Pham v Enterprise ICT Pty Ltd & Ors

Procedural history

1. These reasons must be read with the Possession Judgment, paragraphs [1] to [25] of which set out the tortured history of this litigation.
2. The Possession Judgment determined most of what Slattery J referred to as the Motion for Possession. His Honour gave leave for that motion to be amended. It became an amended notice of motion dated 9 July 2018. There was no dispute that what was before me was paragraph 9 of that amended notice of motion: "9. Pursuant to s 104 of the Civil Procedure Act and rule 39.1 of the UCPR, the Supreme Court grants leave for the issue of a writ of possession of the Property."
3. In relation to the application for a writ for possession, Slattery J said in the Possession Judgment: "73. The Phams have foreshadowed that they will soon seek a writ for possession. But Mr Robert Sebie and Enterprise ICT Pty Ltd have lodged an appeal to the Court of Appeal against Pembroke J's orders in May 2017. It is quite likely that if the Court were now to issue a writ for possession a stay would be applied for until the Court of Appeal proceedings were concluded. So the Court will decline to proceed with the application for a writ for possession at this stage. That matter will be stood over to a date to be fixed in October of this year. 74. But the entry for judgment for possession represents a material date for appeals for the running of time to appeal from a number of my decisions, if the time has not already commenced to run. I have decided that I will ask that this judgment be referred to the Registrar of the Court of Appeal who is managing the appeal against Pembroke J's judgments and orders of April and May 2017. Mr Robert Sebie and Mr Ramzy Sebie have, at various times, indicated that if the Court makes orders against them on the various applications before me, that they will appeal. So it is likely, therefore, that this judgment, and the many that preceded it, will soon find their way to the Court of Appeal. 75. The Sebie parties have a tendency to generate multiple applications at first instance. This has been difficult to manage. I have endeavoured to remain the judge dealing with those applications because of the difficulties in reacquainting other judicial officers with the complexities of these proceedings. The avoidance of multiple applications and hearings in this matter is highly desirable for the efficient administration of justice. 76. Whilst it is obviously a matter for the Court of Appeal rather than for me as the trial judge, it would greatly assist the future trial management of these proceedings if it were possible for any appeals from this judgment to be dealt with at the same time as any appeals from Pembroke J's judgments. Whilst it is appreciated that no appeal has yet been brought from this judgment, this comment is warranted because the inevitability of an appeal has been foreshadowed. 77. I will direct my Associate to forward a copy of these reasons, with particular reference to this paragraph, to be drawn to the attention of Registrar of the Court of Appeal."
4. In the events which happened, as I have set out in paragraph [4] above, the Court of Appeal dismissed Robert and Enterprise ICT Pty Limited's appeal against the orders of Pembroke J. No appeal has been lodged from the Possession Judgment.
5. The Court of Appeal's judgments were delivered on 15 August 2018. The plaintiffs are incurring interest expenses on the Chiswick property as well as rental expenses for their current accommodation. In those circumstances, it is perfectly understandable that they wanted to proceed as quickly as possible to obtain possession of the Chiswick property.
6. In the absence of Slattery J on long leave, the amended notice of motion was relisted before Rein J as duty judge. His Honour made orders which included: "ORDER: (1) The matter in paragraph 9 of the plaintiff's notice of motion filed on 15 May 2018 (plaintiff's application for the issue of a writ of possession) is listed before the Equity Division duty judge at 2pm on 21 August 2018, for hearing or directions as the duty judge considers appropriate. (2) The plaintiffs shall notify Robert Sebie and Ramzy Sebie of these orders made today by 1 pm today by email to their email addresses used in these proceedings as follows: (a) for Robert Sebie - robert.sebie@hotmail.com (b) for Ramzy Sebie - ramzys@ene.com.au"
