Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sebie v Pham (No 3) [2021] NSWCA 277 Hearing dates: 21 October 2021 Date of orders: 19 November 2021 Decision date: 19 November 2021 Before: Bell P and Basten JA at [1]; Brereton JA at [22] Decision: Summons seeking leave to appeal dismissed with costs. Catchwords: APPEALS – Leave to appeal – From orders for payment out from funds held in Court – Only other party with arguable claim to funds not permitted by Court to be re-joined as an applicant – Grant of leave would undermine Court's unanimous decision to refuse re-joinder – Significant obstacles and uncertainty attending to claim – Court concerned by potential undisclosed interest of first applicant – First and second respondents entitled to final resolution – Orders appealed from are discretionary – Leave refused APPEALS – Leave to appeal – From various other decisions dating back to 2017 – Application well out of time – No explanation for delay – Issues known to applicant and thus ought to have been raised much earlier – Rights of third parties have intervened – No errors demonstrated – Leave refused Legislation Cited: (NSW) Civil Procedure Act 2005, s 101(4) (NSW) Supreme Court Rules 1970, pt 40 r 1 (NSW) Uniform Civil Procedure Rules 2005, rr 7.1, 13.6, 36.1, 41.3 Cases Cited: Aquatic Air Pty Ltd v Siewert (No 3) [2018] NSWSC 624 Enterprise ICT Pty Ltd v Pham [2017] NSWCA 236 Enterprise ICT Pty Ltd v Pham [2018] NSWCA 74 Enterprise ICT Pty Ltd v Pham (No 1) [2018] NSWCA 180 Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185 Enterprise ICT Pty Ltd v Pham (No 3) [2019] NSWCA 138 Farrell v Mulroney [1978] 1 NSWLR 221 JKB Holdings Pty Ltd v de la Vega [2013] NSWSC 501 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 339 Pham v Enterprise ICT Pty Ltd [2021] NSWSC 542 Sebie v Pham [2018] NSWCA 332 Sebie v Pham [2018] NSWCA 333 Sebie v Pham [2019] NSWCA 58 Sebie v Pham [2019] NSWCA 184 Sebie v Pham [2021] NSWCA 115 Sebie v Pham (No 2) [2021] NSWCA 274 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Category: Principal judgment Parties: Robert Sebie (First Applicant) Ronald Jemmott (Second Applicant) Andy Vuong Duc Pham (First Respondent) Thi Huong Giang Pham (Second Respondent) ENA Development Pty Ltd (Third Respondent) Representation: Counsel: Self-represented (First Applicant) B Zipser (First and Second Respondents) Solicitors: Andy Pham Lawyers (Respondents) File Number(s): 2021/133082 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2017] NSWSC 446; [2018] NSWSC 381; [2019] NSWSC 115; [2020] NSWSC 1089; [2021] NSWSC 542. Date of Decision: 26 April 2017; 29 March 2018; 20 February 2019; 19 August 2020; 16 March 2021. Before: Pembroke J; Slattery J; Slattery J; Sackar J; Sackar J. File Number(s): 2015/325044; 2015/56505 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The protracted history of these proceedings, which have now involved over thirty-five judgments of the Supreme Court and Court of Appeal, began in 2014, when the first applicant, Mr Sebie, entered into a contract to sell a property located in Chiswick to the first and second respondents, Mr and Mrs Pham ("the respondents"). The first applicant failed to complete that contract, and instead conveyed the property to Enterprise ICT Pty Ltd, a company with which he was associated. The respondents accordingly commenced proceedings, and on 15 May 2017 orders were made declaring the conveyance fraudulent, revesting the property in Mr Sebie, and decreeing specific performance. The sale was eventually completed on 2 May 2018, and the proceeds were paid into Court. Subsequently, on 13 July 2018, the third respondent, ENA Development Pty Ltd ("ENA") (formerly the second applicant), was permitted to file a cross-claim contending an entitlement to those proceeds, on the basis of several advances allegedly made to Mr Sebie and secured by the Chiswick property. The cross-claim was stayed for a period between 2018 and 2020, pending the receipt of security for costs, but has been on foot since 24 December 2020. Meanwhile, between 2018 and 2021, a series of orders were made against the first applicant in the nature of gross sum costs orders in favour of the respondents, culminating in orders of 18 March 2021 and 30 April 2021 for the payment of those costs out of the funds held in Court. The first applicant sought leave to appeal against those orders, together with various other judgments dating back to 2017. A stay of the payment out orders was granted by a single Judge of Appeal on 31 May 2021, pending the hearing of the concurrent application for leave to appeal and appeal. Subsequently, at that hearing, the Court refused a motion to have the third respondent re-joined as an applicant: see Sebie v Pham (No 2) [2021] NSWCA 274. Held (per Bell P and Basten JA; Brereton JA dissenting in part), dismissing the whole of the application for leave to appeal: [21] (Bell P and Basten JA), [66] (Brereton JA). As to leave to appeal from various orders between 2017 and 2020: 1. Per Brereton JA; Bell P and Basten JA agreeing: The applications for leave to appeal from four series of orders delivered in these proceedings between 2017 and 2020 are all well out of time, without any explanation for the delay, and are related to issues that the first applicant was aware of at the relevant times. Each of the applications therefore ought to have been raised at a much earlier stage. Furthermore, with the sale of the Chiswick property and the discharge of the mortgage, the rights of third parties have intervened, and in any case the applicant has largely not identified any error, let alone material error. Leave to appeal from each of the four decisions should be refused: [4] (Bell P and Basten JA), [39]-[46] (Brereton JA). As to leave to appeal from the payment out orders: 2. Per Bell P and Basten JA: As a consequence of this Court's decision in Sebie v Pham (No 2) [2021] NSWCA 274, ENA is not an applicant for leave to appeal, despite being the only other party – apart from the respondents – with an arguable claim to the funds held in Court which are subject to the payment out orders. To grant leave to appeal in such circumstances would undermine the unanimous order of the Court that ENA not be re-joined as an applicant. Furthermore, ENA's sole director did not seek to participate in or otherwise be heard on the application: [10]-[12]. 