Sebie v Pham - [2019] NSWCA 58

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sebie v Pham [2019] NSWCA 58
Hearing dates: 25 March 2019
Decision date: 25 March 2019
Before: Leeming JA
Decision:
1. I note the undertaking of counsel appearing for Mr and Mrs Pham on behalf of his clients to the court in the following terms: (a) Not to further encumber the property or transfer it to a third party until the earlier of four months from today or the determination of the appeal in this matter and (b) not to transfer the property for six months without first giving written notice to the applicants.

2. Dismiss paragraph 10 of the amended notice of motion filed 11 March 2019, with costs.

3. Direct that the applicants file their submissions including any supplementary submissions and serve them on or before Tuesday 23 April.

4. Direct the respondents to file and serve their submissions by Tuesday 7 May 2019.
5. Stand matter into the Registrar’s list on Monday 13 May for the allocation of a date but note that that directions hearing may be vacated if a date can be allocated in advance.
Catchwords: PRACTICE – appeals – stay of execution – order for payment to respondents out of moneys in court – whether applicants had made out proper basis for a stay – where respondents held assets including real property and proffered undertakings – stay refused
Legislation Cited: Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211
Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185
Grace v Grace (2014) 85 NSWLR 688; [2014] NSWCA 86
Pham v Enterprise ICT Pty Ltd (No 11) [2019] NSWSC 115
Vaughan v Dawson [2008] NSWCA 169
Category: Procedural and other rulings
Parties: Ramzy Sebie (first applicant)
Rose Sebie (second applicant)
Robert Sebie (third applicant)
ENA Development Pty Ltd (fourth applicant)
Andy Vuong Duc Pham (first respondent)
Thi Huong Giang Pham (second respondent)
Representation:
Counsel:
Robert Sebie (in person and on behalf of Ramzy Sebie)
Sophie Georgy (Rose Sebie)
G Elliott (ENA Development Pty Ltd)
B Zipser (respondents)

File Number(s): 2018/252265
Publication restriction: None
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2019] NSWSC 115

Date of Decision:

20 February 2019

Before:

Slattery J

File Number(s):

2015/325044; 2015/56505

Ex Tempore Judgment

HIS HONOUR: Referred before me today by the Registrar is paragraph 10 of an amended notice of motion filed on 11 March 2019 which seeks the following orders:

“10. Orders of the court below of Slattery J dated 20 February 2019 to be stayed until:
a. The proceedings of Supreme Court of NSW, Summons Case #2018/00137809 is finalised.
b. The proceedings of Family Court of Australia Case #SYC0059/2010 is finalised.
c. This Court of Appeal Case #2018/252265 is…

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 58
Case: [2019] NSWCA 58
Decision Date: 25 March 2019

CaseChat Overview and Summary

In *Sebie v Pham*, the applicants sought a stay of execution of an order for payment to the respondents out of moneys held in court. The matter came before Leeming JA in the Court of Appeal of New South Wales.

The primary legal issue before the court was whether the applicants had established a proper basis for a stay of execution. This involved considering the applicants' prospects of success on appeal and the balance of convenience, particularly in light of the respondents' assets and undertakings.

Leeming JA noted the undertakings provided by counsel for the respondents, which included not to further encumber or transfer the property in question until the earlier of four months from the date of the order or the determination of the appeal, and not to transfer the property for six months without prior written notice to the applicants. Despite these undertakings, and considering the overall circumstances, the court determined that the applicants had not made out a proper basis for a stay. Consequently, the application for a stay was dismissed. The court also made directions regarding the filing of submissions by both parties and stood the matter over for the allocation of a hearing date.

Orders

Orders of the court

1. I note the undertaking of counsel appearing for Mr and Mrs Pham on behalf of his clients to the court in the following terms: (a) Not to further encumber the property or transfer it to a third party until the earlier of four months from today or the determination of the appeal in this matter and (b) not to transfer the property for six months without first giving written notice to the applicants.

2. Dismiss paragraph 10 of the amended notice of motion filed 11 March 2019, with costs.

3. Direct that the applicants file their submissions including any supplementary submissions and serve them on or before Tuesday 23 April.

4. Direct the respondents to file and serve their submissions by Tuesday 7 May 2019.

5. Stand matter into the Registrar’s list on Monday 13 May for the allocation of a date but note that that directions hearing may be vacated if a date can be allocated in advance.

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 Pham [2019] NSWCA 58
Hearing dates:	25 March 2019
Decision date:	25 March 2019
Before:	Leeming JA
Decision:	1. I note the undertaking of counsel appearing for Mr and Mrs Pham on behalf of his clients to the court in the following terms: (a) Not to further encumber the property or transfer it to a third party until the earlier of four months from today or the determination of the appeal in this matter and (b) not to transfer the property for six months without first giving written notice to the applicants. 2. Dismiss paragraph 10 of the amended notice of motion filed 11 March 2019, with costs. 3. Direct that the applicants file their submissions including any supplementary submissions and serve them on or before Tuesday 23 April. 4. Direct the respondents to file and serve their submissions by Tuesday 7 May 2019. 5. Stand matter into the Registrar’s list on Monday 13 May for the allocation of a date but note that that directions hearing may be vacated if a date can be allocated in advance.
Catchwords:	PRACTICE – appeals – stay of execution – order for payment to respondents out of moneys in court – whether applicants had made out proper basis for a stay – where respondents held assets including real property and proffered undertakings – stay refused
Legislation Cited:	Family Law Act 1975 (Cth) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185 Grace v Grace (2014) 85 NSWLR 688; [2014] NSWCA 86 Pham v Enterprise ICT Pty Ltd (No 11) [2019] NSWSC 115 Vaughan v Dawson [2008] NSWCA 169
Category:	Procedural and other rulings
Parties:	Ramzy Sebie (first applicant) Rose Sebie (second applicant) Robert Sebie (third applicant) ENA Development Pty Ltd (fourth applicant) Andy Vuong Duc Pham (first respondent) Thi Huong Giang Pham (second respondent)
Representation:	Counsel: Robert Sebie (in person and on behalf of Ramzy Sebie) Sophie Georgy (Rose Sebie) G Elliott (ENA Development Pty Ltd) B Zipser (respondents)
File Number(s):	2018/252265
Publication restriction:	None
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2019] NSWSC 115 Date of Decision: 20 February 2019 Before: Slattery J File Number(s): 2015/325044; 2015/56505