7. On 21 August 2018, the matter came before me as duty judge. On that occasion, Mr Zipser of Counsel appeared for the plaintiffs. Robert appeared for himself. Although not a party to this particular application, Mr R Killalea, solicitor, appeared for ENA Development Pty Ltd ("ENA"), an interested party in the proceedings whose claims in the matter are presently stayed pending that company paying security for costs in the sum of $100,000.
8. I acceded to the plaintiffs' application that there should be no further delay in enforcing their judgment for possession and made these orders to prepare the matter for hearing before me in the Duty List on 29 August 2018: "The Court: 1. NOTES that the plaintiffs now move on paragraph 9 of the Amended Notice of Motion dated 9 July 2018. 2. DIRECTS the plaintiffs to serve and file by email to the associate to Kunc J an outline of submissions in support for their application for the relief sought in paragraph 9 on or before 23 August 2018. 3. DIRECT Mr Robert Sebie and Mr Ramzy Sebie to file and serve any evidence on which they propose to rely to resist the plaintiffs' application on or before 28 August 2018. 4. FIX FOR HEARING the plaintiff's application before Kunc J on Wednesday 29 August 2018. 5. DIRECT the plaintiffs to serve a copy of these orders on Mr Ramzy Sebie on or before 5.00pm on Wednesday 22 August 2018. 6. GRANT LIBERTY to any party or person who considers their interests are affected by the plaintiffs' application for an order for a writ of Possession to apply by email to the Associate to Kunc J on two days' notice. 7. DIRECT these orders be taken out forthwith."
9. A reader of the numerous first instance judgments in this litigation, as well as those in the Court of Appeal (see paragraph [4] above), would quickly come to appreciate that a regular feature of Robert's conduct is to apply for adjournments. As Slattery J observes in paragraph [33] of the Possession Judgment, "Mr Robert Sebie is an intelligent man. He well understands the Court's obligation to afford procedural fairness. He can take advantage of that requirement for tactical reasons." The various appearances before me were attended by such applications.
10. So it was that Robert communicated with my chambers prior to the fixture on 29 August 2018 that he would not be able to appear on that day for reasons associated with his position as carer for Rose. As a result of those communications, the matter in fact came on for hearing before me at 2.00pm on 30 August 2018.
11. On that occasion Mr Zipser again appeared for the plaintiffs and Robert appeared for himself. Robert opened the hearing by explaining that his father, Ramzy, had attempted to get a solicitor to appear for ENA, but the solicitor was himself sick and unable to attend the hearing. I determined that the hearing should continue and Mr Zipser did not oppose Ramzy appearing by telephone. That is what occurred. There was no application on that occasion for anyone to appear on behalf of ENA.
12. Unfortunately, the matter was unable to be concluded on 30 August 2018. So I listed it to continue on the next available date before me, being 28 September 2018. I made these directions: "1. Grant leave to the plaintiffs to file in Court the affidavit of John Bui of 30 August 2018. 2. The plaintiffs are to notify Mr Robert Sebie and Mr Ramzy Sebie of the plaintiff's objections to the defendant's evidence on or before 14 September 2018. 3. Mr Robert Sebie and Mr Ramzy Sebie are to file and serve by email to the Associate to Justice Kunc an outline of their submissions opposing the plaintiffs' application for a writ of possession on or before 14 September 2018. 4. The plaintiffs are to file and serve an outline of submissions in reply by email to the Associate to Kunc J on or before 26 September 2018. 5. List the matter hearing before Kunc J at 9.30am on Friday 28 September 2018.."
13. Neither Robert nor Ramzy complied with order 3 made on 30 August 2018.
14. At the resumption of the hearing on 28 September 2018, Ramzy again appeared by telephone. He sought leave to appear for ENA. There was no dispute that Ramzy is the sole director of that company. Following Slattery J's decision in Pham v Enterprise ICT Pty Ltd (No 3) [2018] NSWSC 381 in which his Honour refused Ramzy leave to appear on behalf of ENA, I also refused Ramzy that leave for the same reasons as are set out in Slattery J's earlier judgment (see especially at paragraphs [65]-[77]).

