Enterprise ICT Pty Ltd v Andy Vuong Duc Pham

Judgment

1. SIMPSON AJA: These proceedings came before me as a matter of urgency by way of referral from the Registrar's list. One consequence of the urgency is that the issues put before me for determination were not defined by any pleadings, notice of motion, or other initiating process. Another is that the evidence upon which reliance was placed was produced in a somewhat haphazard fashion. In some respects, I have had to rely on information provided to me from the bar table. A third consequence is that these reasons are necessarily abbreviated.
2. The proceedings were further complicated by the fact that counsel who appeared for two of the appellants was briefed only for the purpose of seeking adjournment of the present proceedings, and not to argue any matter of substance. He also asked that the hearing (which commenced at 10.15 am) be delayed until 2 pm so that another (apparently more experienced, counsel, who was more familiar with the issues) could appear. When I ultimately acceded to that application and stood the matter down to 2.15 pm, I was told that that counsel was still unavailable.
3. The proceedings arise out of a number of judgments of the Equity Division, specifically:

• Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446 (26 April 2017 Pembroke J);
• Pham v Enterprise ICT Pty Ltd [2017] NSWSC 583 (15 May 2017 Pembroke J);
• Pham v Enterprise ICT Pty Ltd [2017] NSWSC 1509 (8 November 2017 Slattery J);
• Pham v Enterprise ICT Pty Ltd [2018] NSWSC 22 (30 January 2018 Slattery J);
• Pham v Enterprise ICT Pty Ltd [2018] (No 3) NSWSC 381 (29 March 2018) (Slattery J) I will refer also to Enterprise ICT Pty Ltd & Sebie v Pham [2017] NSWCA 236 (per Macfarlan JA).

1. The presently relevant parties to the proceedings are:

• Andy Vuong Duc Pham and Thi Huong Giang Pham (the plaintiffs in the proceedings in the Equity Division);
• Enterprise ICT Pty Ltd (to which I will refer as "Enterprise") (first defendant);
• Robert Sebie (third defendant);
• ENA Development Pty Ltd (to which I will refer as "ENAD") (third defendant)
• Other parties are identified in the judgments but have played no part in this proceeding. Enterprise and ENAD are companies associated with the Sebie family.

1. The complex history of the dispute between the parties is set out in detail in the various judgments to which I have referred. Time does not permit a complete account of that history.
2. The basic facts appear to be as follows. In October 2014 Mr and Mrs Pham (the "Phams") contracted with Robert Sebie for the purchase of a property at Chiswick. The completion date was 3 December 2014. Robert Sebie failed to complete. The Phams commenced proceedings for specific performance. They lodged a caveat on the title. ENAD had already (in February 2014) lodged a caveat on the title, asserting an equitable interest by reason of an unsecured loan. As found by Pembroke J ([2017] NSWSC 446) Robert Sebie dishonestly took steps to remove the Phams' caveat, and transferred the property for no consideration to Enterprise: (at [10] and [45]). Pembroke J made severely unfavourable findings about the credibility and conduct of Robert Sebie.
3. On 15 May 2017 ([2017] NSWSC 583) Pembroke J made orders (relevant for present purposes) the effect of which was to revest the title to the property in Robert Sebie, and require Robert Sebie specifically to perform the contract and transfer title to the Phams.
4. Enterprise and Robert Sebie filed an appeal and sought a stay of execution of the orders of Pembroke J. The application for stay came before Macfarlan JA, who dismissed it: Enterprise ICT Pty Ltd & Sebie v Pham [2017] NSWCA 236. Essentially, Macfarlan JA found that none of the grounds of appeal identified had any significant prospect of success ([25]). His Honour then considered the question of the balance of convenience, recognising that compliance with the orders of Pembroke J could mean that (were the Phams to dispose of the property pending resolution of the appeal), and if the appellants were successful in the appeal, their victory could be rendered nugatory. In answer to that proposition, the Phams offered (and his Honour accepted) an undertaking to the effect that, apart from giving security to a financial institution in order to complete the purchase, they would not further encumber the property nor transfer it to a third party for a period of 6 months (at [25]).
5. The Phams commenced proceedings for contempt. The proceedings then came before Slattery J on 8 November 2017 and again in December 2017 and January 2018. On 30 January 2018, by which time ENAD had lodged a second caveat, Slattery J ordered that the proceedings be referred to the Registrar in Equity with a view to considering whether completion of the contract should take place on 27 March 2018 in the registry of the Supreme Court: ([73]).
6. The final hearing was before Slattery J on 29 March 2018. His Honour ordered that ENAD remove the caveat, in default of which the caveat would lapse, and extended to 2 pm on 11 April 2018, the date for completion of the contract before the Registrar in Equity.
7. As will thus be seen, completion of the contract is due to occur on Wednesday, 11 April, just 2 days after the hearing of the present proceedings.
8. On the afternoon of Sunday, 8 April, by email, a Mr Ronald Jemmott sent to the Court of Appeal a summons seeking leave to appeal (against the orders of Slattery J) and the documents to constitute a White Folder. These included a draft summons, a Summary of Argument on behalf of the applicant, a copy of the judgment of Slattery J, and a draft notice of appeal. The documents named ENAD as applicant, and the Phams and Robert Sebie as respondents. By notice of motion ENAD sought (inter alia) stay of the whole of the orders of Slattery J.

