Pham v Mazen Zraika; Pham v Sebie

1. The caveator cannot establish a serious question to be tried. The Mazen Zraika caveat does not comply with the formal requirements to specify a caveatable interest, it is internally contradictory and no evidence is advanced in support of it.
2. Because he did not attend the proceedings, Mr Zraika did not adduce any evidence in support of the interest claimed in the caveat. This lack of evidence is in itself a sufficient basis for concluding that the caveator did not establish a serious question to be tried and for the claim to maintain the caveat to fail at the threshold.
3. But the lack of compliance with formalities and the contradictory nature of the Mazen Zraika caveat deserves to be separately noted. Caveats must adequately particularise the nature of the estate or interest claimed by the caveator in the land: Circuit Finance Pty Ltd v Crown and Gleeson Securities Pty Ltd (2005) 12 BPR 23,403 at [10] - [27]. A caveat that simply describes the caveator's interest as an "equitable interest" will ordinarily be judged to be insufficiently described: Schibaia v Elias [2013] NSWSC 1485 per McDougall J.
4. There are many problems with Schedule 1 of Mr Zraika's caveat. Its description of the caveator's interest does not identify what kind of interest is claimed in the Chiswick property, including legal or equitable or whether there is a charge, a mortgage or some other security interest.
5. Schedule 1 contains other uncertainties. It is unclear under which of the two identified instruments that the alleged interest arises, whether one replaces the other, whether one contains a charge or both do, or what is the case.
6. Schedule 1 of the Mazen Zraika caveat is defective in substance and the caveat should, in my view, be removed. But even if the caveat were not defective, in my view, the balance of convenience clearly favours its removal for several reasons.
7. Mr Zraika's claimed interest in the land is well protected by the Court's existing orders. Upon completion of the contract for sale of the Chiswick property from Robert Sebie to the Phams, the Phams are obliged to pay the purchase price of $2,000,000 into court. And the funds paid into Court cannot be paid out without the leave of the Court. It is clear from earlier disputes in this case that there was no contest between Ms Musabwasoni and Mr Robert Sebie that the sale to the Phams was not at an undervalue. It is hard to see how Mr Zraika could claim any prejudice to his security interest in the Chiswick property by having it converted into money in court. If he has such an interest he is free to claim it at a later point of time.

Orders Under Real Property Act, s 74O

1. The Court should make an order under Real Property Act, s 74O.
2. There is a prior history of Mr Zraika filing caveats in these proceedings. He filed an earlier caveat in 2015 when the property was owned by Mr Robert Sebie. He allowed that caveat to be lifted for the property to be sold to Enterprise ICT, a sale Pembroke J found to be a sham. That caveat was in similar form to the current caveat. That prior conduct gives the Court reason to believe that if an order is not made under Real Property Act, s 74O there is a substantial prospect that Mr Zraika may file further caveats.

The Orders Against the Registrar General and Other Orders

1. The Court also made orders against the Registrar General on 24 April 2018. The Court ordered that until the registration of an instrument of transfer in respect of the Chiswick property from Mr Robert Sebie to the Phams, or until the Court otherwise orders, the Registrar General "shall not accept for lodgement any caveat presented for lodgement which prohibits or purports to prohibit the Registrar General from registering the transfer unless such caveat is lodged by a local, state or federal government authority, otherwise than with the leave of the Supreme Court".
2. In some cases it may be appropriate for the Court to make an order restraining the Registrar General from accepting for lodgement, other than with the leave of the Court, caveats in respect of a property. The power undoubtedly exists and has been exercised from time to time: Jensen v Bank of Queensland (2011) 15 BPR 29,601; [2011] NSWCA 71 ("Jensen"). The danger of further caveats being lodged is sufficient to enliven the exercise of this Jensen jurisdiction.
3. In my view, there is ample basis for the making of an order of this type against the Registrar General in this case. The Court refers to the history set out in previous judgments, including the judgments of Pembroke J, identified earlier in these reasons. The history of these various and related proceedings, of which these various judgments give a full account, shows a number of enduring features: reliance by parties on inherently suspicious documents; the filing of successive clearly defective caveats in circumstances that seem only designed to sabotage the completion of the contract for sale to the Phams; findings of fraud against parties associated with Mr Ramzy Sebie and Mr Robert Sebie; the swearing of false declarations; the filing of multiple caveats in respect of allegedly long-standing claims that have only just emerged; when caveats are contested the Court's processes are abused and misused; and the reality that unless the Phams are able to achieve settlement of the contract for sale in the near term, that they are likely to lose their finance for the acquisition of the Chiswick property.
4. In addition to these matters, the evidence of Mr Anthony Booth, a solicitor in the employ of the Registrar General, shows that other parties have been trying to lodge caveats over the Chiswick property but have been rejected by the Registrar General.
5. The form of order against the Registrar General that the Phams originally proposed would have prohibited the registration by the Registrar General of all caveats. But it was obvious that caveats by public authorities in respect of outstanding rates or tax liabilities should be excepted from the scope of the prohibition, so this was written into the form of the final order.
6. Finally, unrelated to the orders made against Mr Zraika and the Registrar General on 24 April 2018, the Court made directions for the further conduct of the part of the motion against Mr Ramzy Sebie. This part of the motion was ultimately determined on 1 May 2018. The directions for the further conduct of the part of the motion against Mr Ramzy Sebie constitute the balance of the orders made that day. They are procedural orders and need not be discussed further.

