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

1. 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).

2. 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 Sebie's behalf in all Court matters whilst Mr Ramzy Sebie is in hospital (which is currently the case). In relation to Mrs Rose Sebie, Ms Sophie Georgy applied for and was given leave to appear on behalf of Mrs Rose Sebie, Ms Georgy having previously filed written submissions on behalf of Mrs Rose Sebie and having been given limited leave to appear on behalf of Mrs Rose Sebie by Leeming JA on an earlier application in this Court: Sebie v Pham [2019] NSWCA 58.

3. The background to this application is complicated and the matter has been before various judges, both of the Equity Division of the Supreme Court and of the Court of Appeal, on numerous occasions. The background was described for sufficient purposes by Beazley P in an interlocutory judgment her Honour delivered on 6 December 2018: Sebie v Pham [2018] NSWCA 333. In particular, her Honour set out in a convenient way the background to the litigation generally in [3]–[7] of her judgment as follows:

"[3]   This matter has an extraordinarily complicated history and has been the subject of at least ten judgments in the Equity Division and at least one judgment in the Court of Appeal. Given that it is now 5:20pm, I do not have the time to go through those judgments, nor is it necessary to do so.

[4]   It is sufficient to record that on 29 October 2014, Mr Robert Sebie sold the property which is subject of the proceeding, which I will refer to as the Chiswick property, to Mr and Mrs Pham. After various proceedings in this Court, including a proceeding for specific performance brought by Mr and Mrs Pham against Mr Robert Sebie, settlement of that sale occurred, as I understand it under the auspices of the Court, on 2 May 2018.

[5]   The sale price was paid into Court and continues to be held by the Court pending the outcome of various proceedings, including Family Court proceedings which involve Mr Robert Sebie, his former wife, a company of which Mr Robert Sebie is not the director and, it also seems, the parents of Robert Sebie, Mr Ramzy Sebie and Mrs Rose Sebie. All of those persons and entities have been parties and/or in one way or the other involved in or referred to in the various proceedings in the Supreme Court.

[6]   Robert Sebie accepts, as I understand it and as I would find in any event, that having sold the property to Mr and Mrs Pham and that sale having been completed, he has no possessory or other interest in the Chiswick property. Notwithstanding that, he seeks to remain in possession of that property until the resolution of either, a summons seeking leave to appeal from judgments of Slattery J and of Kunc J given on 13 July 2018 and 4 October 2018 respectively, or until proceedings have been concluded in the Family Court of Australia.

[7]   In the Supreme Court matters, Slattery J made an order for possession of the Chiswick property. On 28 September 2018, Kunc J ordered that a writ for possession be issued. His Honour's reasons for making that order were given in the judgment of 4 October 2018."

4. There is also included in the white book at p 1 another document styled "Amended Summons seeking leave to appeal" in which ENA Development is identified as "third appellant" and Mr Robert Sebie is identified as "third respondent". This document is dated 20 May 2019 and has not been filed nor, to the best of my knowledge, has any leave been sought or granted to amend the previously filed amended summons to add ENA Development as an appellant and to add Mr Robert Sebie as a respondent.

5. The 27 November 2018 Amended Summons, that is to say the only summons properly before the Court today, makes reference to and seeks leave to appeal from three judgments given by judges given in the Equity Division of this Court.

6. The first decision from which leave to appeal is sought is the judgment of Slattery J in Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 3) [2018] NSWSC 381. This judgment was delivered by his Honour on 29 March 2018 following the making of orders on 26 March 2018. The orders his Honour made on that occasion are set out in [102] of his Honour's judgment, and they were as follows:

"Accordingly, the Court makes the following orders and directions:

(1)   Dismiss Mr Ramzy Sebie's application for leave to appear for the respondent to the plaintiffs' motion dated 30 January 2018, ENA Developments Pty Limited (referred to in these orders as 'ENA')

(2)   Dismiss the Notice of Motion brought by ENA on 13 February 2018 for leave to file a Cross Claim.

(3)   Order ENA pay the costs of and incidental to its 13 February 2018 motion.

(4)   Reserve for further argument the question of whether the costs ordered against ENA pursuant to Order 3 should also be paid by any other person.