3. There are also significant factual and legal obstacles facing ENA's claim, and it is by no means certain that it will proceed. Additionally, the Court is concerned that the first applicant may have an undisclosed interest in ENA or ENA's claim. Finally, the respondents are entitled to a degree of final resolution of their involvement in these protracted proceedings through payment out, and in such a situation ENA will remain able to claim against the first applicant directly. Given these factors, and noting that the payment out orders were a discretionary decision, none of the well-established criteria for leave to appeal are satisfied and the application should be dismissed: [5]-[9], [13]-[21]. 4. Per Brereton JA, contra: There is prima facie evidence of an outstanding arguable claim by ENA to the funds held in Court, and the respondents have accepted that the claim is not unarguable. An entitlement to funds held in Court must be strictly proved, and it is generally not the practice of the Court to authorise payments out on a discretionary interlocutory basis. In such circumstances, the primary judge erred in making the payment out orders, notwithstanding the desirability of finality for the respondents and suspicions regarding the first applicant's interest in ENA or ENA's claim: [47]-[51]. 5. Argument as to whether ENA has complied with the condition upon the stay of the payment out orders that it file an appropriate undertaking does not justify refusing leave, nor is the alternative course of staying the payment out orders pending the determination of ENA's claim appropriate. Further, the respondents' proposed undertaking not to further encumber or transfer the Chiswick property is unsatisfactory, as ENA would consequently find itself in a far inferior position than a claimant on funds held in Court: [52]-[54], [56]-[57]. 6. While ENA is no longer an applicant, it remains a party to the proceedings as a respondent, and its absence as an applicant is not acquiescence to the payment out orders but instead the result of a misconceived attempt to circumvent the rules regarding corporate legal representation. It also continues to prosecute its claim below. It would be seriously prejudiced if the payment out orders were to stand, and thus they ought to be set aside, save in respect of one sub-order which relates to an earlier costs order payable jointly and severally by ENA and the first applicant: [55], [58]-[64]. Farrell v Mulroney [1978] 1 NSWLR 221, considered. Judgment 1. BELL P AND BASTEN JA: The background to the present application for leave to appeal has been sufficiently set out by Brereton JA in his separate reasons for judgment and in Sebie v Pham (No 2). [1] The underlying dispute between the parties has a regrettably lengthy history in both the Supreme Court and in the Court of Appeal. [2] 2. Sebie v Pham (No 2) contains the Court's revised reasons for dismissing a Notice of Motion filed on 18 October 2021 (the Notice of Motion) which was heard immediately prior to the hearing of the application for leave to appeal which is the subject of these reasons. The Notice of Motion was purportedly filed by "Ronald Jemmott c:\ ENA Development Pty Ltd". In it, Mr Jemmott sought, inter alia, to have ENA Development Pty Ltd (ENA) reinstated as an applicant on the summons for leave to appeal in circumstances where it had, on 30 August 2021, been removed as an applicant and joined as a respondent on its own application. 3. The effect of the dismissal of the Notice of Motion was that the only applicant on the summons for leave to appeal was Mr Robert Sebie (Mr Sebie). 4. We agree that leave to appeal should be refused with respect to each of the matters as to which Brereton JA proposes such an outcome. That leaves for consideration the orders with respect to which Brereton JA would grant leave, allow the respective elements of the appeal and set aside four orders made by Sackar J (referred to as the "payout orders"). The payout orders relate to a fund presently held by the Court, constituting moneys paid by Mr and Mrs Pham (the Phams), the first and second respondents to the summons, on purchasing a residential property from Mr Sebie. 5. Unlike Brereton JA, we would refuse leave to appeal from those orders. 6. The brief background to the proceedings is that Mr Sebie entered into a contract with the Phams in September 2014 by which a residential property in Chiswick was transferred for an agreed price of $2.2 million, with a four week settlement. Mr Sebie declined to settle. His resistance was ostensibly based on the existence of an unregistered mortgage in favour of ENA, a company associated with Mr Sebie and his family. ENA was said to have an interest in the property as mortgagee, having made a loan to Mr Sebie to finance the purchase of the property by him. Mr Sebie then purported to transfer the land pursuant to a sale, later held to be fraudulent, to another company known as Enterprise ICT Pty Ltd (Enterprise). Steps were taken by the Phams to obtain a transfer through court order, in which they were successful. However, there being a dispute as to who was entitled to the funds provided on settlement, the money was paid into court. That occurred in proceedings in which the Phams were the plaintiffs, Enterprise was the first defendant, Mr Sebie was the third defendant and his former wife, Ms Musabwasoni, was the second defendant. ENA was not a party to the proceedings. 