Sebie v Pham

Sebie v Pham - [2018] NSWCA 333 - NSWCA 2018 case summary — Zoe

Judgment

HER HONOUR: There is listed before me a notice of motion of Robert Sebie which was filed in Court before Pembroke J in the Equity Duty List yesterday, 5 December 2018. Pembroke J considered it appropriate to refer the matter to the Court of Appeal. For that reason, I have decided that it is appropriate in the interests of justice that I deal with it.
The notice of motion has been supported by an affidavit of Mr Robert Sebie of 3 December 2018. There was also affidavit evidence filed on behalf of the respondents, Andy Vuong Duc Pham and Thi Huong Giang Pham, being two affidavits of Andy Pham which had been read in one of the proceedings in the court below and were read again before me.
This matter has an extraordinarily complicated history and has been the subject of at least ten judgments in the Equity Division and at least one judgment in the Court of Appeal. Given that it is now 5:20pm, I do not have the time to go through those judgments, nor is it necessary to do so.
It is sufficient to record that on 29 October 2014, Mr Robert Sebie sold the property which is subject of the proceeding, which I will refer to as the Chiswick property, to Mr and Mrs Pham. After various proceedings in this Court, including a proceeding for specific performance brought by Mr and Mrs Pham against Mr Robert Sebie, settlement of that sale occurred, as I understand it under the auspices of the Court, on 2 May 2018.
The sale price was paid into Court and continues to be held by the Court pending the outcome of various proceedings, including Family Court proceedings which involve Mr Robert Sebie, his former wife, a company of which Mr Robert Sebie is not the director and, it also seems, the parents of Robert Sebie, Mr Ramzy Sebie and Mrs Rose Sebie. All of those persons and entities have been parties and/or in one way or the other involved in or referred to in the various proceedings in the Supreme Court.
Robert Sebie accepts, as I understand it and as I would find in any event, that having sold the property to Mr and Mrs Pham and that sale having been completed, he has no possessory or other interest in the Chiswick property. Notwithstanding that, he seeks to remain in possession of that property until the resolution of either, a summons seeking leave to appeal from judgments of Slattery J and of Kunc J given on 13 July 2018 and 4 October 2018 respectively, or until proceedings have been concluded in the Family Court of Australia.
In the Supreme Court matters, Slattery J made an order for possession of the Chiswick property. On 28 September 2018, Kunc J ordered that a writ for possession be issued. His Honour's reasons for making that order were given in the judgment of 4 October 2018.
There is a proceeding to be heard in the Family Court on 18 December 2018, in which Mr and Mrs Pham, who have been joined to those proceedings, will seek to strike out a portion at least of claims that have been made in that Court in which an order is sought under s 106B of the Family Law Act 1975 (Cth) to set aside the sale and/or completion of the property on the basis that it is an abuse of process. I was informed that the Family Court claims seeks to relitigate the specific performance proceedings in the Supreme Court in respect of which Mr Robert Sebie was unsuccessful.
In circumstances where Mr Robert Sebie does not have any interest in the property or right to possession of the property, the question is whether there is any basis for granting the stay that he seeks. Although Robert Sebie does not have any possessory interest in the property, he lives at the property, as does his mother, Mrs Rose Sebie. On the occasions when he has care of his children, his children also reside there with him.
The matter about which I have been most concerned is whether Mrs Rose Sebie, who is an elderly lady with significant health problems, has a lease of or relating to the premises which would be protected by s 42(1)(d) of the Real Property Act 1900 (NSW). I am satisfied, having regard to findings that have been made by Slattery J and Kunc J respectively, that the registered estate of Mr and Mrs Pham in the Chiswick property is not subject to any tenancy in favour of Mrs Rose Sebie pursuant to s 42(1)(d). Slattery J found that the first time that Mr and Mrs Pham had notice of the existence of any such lease was after they became the registered proprietors.
I should add that Kunc J in his judgment of 4 October 2018 also referred to the lease to Mrs Rose Sebie and did not accept that she had a relevant interest and lease. Although his Honour did not find that there was no such lease, that does not take the matter any further, because for a registered interest to be subject to a lease interest under s 42(1)(d), the registered proprietor had to have notice of that lease before becoming registered as proprietor. As I have indicated, Slattery J has made a finding that Mr and Mrs Pham did not have any such notice.