(5) Order pursuant to s 74MA of the Real Property Act 1900 that by 4.00pm on 29 March 2018 ENA remove the caveat which bears dealing number AN33247 (referred to as 'the Caveat' in these orders).

(6) Order for the purpose of Real Property Act, s 74MA(3) that if ENA fails to remove the Caveat by 4.00pm on 29 March 2018 the Caveat will lapse and the Registrar General is thereafter authorised to remove it from the Register.

(7) Pursuant to Real Property Act, s 74O ENA is restrained from lodging, or causing to be lodged, any further caveat or other dealing on the title to the Chiswick Property.

(8)   Order ENA to pay the plaintiffs' costs of and incidental to the plaintiffs' motion of 30 January 2018.

(9)   Reserve the question of whether the costs ordered against ENA pursuant to Order 9 may also be paid by any other person.

(10)   Extend to 2.00pm on 11 April 2018 the date by which completion of the contract for sale of the Chiswick Property is to occur before the Registrar in Equity pursuant to Order 2 of the Court's orders made on 30 January 2018.

(11)   In the event that Mr Robert Sebie does not attend before the Registrar upon the amended date for completion of the contract for sale the Chiswick Property, which is 2.00pm on 11 April 2018, the court notes that all the orders made by Pembroke J on 15 May 2017, concerning that completion are of continuing effect and in particular Order 7, which is as follows:

'(7)   Order that the Registrar in Equity be authorised, in default of the third defendant's compliance with Order (6), to execute all such documents and take all such steps in the name of the third defendant as may be necessary to ensure the performance and completion of the Contract'.

(12)   Adjourn these proceedings for mention to 9.30am on 3 May 2018 and grant leave to make returnable any notices of motion for the recovery from third parties of the costs orders made against ENA, or any other supplementary motions.

(13)   Grant liberty to apply.

(14)   Note that should the plaintiffs seek the issue of a writ of possession of the Chiswick Property after completion of the contract for sale of that property, then the plaintiffs may for that purpose take advantage of the liberty to apply hereby granted.

(15)   Order the plaintiffs serve a copy of these orders at the email address for service in the proceedings for ENA and Mr Robert Sebie by 6.00pm today, 26 March 2018.

(16)   These orders may be taken out forthwith."

7. I note that neither Mr Ramzy nor Mrs Rose Sebie were parties to those proceedings. Further, although ENA Development was a party to those proceedings, it has not sought leave to appeal from that decision in any summons seeking leave to appeal that has been filed in this Court. To the extent that any application were to be made by ENA Development to seek leave to appeal from that decision, it would be well out of time, more than 15 months having elapsed since Slattery J gave his decision in that matter.

8. The second decision from which leave to appeal is sought is another decision of Slattery J in the matter of Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 7) [2018] NSWSC 1063, a decision delivered on 13 July 2018. In this decision, his Honour made the following orders as set out in [102] of that decision:

"Accordingly, the Court makes the following orders and directions:

(1)   Judgment for the plaintiffs for possession of the Chiswick property [folio identifier not published].

(2)   Order the defendants to pay the plaintiffs' costs of the contest in relation to the judgment for possession of the Chiswick property.

(3)   Order that the proceedings on the amended cross claim brought by ENA Developments Pty Ltd ('ENA') be stayed against the plaintiffs/cross defendants unless before 4.00pm on 27 July 2018 the cross claimant, ENA, provides acceptable security for the potential costs liability of ENA to the plaintiffs/cross defendants in the amount of $100,000.00, on account of the cross defendants' costs to be incurred up to the commencement of the hearing of the amended cross claim.

(4)   The cross defendants have liberty to apply for future security to cover the hearing of the amended cross claim when it is set down for hearing.

(5)   The cross defendants have further liberty to apply for greater security for costs, if their legal costs exceed by more than 10% those estimated in the course of this application.

(6)   Order that the costs of the cross defendants' motion for security for costs will be the cross defendants' costs in the cause.

(7)   Refer a copy of these reasons to the Registrar of the Court of Appeal."