7. On 1 July 2018, ENA obtained leave to file a cross-claim asserting that it had an interest in the proceeds of the sale, but that proceeding was stayed pending payment by ENA of security for the potential cost to the Phams in an amount of $100,000. That sum was not paid until 29 March 2019. On 6 August 2021, a further amended cross-claim was filed, although the changes are not apparent from the document. On 25 August 2021, the Phams filed a defence to the further amended cross-claim. It does not appear that Mr Sebie, though a respondent to the cross-claim, has sought to defend it. In so far as he or his family members have an interest in ENA, it is no doubt not in his interest to defend the cross-claim. That is because the effect of the cross-claim is to take priority over the claims of Mr and Mrs Pham, who have sought payment out from the fund of significant sums on account of costs incurred as against either Mr Sebie or ENA, or both, in proceedings by which they had the sale of the property to Enterprise set aside and secured specific performance of the sale of the property to them. 8. Although counsel for the Phams has conceded that ENA's claim is not unarguable, it undoubtedly faces significant obstacles, both as to the factual circumstances said to give rise to the debt, and legal obstacles to the enforcement of the alleged charge. For example, there was no apparent recognition of ENA's claim when Mr Sebie transferred the land to Enterprise. That transfer was found to be fraudulent and the Court directed that the land be retransferred to Mr Sebie and that he transfer the property to the Phams. That all took place by way of registered transfers which contained no reservation on account of any interest of ENA. 9. Having provided security for costs, ENA has now been given leave to proceed with its cross-claim. Whether a trial will in fact take place, and when that will happen, is by no means certain. Presently ENA has no solicitor acting for it and there is some doubt as to whether a person purporting to be an officeholder would be permitted to act for it. 10. As already noted, ENA was removed as an applicant for leave to appeal on its own application and has failed, for reasons set out in Sebie v Pham (No 2), in its Notice of Motion to be reinstated as an applicant on the summons for leave to appeal. As recounted by Brereton JA in Sebie v Pham (No 2) at [14], the Notice of Motion to have ENA reinstated as an applicant for leave to appeal was merely "an exercise in endeavouring to evade the requirement of the rules that ENA have a solicitor on the record." The inference that the Court was, in the language of Brereton JA, being "trifled with" warranted an order that ENA pay the costs of the Notice of Motion on an indemnity basis. 11. The result was that the application for leave to appeal was prosecuted solely by Mr Sebie. It proceeded without ENA appearing to seek leave to appeal. Its status as an unrepresented respondent to the application did not entitle it to the orders sought in the summons for leave to appeal. Accordingly, to grant leave to appeal in the present circumstances would be not merely to allow ENA the benefit which it failed to obtain by its unsuccessful Notice of Motion, but to allow it a benefit in respect of which the motion was apparently unnecessary. This would undermine, if not contradict, the unanimous order of the Court that it not be joined as an applicant. 12. It is also to be noted that the order dismissing the Notice of Motion was made in circumstances where the answers to the Court's questions by ENA's sole director, Mr Jemmott, in the course of the hearing of the Notice of Motion, caused the Court to doubt that he was in substance the controlling mind of ENA or had any real understanding of the matters in issue. This impression was only reinforced by the fact that, after dismissal of the Notice of Motion, Mr Jemmott did not remain online for the hearing of the summons for leave to appeal in which ENA was a respondent. 13. Unless Mr Sebie had an interest in ENA and/or an interest in ENA succeeding in its cross-claim, whether or not the payout orders remained on foot should have been a matter of indifference to him as both the Phams and ENA (on its case) were creditors to whom he was indebted. The inference arising from the fact that it was Mr Sebie who was the sole applicant on the summons for leave to appeal was that he did have an interest in ENA and/or an interest in ENA succeeding in its cross-claim. This, in our opinion, factors into the exercise of discretion whether or not to grant leave to appeal. 14. There is, in any event, no clear basis for interfering with the orders made by Sackar J which, although labelled "payout orders", merely lifted a stay on the ability of the Phams to obtain payment of their costs from a fund to which either Mr Sebie or ENA is otherwise entitled. In a judgment delivered on 16 March 2021, his Honour described the Phams as having been "the meat in the sandwich in this litigation for a very long time." [3] He noted the importance of them achieving "some final resolution" and, if possible, removal from the proceedings. Sackar J concluded that that would happen if he were to order payment of the moneys currently owed to them. 15. It is, of course, true that there might be other ways for the Phams to seek payment of the outstanding costs, but there is a likelihood that alternative steps would result in the Phams running up further legal costs, in circumstances where the ability of both Mr Sebie and ENA to meet such costs, except from the fund, is uncertain. On the other side of the coin, ENA could litigate its claim against Mr Sebie without relying, for payment in the event of success, on moneys presently payable to the Phams out of the fund in court. 16. These circumstances gave rise to a discretionary decision, pre-eminently to be made by the judge managing the proceedings. It is not by any means clear that the orders made resulted in manifest injustice, especially given the matters we have referred to in [11]–[13] above. Brereton JA's conclusion that ENA's claim would be seriously prejudiced if the payout orders were to stand is, with respect, undermined by the fact that ENA sought to be removed as an applicant, failed in its Notice of Motion to be reinstated as an applicant and, when the application for leave to appeal to which it was a respondent was heard, its sole director, Mr Jemmott, did not remain on the line or seek to participate in or otherwise be heard on the application. 