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Ex Tempore Judgment

1. HIS HONOUR: Referred before me today by the Registrar is paragraph 10 of an amended notice of motion filed on 11 March 2019 which seeks the following orders: "10. Orders of the court below of Slattery J dated 20 February 2019 to be stayed until: a. The proceedings of Supreme Court of NSW, Summons Case #2018/00137809 is finalised. b. The proceedings of Family Court of Australia Case #SYC0059/2010 is finalised. c. This Court of Appeal Case #2018/252265 is finalised."
2. The matter came before the Registrar on 18 March 2019 for directions, on which occasion the Registrar directed that that paragraph alone would be set down for hearing today. The Registrar also directed that the applicants file and serve affidavits by 4pm 20 March 2019 (something which has not occurred).
3. The orders made by Slattery J, which are the subject of the application for a stay are, contrary to what is said in the amended notice of motion as filed, orders made on 20 February 2019 for reasons given on that date: Pham v Enterprise ICT Pty Ltd (No 11) [2019] NSWSC 115. Only seldom are there 11 judgments in the same civil matter. As the case title indicates, these proceedings have enjoyed an especially litigious and protracted history, both in the Equity Division and in this Court. It is not necessary for present purposes to attempt to summarise all aspects of that litigation.
4. The orders which were made by the primary judge on 20 February are as follows: "1. Order that on or after 27 March 2019, there may be paid out of Court to the plaintiffs the sum of $263,660 (exclusive of interest) from the funds in Court in the name of Mr Robert Sebie, the first defendant; 2. Direct that by 4pm on 1 March 2019, the plaintiffs serve on all other parties and file in Court Short Minutes of Order setting out the plaintiffs' fully worked calculation of interest on the Court's 30 January 2018 gross sum costs order, calculating the interest thereon under Civil Procedure Act 2005, s 101, up to 27 March 2019; 3. Order that the first defendant, Mr Robert Sebie, pay the plaintiffs' costs of the issue described in the Court's judgment at today's date as 'the payment out issue'; 4. Grant liberty up to and including 27 March 2019 to the first defendant, Mr Robert Sebie, to apply by motion to vary order (3) to seek to have the second defendant, Ms Musabwasoni bear some portion of the costs the subject to order (3); 5. List proceedings before the Registrar in Equity on Wednesday, 3 April 2019 at 9.00am for the return of any further application by the plaintiffs for a costs orders or lump sum costs orders in respect of costs incurred by the plaintiffs in these proceedings after 30 January 2018, or for the return of other applications by any other party; and 6. Grant liberty to apply in respect of any dispute about the calculations of interest the subject of order (2)."
5. The sum of $263,660, in very large measure, relates to orders made in earlier proceedings in the Equity Division which have been the subject of an unsuccessful appeal in this Court by Mr Robert Sebie: see Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185. However, as Mr Elliott who appeared for ENA Development Pty Ltd observed, his client was not party to those proceedings. Nor were the first and second applicants, who are Mr Robert Sebie's parents, Mr Ramzy and Ms Rose Sebie.
6. Mr Robert Sebie either has applied to be joined, or in fact has been joined (the matter is unclear to me at the moment) as the third respondent to the application for leave to appeal.
7. The subject matter of Slattery J's orders of 20 February 2019 is costs. It seems probable that for that reason, as well as because the order is plainly interlocutory, an appeal to this Court lies only with leave.
8. As I indicated a number of times to the parties during the course of a hearing which started at 2.15 this afternoon and extended until approximately 5 to 5, it is no part of my task to determine the application for leave to appeal, let alone the appeal.
9. Instead, and favourably to the applicants, I indicated that I would proceed on the basis that their summons seeking leave to appeal was reasonably arguable, noting that Mr Zipser, who appeared for Mr and Mrs Pham, made a submission to the contrary, namely, that the application for leave to appeal was at best one that was very weak.
10. The essence of the application before me is that orders made by the primary judge, which are the subject of an undetermined application for leave to appeal, will have the result that a fund presently held by the Court comprising approximately $2.2 million, will be diminished in the amount of $263,660, on or after this Wednesday, 27 March 2019, unless I make some further order. Hence the relative urgency of the current application.