9. I note that Mrs Rose Sebie was not a party to those proceedings, although Mr Ramzy Sebie was a party. Any application for leave to appeal from that decision was required to have been filed well prior to the original summons seeking leave to appeal in these proceedings which I note was filed on 19 November 2018.

10. The third decision which is the subject of the application for leave to appeal is the decision of Kunc J delivered in Pham v Enterprise ICT Pty Ltd (No 8) [2018] NSWSC 1492. His Honour made orders in that matter on 28 September 2018 and published reasons for those orders on 4 October 2018. Mr Ramzy Sebie was the third respondent in those proceedings, and Mrs Rose Sebie was the fourth respondent in those proceedings. The orders his Honour made in those proceedings, relevantly, were to:

“1.   Gran[t] leave to the plaintiffs for the issue of a writ of possession of the [Chiswick property].

2.   Direct that the writ issue forthwith but lie in the Registry up to and including 26 October 2018 or such later date as the Court may order.

3.   Robert Sebie and Ramzy Sebie are ordered to pay the plaintiff's costs of the application for the issue of a writ of possession of the property”.

11. I note that Mr Robert Sebie was a party to those proceedings, but he is not an applicant for leave to appeal.

12. I should also note that there is a fourth judgment which has been included in the White Book: namely, a decision of Slattery J in Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 11) [2019] NSWSC 115. This decision was given on 20 February 2019. I note that Mr Ramzy Sebie and Mrs Rose Sebie were not parties to that decision although it appears that Mr Ramzy Sebie made submissions in that matter. No orders were made against or relating to Mr Ramzy Sebie or ENA Development. The only relevant orders were made against Mr Robert Sebie in that matter: see [37] of his Honour's judgment. No application for leave to appeal from that decision is before the Court today notwithstanding the inclusion of that judgment in the White Book.

13. It follows from the above that:

1. The only judgments which Mr Ramzy Sebie has any interest in or standing to seek leave to appeal from are those of Kunc J of [2018] NSWSC 1492 and Slattery J of [2018] NSWSC 1063, although I note that the application for leave to appeal from the latter decision is out of time and no application seeking leave to extend time has been made;

2. The only judgment which Mrs Rose Sebie has any interest in or standing to seek leave to appeal from is that of Kunc J.

14. The Court received detailed written submissions filed on behalf of Mr Ramzy Sebie which addressed Kunc J’s decision but not, I note, Slattery J’s decision in [2018] NSWSC 1063. As I have already noted, the application for leave to appeal was in any event out of time in respect of this judgment. To the extent that submissions filed on behalf of Mr Ramzy Sebie also address the two other judgments of Slattery J to which I have referred, namely [2018] NSWSC 381 and [2019] NSWSC 115, those submissions will not be dealt with as Mr Ramzy Sebie (and Mrs Rose Sebie for that matter) were not parties to those proceedings.

15. It follows that it is only necessary to address submissions filed by both Mr Ramzy Sebie and Mrs Rose Sebie in respect of the decision of Kunc J.

16. It will be recalled that, in his decision, Kunc J granted leave for the issue of a writ of possession in respect of the Chiswick property. In [6]–[7] of his judgment, Kunc J noted that there was no basis on which Mr Robert Sebie and Mr Ramzy Sebie could contend that any procedural prerequisite for the issue of a writ of possession had not been satisfied. His Honour continued that, when distilled to their essentials, Mr Robert Sebie really only raised two objections, the first being a discretionary one which his Honour rejected; and the second being an argument to the effect that there were tenants in the Chiswick property whose interest prevailed against the plaintiffs by reason of s 42(1)(d) of the Real Property Act 1900 (NSW). In respect of this argument, his Honour concluded that the relevant leases "if they be such" are either of no legal effect or would not prevail against the plaintiffs as registered proprietors of the Chiswick property.

17. His Honour elaborated on his reasons for rejecting the discretionary argument he summarised in [6] of his reasons in paras [26]–[31] of his judgment which were in the following terms:

"Robert protested, including tearfully, that there was nowhere for his family to go if they were required to leave the Chiswick property. In his oral submissions, he sought to describe the Seven Hills property in the most unfavourable light, including that the Seven Hills property only had one bathroom and toilet and that it would be unsuitable for Rose's needs.

