Sebie v Pham

Sebie v Pham - [2021] NSWCA 274 - NSWCA 2021 case summary — Zoe

Judgment (ex tempore)

BELL P: The Court has before it a notice of motion e-filed on 18 October 2021. The first prayer for relief in this notice of motion is that: "ENA Development Pty Ltd remains as the second appellant in these proceedings and not a respondent. That Ronald Jemmott is added as the third appellant pursuant to rule UCRP [sic] 7.1 (2) and (3)." The proceedings referred to in prayer 1 were an application for leave to appeal in which Mr Robert Sebie is the first applicant (wrongly referred to as "first appellant") and in which ENA Development Pty Ltd (ENA) was removed as the second applicant by order of the Registrar on 30 August 2021.
When the motion was called for hearing this morning, Mr Christopher Alis of Adam Jones Solicitor purported to announce his appearance as agent for ENA. After questioning from the Court as to whether or not that firm of solicitors would enter an appearance on behalf of ENA as the moving party on the notice of motion, Mr Alis ultimately confirmed that he had instructions to do so and undertook to file a notice of appearance by 5.00pm today. The Court notes that undertaking and looks forward to it being satisfied.
Mr Alis was then called upon to identify the evidence on which ENA, as the moving party on the notice of motion, relied. He indicated in the most general way that he relied on all the material that had been filed in relation to the leave application which has been listed for concurrent hearing today. He was unable to identify any of that material which related specifically to the prayers for relief in the notice of motion which were pressed. This was completely unsatisfactory. A solicitor who agrees to appear should be in a position, if representing a party, to identify with specificity the material on which that party relies for orders in the notice of motion before the Court. Mr Alis was equally unable to assist the Court with any submissions in support of the relief that was sought.
Mr Robert Sebie, who is the first applicant in the substantive matter before the Court, identified an affidavit of Ronald Jemmott of six paragraphs purporting to bear the date 31 August 2021 on which reliance was said to be placed. Although that affidavit appears to bear the date 31 August 2021, it contains annexures dated 8 September and 19 October 2021 respectively. It cannot have been sworn on 31 August. There was also tendered a bundle of correspondence sent to my Associate at 7.41am this morning from Ronald Jemmott but with an email address ronnaldj@ena.com.au.
Mr Zipser who appeared for the respondents to the motion read and relied upon an affidavit of Mr Andy Pham sworn 13 October 2021 which contained a copy of earlier reasons of Registrar Riznyczok which were the subject of prayers for relief sought in the notice of motion.
Mr Jemmott was not initially online when the motion came on for hearing but came online and was called on to make any submissions in support of the orders contained in the notice of motion purportedly signed by him and e-filed, as I have said, on 18 October 2021. Mr Jemmott was asked specifically about the second aspect of prayer 1 of the notice of motion which sought that he be added as a third applicant to the proceedings. Mr Jemmott did not appear, when first asked that question, to have a copy of the notice of motion with him. I then pointed out that it was an attachment to the email (exhibit A) purportedly sent by him at 7.41am to my Associate. There then followed a series of exchanges between members of the bench and Mr Jemmott asking whether he in fact had sent that email and the details of it. The vast majority of the questions asked of Mr Jemmott were followed by significant pauses, pauses which were not justified by the simple nature of many of the questions asked. Mr Jemmott was appearing not audio visually but simply by an audio link as was Mr Sebie and Mr Alis. In particular, Mr Jemmott was asked why prayers 3 and 4 of the notice of motion were not being pursued, this being a matter which was referred to in the body of the email. He was unable initially to answer that question and then said that it was "on instructions". When asked who the instructions were from, he being the only director of ENA, he was quite unable to respond to that question.
The Court has serious reservations, to put the matter mildly, as to whether the man who identified himself as Ronald Jemmott on the telephone in fact sent the email to my Associate at 7.41am this morning. Those reservations arise in part because of the particular email address "ronnaldj@ena.com.au" involving a misspelling of the name Ronald, together with the fact that various other emails in evidence before the Court show Mr Jemmott being contacted and communicating from a different email address with a different spelling of his first name.
Apart from Mr Jemmott's participation which I have briefly summarised, he did not advance any reasons in support of the relief sought in the notice of motion. Nor did Mr Sebie who was called upon separately advance any submissions. It was, as I have noted, Mr Sebie who identified Mr Jemmott's unfiled affidavit purporting to bear the date 31 August 2021. But beyond that and identifying the email purportedly sent by Mr Jemmott to my Associate, which became exhibit A, Mr Sebie did not advance any reasons in support of the prayers for relief sought in the notice of motion.
In all of those circumstances I am of the opinion that the notice of motion should be dismissed. I would also dismiss it with indemnity costs, such costs to be payable out of the fund held by the Court which is the subject of the application for leave to appeal.
BASTEN JA: I agree with the orders proposed by the President and with his reasons.
BRERETON JA: On 31 May 2021, I gave reasons for granting a stay of certain orders the subject of the application for leave to appeal. [1] Fundamentally, the reason was that I considered it strongly arguable that the payment out orders made by the judge at first instance were premature in circumstances where there was a competing claim on the funds in court by ENA Development Pty Ltd ("ENA"). In the written submissions on the application for leave to appeal, the respondents practically conceded the correctness of that proposition. However, the interest of ENA is a fundamental integer of that reasoning.
On 30 August 2021, the then second applicant ENA was effectively removed as an applicant for leave to appeal and joined as a respondent by order of the Registrar, who also substituted a director of ENA, Mr Ronald Jemmott, as the second applicant. That was in part pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 13.6, but also in part pursuant to an informal application purportedly made by Mr Jemmott to that effect. That application, as it turns out, was entirely misconceived in several respects. Mr Jemmott has no personal interest or standing and ought not have been joined, and the object of the application insofar as it was to avoid the requirement that ENA could act only by a solicitor could not have been achieved, at least unless Mr Jemmott had a personal interest, which he did not. [2]
The consequence of that may be practically to defeat the application for leave to appeal, by removing an essential party to it. The respondents, by their counsel, have frankly indicated that insofar as the appeal is confined to the question of the payment out orders, at least at this stage, they would not be prejudiced by the albeit late change in position. For those reasons, I have given anxious consideration to whether, despite the entirely unsatisfactory situation, the preferable course in the interests of justice would be to set aside the Registrar's orders, reinstate ENA as an applicant, and order ENA to pay, on an indemnity basis, the entire costs of the exercise, out of the funds in court.
The fact remains that the Court is being trifled with. The whole exercise was an exercise in endeavoring to evade the requirement of the rules that ENA have a solicitor on the record. Most unfortunately, that exercise was participated in and perpetuated by a firm of solicitors who chose to act without proper instructions, where they were in no position to provide any assistance whatsoever to the Court. The fact that the Court has been trifled with is also apparent from the inability of Mr Jemmott to provide timely answers - and in some cases any answer at all - to questions based on correspondence purportedly sent by him to the Court.
A party seeking an indulgence from the Court, as ENA presently seeks, is at the very least expected to be frank and open with the Court, and I am entirely unsatisfied that that has been the case here. On that basis, I am of the view that grounds for granting ENA the indulgence it seeks have not been sufficiently made out, and its motion should be dismissed with costs.

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