Enterprise ICT Pty Ltd v Pham

Court of Appeal (NSW)|2018-08-01|Before: Basten JA, Meagher JA, Slattery J, Pembroke J

Counsel: B Zipser (First and Second Respondents) A Duc (Third Respondent)

Solicitors: Bui Lawyers (First and Second Respondents) Remington & Co (Third Respondent) File Number(s): 2017/172378 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2017] NSWSC 583; [2017] NSWSC 446 Date of Decision: 15 May 2017; 26 April 2017 Before: Pembroke J File Number(s): 2015/325044

Judgment

THE COURT: On 26 April 2017 Pembroke J delivered a judgment upholding the claims of two purchasers under a contract of sale for specific performance of the contract. The purchasers were the first and second respondents, Andy Voung Duc Pham and Thi Huong Giang Pham. The vendor of the property, Robert Sebie, had, after entering into the contract for sale of land, transferred the property to a company, Enterprise ICT Pty Ltd ("Enterprise"). Pembroke J held that the transfer was fraudulent. On 15 May 2017 Pembroke J made orders made orders requiring the correction of the Register to record Robert Sebie as registered proprietor and that he transfer that title to the purchasers.
On 15 August 2017, Robert Sebie and Enterprise filed a notice of appeal. On 7 September 2017 they filed an amended notice of appeal. Written submissions for the appellants were filed on 23 February 2018. Amended written submissions, signed by Robert Sebie, were filed on 31 July 2018.
The present application was argued by Robert Sebie on his own behalf and (with leave) as an agent for the corporate appellant, Enterprise. It is convenient to refer below to both as "the appellant".
By a notice of motion first filed on 24 July 2018, that is a week before the day the appeal was listed for hearing, the appellant sought an order vacating the listing. Reliance was placed on an affidavit of Robert Sebie dated 23 July 2018, but filed on 27 July. It was supplemented by a brief further affidavit filed on 31 July 2018, the day before the hearing. The affidavits supported four broad grounds for vacation of the hearing date. These were (a) Mr Robert Sebie's personal circumstances, including "some medical issues"; (b) commitments in other litigation; (c) a desire to obtain senior counsel to appear, and (d) access to funds not previously available.

(1) Appellants' submissions on adjournment application

The appellants' case for an adjournment amounted, in essence, to one proposition, namely that Robert Sebie now had funds available to allow him to brief counsel. If it were not for a claim of prior impecuniosity, the new-found desire to brief senior counsel to appear for him on the appeal would have involved inexcusable delay. On the other hand, absent legal representation, there was no basis to think that the other obstacles to a hearing would disappear or even diminish. Nevertheless, it is necessary to identify those matters, albeit briefly.

(a) personal issues

The first personal circumstance on which the appellant relied was the demands of Mr Sebie's role as a fulltime carer for his aging mother. In his submissions with respect to the appeal, he complained that the trial judge had dissuaded him from calling his mother as a witness in his case. In relation to the funding of the appeal, he claimed that his mother had, at some unspecified date but apparently quite recently, provided part of the funds to allow him to brief counsel. Despite all that, he relied on the demands of caring for her as a basis for adjournment, noting that she suffered from cognitive impairment, dementia and numerous other health problems. A medical report dated 22 May 2018 listed these, also noting that "[o]verall direct communication is currently restricted." The trial judge's concerns about calling her as a witness were probably well-founded.
There was evidence that other family members assisted in caring for the mother. The doctor's report noted that she had a part-time live-in carer who assisted her family looking after her.
Secondly, the appellant relied upon the fact that he was a carer (although there was evidence that he shared the care with his former wife) of two young children aged 8 and 10 years. He noted that it was "currently" (that is at the date of the affidavit) a school holiday period, though that is no longer the case.
More importantly, he claimed that he had medical issues which interfered with his preparation for the hearing, including mental health issues.
Although his affidavit noted that in "[l]ate 2017 and early 2018" he had had what he described as "mental relapse and break down relapse" which required him to be hospitalised at Concord, the only objective support for that statement was a one page document from the hospital noting that he had been admitted in the emergency department on the evening of 17 December 2017. There was no detail of the cause of the admission, no diagnosis and no discharge certificate. The period is remote from the present hearing.
Various medical reports were annexed to the affidavit, dating from 25 May 2015, the latest being dated 24 July 2018. The themes, however, were the same: Robert Sebie was suffering (and no doubt continues to suffer) from "anxiety/depression/sleep problems". These problems are long standing. The only report from a treating psychiatrist was dated 31 March 2017 and was provided to the trial judge, as were other medical certificates. They do not provide a basis for concluding that the individual appellant's current state of health has deteriorated recently, or is likely to improve if the hearing is vacated.

