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
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:
- 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
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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.
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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).
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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
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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