11. The applicable principles were not debated before me and are not in doubt. A successful party is prima facie entitled to the fruits of his or her judgment. That "prima facie entitlement" was explained by Campbell J in Vaughan v Dawson [2008] NSWCA 169 at [16] to mean in practical terms that the onus is on the applicants for a stay of execution to make out a case that it is suitable for the Court to award a stay. It is for the applicants to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see especially Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694.
12. The considerations relating to the balance of convenience, and the obligation upon the applicants for a stay to make out a case having regard to the interests of Mr and Mrs Pham, are considerably simplified by the facts that the evidence establish before me that Mr and Mrs Pham are the registered proprietors of the land at Chiswick that has given rise to this litigation, and that that land is presently the subject of obligations to their lender in the amount of some $1.7 million secured by a mortgage. I did not understand it to be disputed that the value of the Chiswick property is considerably greater than $1.7 million.
13. Further, towards the outset of the hearing, and before any evidence was read, Mr Zipser indicated that his clients were willing to provide undertakings to protect the position of the applicants in the event that leave were granted and the appeal were allowed.
14. As refined during the course of the hearing, the terms of the undertaking are as follows: "My wife and I would undertake to the Court not to further encumber the property, or transfer it to a third party, until the earlier of four months from today, or the determination of the appeal in this matter, and not to transfer the property to any party for a period of six months without first giving two weeks written notice to the applicants".
15. In practical terms, the consequence of no order issuing from me will be (a) the diminution of funds held by the Court in the amount of $263,660, but (b) the applicants enjoying the benefit of the undertakings I have just reproduced, as well as such rights as otherwise they are entitled to against Mr and Mrs Pham, they being the owners of valuable land in Sydney, in addition to such other assets as they may have.
16. The entitlements of the parties to this application are not entirely clear from all doubt, and, as I understand the position, in all cases are disputed by the Phams. In essence they are as follows: 1. Mr Ramzy and Ms Rose Sebie were, as I understand it, formerly tenants of the property, and claim some interest in the fund. 2. ENA Development Pty Ltd claims a secured interest in the fund in the amount of some $3.1 million, being an amount which would swamp the entirety of the fund and leave it to its personal rights against Mr and Mrs Pham to the extent it enjoys any. 3. Mr Robert Sebie also seeks an entitlement to the fund.
17. It seems likely, but I express no view, that at least some of those entitlements, if they exist, are overlapping entitlements, rather than cumulative. But in all cases, if there is a grant of leave and the appeal is allowed such that it is demonstrated that the primary judge erred in permitting the payment from the fund of $263,660 to Mr and Mrs Pham, then the applicants will still enjoy rights against what remains a very substantial fund, in the order of just under $2 million, and also will enjoy a personal right against Mr and Mrs Pham, at least insofar as they would, as an ordinary matter of restitution, be required to refund the amounts directed to be paid out to them, as it turns out, in a way that was appellably erroneous. And further, there is at least for the limited time stated in the undertaking, the added protection that they obtain from Mr and Mrs Pham's undertaking to the Court.
18. The evidence before me is that Mr Ramzy and Ms Rose Sebie are elderly and in various ways ailing. Naturally, a deal of protection is warranted in those circumstances. It is for that reason that I have focussed upon, as it seems to me, the relative lack of prejudice to Mr Ramzy and Ms Rose Sebie by the regime that has been put in place.
19. In the case of ENA Development, taking its case at its highest, it remains but a partially secured creditor of Mr and Mrs Pham, and it will remain in that circumstance in the event that I make no order staying the orders made by Slattery J.
20. On the other hand, there is unchallenged evidence from Mr and Mrs Pham as to their need for funds, not least because they have been joined by one of the parties to proceedings presently set down for hearing in the Family Court of Australia, with an estimate of five days in June this year.
21. This last point raises a matter touched on by Mr Robert Sebie in submissions, which is that this Court's appellate jurisdiction is narrower than the jurisdiction of the Equity Division insofar as it relates to matters arising under the Family Law Act 1975 (Cth). The source of the restriction is s 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). Decisions such as Grace v Grace (2014) 85 NSWLR 688; [2014] NSWCA 86 and Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 indicate that where a "matter" arises under the Family Law Act, although that Equity Division has jurisdiction to hear and determine it, this Court may lack jurisdiction to hear and determine the appeal.
