Sebie v Pham (No 3)

Case [2021] NSWCA 277

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Sebie v Pham (No 3) [2021] NSWCA 277
Hearing dates: 21 October 2021
Date of orders: 19 November 2021
Decision date: 19 November 2021
Before: Bell P and Basten JA at [1];
Brereton JA at [22]
Decision:

Summons seeking leave to appeal dismissed with costs.

Catchwords:

APPEALS – Leave to appeal – From orders for payment out from funds held in Court – Only other party with arguable claim to funds not permitted by Court to be re-joined as an applicant – Grant of leave would undermine Court’s unanimous decision to refuse re-joinder – Significant obstacles and uncertainty attending to claim – Court concerned by potential undisclosed interest of first applicant – First and second respondents entitled to final resolution – Orders appealed from are discretionary – Leave refused

APPEALS – Leave to appeal – From various other decisions dating back to 2017 – Application well out of time – No explanation for delay – Issues known to applicant and thus ought to have been raised much earlier – Rights of third parties have intervened – No errors demonstrated – Leave refused

Legislation Cited:

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

(NSW) Supreme Court Rules 1970, pt 40 r 1

(NSW) Uniform Civil Procedure Rules 2005, rr 7.1, 13.6, 36.1, 41.3

Cases Cited:

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

Enterprise ICT Pty Ltd v Pham [2017] NSWCA 236

Enterprise ICT Pty Ltd v Pham [2018] NSWCA 74

Enterprise ICT Pty Ltd v Pham (No 1) [2018] NSWCA 180

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

Enterprise ICT Pty Ltd v Pham (No 3) [2019] NSWCA 138

Farrell v Mulroney [1978] 1 NSWLR 221

JKB Holdings Pty Ltd v de la Vega [2013] NSWSC 501

Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446

Pham v Enterprise ICT Pty Ltd (No 2) [2017] NSWSC 583

Pham v Enterprise ICT Pty Ltd [2017] NSWSC 1509

Pham v Enterprise ICT Pty Ltd (No 2) [2018] NSWSC 22

Pham v Enterprise ICT Pty Ltd (No 3) [2018] NSWSC 381

Pham v Enterprise ICT Pty Ltd (No 7) [2018] NSWSC 1063

Pham v Enterprise ICT Pty Ltd (No 8) [2018] NSWSC 1492

Pham v Enterprise ICT Pty Ltd (No 10) [2018] NSWSC 1805

Pham v Enterprise ICT Pty Ltd (No 11) [2019] NSWSC 115

Pham v Enterprise ICT Pty Ltd (No 13) [2019] NSWSC 522

Pham v Enterprise ICT Pty Ltd [2019] NSWSC 1857

Pham v Enterprise ICT Pty Ltd [2020] NSWSC 1089

Pham v Enterprise ICT Pty Ltd [2021] NSWSC 339

Pham v Enterprise ICT Pty Ltd [2021] NSWSC 542

Sebie v Pham [2018] NSWCA 332

Sebie v Pham [2018] NSWCA 333

Sebie v Pham [2019] NSWCA 58

Sebie v Pham [2019] NSWCA 184

Sebie v Pham [2021] NSWCA 115

Sebie v Pham (No 2) [2021] NSWCA 274

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597

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Details
AGLC
Sebie v Pham (No 3) [2021] NSWCA 277
Case
[2021] NSWCA 277
Decision Date

CaseChat Overview and Summary

This matter concerned an application for leave to appeal by the first applicant against orders made by the primary judge concerning the payment out of funds held in court. The first applicant sought to appeal against orders that permitted the second respondent to be paid from those funds, and also sought to appeal against various other decisions made by the primary judge dating back to 2017. The first applicant's claim to the funds was contested by the respondents, who argued that the first applicant had not demonstrated an arguable case for the funds.

The Court of Appeal was required to determine whether to grant leave to appeal against the orders for payment out of court. This involved considering whether the first applicant had an arguable case for the funds, particularly in light of a previous decision by the Court to refuse to re-join the first applicant as an applicant in proceedings concerning the funds. The Court also had to consider the significant obstacles and uncertainty surrounding the first applicant's claim, as well as concerns about a potential undisclosed interest of the first applicant. Furthermore, the Court was required to determine whether to grant leave to appeal against earlier decisions, assessing whether the application was made within a reasonable time and if any errors had been demonstrated.

The Court refused leave to appeal. Regarding the payment out orders, the Court noted that granting leave would undermine its unanimous decision to refuse re-joinder of the first applicant. The Court found that there were significant obstacles and uncertainty attending to the first applicant's claim, and expressed concern about a potential undisclosed interest of the first applicant. The Court also observed that the first and second respondents were entitled to final resolution of the matter, and that the orders appealed from were discretionary. In relation to the earlier decisions, the Court found the application to be well out of time, with no explanation for the delay, and that the issues were known to the applicant and ought to have been raised much earlier. The Court also noted that the rights of third parties had intervened and that no errors had been demonstrated.

Consequently, the summons seeking leave to appeal was dismissed with costs.

Orders

Orders of the court

Summons seeking 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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