17. The limited circumstances in which this Court will grant leave to appeal from interlocutory orders are well-established. [4] Relevantly for present purposes, leave would be granted only where the judgment below gives rise to a dispute as to an issue of principle, or the effect of the orders is a miscarriage of justice to the complaining party. Further, there must be something more than a merely arguable case that the appeal, if permitted, will result in a favourable outcome for the applicant. 18. In the present case none of the criteria for leave to appeal is satisfied. There is no clear case that, in dealing with ENA's application, Sackar J did not correctly identify the issues raised in the submissions of the parties, or the relevant legal principles. [5] His Honour accepted that the cross-claim was arguable, expressly noting there was no submission that it was unarguable. [6] He agreed to a lifting of the stay on the prosecution of the cross-claim. As a result of a further interlocutory judgment he accepted that the balance of convenience required that, despite the fact that the cross-claim might be prosecuted in the near future, payment of the long-outstanding debts to the Phams should occur in the meantime. 19. In substance, Sackar J accepted that there was a degree of prejudice to one party or the other; the preferred outcome was an evaluative exercise of balancing such prejudices. The Phams' debts were established; the true basis of ENA's claim was murky and unresolved. The suggestion that the judge misapprehended or failed to address the relevant principles is not made out; the possibility that a different outcome could have altered where the prejudice lay did not establish with sufficient clarity the alternative element that the orders involved a miscarriage of justice. 20. Moreover, Mr Sebie (as the applicant for leave) had no legal interest in the making of the orders sought on appeal. To the extent that he would benefit by those orders, that could only be because he has some indirect interest in ENA or because he wishes to continue to thwart the Phams' attempts to recover costs awarded in their favour in multiple sets of litigation. Neither of these circumstances favours the grant of leave to appeal. 21. The whole of the summons seeking leave to appeal should be dismissed with costs. 22. BRERETON JA: Pursuant to a Summons filed on 12 May 2021 and amended on 2 July 2021, the applicants Mr Robert Sebie and Mr Ronald Jemmott (who is the sole director of ENA Development Pty Ltd ("ENA")) seek leave to appeal from orders made by several judges of the Equity Division over several years in proceedings instituted by the present first and second respondents Mr and Mrs Pham, in the course of which funds have been paid into Court. Mr Sebie is prima facie entitled to those funds. Certain of the orders from which leave to appeal is sought authorise payment out of the funds of various amounts in satisfaction of costs liabilities of Mr Sebie to the Phams under various earlier orders of the Equity Division. ENA has pending in the Equity Division a claim to the funds in Court. Background [7] 1. Mr Sebie was the vendor and the Phams were the purchasers of land at Chiswick under a contract for sale of land dated 29 October 2014. Mr Sebie failed to complete the contract, and transferred the property to Enterprise ICT Pty Ltd ("Enterprise ICT"), a company with which he was associated. Various other parties had lodged encumbrances over the property, including ENA, another associated company, which claimed to have advanced the purchase money to Mr Sebie when the property was acquired in his name in 2005. 2. On 26 April 2017, Pembroke J delivered a judgment in which his Honour made strident findings adverse to Mr Sebie's credit, and held that the transfer to Enterprise ICT was a fraudulent conveyance and that the Phams were entitled to specific performance of the contract. [8] Subsequently, on 15 May 2017, his Honour made orders declaring the conveyance fraudulent and revesting the property in Mr Sebie, decreeing specific performance and making orders for substituted performance in the event of default in compliance by Mr Sebie, and requiring Enterprise ICT and Mr Sebie to pay the Phams' costs of the proceedings on an indemnity basis. [9] An appeal failed. [10] A motion to deal with Mr Sebie for contempt was brought, and Enterprise ICT and Mr Sebie were ordered to pay the Phams' costs of that motion. [11] On 30 January 2018, Slattery J made a lump sum costs order in the sum of $263,660 against Mr Sebie, in respect of his costs liability under the earlier orders both of his Honour and of Pembroke J. [12] 3. On 29 March 2018, Slattery J, after refusing to grant leave to Mr Sebie's father Mr Ramzy Sebie (since deceased), a director of ENA, to appear on its behalf, and deciding that the hearing should proceed in the absence of legal representation of ENA – the barrister said to have been retained having not appeared (although it is said that he arrived after the hearing had been completed, as his Honour was leaving the bench) – dismissed ENA's motion to file a cross-claim in support of its caveat, and on the Phams' motion made orders for the removal of ENA's caveat. [13] His Honour also ordered ENA to pay the Phams' costs of and incidental to their motion of 30 January 2018, and reserved the question of whether the costs ordered against ENA might also be paid by any other person. His Honour further noted the continuing operation of the orders for substituted performance. 4. Ultimately, the sale was completed on 2 May 2018 and the balance purchase money after discharge of the mortgage was paid into Court. The remaining balance of that fund (from which there has been one payment out, to which reference will later be made) constitutes the fund in issue in the present proceedings. 