(d)
Cases Cited: Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 11) [2019] NSWSC 115
Sebie v Pham [2018] NSWCA 333
Sebie v Pham [2019] NSWCA 58
Category: Principal judgment
Parties: Ramzy Sebie (First Applicant)
Rose Sebie (Second Applicant)
Andy Vuong Duc Pham (First Respondent)
Thi Huong Giang Pham (Second Respondent)
ENA Development Pty Ltd (Third Respondent)
Representation:
Counsel:
Robert Sebie (by leave) (First Applicant)
Sophie Georgy (by leave) (Second Applicant)
B Zipser (First and Second Respondents)
Solicitors:
Andy Pham Lawyers (First and Second Respondents)

File Number(s): 2018/252265
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2018] NSWSC 381
[2018] NSWSC 1063
[2018] NSWSC 1492

Date of Decision:

29 March 2018
13 July 2018
4 October 2018

Before:

Slattery J; Slattery J; Kunc J

File Number(s):

2015/325044; 2015/56505

EX TEMPORE Judgment

BELL P: There is before the Court an amended summons seeking leave to appeal which was filed on 27 November 2018 and is signed by Mrs Rose Sebie and Mr Ramzy Sebie on 21 November 2018. The 27 November 2018 amended summons identifies as "appellants" Mr Ramzy Sebie and Mrs Rose Sebie. It names as first respondent Andy Vuong Duc Pham, as second respondent Thi Huong Giang Pham and as third respondent ENA Development Pty Ltd (ENA Development).
When the matter came on for hearing this morning, an application to adjourn the matter was made by Mr Robert Sebie on behalf of Mr Ramzy Sebie. For reasons given orally, that adjournment application was refused. Mr Robert Sebie was given leave to appear on behalf of Mr Ramzy Sebie, consistent with a letter tendered by him signed by Mr Ramzy Sebie authorising Mr Robert Sebie to appear on Mr Ramzy…

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.

Continue reading Sebie v Pham

Details

AGLC: Sebie v Pham [2019] NSWCA 184
Case: [2019] NSWCA 184
Decision Date: 17 July 2019

CaseChat Overview and Summary

In *Sebie v Pham*, the New South Wales Court of Appeal considered an application for leave to appeal from a decision of the primary judge. The dispute concerned allegations of a failure by the primary judge to properly consider certain evidence, both oral and documentary, and whether the applicant had been denied procedural fairness.

The Court was required to determine whether the primary judge erred in failing to consider the evidence of a particular witness, despite that witness's affidavit having been read and the witness having been cross-examined before the primary judge, and the evidence being expressly analysed in the judgment. Further, the Court had to consider whether the primary judge erred in not taking into account documentary evidence that was not formally tendered, but rather emailed to the judge's chambers in purported response to a notice to produce. Finally, the Court had to assess whether the applicant was denied procedural fairness, given their absence from the hearing and the lack of any application to have their affidavit read or submissions made regarding their intended arguments.

The Court found that the primary judge had indeed considered the witness's evidence, as it was expressly analysed in the judgment. Regarding the documentary evidence, the Court emphasised the importance of evidence being formally tendered, and that documents emailed to chambers without formal tender were not properly before the court. On the issue of procedural fairness, the Court noted that the applicant had not appeared at the hearing, nor had they made any application to have their affidavit read or to present their arguments, and therefore could not claim to have been denied procedural fairness.

Consequently, the application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs

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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Medium Neutral Citation:	Sebie v Pham [2019] NSWCA 184
Hearing dates:	17 July 2019
Date of orders:	17 July 2019
Decision date:	17 July 2019
Before:	Bell P at [1]; Emmett AJA at [31]
Decision:	Application for leave to appeal dismissed with costs
Catchwords:	PRACTICE AND PROCEDURE – application for leave to appeal – whether primary judge failed to consider witness’ evidence – where witness’ affidavit read – where witness cross-examined on evidence before primary judge – where witness’ evidence the subject of express analysis by primary judge PRACTICE AND PROCEDURE – application for leave to appeal – whether primary judge erred in not taking into account documentary evidence – where documents not in evidence before primary judge – where documents sent by email to primary judge’s chambers in purported answer to notice to produce – importance that evidence be formally tendered PRACTICE AND PROCEDURE – application for leave to appeal – whether party was denied procedure fairness before primary judge – where party did not appear at the hearing – where no evidence that application was made for affidavit of party to be read – where no submissions as to arguments party would have made
Legislation Cited:	Real Property Act 1900 (NSW), s 42(1)(d)
Cases Cited:	Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 11) [2019] NSWSC 115 Sebie v Pham [2018] NSWCA 333 Sebie v Pham [2019] NSWCA 58
Category:	Principal judgment
Parties:	Ramzy Sebie (First Applicant) Rose Sebie (Second Applicant) Andy Vuong Duc Pham (First Respondent) Thi Huong Giang Pham (Second Respondent) ENA Development Pty Ltd (Third Respondent)
Representation:	Counsel: Robert Sebie (by leave) (First Applicant) Sophie Georgy (by leave) (Second Applicant) B Zipser (First and Second Respondents) Solicitors: Andy Pham Lawyers (First and Second Respondents)
File Number(s):	2018/252265
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2018] NSWSC 381 [2018] NSWSC 1063 [2018] NSWSC 1492 Date of Decision: 29 March 2018 13 July 2018 4 October 2018 Before: Slattery J; Slattery J; Kunc J File Number(s): 2015/325044; 2015/56505