Sebie v Pham

The Court of Appeal considered an application for a stay of orders concerning the payment out of funds held in court, which represented the purchase money of real property. The applicants, Robert Sebie and ENA Development Pty Ltd, sought to prevent the judgment creditor from accessing these funds, citing an outstanding claim to the funds by a second applicant, which was considered not without merit. The court also addressed a separate application for a stay of costs orders, which was made out of time and lacked sufficient prospects of success.

The primary legal issue before the court was whether the applicants were entitled to a stay of the orders directing payment out of the funds in court, given the existence of a competing claim. Additionally, the court had to determine whether to grant a stay of the costs orders, considering the lateness of that application and the prospects of the underlying appeal.

Brereton JA granted the stay of the payment out orders, conditional upon the applicants providing the usual undertaking as to damages. This undertaking required the applicants to submit to any order the Court might make for compensation to any person affected by the stay. The court also ordered that if leave to appeal were granted, the appeal concerning the payment out orders would be heard concurrently with the application for leave, and that the hearing of the application for leave be expedited. The stay of the costs orders was refused due to the application being out of time and lacking sufficient prospects of success. The costs of the motion were made costs in the application for leave to appeal.