5. Subsequently, Slattery J permitted ENA to file its cross-claim, on the basis that the Phams could promptly apply for an order that ENA provide security for costs. [14] On 1 July 2018, ENA filed its cross-claim, in which it contended that it was entitled to the net proceeds of sale of the Chiswick property held in Court. ENA claims that the property secured repayment to it of two advances made by it to Mr Sebie, comprising $1.37 million advanced in 2005 in connection with the purchase of the property in his name, and a further $504,000 advanced in 2015. On 13 July 2018, Slattery J ordered that that the proceedings on ENA's cross-claim be stayed unless, before 4:00pm on 27 July 2018, ENA provided acceptable security for the potential costs liability of ENA to the Phams in the amount of $100,000, on account of costs to be incurred up to the commencement of the hearing of the (by then amended) cross-claim. [15] The security was not paid on time, and the cross-claim was stayed with effect from 27 July 2018. 6. On 20 February 2019, Slattery J determined an application by the Phams for what was characterised as enforcement of the gross sum costs order of 30 January 2018, by payment of the amount of that order to the Phams out of the funds in Court, before the resolution of other proceedings in the Family Court of Australia between Mr Sebie and his ex-wife Ms Musabwasoni. [16] That order was made on the basis that Ms Musabwasoni's claim would rank after that of the Phams, and that all other potential claims to the fund had "fallen away". [17] His Honour ordered that on or after 27 March 2019, there may be paid out of Court to the Phams the sum of $263,660 (exclusive of interest) from the funds in Court in the name of Mr Sebie. On 25 March 2019, Leeming JA refused to stay those orders pending the hearing of an application for leave to appeal. [18] The relevant application for leave to appeal, though it does not appear specifically to have impugned the judgment of 20 February 2019, was dismissed on 17 July 2019. [19] 7. Meanwhile, on 29 March 2019, ENA paid into Court the $100,000 security for costs of its cross-claim dated 1 July 2018, which had been ordered by Slattery J on 13 July 2018, and by Further Amended Notice of Motion dated 26 June 2019, sought an order that the Court lift the stay on that cross-claim, which had been in place since 27 July 2018. 8. In a judgment delivered by Sackar J on 19 August 2020, [20] his Honour determined to make lump sum costs orders in favour of the Phams against ENA in relation to three previous costs orders against it, and against Mr Sebie in relation to nine previous costs orders against him, and to order interest on costs pursuant to s 101(4) of the (NSW) Civil Procedure Act 2005. The costs orders encompassed by the gross sum orders ("the underlying costs orders") were, in respect of ENA: 1. an order made on 29 March 2018 by Slattery J that ENA pay the Phams' costs of an application by the Phams to remove a caveat lodged by ENA, and of the defence by the Phams of ENA's application for leave to file a cross-claim, referable to the period 30 January 2018 to 29 March 2018; [21] 2. an order made on 23 November 2018 by Lindsay J that ENA pay the Phams' costs of the defence by the Phams of ENA's application to stay execution of a writ of possession, referable to the period 12 October 2018 to 22 November 2018; [22] and 3. an order made on 17 December 2019 by Kunc J that ENA pay the Phams' costs, on an indemnity basis, of the defence by the Phams of ENA's application to extend the operation of a new caveat lodged by ENA over the Chiswick Property, referable to the period 25 to 26 June 2019, and 7 December 2019. [23] 1. The underlying costs orders imposing costs liabilities on Mr Sebie in respect of which Sackar J determined to make gross sum orders were: 1. an order made by Slattery J on 30 January 2018 in respect of which it was said to be implicit that Mr Sebie pay the Phams' costs of preparing for and attending a hearing on gross sum costs order referable to the period 27 January 2018 to 1 February 2018; [24] 2. an order made by Slattery J on 13 July 2018 that Mr Sebie pay the Phams' costs of an application by the Phams for judgment for possession of the Chiswick Property during the period 14 May 2018 to 20 June 2018; [25] 3. an order made by Kunc J on 4 October 2018 that Mr Sebie pay the Phams' costs of an application by the Phams for issue of a writ of possession, referable to the period 2 August 2018 to 9 October 2018; [26] 4. an order made by Beazley P on 6 December 2018 that Mr Sebie pay the Phams' costs of defending an application by Mr Sebie to stay execution of a writ of possession, referable to the period 28 November 2018 to 7 December 2018; [27] 5. an order made by Slattery J on 20 February 2019 that Mr Sebie pay the Phams' costs of an application by the Phams for payment of a gross sum costs amount of $266,000 out of funds in Court, and for payment of interest on costs, referable to the periods 21 to 24 May 2018, 6 to 27 June 2018, 9 to 12 December 2018, and 21 February 2019; [28] 6. an order made by Lindsay J on 26 March 2019 that Mr Sebie pay the Phams' costs of defending an application by Mr Sebie for a stay of the payment out order; 7. an order made by Lindsay J on 4 April 2019 that Mr Sebie and ENA pay the Phams' costs of the defence by the Phams of an application by Mr Sebie and ENA for a stay of the payment out order, referable to the period 27 March 2019 to 4 April 2019; 8. costs reserved by Registrar Hedge on 19 June 2019 of an application by the Phams for the quantification of interest on costs and payment out of funds in Court, referable to the period 26 February 2019 to 13 June 2019; [29] and 9. an order made by Lindsay J on 2 August 2019 that Mr Sebie pay the Phams' costs of the defence by the Phams of an application by Mr Sebie for certain orders, referable to the period 30 July 2019 to 2 August 2019. 