Sebie v Pham [2021] NSWCA 115

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sebie v Pham [2021] NSWCA 115 Hearing dates: 17, 20 May 2021 Date of orders: 31 May 2021 Decision date: 31 May 2021 Before: Brereton JA Decision: (1) Upon the applicants Robert Sebie and ENA Development Pty Ltd giving to the Court the usual undertaking as to damages, the stay of the operation of orders 3, 4(a), and 5(d) of 18 March 2021, and of orders 1 and 7 of 30 April 2021, continue until the hearing of the summons for leave to appeal or further order; (2) The stay in order 1 is conditional upon the applicants filing in the registry within seven days a formal undertaking to the Court to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the stay in order 1 or of any interlocutory continuation (with or without variation) of it; (3) If leave be granted, the hearing of any consequent appeal from the orders referred to in order 1 above (but not from any other orders impugned in the summons for leave to appeal) be heard concurrently with the application for leave to appeal; (4) The hearing of the application for leave to appeal be expedited; and (5) Costs of the motion be costs in the application for leave to appeal. Catchwords: CIVIL PROCEDURE – Court of Appeal – Stay of orders for payment out of funds in Court – Where funds represent purchase money of real property – Whether judgment creditor entitled to payment out orders – Where outstanding claim to funds by second applicant – Where such claim not without merits – Stay granted – Stay conditional upon formal undertakings as to damages by applicants CIVIL PROCEDURE – Court of Appeal – Stay of costs orders – Where application out of time – Where no sufficient prospects of success demonstrated – Stay refused Legislation Cited: (CTH) Family Law Act 1975, s 79, Pt VIIIAA (NSW) Civil Procedure Act 2005, s 101(4) (NSW) Uniform Civil Procedure Rules 2005, rr 41.3, 41.16 (NT) Supreme Court Rules 1987, r 73.11 (QLD) Uniform Civil Procedure Rules 1999, r 882. (VIC) Supreme Court (General Civil Procedure) Rules 2015, r 73.11 (WA) Civil Judgments Enforcement Act 2004, s 58. Cases Cited: Aquatic Air Pty Ltd v Siewert (No 2) [2016] NSWSC 10 Aquatic Air Pty Ltd v Siewert (No 3) [2018] NSWSC 624 Brereton v Edwards (1888) 21 QBD 488 Church v Arnold (1902) 2 SR (NSW) Eq 127 Commonwealth Bank of Australia, Re (2009) 14 BPR ¶26,819; [2009] NSWSC 81 Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185 Falcone v Mentyn (No 2) (2004) 13 Tas R 384; [2004] TASSC 156 JKB Holdings Pty Ltd v De La Vega [2013] NSWSC 501 Lahoud v Lahoud [2012] NSWSC 284 Patterson v Cohen [2006] NSWSC 424 Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446 Pham v Enterprise ICT Pty Ltd (No 2) [2017] NSWSC 583 Pham v Enterprise ICT Pty Ltd [2017] NSWSC 1509 Pham v Enterprise ICT Pty Ltd (No 2) [2018] NSWSC 22 Pham v Enterprise ICT Pty Ltd (No 3) [2018] NSWSC 381 Pham v Enterprise ICT Pty Ltd (No 7) [2018] NSWSC 1063 Pham v Enterprise ICT Pty Ltd (No 8) [2018] NSWSC 1492 Pham v Enterprise ICT Pty Ltd (No 10) [2018] NSWSC 1805 Pham v Enterprise ICT Pty Ltd (No 11) [2019] NSWSC 115 Pham v Enterprise ICT Pty Ltd (No 13) [2019] NSWSC 522 Pham v Enterprise ICT Pty Ltd [2019] NSWSC 1857 Pham v Enterprise ICT Pty Ltd [2020] NSWSC 1089 Pham v Enterprise ICT Pty Ltd [2021] NSWSC 542 Sebie v Pham [2018] NSWCA 333 Sebie v Pham [2019] NSWCA 58 Sebie v Pham [2019] NSWCA 184 Sivritas v Sivritas (No 2) (2008) 23 VR 349; [2008] VSC 580 TAFE Commission v Cordoba [2020] NSWSC 1377 Westhead v Riley (1881) 25 Ch D 413 Texts Cited: AG Nevill & AW Ashe, Equity Proceedings with Precedents (New South Wales) (Butterworths, 1981) H Keller & M Walton (eds), Courts Forms Precedents & Pleadings NSW, "Payments into and out of Court" (LexisNexis, online) Category: Procedural rulings Parties: Robert Sebie (First Applicant) ENA Development Pty Ltd (Second Applicant) Andy Vuong Duc Pham (First Respondent) Thi Huong Giang Pham (Second Respondent) Representation: Counsel: Self-represented (Applicants) B Zipser (Respondents)