• whether I should adjourn the proceedings to enable the appellants (that is, Enterprise and Robert Sebie) to prepare and file a Red Book;
• whether I should require those appellants to show cause why the appeal (against the orders of Pembroke J) should not be dismissed for want of due despatch;
• whether the orders of Slattery J of 29 March should be stayed pending the hearing of the proposed application for leave to appeal by ENAD against the orders of Slattery J.

1. As indicated above, I was asked to delay the hearing in order to allow counsel (who had prepared the draft Notice of Appeal) to appear, and eventually I did so, although, as it turned out, unproductively.
2. At the conclusion of the hearing I indicated that I would not further adjourn the proceedings in order to enable the Red Book to be prepared; that I would not dismiss the appeal for want of due despatch; and that I would not order a stay of the orders of Slattery J.
3. As to the first, it seemed to be that there was no utility in adjourning the proceedings to enable the preparation of the Red Book in the appeal by Enterprise and Robert Sebie. If I were to dismiss that appeal for want of due despatch there would be nothing to adjourn; If, I were not to do so, then preparation could take its place in the usual way. To adjourn the proceedings as far as they related to the proposed application for leave to appeal against the orders of Slattery J would deprive the stay application of any utility.
4. The proposal, or suggestion - there was no formal application - of dismissal for want of due despatch appears to have arisen from directions given by the Registrar, and no affidavit evidence in support of what is a drastic and final measure was provided. Accordingly, I declined to make any such order.
5. The important issue was that of a stay of the orders of Slattery J.
6. The proposed grounds of appeal in that application were identified in the draft Notice of Appeal sent by email on 8 April. They asserted error on the part of Slattery J in a number of the conclusions he reached, but were uninformative as to the basis of the errors alleged. In this respect I bore in mind that the draft grounds relate to a judgment delivered on 29 March - the last day before the Easter break, leaving only 4 working days before the email was sent. However, there was little to support any conclusion other than that reached by Macfarlan JA in relation to the appeal against the orders of Pembroke J, that they enjoy little, if any, prospect of success. The summary of argument included in the emailed White Folder also gave no comfort to the proposed appellants. The history of the dispute recounted in the judgments to which I have referred gave me no confidence that the claims by members of the Sebie family or their companies have any merit.
7. The other issue in relation to stay is the balance of convenience. Robert Sebie referred to evidence that the property is occupied by his elderly mother who suffers from dementia and requires constant care. That evidence was also before Slattery J, and was dealt with by him. I accepted that the condition of Mrs Sebie is a powerful consideration in the balancing exercise. However, the evidence I have outlined above, and the more detailed history contained in the various judgments, demonstrates to my mind that the proposed appeal has little prospect of success and the proposed appellants must eventually face the inevitable.
8. As against the concerns for Mrs Sebie, the Phams are the purchasers in a contract that ought to have been completed in December 2014. Like Macfarlan JA, I was conscious of the potential finality of the execution of the contract by the Registrar in Equity as ordered by Slattery J. In response to that concern, by affidavit, Mr Pham proffered an undertaking in the following terms: "My wife and I undertake to the court that, apart from giving mortgage security to National Australia Bank to complete the purchase of the property … my wife and I will not further encumber the property or transfer it to a third party for a period of 6 months from today."

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