1. Sackar J also expressed the view that in principle the stay on ENA's cross-claim should be lifted, in respect of which his Honour said: [30] "In early 2018 Slattery J permitted ENA to file its cross-claim on the condition that the plaintiffs could promptly apply for an order that ENA provide security in respect of the plaintiffs' costs, which the Court granted and ordered the proceedings be stayed in the meantime. The stay was contingent upon the payment of security for costs. As far as I am aware there is no argument that the cross-claim is unarguable. The security has now been paid, albeit late, and I think it reasonable that the stay is lifted accordingly. Although, I would hear the parties further as to what conditions if any should apply to the lifting of the stay." 1. Subsequently, on 30 November 2020, his Honour referred the matter to the Registrar for hearing and determination of what orders should be made to give effect to, and consequential upon, the 19 August 2020 judgment. In substance, that meant the quantification of the lump sum orders, and determination of what if any conditions should apply to the lifting of the stay. Pursuant to that referral, on 24 December 2020, the Registrar made orders: 1. quantifying in a total gross sum of $81,946 the costs liability of Mr Sebie to the Phams under the nine underlying costs orders (order 1); 2. for payment of interest on those costs (order 2); 3. quantifying in a total gross sum of $52,961 the costs liability of ENA to the Phams under the three underlying costs orders, including that of 29 March 2018 (order 3); 4. for payment of interest on those costs (order 4); 5. quantifying in the sum of $6,797 costs payable by the Phams to ENA under a costs order and for payment of interest thereon, and setting those orders off against orders 3 and 4 (orders 5, 6, and 7); and 6. lifting without conditions the stay of ENA's cross-claim (order 8). 1. On 18 March 2021, pursuant to a judgment delivered on 16 March 2021, [31] Sackar J made orders relevantly to the effect that: 1. the net amount of $46,144, and the interest, after calculation, payable by ENA to the Phams under orders 3, 4, 5, 6, and 7 of 24 December 2020 be paid out of the fund to the Phams on 7 April 2021 (orders 1 and 2(a)); 2. the amount of $81,946 referred to in order 1 made by the Registrar on 24 December 2020 be paid to the Phams out of the fund on 7 April 2021 (order 3); 3. the interest to which the Phams are entitled under order 2 made by the Registrar on 24 December 2020 be paid to the Phams out of the fund (order 4(a)); and 4. the Phams' costs of their costs applications referred to in the August 2020 judgment, after quantification as a lump sum and a set-off, be paid to the Phams out of the fund (order 5(d)). 1. On 13 April 2021, Sackar J varied the orders made on 18 March 2021 in a number of respects, relevantly by: 1. vacating orders 1 and 2(a) (relating to payment of the costs and interest to which the Phams were entitled from ENA out of the fund) (orders 2 and 4); 2. staying until 29 April 2021 orders 3, 4(a), and 5(d) of 18 March 2021 (order 13); and 3. making directions in connection with any application for a further stay beyond 29 April 2021 (order 14). 1. On 30 April 2021, Sackar J made orders including relevantly to the effect that: 1. the liability of Mr Sebie to pay the Pham's costs of certain proceedings in the Court of Appeal be quantified at $47,348.06 and paid to the Phams out of the fund (order 1); 2. the amount of various additional costs liabilities of Mr Sebie to the Phams and Ms Musabwasoni, after quantification as a lump sum, be paid out of the fund (order 7); 3. the stay contained in order 13 of 13 April 2021 continue until 20 May 2021 (order 8); and 4. orders 1 and 7 be stayed until 20 May 2021 (order 9). 1. In circumstances described in Sebie v Pham [2021] NSWCA 115, the stay of orders 3, 4(a), and 5(d) of 18 March 2021, and orders 1 and 7 of 30 April 2021, authorising payments out of the fund to the Phams in respect of Mr Sebie's costs liabilities to them ("the payment out orders"), was extended to the hearing of the application for leave to appeal, upon the applicants (who were then Mr Sebie and ENA) giving the usual undertaking as to damages, and conditional upon their filing in the registry within seven days a formal undertaking to that effect. It was also directed that, if leave be granted, the hearing of any consequent appeal from the payment out orders (but not from any other orders impugned in the Summons Seeking Leave to Appeal) be heard concurrently with the application for leave to appeal. [32] Application for leave to appeal 1. No Draft Notice of Appeal was provided. However, it appears from the Amended Summons and from the applicants' summary of argument that leave is sought to appeal from the following orders: [33] 1. the orders made by Pembroke J on 15 May 2017, [34] pursuant to the judgment delivered on 26 April 2017; [35] 2. the orders made by Slattery J on 29 March 2018; [36] 3. the orders made by Slattery J on 20 February 2019; [37] 4. the orders made by Sackar J on 19 August 2020; [38] and 5. the orders made by Sackar J on 18 March 2021 and 30 April 2021, being the payment out orders. [39] Orders of Pembroke J – 26 April 2017 and 15 May 2017 1. Mr Sebie's chief complaint about the judgment of 26 April 2017 was to the effect that it was procured by fraud, through the allegedly deliberate omission from the Court Book of certain documents on which he wished to rely and had served as an annexure to an affidavit, in support of the case that ENA had an equitable interest in the Chiswick property. 2. That these documents were omitted from the Court Book for the trial before Pembroke J appears clear enough; that this was the result of anything other than accident or oversight is not, and the Court was not taken to any evidence from which a conclusion that their omission was intentional would be drawn. 