Sebie v Pham (No 4)

Case [2021] NSWCA 326


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Sebie v Pham (No 4) [2021] NSWCA 326
Hearing dates: 15 December 2021
Date of orders: 16 December 2021
Decision date: 16 December 2021
Before: Meagher JA
Decision:

Dismiss the amended notice of motion dated 27 November 2021 with costs.

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application for stay of orders pending application for special leave to appeal to High Court – where orders made in underlying proceedings for payment out of funds held in court – where leave to appeal against those payment orders and earlier orders refused by majority of this Court – whether substantial prospect that special leave will be granted – application dismissed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 7.2

Cases Cited:

Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84

Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1

Category:Procedural rulings
Parties: Robert Sebie (First Applicant)
ENA Development Pty Ltd (Second Applicant)
Andy Vuong Duc Pham (First Respondent)
Thi Huong Giang Pham (Second Respondent)
Representation:

Counsel:

Self-represented (First Applicant)
M Zraika (as director) (Second Applicant)
B Zipser (Respondents)

Solicitors:

Andy Pham Lawyers (Respondents)
File Number(s): 2021/133082
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity Division
Citation:

[2017] NSWSC 583

[2018] NSWSC 381

[2019] NSWSC 115

[2020] NSWSC 1089

[2021] NSWSC 542

Date of Decision:
15 May 2017
Before:
Pembroke J;
Slattery J;
Slattery J;
Sackar J
Sackar J
File Number(s):
2015/325044; 2015/56505

Judgment

  1. This is an application for the grant of a stay of orders for the payment of moneys out of court, pending an application for special leave to appeal to the High Court. The proposed appeal is from a decision of this Court refusing leave to appeal from the payment out orders as well as a number of earlier judgments and orders (Sebie v Pham (No 3) [2021] NSWCA 277 (Sebie v Pham (No 3)). Most of those judgments and orders concern proceedings involving Mr Sebie as distinct from the corporate applicant in which he maintains he has no indirect financial or controlling interest.

  2. The question for this Court on such an application is stated by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84 (see Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 at [48] per Bathurst CJ, Beazley and McColl JJA).

  3. In Burgundy Royale at 684-685, his Honour said:

A stay to preserve the subject matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. …

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion.…

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AGLC
Sebie v Pham (No 4) [2021] NSWCA 326
Case
[2021] NSWCA 326
Decision Date

CaseChat Overview and Summary

In *Sebie v Pham (No 4)*, the Court of Appeal considered an application for a stay of orders made in underlying proceedings. The applicant sought to stay orders directing the payment out of funds held in court, pending an application for special leave to appeal to the High Court. The Court of Appeal had previously refused leave to appeal against both the payment orders and earlier interlocutory orders by a majority decision.

The central legal issue before the Court of Appeal was whether there was a substantial prospect that the High Court would grant special leave to appeal. This required the Court to assess the merits of the proposed appeal to the High Court, specifically considering whether the grounds of appeal raised a question of law that was of general public importance or otherwise warranted the attention of the High Court.

The Court of Appeal dismissed the application for a stay. In reaching this decision, the Court applied the principles governing applications for stays pending special leave applications to the High Court. These principles require the applicant to demonstrate not merely an arguable case, but a substantial prospect that special leave will be granted. The Court found that the applicant had failed to establish such a substantial prospect, particularly in light of the previous refusal of leave to appeal by the Court of Appeal itself.

Consequently, the Court of Appeal ordered that the amended notice of motion dated 27 November 2021 be dismissed with costs.

Orders

Orders of the court

Dismiss the amended notice of motion dated 27 November 2021 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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