(b) other litigation

The appellant's affidavit said that he had had numerous listing dates and direction hearings in various court matters since January 2018. However, those were primarily proceedings which concerned the same underlying issue, namely the failure to complete the conveyance of the property in accordance with the contract. (There are also on-going family law proceedings, apparently commenced in 2010, with his former wife, the third respondent.) The last appearance in court was on 13 July 2018, more than two weeks before the present hearing date. This material provides no basis for vacating the hearing.

The submission stated that the appellant had been "legally advised" that his appeal was a "complex" matter and that he needed the assistance of senior counsel. He had been in contact with two senior counsel (who were named) but who were not available to appear before 13 August 2018.
The submission did not identify when he had received the advice as to the nature of his appeal, nor who had given the advice, nor on what basis. It is apparent that the inquiries of counsel were made by Mr Richard Killalea, a solicitor who has been acting for him or his company in a number of proceedings, including earlier proceedings in the Supreme Court. With respect to one senior counsel, Mr Killalea recorded a telephone conversation stating that he was not available, which information he passed on to the appellant on 19 July 2018. The unavailability of the other senior counsel was notified by email from his clerk dated 26 July 2018.
It is clear from the material in the white folders that the appellant has had legal assistance over a significant period, although he was not represented either in the course of the four day hearing before the trial judge, nor in the course of the appeal. Two other named counsel (not senior counsel) have given advice and assistance at various stages. The only explanation as to why he did not obtain representation in a timely fashion is that he lacked access to funds.
Putting means to one side, a belated desire to obtain counsel to appear provides no ground for vacating the date fixed for the hearing.

(d) availability of funds

As appears from the foregoing, the adjournment application turned on acceptance of the proposition that the appellants had not until very recently had funds available to allow them to brief counsel, but now had those funds. The evidence to support each element of that proposition was sparse. In his affidavit of 23 July, Mr Sebie baldly stated (par 8), "I have managed recently to borrow funds to cover Counsel Fees." The affidavit of 30 July stated, somewhat obscurely (par 3), referring to an annexure: "Also financial information, which include tax returns, bank statement etc. I have also been given the first appellant bank statement, and loan details to fund this court matter, marked annexure 'B'."
The first appellant is the company, Enterprise. The financial documents were largely irrelevant: one was a notice of assessment from the Tax Office showing a credit of $509; a statement from Centrelink that Mr Sebie received a carer payment with respect to his mother; a bank balance in his name of a little over $2,000 and a bank balance for the company of a little over $6,000.
There was one further document. It was headed "Fixed Secured Loan Agreement" and purported to provide a line of credit for up to $350,000 said to be "payable to the lender". Many of the provisions were either so unclear as to be irrelevant or were bizarre. (The interest rate was stated to be "4.7 Per month, Percentage Rate", variable without the consent of the borrower.)
The appellant's case is that he was impecunious; there was no security for the loan and the document, contrary to its title, did not suggest there was. There was no execution page on the document, and the page in evidence is clearly only part of some document. More importantly, the document is undated. There was no evidence as to how it came about, nor as to the initials at the foot of the page. Nor was there evidence as to why, if the agreement was only recently reached, the lender had not been prepared to provide money to the appellant some months earlier.
The same difficulty arose from the somewhat vague assertion that Mr Sebie's mother had provided funds for the appeal. If his mother is indeed, as his evidence suggested, cognitively impaired and suffering from dementia (amongst a swathe of other ailments) the claim that she provided funds is implausible. More importantly, there is no explanation as to why she would have provided funds recently and not some months earlier.
There was no evidence as to the amount of funds actually provided, if any, nor as to where they were held. So far as it went, the evidence demonstrated that they were not held in the bank accounts of either appellant as at the date the bank statements were obtained. If the funds are available, there was no evidence that the appellant had used them to instruct his solicitor to appear on the appeal, or to brief counsel.
It follows that the Court cannot be satisfied that there is any proper basis, taking the appellant's submissions in isolation, to vacate the hearing date.

(2) Other considerations

However, the appellants' submissions cannot be taken in isolation. In considering an application for an adjournment, the Court should have regard to the interests of the respondents, who oppose the adjournment and, understandably, would like to have these long-standing proceedings resolved as expeditiously as possible and at the least possible cost.
The Court must also have regard (as must the appellant) to the mandate in Pt 6 of the Civil Procedure Act 2005 (NSW) that any procedural directions must facilitate the just, quick and cheap resolution of the real issues in the proceedings. For that purpose regard must be had to the real issues, which are the grounds of appeal. It is not necessary to make findings for this purpose as to the merit of the various grounds; it may be noted, however, that the appellant seeks to run the appeal by relying upon a large volume of material which was not before the trial judge and which was not brought into existence until after that judgment was delivered. The written submissions provided no explanation as to why the Court would allow such material to be tendered on an appeal. Otherwise, the issues sought to be raised by the present grounds of appeal were within a narrow confine and were largely devoted to challenging credibility findings made by the trial judge.
These further considerations give no support for the view that the interests of justice would be served by adjourning the hearing of the appeal.