Who lives at the Chiswick property?

1. As the argument developed before me, the key factual question became who lives at the Chiswick property? The evidence which Robert adduced referred to various family members and others who were said to "live" at the Chiswick property.
2. As far as the Court was concerned, all dispute about this fell away as a result of the cross-examination of one of Robert's witnesses, Ms Jade Oswald. She was made available for cross-examination by telephone without objection by the plaintiffs.
3. Mr Zipser submitted that Ms Oswald was the only reliable and independent witness called in his case by Robert. I agree. I am satisfied that since on or around 17 December 2017 Ms Oswald has resided at the Chiswick property on terms which I consider further below.
4. For present purposes, the importance of her evidence is that she was asked by Mr Zipser about who did and did not live at the Chiswick property. On the basis of her evidence, I find that: 1. The only permanent residents at the Chiswick property are Rose, Robert and Ms Oswald; 2. Ramzy lives there from time to time, but otherwise lives at the Seven Hills property; and 3. During those periods when Robert has custody of his children, they live with him at the Chiswick property.

Discretionary considerations

1. Robert protested, including tearfully, that there was nowhere for his family to go if they were required to leave the Chiswick property. In his oral submissions, he sought to describe the Seven Hills property in the most unfavourable light, including that the Seven Hills property only had one bathroom and toilet and that it would be unsuitable for Rose's needs.
2. However, having carefully considered the actual evidence about the Seven Hills property, I was left completely unpersuaded by that evidence and Robert's submissions that it would not be possible for the family, including Rose, to relocate to the Seven Hills property. Nor did Robert make any case that the family was financially unable to fund other accommodation, even if the Seven Hills property was not suitable.
3. It was clear that Ramzy finds the Seven Hills property adequate when he is not living at the Chiswick property. Robert did not suggest that he has any special requirements. While I accept that Rose is unwell and spends much of her time bedridden, the evidence does not support the conclusion that the Seven Hills property could not accommodate Rose.
4. The Court finds that this is not a case where Rose, Ramzy and Robert will have nowhere to go upon execution of the writ for possession. The Seven Hills property is adequate and available for their accommodation.
5. In relation to Robert's custody arrangements for his children, the Court is satisfied that while the Seven Hills property may be less geographically convenient than the Chiswick property, it is not physically unsuitable for those periods of time that his children live with him.
6. It follows that Robert failed to demonstrate that there was any discretionary reason in terms of accommodation of family members that a writ for possession should not issue. I will consider Ms Oswald's position in the next section of these reasons.

