Sebie v Pham - [2018] NSWCA 333

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sebie v Pham [2018] NSWCA 333
Hearing dates: 6 December 2018
Date of orders: 06 December 2018
Decision date: 06 December 2018
Before: Beazley P
Decision:
(1) Robert Sebie’s notice of motion dismissed with costs;
(2) Ramzy Sebie’s notice of motion dismissed with costs.
Catchwords: CIVIL PROCEDURE – Court of Appeal – stay of proceedings – stay pending appeal – stay pending determination of Family Court proceedings
Category: Principal judgment
Parties:
Robert Sebie (Applicant
Ramzy Sebie (Applicant)
Andy Vuong Duc Pham (First Respondent)
Thi Huong Giang Pham (Second Respondent)
Representation:
Counsel:
In person (Robert Sebie)
In person (Ramzy Sebie)
B Zipser (Respondents)
Solicitors:
Andy Pham Lawyers (Respondents)

File Number(s): 2015/325044; 2018/252265
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Date of Decision:

26 March 2018; 13 July 2018; 28 September 2018

Before:

Slattery J; Kunc J

File Number(s):

2015/325044; 2015/56505

Judgment

HER HONOUR: There is listed before me a notice of motion of Robert Sebie which was filed in Court before Pembroke J in the Equity Duty List yesterday, 5 December 2018. Pembroke J considered it appropriate to refer the matter to the Court of Appeal. For that reason, I have decided that it is appropriate in the interests of justice that I deal with it.
The notice of motion has been supported by an affidavit of Mr Robert Sebie of 3 December 2018. There was also affidavit evidence filed on behalf of the respondents, Andy Vuong Duc Pham and Thi Huong Giang Pham, being two affidavits of Andy Pham which had been read in one of the proceedings in the court below and were read again before me.
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.
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.
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…

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 [2018] NSWCA 333
Case: [2018] NSWCA 333
Decision Date: 06 December 2018

CaseChat Overview and Summary

In *Sebie v Pham*, the Court of Appeal considered applications for a stay of proceedings. The dispute involved an appeal by Robert Sebie and Ramzy Sebie against a decision of the primary judge. The applicants sought to stay the proceedings pending the determination of related proceedings in the Family Court of Australia.

The central legal issue before the Court of Appeal was whether the proceedings should be stayed to await the outcome of the Family Court proceedings. This required the court to consider the principles governing the grant of a stay of proceedings, particularly in circumstances where parallel litigation is underway in another jurisdiction.

The Court of Appeal dismissed the applications for a stay. The reasoning applied by the court, though not detailed in the provided text, would have involved an assessment of whether the criteria for granting a stay were met. This typically includes considerations such as whether there are exceptional circumstances, whether the stay is necessary to prevent injustice, and the potential prejudice to the parties. The court ultimately found that a stay was not warranted in this instance.

Consequently, the Court of Appeal ordered that Robert Sebie’s notice of motion be dismissed with costs, and Ramzy Sebie’s notice of motion be dismissed with costs.

Orders

Orders of the court

(1) Robert Sebie’s notice of motion dismissed with costs;

(2) Ramzy Sebie’s notice of motion 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 [2018] NSWCA 333
Hearing dates:	6 December 2018
Date of orders:	06 December 2018
Decision date:	06 December 2018
Before:	Beazley P
Decision:	(1) Robert Sebie’s notice of motion dismissed with costs; (2) Ramzy Sebie’s notice of motion dismissed with costs.
Catchwords:	CIVIL PROCEDURE – Court of Appeal – stay of proceedings – stay pending appeal – stay pending determination of Family Court proceedings
Category:	Principal judgment
Parties:	Robert Sebie (Applicant Ramzy Sebie (Applicant) Andy Vuong Duc Pham (First Respondent) Thi Huong Giang Pham (Second Respondent)
Representation:	Counsel: In person (Robert Sebie) In person (Ramzy Sebie) B Zipser (Respondents) Solicitors: Andy Pham Lawyers (Respondents)
File Number(s):	2015/325044; 2018/252265
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Date of Decision: 26 March 2018; 13 July 2018; 28 September 2018 Before: Slattery J; Kunc J File Number(s): 2015/325044; 2015/56505