22. If I had been minded to grant the orders sought by paragraph 10 of the notice of motion, then I would have required the parties to be heard as to the jurisdiction of this Court to hear the pending application for leave to appeal. That would have led to delay in a matter which is urgent, and in circumstances where for the reasons I have already indicated, I regard this as a clear case where the applicants have failed to demonstrate a proper basis for a stay of the orders made by Slattery J on 20 February 2019. Accordingly, I say nothing more about that question of jurisdiction. The directions for submissions will enable the parties to address this Court's jurisdiction.
23. For those reasons, I shall dismiss paragraph 10 of the amended notice of motion filed 11 March 2019.
24. I have omitted so far to mention that, in terms of the timing of the hearing of the summons for leave to appeal, some but not all of the applicants' written submissions have been filed. I intend in a moment to make a direction that those submissions be filed, followed by the submissions of Mr and Mrs Pham, and I will hear the parties as to the appropriate timing for that, but my expectation, as communicated during the hearing, was that the submissions would be complete by Easter, and I indicated, without of course binding the Registrar or the Court, that it was likely in those circumstances that there would be the hearing of the summons for leave to appeal in May or June this year. I mention all that because it is with that timing in mind that the temporal limitation on the undertakings proffered by Mr and Mrs Pham has been given.
25. [Discussion as to timing for filing of submissions.]
26. I make the following orders: 1. I note the undertaking of counsel appearing for Mr and Mrs Pham on behalf of his clients to the court in the following terms: (a) Not to further encumber the property or transfer it to a third party until the earlier of four months from today or the determination of the appeal in this matter and (b) not to transfer the property for six months without first giving written notice to the applicants. 2. Dismiss paragraph 10 of the amended notice of motion filed 11 March 2019, with costs. 3. Direct that the applicants file their submissions including any supplementary submissions and serve them on or before Tuesday 23 April. 4. Direct the respondents to file and serve their submissions by Tuesday 7 May 2019. 5. Stand matter into the Registrar's list on Monday 13 May for the allocation of a date but note that that directions hearing may be vacated if a date can be allocated in advance.
27. [Further discussion concerning orders.]
28. Two further matters have emerged in relation to the orders I indicated. One is that there is presently listed a directions hearing before the Registrar on 6 May. That should be vacated and will be replaced by the hearing on 13 May, if that goes ahead.
29. The second matter concerns costs. Mr Zipser seeks clarity as to the effect of the costs order, and there is some sense in that having regard to the peculiar circumstances in which parties seem to be joined to some of which I referred when giving reasons. The intent of the order that I pronounced was that each of Mr Ramzy Sebie, Ms Rose Sebie, ENA Development Pty and Mr Robert Sebie, all of whom separately supported the making of a stay and all of whom have been unsuccessful, should bear the whole of those costs. That does not involve any double counting on behalf of Mr and Mrs Pham. Rather it means that Mr and Mrs Pham are free to seek to enforce the whole of that cost order against any of those four persons, each of whom is under a coordinate liability and is entitled to seek contribution from the others for their fair share.
30. Mr Robert Sebie, supported by Ms Georgy, submitted that the order should be split pro rata in effect so that each only bore the share. That is not the ordinary consequence of costs orders in this Court. The ordinary operation of Uniform Civil Procedure Rules 2005 (NSW) r 42.1 is that costs follow the event, and whereas here there seem to be a multiplicity of proponents, all seeking the same order, they all bear the risk of having to shoulder the burden of the costs which their unsuccessful application caused Mr and Mrs Pham to incur.
31. Mr Elliott who appears for ENA Development has a separate point. He says that the undertaking from Mr and Mrs Pham only emerged in the course of the day, and that the costs should only reflect the costs of the hearing. That submission might have more force had there been a greater degree of compliance with the Registrar's direction of 18 March 2019 which was that the applicants file and serve all of their affidavits by 4pm on 20 March 2019. As I understand the situation Mr Jemmott's affidavit, affirmed 18 March 2019 was served in an unfiled and unexecuted form on the afternoon of 20 March 2019, in substantial compliance with that direction, however it was only today that Mr Robert Sebie served his substantive affidavit, sworn today, and gave notice that he intended to rely upon a series of other affidavits which had been earlier served in relation to other applications.
32. The affidavit of Mr Pham which contained the undertaking is necessarily a responsive affidavit, and in circumstances where in substance the applicants have failed to comply with this Court's timetabling orders, I see no reason to split the costs in the way that Mr Elliott contends.
33. There is thus no need to make any further orders to costs.