However, having carefully considered the actual evidence about the Seven Hills property, I was left completely unpersuaded by that evidence and Robert's submissions that it would not be possible for the family, including Rose, to relocate to the Seven Hills property. Nor did Robert make any case that the family was financially unable to fund other accommodation, even if the Seven Hills property was not suitable.

It was clear that Ramzy finds the Seven Hills property adequate when he is not living at the Chiswick property. Robert did not suggest that he has any special requirements. While I accept that Rose is unwell and spends much of her time bedridden, the evidence does not support the conclusion that the Seven Hills property could not accommodate Rose.

The Court finds that this is not a case where Rose, Ramzy and Robert will have nowhere to go upon execution of the writ for possession. The Seven Hills property is adequate and available for their accommodation.

In relation to Robert's custody arrangements for his children, the Court is satisfied that while the Seven Hills property may be less geographically convenient than the Chiswick property, it is not physically unsuitable for those periods of time that his children live with him.

It follows that Robert failed to demonstrate that there was any discretionary reason in terms of accommodation of family members that a writ for possession should not issue. I will consider Ms Oswald's position in the next section of these reasons."

18. His Honour (at [7]) elaborated on his rejection of the argument that there were tenants in the Chiswick property whose interests prevailed against those of the plaintiffs by reason of s 42(1)(d) of the Real Property Act in [32]–[35] and [36]–[44] of his reasons for judgment. Those paragraphs relevantly provided as follows:

"[32] Robert sought to rely on leases that had allegedly been entered into with Rose and Ms Oswald. He submitted that these were unregistered leases for a period of less than three years which prevailed against the plaintiffs' interest as registered proprietors of the Chiswick property by reason of the s 42(1)(d) of the Act:

'42   Estate of registered proprietor paramount

(1)   Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except:

...

(d)   a tenancy whereunder the tenant is in possession or entitled to immediate possession, and an agreement or option for the acquisition by such a tenant of a further term to commence at the expiration of such a tenancy, of which in either case the registered proprietor before he or she became registered as proprietor had notice against which he or she was not protected:

Provided that:

(i)   The term for which the tenancy was created does not exceed three years, and

(ii)   in the case of such an agreement or option, the additional term for which it provides would not, when added to the original term, exceed three years.'

[33]   Robert tendered a standard form residential tenancy agreement between himself and Rose apparently executed on 15 January 2018 for a period of two years ending on 15 January 2020. The rent was specified as $120 per week and the location is described as the Chiswick property '(F MB Rooms)' which I infer means front room and master bedroom. The inclusions specify that furniture is provided.

[34]   The plaintiffs submitted that the agreement with Rose was a sham. It is not necessary for the Court to go so far. There was no credible evidence that the rent had ever been paid. Furthermore, I asked Robert whether he would ever enforce the terms of the agreement (such as they were) against Rose by evicting her for breach of those terms. He answered 'Frankly, no, it's my mother'. He also made it clear that if he had to leave the Chiswick property he would take Rose with him.

[35]   Given the matters in the preceding paragraph and notwithstanding the execution of the standard form, the Court is not satisfied that there was ever any intention to create legal relations between him and Rose in relation to her occupation of the Chiswick property. She is his mother and he is her carer. Even if there had been such an intention, in circumstances where Robert has no basis on which to resist the writ for possession and he has given evidence that he would take Rose with him when he left the Chiswick property, the alleged lease between Robert and Rose provides no basis for the Court to decline to order the writ to issue.

[36]   Ms Oswald's agreement (the 'Oswald Agreement') raises different considerations. It is in these terms:

'Enterprise ICT Pty Ltd

XXX

Chiswick NSW 2046

17 December 2017

Rental Agreement For Shared Room/House

Please accept this as an agreement for a shared accommodation for a room at XXX, Chiswick NSW 2046. The agreed weekly prices is (see below), paid every two weeks in advance. The initial term is for 12 months commencing from 17 December 2017. The term can be renewed on acceptance of both parties. The tenant has agreed to pay a bond in the consideration of 4 weeks rent. The bond will be returned upon moving out of the above mentioned property, pending there is no damage caused to the property or breach of agreement.