There are two other matters to which I should make reference. Mr and Mrs Pham complained that Mr Robert Sebie's application is delayed to such an extent that this Court ought not to countenance his application. The delay is extreme, to say the least. In this regard, I add to what I said in delivering my ex tempore reasons, as will be apparent in any event from the court papers, that the writ for possession issued on 28 September 2018 and execution was scheduled for 10.30am, Friday 7 September 2018, a matter of which Mr Sebie has had notice for at least 30 days. Had I been satisfied that Mrs Rose Sebie's interest under a tenancy was arguably protected by s 42(1)(d), I would have considered that to have been far more significant than any delay. However, as I have indicted, I am not so satisfied.
Mr and Mrs Pham have also submitted that they would be grossly prejudiced if a stay was granted. They rely upon the fact that they are paying rent on alternate premises and that they are also paying interest on the loan that they borrowed for the purposes of completion of the sale transaction. Pembroke J in the original specific performance proceedings was not prepared to find that Mr and Mrs Pham were suffering financial damage or economic loss in circumstances where the premises in which they reside include a commercial laundry and dry cleaning business, owned and operated, as I understand, by Mrs Pham. In the circumstances, I have not taken into account any prejudice to Mr and Mrs Pham in coming to my determination. My determination is based upon the finding that has been made in the proceedings that Mrs Rose Sebie's tenancy interest, if she has such a tenancy interest, is not protected pursuant to s 42(1)(d).
Accordingly, I refuse the order sought in the notice of motion and the order I make is that Mr Robert Sebie's notice of motion is dismissed with costs.
As I indicated at the commencement of my judgment, there was listed before me a notice of motion brought by Mr Robert Sebie seeking a stay of the writ of possession which is due for execution tomorrow, 7 December 2018, at 10.30am. There was also listed before me a notice of motion said to be filed by Mrs Rose Sebie and Mr Ramzy Sebie (Ramzy Sebie's notice of motion), also seeking a stay of the execution of the writ of possession.
Mr Ramzy Sebie is present in Court and has made submissions to the Court and he also relied, in support of his notice of motion, on an affidavit affirmed 6 December 2018.
I had initially determined that it was appropriate to hear and determine the notice of motion filed by Mr Robert Sebie first before proceeding to deal with the notice of motion purportedly filed on behalf of Rose Sebie and also filed on behalf of Mr Ramzy Sebie. As the transcript will record, I gave a judgment in that matter in which I refused Mr Robert Sebie's notice of motion.
After giving judgment, Mr Robert Sebie made further submissions in which, amongst other things, he drew to my attention a document annexed to an affidavit of Mr Ramzy Sebie, filed in support of the Ramzy Sebie notice of motion which is said to be a rental agreement for "Shared Room/House" dated 21 December 2015 from Enterprise ICT Pty Ltd in favour of or to Rose Sebie, for a period of 24 months commencing on 21 December 2015. Mr Robert Sebie also drew to my attention a further document annexed to Mr Ramzy Sebie's affidavit said to be an email sent to Andy Pham Lawyers from Enterprise ICT Pty Ltd, dated 5 September 2017, in which there is a reference to a number of tenants residing at the property, including Mrs Rose Sebie.
At this point, I should put further procedural matters onto the record. The affidavit of Mr Ramzy Sebie of 6 December 2018 was only provided to the legal representative for Mr and Mrs Pham in Court when the matter was listed this afternoon. The other matter that should be recorded is that the affidavit of Mr Ramzy Sebie purports to annex an affidavit of Mrs Rose Sebie of 28 November 2018. The records of this Court will record that yesterday Mrs Rose Sebie was in Court and was represented by counsel, but that counsel, having spoken to Mrs Rose Sebie, had taken the view that he did not consider he should proceed with any application that might have been filed by Mrs Rose Sebie, (about which there was some doubt), or rely upon her affidavit, as he was not sure that she was competent to understand what was going on.
I treated the affidavit on the basis that there was no such application before me. Nonetheless, Mr Ramzy Sebie seeks to rely upon Mrs Rose Sebie's affidavit by annexing it to his own in the present application. The two documents to which I have just referred (the letter in respect of the lease and the email) are annexed to Mrs Rose Sebie's affidavit. That is problematic, although it may be that they could be before the Court by way of business records.
That raises the next problem. The entity that purported to lease the premises to Mrs Rose Sebie on 21 December 2015, Enterprise ICT Pty Ltd, was found by Pembroke J to have become the registered proprietor of the Chiswick property pursuant to a fraudulent transaction which has been set aside. I have not had the opportunity to determine what the rights of a tenant when leasing are from a person who has no right to lease the property, although it is problematic.
