Sebie v Pham (No 5) - [2022] NSWCA 111

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sebie v Pham (No 5) [2022] NSWCA 111
Hearing dates: On the papers
Date of orders: 01 July 2022
Decision date: 01 July 2022
Before: Brereton JA
Decision:
Notice of motion filed on 22 December 2021 and amended on 4 May 2022 dismissed with costs.

Catchwords:
CIVIL PROCEDURE – Court of Appeal – Application for stay of orders for payment of money out of court, pending application for special leave to appeal to High Court – Where leave to appeal against those payment orders and earlier orders refused by majority of this Court – Where similar application to present already refused for lack of prospect that special leave will be granted – Application for reconsideration under UCPR r 36.16 incompetent – No application made for review of previous decision nor suggestion that conclusion was incorrect – No change of circumstances since first decision identified – Stay not sought by only party potentially prejudiced by relevant orders – Application dismissed with costs

Cases Cited:
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446
Pham v Enterprise ICT Pty Ltd (No 3) [2018] NSWSC 381
Pham v Enterprise ICT Pty Ltd [2022] NSWSC 12
Sebie v Pham (No 3) [2021] NSWCA 277
Sebie v Pham (No 4) [2021] NSWCA 326
Sebie v Pham [2021] NSWCA 11
Sebie v Pham [2021] NSWCA 115

Category: Procedural rulings
Parties: Robert Sebie (First Applicant)
Ronald Jemmott (Second Applicant)
Andy Vuong Duc Pham (First Respondent)
Thi Huong Giang Pham (Second Respondent)
ENA Development Pty Ltd (in liq) (Third Respondent)
Representation:
Counsel:
Self-represented (Applicants)
Solicitors:
Andy Pham Lawyers (First and Second Respondents)
ERA Legal (Liquidator of Third Respondent)

File Number(s): 2021/133082
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2017] NSWSC 446;
[2018] NSWSC 381;
[2019] NSWSC 115;
[2020] NSWSC 1089;
[2021] NSWSC 339.

Date of Decision:

26 April 2017;
29 March 2018;
20 February 2019;
19 August 2020;
1 April 2021.

Before:

Pembroke J;
Slattery J;
Slattery J;
Sackar J;
Sackar J.

File Number(s):

2015/325044; 2015/56505

Judgment

BRERETON JA: The relevant background is set out in the judgment of the Court (Bell P, Basten JA and Brereton JA) delivered on 19 November 2021,^[1] dismissing with costs a summons by which the present applicants Robert Sebie and Ronald Jemmott sought leave to appeal from four series of orders made in the proceedings in the Equity Division between 2017 and 2020 (“the Earlier Orders”), and also from certain orders made by Sackar J on 18 March 2021 and 30 April 2021 for the payment out of Court to the respondents of certain sums to which Mr Sebie was prima facie entitled but on which the third respondent ENA had an arguable claim (“the Payment Out Orders”). The Court unanimously refused leave to appeal from the Earlier Orders, and by…

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 (No 5)

Details

AGLC: Sebie v Pham (No 5) [2022] NSWCA 111
Case: [2022] NSWCA 111
Decision Date: 01 July 2022

CaseChat Overview and Summary

The applicant, Sebie, sought a stay of orders for the payment of money out of court, pending an application for special leave to appeal to the High Court. The respondent was Pham. The application was heard by Brereton JA in the Court of Appeal of New South Wales.

The primary legal issue before the Court was whether to grant a stay of the payment orders. This required the Court to consider whether there were sufficient prospects that special leave to appeal would be granted by the High Court, given that leave to appeal against the payment orders and earlier orders had already been refused by a majority of the Court. A further issue was the competency of the application for reconsideration under UCPR r 36.16.

Brereton JA found that a similar application for a stay had already been refused for lack of prospect that special leave would be granted. His Honour determined that the current application was incompetent as it was not made for a review of a previous decision, nor was there any suggestion that the previous conclusion was incorrect. Furthermore, no change of circumstances since the first decision was identified, and the stay was not sought by the only party potentially prejudiced by the relevant orders.

Consequently, the notice of motion filed on 22 December 2021 and amended on 4 May 2022 was dismissed with costs.

Orders

Orders of the court

Notice of motion filed on 22 December 2021 and amended on 4 May 2022 dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Sebie v Pham (No 5) [2022] NSWCA 111
Hearing dates:	On the papers
Date of orders:	01 July 2022
Decision date:	01 July 2022
Before:	Brereton JA
Decision:	Notice of motion filed on 22 December 2021 and amended on 4 May 2022 dismissed with costs.
Catchwords:	CIVIL PROCEDURE – Court of Appeal – Application for stay of orders for payment of money out of court, pending application for special leave to appeal to High Court – Where leave to appeal against those payment orders and earlier orders refused by majority of this Court – Where similar application to present already refused for lack of prospect that special leave will be granted – Application for reconsideration under UCPR r 36.16 incompetent – No application made for review of previous decision nor suggestion that conclusion was incorrect – No change of circumstances since first decision identified – Stay not sought by only party potentially prejudiced by relevant orders – Application dismissed with costs
Cases Cited:	Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84 Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446 Pham v Enterprise ICT Pty Ltd (No 3) [2018] NSWSC 381 Pham v Enterprise ICT Pty Ltd [2022] NSWSC 12 Sebie v Pham (No 3) [2021] NSWCA 277 Sebie v Pham (No 4) [2021] NSWCA 326 Sebie v Pham [2021] NSWCA 11 Sebie v Pham [2021] NSWCA 115
Category:	Procedural rulings
Parties:	Robert Sebie (First Applicant) Ronald Jemmott (Second Applicant) Andy Vuong Duc Pham (First Respondent) Thi Huong Giang Pham (Second Respondent) ENA Development Pty Ltd (in liq) (Third Respondent)
Representation:	Counsel: Self-represented (Applicants) Solicitors: Andy Pham Lawyers (First and Second Respondents) ERA Legal (Liquidator of Third Respondent)
File Number(s):	2021/133082
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2017] NSWSC 446; [2018] NSWSC 381; [2019] NSWSC 115; [2020] NSWSC 1089; [2021] NSWSC 339. Date of Decision: 26 April 2017; 29 March 2018; 20 February 2019; 19 August 2020; 1 April 2021. Before: Pembroke J; Slattery J; Slattery J; Sackar J; Sackar J. File Number(s): 2015/325044; 2015/56505