Conclusion and Orders

1. For these reasons, the Court makes the following orders and directions: 1. Pursuant to s 74MA of the Real Property Act 1900 (NSW), by 4pm on 26 April 2018 Mazen Zraika shall withdraw the caveat with dealing number AN232813. 2. If Mazen Zraika fails to withdraw the caveat by the specified date, the caveat will lapse and the Registrar General is thereafter authorised to remove it from the Register. 3. Pursuant to s 74O of the Real Property Act, Mazen Zraika is restrained from lodging, or causing to be lodged, any further caveat or other dealing on the title to the property at 11 Tutt Crescent, Chiswick (folio 2 in DP 241738) ("the Chiswick Property"). 4. Adjourn the balance of the plaintiffs' motion in these proceedings filed on 18 April 2018 ("the 18 April 2018 motion") for further hearing to 4pm on Monday, 30 April 2018, before me. 5. Mazen Zraika shall pay the plaintiffs' costs of and incidental to the 18 April 2018 motion. 6. Until registration of an instrument of transfer in respect of the Chiswick Property from Robert Sebie to the plaintiffs ("the Transfer"), or until the Supreme Court otherwise orders, the Registrar General shall not accept for lodgement and shall not record in the Registrer any caveat presented for lodgement, which prohibits or purports to prohibit the Registrar General from registering the Transfer, unless such caveat is lodged by a Local, State or Federal Government authority, otherwise than with leave of the Supreme Court. 7. Direct that Mr Ramzy Sebie serve by 2.30pm on Friday, 27 April 2018 any affidavits on which he seeks to rely in support of the 18 April 2018 motion. 8. Refer paragraph 26 of Mr Andy Pham's affidavit of 24 April 2018 (which is set out in Schedule A to these orders) to the Attorney General of NSW as first law officer of the Crown for the Attorney General's attention and consideration with a view to the possible further investigation of the matter by police. 9. The Court notes that Streeterlaw has been granted leave today to appear on behalf of the second respondent on the motion, Ramzy Sebie, notwithstanding the fact that Streeterlaw has not filed an appearance on behalf of that party. 10. Direct Streeterlaw to file a notice of appearance on behalf of the second respondent, Ramzy Sebie, by 10am on Thursday, 26 April 2018 11. If Order 10 of these orders is not been complied with, grant liberty to the plaintiffs to immediately re-list these proceedings between 2pm and 4pm on Thursday, 26 April 2018 with a view to the Court making final orders that day against the second respondent to the 18 April 2018 motion. 12. Vacate the date set for the costs hearing in this matter on 3 May 2018 and request that my associate notify all parties, including the Registrar in General, with a view to them fixing another mutually convenient date to argue all questions of costs including the costs of the Registrar in General. 13. Order that the solicitor for the plaintiffs serve a copy of these orders on all parties by 6.00pm today. 14. Order that these orders may be taken out forthwith. Schedule A "Threat to me and children on 23 April 2018 26 At around 2:45 pm on 23 April 2018 two men of Arabic appearance attended by office at 22 Smart Street, Fairfield. They were both taller than me, and bulky. They both had tattoos on their arms. Based on my observations, they were in their mid 30s. They asked my assistant, Jo, to speak with me. I then came out of my room to speak with them. We had a conversation which included words to the following effect: Man: The proceeding in court tomorrow concerning the Chiswick property involves a lot of parties. We know where your children go to school. The man then showed me a document which was a page from my firm's website with some handwritten information on it. The conversation continued: Me: What is your relationship to the Sebie family? Can I see a copy of your driver's licence? Man: My name is Jo. I will not show you my driver's licence. Me: If you have no relationship to the Sebie family, please leave the office. The two men then left the office."

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