I was also informed that there is a question as to whether the email to which I referred of 5 September 2017 from Enterprise ICT Pty Ltd to Mr Pham was ever received by him or was part of some train of fabricated evidence. There is no basis upon which I can deal with that this afternoon and I do not purport to do so.
The central question, however, comes back in my opinion to whether Mr and Mrs Pham had notice of a tenancy in a way that the occupation of the tenant, Mrs Rose Sebie, if she be a tenant, is protected by s 42(1)(d). I made a finding in relation to that in the judgment which I first delivered in respect of Mr Robert Sebie's notice of motion but which I had indicated I was prepared to review having regard to this additional material.
There is considerable doubt, in my opinion, as to whether any reliance can be placed by anybody on the email of 5 September 2017 from Enterprise ICT Pty Ltd to Mr Andy Pham. This is regardless of whether it was before Slattery J or Kunc J. The reason why there is doubt about it is because, as I have said, Enterprise ICT Pty Ltd were found to have become registered proprietors of the company pursuant to a fraudulent transaction which has been set aside. In the result, I am still faced with the finding of Slattery J that Mr and Mrs Pham did not have notice of a tenancy such as to be affected by the provisions of s 42(1)(d), although that will be the subject of the summons seeking leave to appeal which has been filed by Mr Ramzy Sebie.
I have a significant concern as to whether the two documents to which I have referred will be sufficient for that finding to be set aside. When I first stated my reasons for refusing Mr Robert Sebie's notice of motion, I stated that I had not taken delay into account as such, and that my significant concern was with whether or not Mrs Rose Sebie's interests were protected under the Real Property Act. I have indicated my reasons why I still have significant doubts about that, but it does seem to me that the question of delay has now become more critical. The Sebie family and each of the relevant individuals, Mr Robert Sebie, Mr Ramzy Sebie and Mrs Rose Sebie, have had a long period of time in which to order their affairs and/or to come to the Court at an earlier point in time.
Whatever the reasons be for their not having done so, the fact is they did not do so and the delay has not been explained to the Court in any satisfactory way other than to say, on Mr Ramzy Sebie's part, that he is an elderly man with health problems, and on Mr Robert Sebie's part, that he has had a lot of pressures, but that has been stated from the bar table.
One of the further matters that I have considered to be significant is that in [63] of Slattery J's judgment of 13 July 2018 he states this: "… the Court should also enter judgment for possession for other reasons. Mr Rogers of counsel on 12 June 2018 indicated that Mr Ramzy Sebie did not oppose judgment for possession. Mr Ramzy Sebie's affidavit indicates that Mrs Rose Sebie has sufficient notice of the claim on the Motion for Possession to enable her to appear and oppose it if she wished."
Having regard to that observation of his Honour, and on the evidence before me, Mr Ramzy Sebie has no right to possession of the property under any guise. Having regard to the significant period of time which the Sebies have had to organise to vacate the property, including to assist Mrs Rose Sebie to vacate the property, I have come to the view that both notices of motion should be refused, in other words that a stay ought not to be granted.
In doing this the Court is aware that this will cause considerable distress to various of the Sebie family members but the Court is required to have regard to the principles of law that operate in this area and to the interests of both sides. Notwithstanding that I considered it appropriate to reconsider my original ruling and to now include the notice of motion by Mr Ramzy Sebie, I have come to the same conclusion.
I should add one other matter. Mr Ramzy Sebie in his affidavit has bracketed that he is the tutor of Rose Sebie and in para (1) of his affidavit, he states that he prepares the affidavit as a tutor on behalf of Mrs Rose Sebie.
Mr Ramzy Sebie has not formally been appointed as a tutor of Mrs Rose Sebie and I would not make that order for three reasons. The first is that Mr Ramzy Sebie and Mrs Rose Sebie have been separated for a long period of time. The second is that there is evidence that there has been some police involvement in their relationship. That evidence appears in para (11) of Ramzy Sebie's affidavit, where he states, "Rose Sebie been separated from Ramzy Sebie for over 20 years, which are document on Centrelink and police records". Mr Ramzy Sebie, at the least, may well have a conflict of interest as a tutor. The third reason is that unless the Court orders otherwise a person where a tutor has been appointed must appear by a solicitor and that has not happened. Given what has happened in these proceedings, with various allegations being made of fraud and the like, I would not order that there be a tutor appointed for Mrs Rose Sebie unless she was represented by a solicitor, but in particular, I would not appoint Mr Ramzy Sebie in those circumstances.
Accordingly, the orders that I make on each notice of motion is that the notice of motion is dismissed with costs.

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