3. Moreover, Mr Sebie was aware of their omission at the trial. He says that Pembroke J refused to allow him to remedy it. Assuming that to be so, Mr Sebie was nonetheless aware of the omission – and of whatever Mr Zipser, counsel for the Phams, said to him about it – when an appeal from Pembroke J's judgment came to this Court. In that appeal, Mr Sebie appeared for the appellants (himself, and Enterprise ICT). [40] No explanation, still less a sufficient one to justify leave being granted for a second appeal from Pembroke J's judgment, more than four years after it was given, in order to agitate an issue of which Mr Sebie was aware before the previous appeal, has been provided. Further, the rights of third parties have intervened with the sale of the Chiswick property and the discharge of the mortgage. In any event, the proper remedy to impugn a judgment on the basis that it was procured by fraud is a fresh proceeding at first instance. Leave to appeal from these decisions should be refused. Orders of Slattery J of 29 March 2018 1. The application for leave to appeal from the 29 March 2018 judgment of Slattery J is similarly years out of time. Mr Sebie's chief complaint is that his late father Mr Ramzy Sebie was denied procedural fairness, by reason that he was refused leave to appear on behalf of ENA as a director, and that the hearing proceeded in the absence of legal representation of ENA – the barrister said to have been retained having not appeared (although it is said that he arrived after the hearing had been completed, as his Honour was leaving the bench), and in that he was denied the use of a hearing aid. 2. However, there was an application for leave to appeal from that judgment, by Mr Ramzy Sebie, which was dismissed on 17 July 2019, including on the basis that it was (even then) well out of time, having been filed more than fifteen months after Slattery J's decision. [41] Mr Sebie represented Mr Ramzy Sebie at the hearing of that application. No explanation, let alone a satisfactory one, of why these issues could not have been raised on that application has been provided. Once again, the rights of third parties have intervened with the sale of the Chiswick property and the discharge of the mortgage. Leave to appeal from this decision should also be refused. Orders of Slattery J of 20 February 2019 1. Although this judgment is identified in the Amended Summons as one from which leave to appeal is sought, no alleged error in it was identified in the applicants' summary of argument, nor in oral submissions. A stay of the order for payment of the amount of the gross sum costs order of 30 January 2018 to the Phams out of the funds in Court was refused by Leeming JA on 25 March 2019. [42] The relevant application for leave to appeal, which was from the judgments of 29 March 2018, 13 July 2018, and 4 October 2018, [43] and does not appear specifically to have impugned the judgment of 20 February 2019, was dismissed on 17 July 2019. [44] The present application is at least two years out of time (for which there is no explanation) and does not identify any error in the relevant orders. Leave to appeal from this decision should be refused. Orders of Sackar J of 19 August 2020 1. These orders were not the subject of the original Summons, but are impugned by the Amended Summons, which seeks variation of the lump sum costs orders contemplated in the judgment of 19 August 2020 [45] (although what variation is sought is not explained), and alternatively referral of the orders to a costs assessor (presumably for quantification). 2. The decision made by his Honour on 19 August 2020 was to the effect that, in lieu of assessed costs, there should be gross sum orders against Mr Sebie and ENA in respect of various existing costs liabilities under earlier costs orders, which are not themselves the subject of any appeal (save for the first order in respect of ENA, which arises under the 29 March 2018 judgment of Slattery J, as to which I have just indicated that leave to appeal should be refused). The subsequent orders of 30 November 2020 referred the matter to the Registrar for hearing and determination of what orders should be made to give effect to, and consequential upon, the 19 August 2020 judgment. No alleged let alone arguable error in Sackar J's decision to make gross sum orders, nor in the Registrar's quantification of them, has been identified in the applicants' summary of argument or submissions. Not only are they orders with respect only to costs, but they merely quantify pre-existing costs liabilities, and the underlying costs orders which they quantify are not themselves the subject of any appeal. Moreover, the application for leave to appeal is out of time, and no explanation for the delay has been offered. Leave to appeal from this decision should be refused. The payment out orders 1. That leaves for consideration only the concurrent hearing of the application for leave to appeal, and any appeal should leave be granted, from the payment out orders made by Sackar J on 18 March 2021 and 30 April 2021. Sackar J's reasons for those orders were contained in a judgment given on 16 March 2021 and in substance were as follows. [46] His Honour observed that the submissions that the Phams should be paid out of the fund were based on a number of arguments "which go partly to the strength or weakness of ENA's cross-claim in proceedings in respect of which it has provided security. That cross-claim is to be determined in the future and it will determine, in part at least, who owns the money which is currently in court". [47] His Honour described the Phams as "the meat in the sandwich" in the litigation, and explained that it was important from their point of view to have some final resolution and if possible to be removed from the proceedings, and that payment out would facilitate that. [48] The contrary argument was that the priorities were yet to be determined. His Honour took into account, as a matter of discretion, Pembroke J's adverse credit findings concerning Mr Sebie, while noting that they would not be binding on a judge hearing ENA's cross-claim. [49] The decisive consideration appears to have been: [50] "I also take into account the plaintiffs have been and are the meat in the sandwich. There have been costs incurred over many years, I think it is timely that they be removed from this litigation if at all possible. I propose that I make an order[.]" 