(3) Other applications

In addition to the adjournment application, the notice of motion of 24 July raised two further matters. First, order 2 sought the admission of fresh evidence. That matter will be considered in dealing with the appeal. It would not warrant an adjournment.
The second matter was an application to have a judgment given in the Equity Division in Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 7) [2018] NSWSC 1063, delivered by Slattery J on 13 July 2018, "add[ed]" to these proceedings. A period of 28 days was sought "to file evidence to challenge the judgment". (These were orders 3 and 4 in the notice of motion.) That judgment involved an order for possession in favour of the present respondents.
There is no suggestion that any appeal has been filed in those proceedings, nor that an appeal is proposed. Rather it appears that the basis for dealing with that matter now is that, if the appellants are successful in setting aside the orders made by Pembroke J, the basis for a writ of possession will disappear. That may be so, but that can be dealt with by consequential orders depending on the outcome of the appeal. Thus orders 3 and 4 should not be made.
Before leaving these applications, three further matters should be noted. Each involves conduct on the part of Mr Robert Sebie which would not be tolerated from a party having legal representation. The fact that it was tolerated in this case should not be taken as an indication by other courts as to how such matters should be approached; nor should it be taken by Mr Sebie as an indication that such conduct will be accepted without repercussions in the future.
First, at 7.55am on the morning of the hearing, Mr Sebie sent an email to the associate for the presiding judge stating that he was "currently in a terrible state" and seeking to appear by telephone to make the adjournment application. That email was not sent to the respondents. Bearing in mind Mr Sebie's own claim that his matters have been listed, or he has appeared in court, on more than 30 occasions this year, it should be inferred that he knows that communication by one party with the court without notice to other parties is not acceptable. The application was not acceded to and Mr Sebie appeared at about 10.30am. The hearing continued until 1pm, resumed again at 2.21pm and concluded at 4.18pm. Mr Sebie was articulate throughout the day and showed no appearance of being in undue mental or physical distress.
Secondly, the provision of affidavit material and written submissions the day before a hearing is not compliant with the rules, and is apt to disrupt the court proceedings and be procedurally unfair to other parties. To the extent that Mr Sebie has been allowed to rely upon such material in support of the present applications, it is only because the respondents have not been prejudiced in the outcome. In the absence of a satisfactory explanation, including affidavit evidence as to any factual matters relied upon, the Court should not permit reliance on such material in the absence of consent by the other parties. A litigant who fails to accord procedural fairness to his or her opponents cannot complain of procedural unfairness if evidence is not admitted or submissions are not considered, no matter how cogent the material may be.
Thirdly, there is no doubt that Mr Sebie is fully familiar with the process of providing evidence by way of affidavit and other documents which must be read or tendered in the course of a hearing if they are to be admitted as evidence. A failure to rely upon that basic principle is disruptive of the court process in two respects. On the one hand, the court may interrupt submissions to note that they have trespassed beyond the boundaries of the evidence and that the court's time is being wasted, in which case the person presenting the submissions is apt to lose focus. On the other hand, if no interruption occurs, the other parties will not know whether the court is considering such material and whether they must object, or seek an opportunity to answer it.
Courts tend to err on the side of relaxing the rules when faced with litigants in person who lack legal training and experience. No doubt a degree of flexibility is desirable and inevitable. However, not all litigants in person are inexperienced or ignorant of the basic principles of fairness on which the courts operate. Further, unless basic principles are adhered to, the administration of justice will suffer.

Orders

At the completion of the hearing of the notice of motion, the Court made the following orders:
Grant leave for Mr Robert Sebie to appear for the first appellant.
Join Nadine Musabwasoni who was the second defendant below as a respondent to the appeal.
Grant leave to the first and second respondents to file in Court an affidavit of John Bui dated 31 July 2018.
With respect to the orders sought in the notice of motion first filed on 24 July 2018: (1) Dismiss the application to adjourn the hearing of the appeal. (2) Dismiss the application to add the judgment of Slattery J to these proceedings. (3) Otherwise adjourn the application with respect to fresh evidence to the hearing of the appeal. (4) Reserve reasons for those orders, those reasons to be provided with the final judgment. (5) Order that costs of the application are the respondent's costs in the appeal.
These reasons are the reasons of the Court for those orders.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2018

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)

Cited By (3)