The alleged leases

1. Robert sought to rely on leases that had allegedly been entered into with Rose and Ms Oswald. He submitted that these were unregistered leases for a period of less than three years which prevailed against the plaintiffs' interest as registered proprietors of the Chiswick property by reason of the s 42(1)(d) of the Act: "42 Estate of registered proprietor paramount (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except: … (d) a tenancy whereunder the tenant is in possession or entitled to immediate possession, and an agreement or option for the acquisition by such a tenant of a further term to commence at the expiration of such a tenancy, of which in either case the registered proprietor before he or she became registered as proprietor had notice against which he or she was not protected: Provided that: (i) The term for which the tenancy was created does not exceed three years, and (ii) in the case of such an agreement or option, the additional term for which it provides would not, when added to the original term, exceed three years."
2. Robert tendered a standard form residential tenancy agreement between himself and Rose apparently executed on 15 January 2018 for a period of two years ending on 15 January 2020. The rent was specified as $120 per week and the location is described as the Chiswick property "(F MB Rooms)" which I infer means front room and master bedroom. The inclusions specify that furniture is provided.
3. The plaintiffs submitted that the agreement with Rose was a sham. It is not necessary for the Court to go so far. There was no credible evidence that the rent had ever been paid. Furthermore, I asked Robert whether he would ever enforce the terms of the agreement (such as they were) against Rose by evicting her for breach of those terms. He answered "Frankly, no, it's my mother". He also made it clear that if he had to leave the Chiswick property he would take Rose with him.
4. Given the matters in the preceding paragraph and notwithstanding the execution of the standard form, the Court is not satisfied that there was ever any intention to create legal relations between him and Rose in relation to her occupation of the Chiswick property. She is his mother and he is her carer. Even if there had been such an intention, in circumstances where Robert has no basis on which to resist the writ for possession and he has given evidence that he would take Rose with him when he left the Chiswick property, the alleged lease between Robert and Rose provides no basis for the Court to decline to order the writ to issue.
5. Ms Oswald's agreement (the "Oswald Agreement") raises different considerations. It is in these terms: "Enterprise ICT Pty Ltd XXX Chiswick NSW 2046 17 December 2017 Rental Agreement For Shared Room/House Please accept this as an agreement for a shared accommodation for a room at XXX, Chiswick NSW 2046. The agreed weekly prices is (see below), paid every two weeks in advance. The initial term is for 12 months commencing from 17 December 2017. The term can be renewed on acceptance of both parties. The tenant has agreed to pay a bond in the consideration of 4 weeks rent. The bond will be returned upon moving out of the above mentioned property, pending there is no damage caused to the property or breach of agreement. Weekly Rent As Per Room a) Standard Room $250 Rooms are full or partly furnished. The first 2 weeks are based on an trial period and not subject to any notice given by the landlord. Notice is to be given by the tenant of 21 days post the term date. The tenant of the room is Name Jade Oswald Drivers Licence and Passport XXXXXXX Utility Expenses which are the Electricity, Gas, Water are all included in the weekly rent. However we accept the tenant is responsible and does not over use these services. Cleaning of the house will be shared amount [sic] the people whom live within the house on an weekly/fortnightly services. Signed (Signature) Jade Oswald Dated 18/12/17 Jade Oswald (Signature) Robert Sebie Tenant Land load [sic] - Owner"
6. There are four reasons why I was not satisfied that the Oswald Agreement poses any impediment to the issue of the writ.
7. First, although the words "landlord" and "tenant" appear in the document, it is not described as a lease. It is a "rental agreement for shared room/house". It relates to "shared accommodation" for an unspecified room in the Chiswick property. In its terms it does not convey a right to exclusive possession of the unspecified room. The conferral of such a right is essential to create a lease rather than a licence. The Court is not satisfied that, in its terms and without more, Robert has established on the balance of probabilities that the Oswald Agreement is a lease (see P Butt, "Tenants, lodgers and boarders" (2006) 80 ALJ 423).
8. Second, and assuming in Robert's favour that the Oswald Agreement is a binding lease, Ms Oswald would only have the benefit of s 42(1)(d) of the Act if the plaintiffs had notice of Ms Oswald's tenancy prior to becoming registered proprietors.
9. Completion of the sale of the Chiswick property from Robert Sebie to the plaintiffs took place on 2 May 2018. I accept Mr Zipser's submission that there is nothing in the evidence which supports the proposition that the plaintiffs had notice of Ms Oswald's tenancy prior to the service of Robert's affidavit affirmed on 6 June 2018 (which attaches the Oswald Agreement).
10. In his affidavit of 28 August 2018, Robert sought to demonstrate that the plaintiffs were on notice of the tenants at the Chiswick property by reference to events in, and the service of affidavits during, September 2017. In particular, Robert relied on orders Slattery J made on 8 September 2017 which he (Robert) said "mentions the tenants by name". An examination of his Honour's orders of that date discloses that the orders refer to "three persons who are alleged to be occupants of the premises and who are not part of these proceedings, namely Ms Abby Russell, Ms Somayeh Grant and Mrs Rose Sebie".
11. The difficulty for Robert is that the Oswald Agreement was not executed until December 2017. Robert has failed to demonstrate that the plaintiffs were on notice of Ms Oswald's alleged tenancy prior to becoming the registered proprietors of the Chiswick property. If it be necessary, I also find that the first time that the plaintiffs were put on notice of Ms Oswald's alleged tenancy was when they were served with Robert's affidavit affirmed on 6 June 2018 (the service of which I infer was on a date no earlier than the date upon which the affidavit was affirmed).
12. Third, the Court infers from the facts that she swore an affidavit and made herself available for cross-examination, that Ms Oswald was well and truly aware of the plaintiffs' application for the issue of a writ. She has not sought to be joined in the proceedings and has not indicated that she opposes an order being made for the issue of the writ.
13. Fourth, there is no evidence that either Robert or Ms Oswald has sought to extend the term of her occupation of the Chiswick property. Under the terms of the Oswald Agreement (see paragraph [36] above), her right to occupy a room at the Chiswick property will expire on 17 December 2018.
14. The Court has ordered the writ to lie in the Registry until 26 October 2018. Before taking action to enforce the writ, the Sheriff must give occupiers of the Chiswick property not less than 30 days' notice to deliver up possession of the property (s 7A(3) of the Sheriff Act 2005 (NSW)). Assuming that the Sheriff gives notice promptly after the writ issues from the Registry, any such 30-day notice period is likely to expire not more than three weeks before the termination of the Oswald Agreement. Given that Ms Oswald only occupies a room of the Chiswick property, there is no reason to find that being required to vacate a few weeks earlier (if the Sheriff proceeds with the dispatch which I have assumed) would cause her any undue prejudice or inconvenience.

Conclusion

1. Mr Zipser informed the Court that there were a number of further interlocutory matters which his clients wished to press against Robert and those associated with him arising from the various hearings before Slattery J. It is clearly appropriate that Slattery J deal with those matters. By arrangement with his Honour, I gave leave to the plaintiffs to approach Slattery J's Associate to arrange a further directions hearing before his Honour.

Amendments 04 October 2018 - Para 1 - 29 September changed to 28 September 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: 04 October 2018