Weekly Rent As Per Room

a) Standard Room $250

Rooms are full or partly furnished. The first 2 weeks are based on an trial period and not subject to any notice given by the landlord.

Notice is to be given by the tenant of 21 days post the term date.

The tenant of the room is

Name Jade Oswald

Drivers Licence and Passport XXXXX XX

Utility Expenses which are the Electricity, Gas, Water are all included in the weekly rent. However we accept the tenant is responsible and does not over use these services.

Cleaning of the house will be shared amount [sic] the people whom live within the house on an weekly/fortnightly services.

Signed (Signature) Jade Oswald

Dated 18/12/17

Jade Oswald (Signature) Robert Sebie

Tenant Land load [sic] – Owner'

[37]   There are four reasons why I was not satisfied that the Oswald Agreement poses any impediment to the issue of the writ.

[38] First, although the words 'landlord' and 'tenant' appear in the document, it is not described as a lease. It is a 'rental agreement for shared room/house'. It relates to 'shared accommodation' for an unspecified room in the Chiswick property. In its terms it does not convey a right to exclusive possession of the unspecified room. The conferral of such a right is essential to create a lease rather than a licence. The Court is not satisfied that, in its terms and without more, Robert has established on the balance of probabilities that the Oswald Agreement is a lease (see P Butt, 'Tenants, lodgers and boarders' (2006) 80 ALJ 423).

[39] Second, and assuming in Robert's favour that the Oswald Agreement is a binding lease, Ms Oswald would only have the benefit of s 42(1)(d) of the Act if the plaintiffs had notice of Ms Oswald's tenancy prior to becoming registered proprietors.

[40]   Completion of the sale of the Chiswick property from Robert Sebie to the plaintiffs took place on 2 May 2018. I accept Mr Zipser's submission that there is nothing in the evidence which supports the proposition that the plaintiffs had notice of Ms Oswald's tenancy prior to the service of Robert's affidavit affirmed on 6 June 2018 (which attaches the Oswald Agreement).

[41]   In his affidavit of 28 August 2018, Robert sought to demonstrate that the plaintiffs were on notice of the tenants at the Chiswick property by reference to events in, and the service of affidavits during, September 2017. In particular, Robert relied on orders Slattery J made on 8 September 2017 which he (Robert) said, 'mentions the tenants by name'. An examination of his Honour's orders of that date discloses that the orders refer to 'three persons who are alleged to be occupants of the premises and who are not part of these proceedings, namely Ms Abby Russell, Ms Somayeh Grant and Mrs Rose Sebie'.

[42]   The difficulty for Robert is that the Oswald Agreement was not executed until December 2017. Robert has failed to demonstrate that the plaintiffs were on notice of Ms Oswald's alleged tenancy prior to becoming the registered proprietors of the Chiswick property. If it be necessary, I also find that the first time that the plaintiffs were put on notice of Ms Oswald's alleged tenancy was when they were served with Robert's affidavit affirmed on 6 June 2018 (the service of which I infer was on a date no earlier than the date upon which the affidavit was affirmed).

[43]   Third, the Court infers from the facts that she swore an affidavit and made herself available for cross examination, that Ms Oswald was well and truly aware of the plaintiffs' application for the issue of a writ. She has not sought to be joined in the proceedings and has not indicated that she opposes an order being made for the issue of the writ.

[44]   Fourth, there is no evidence that either Robert or Ms Oswald has sought to extend the term of her occupation of the Chiswick property. Under the terms of the Oswald Agreement (see paragraph [36] above), her right to occupy a room at the Chiswick property will expire on 17 December 2018."

19. Against that background, I turn to the various submissions that were made on behalf of both Mrs Rose Sebie and Mr Ramzy Sebie in writing and orally.

20. The first submission to be dealt with was the suggestion that Kunc J failed to consider the evidence of Ms Jade Oswald. That submission was factually wrong. An affidavit of Ms Oswald was read and she was cross examined in the proceedings before his Honour. Further, Ms Oswald's evidence and its significance was the subject of analysis by his Honour at [36]–[45] of the reasons for judgment. I note, in particular, [43] of the judgment and his Honour's observations there set out. Furthermore, in relation to this aspect of complaint, the submissions neither in writing nor orally explained what particular evidence was not considered and how such evidence bore upon the findings made by Kunc J.

21. The second matter relates to a complaint that Kunc J did not take into account fortnightly "rent receipts" which were said to support the existence of lease agreements. The fundamental difficulty with this submission was that, although such documents apparently were produced to the Court in answer to a notice to produce, they were not in evidence before Kunc J. Mr Sebie submitted that they had been sent by email to his Honour's chambers. As was pointed out in the course of oral argument, this is not the same as tendering evidence in court. That is not simply a formality. On the attempted tender of evidence in court, the opposing party has an opportunity to raise such objections it may be advised to take in relation to the documents, to review the documents, to call for originals and to test the veracity of those documents. This is why there is a formal requirement that evidence be identified with clarity and formally tendered subject to another party's right to object. Accordingly, this aspect of the argument must be rejected.

22. The third argument advanced in particular on behalf of Mrs Rose Sebie was that she had been denied procedural fairness in the hearing before Kunc J. In response to this argument, it was put on behalf of the respondents by Mr Zipser who appeared for them, that Mrs Rose Sebie did not appear at the hearing and so could not have been denied procedural fairness. It was also put that there is no evidence in the White Book that anybody applied to his Honour to read any affidavit of Mrs Rose Sebie.

23. Further, no submission was put as to arguments that Mrs Rose Sebie would have made which were any different to the arguments which were obviously made, and made forcefully, by Mr Robert Sebie on behalf of his father on the occasion of the hearing before Kunc J.

24. For those reasons, I do not think that the assertion that Mrs Rose Sebie was denied procedural fairness has any proper basis but, even if it did, given the closely aligned if not totally identical interests of Mrs Rose Sebie and Mr Ramzy Sebie, it does not seem to me that the interests of justice would justify a grant of leave to appeal on this ground.

25. The next argument which was advanced on behalf of Mr Ramzy Sebie in para 1.8 of his written submissions appears to be an attack on [35] of Kunc J’s judgment although the reference in the written submissions is to [33] rather than [35]. From the context of the submission in para 1.8 of Mr Ramzy Sebie's submissions, however, it appears to me that the attack intended to be made was in respect of [35].

26. The essence of that attack was that his Honour erred in a finding in that paragraph that Mr Robert Sebie was the sole carer of his mother, Mrs Rose Sebie. It is pointed out in written submissions that that is not in fact the case and that she has a number of other carers in addition to Robert Sebie. Whilst it may not have been factually accurate to describe Mr Robert Sebie as the sole carer (although it is not clear that evidence as to other carers was before his Honour), the point sought to be raised has no materiality to his Honour's reasons or the correctness or otherwise of those reasons.

27. Next, no issue of principle or other matter of substance has been raised which seeks to attack his Honour's findings. I should note, however, in this context, that there was an attempt made in oral argument to suggest that a finding that Slattery J had made in [2018] NSWSC 1063 at [71], namely, that the first notice that the Phams had of the alleged tenancy came when they were served with Mr Robert Sebie's affidavit of 20 June 2018, was sought to be put in issue by reference to two documents in particular: first, an email of 2017; secondly, some written submissions filed in earlier proceedings before Slattery J also in 2017. A number of observations can be made in relation to that matter and that argument.

28. First, it was accepted by Ms Georgy on behalf of Mrs Rose Sebie and Mr Robert Sebie on behalf of Mr Ramzy Sebie that that material was not in evidence before Kunc J. Secondly, and even more significantly, whether or not the Phams were on notice of the tenancies does not really touch upon the fundamental reasoning of Kunc J who found that the Real Property Act was not engaged because of the absence of any leases, properly so called.

29. For these two reasons, I do not think that there is any substance in the point sought to be raised on behalf of the applicants, even if the material on which that argument was based was properly before the Court.

30. For all the above reasons, in my opinion, the application for leave to appeal should be dismissed with costs.

31. EMMETT AJA: I agree for the reasons given by the President. The application for leave to appeal should be dismissed with costs.

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