1. The applicants' case was in substance that in circumstances where entitlement to the fund in Court has not been resolved – there being, at least, a claim on it by ENA – it was premature to order payment out, which might be to the detriment of ENA. 2. In the judgment on the stay application, [51] I explained that funds in Court can be paid out only under the authority of the rules or by order of the Court, [52] that entitlement to funds in Court must be strictly proved, [53] and that for those reasons, it is not the practice to authorise payments out of Court on a discretionary interlocutory basis (save so far as concerns any part of the fund as is not in dispute, and in such a case the payment out is neither discretionary nor interlocutory but on a final basis to that extent). [54] On the present hearing, Mr Zipser accepted the correctness of that position, though he advanced in opposition to a grant of leave to appeal several arguments to which I shall return. 3. Mr Sebie referred to documentary evidence which prima facie shows a good arguable claim by ENA to the fund, arising from it having advanced the purchase money for the Chiswick property to Mr Sebie, upon security over it. I reach this conclusion mindful of the commentary (in several judgments as well as in submissions) adverse to Mr Sebie's credit and suggestive that he has been consistently obstructive and deceptive, and I recognise that there is a dispute as to the authenticity of this transaction, including as to the date that appears on the duty stamp affixed to the 'Secured Loan Agreement'. [55] Nonetheless, there is other documentary evidence, including cheques, which appears to show that ENA provided the purchase money when the property was acquired in the name of Mr Sebie. While acknowledging that whether ENA has a claim is controversial, it cannot be said that there is not a substantial argument that it does. Sackar J acknowledged, in the 19 August 2020 judgment, that there was no argument that the cross-claim was unarguable. [56] Mr Zipser, who appeared for the first and second respondents on this appeal, did not suggest otherwise. 4. In those circumstances, it is in my judgment plain that Sackar J erred in principle in making the payment out orders, when there was an apparently arguable superior claim to the fund that remained outstanding and unresolved, security for costs for its prosecution had been provided, and it was no longer stayed. The desirability of removing the Phams from the proceedings was no answer to their inability to prove their entitlement to the funds in Court while ENA's claim remained unresolved. Suspicions as to why Mr Sebie might prefer that ENA be paid out of the fund in priority to the Phams cannot affect this: until ENA's claim is concluded, or at the very least held to be unarguable, which this Court is in no position to do, it is not a proper exercise of the power to order payment out to do so in favour of an unsecured creditor who would rank after ENA if ENA's claim ultimately prevails. To do so would pre-empt ENA's outstanding claim. Leave to appeal 1. While not disputing the above, Mr Zipser, as has been foreshadowed, raised arguments in opposition to granting leave to appeal. 2. One was that ENA had not complied with the condition of the stay that "the applicants fil[e] 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". [57] Mr Sebie filed a formal undertaking to that effect. Mr Jemmott filed an undertaking expressed in the following terms: "I Ronald Jemmott am a Director of ENA Development Pty Ltd. I provide an undertaking to be liable for damages such as compound interest for the stay … granted as listed as per Court Order 2, on 31 May 2021." 1. The undertaking should be construed in the context of the communication from Mr Jemmott during the stay application that ENA was prepared to give such an undertaking, [58] the fact that an undertaking was given by ENA and noted at that hearing, the terms of the order to which the written undertaking referred and responded, the fact that Mr Jemmott is the sole director of ENA, and the fact that the undertaking refers to him in that capacity. In my opinion, it was intended to be and was an undertaking by ENA. In any event, the formal undertaking was intended merely to be confirmatory of the oral undertaking provided at the hearing. Further, the undertaking was a condition of the stay; no application to dissolve the stay was made, and the stay was until a hearing which has now taken place. I do not see this matter as providing any reason for refusing leave. 2. A second argument was that in respect of one of the costs orders in question – order 6 of 13 April 2021, in relation to order 5(d) of 18 March 2021 – the sum of $64,562 is payable jointly and severally by ENA and Mr Sebie, so that ENA's claim on the fund is not an obstacle to its disbursement, to that extent, to the Phams. I agree with this submission so far as it goes, but it only affects one of the payment orders from which leave to appeal is sought. 3. A third argument was that the position could be accommodated by staying the payment out orders pending the hearing of ENA's claim, with the intention that upon determination of that claim Sackar J could dissolve the stay if the Phams succeed, or revoke the payment out orders if ENA succeeds. In my judgment, that is not an appropriate way of dealing with the matter. If the orders were wrongly made, they should be set aside, not perpetuated in light of a possibility that they might later be correctly made. 4. A fourth argument was that the Phams offered an undertaking not to further encumber the Chiswick property (said to be valued at $3 million and subject to a mortgage to Macquarie Bank securing $2.4 million), nor transfer it to a third party, for a period of six months from the hearing. As I observed in respect of a similar undertaking which was proffered on the stay application, [59] the undertaking does not include any offer of security, and it completely evaporates after six months. In the event that ENA succeeds in its claim, it would be an unsecured creditor of Phams and would have to execute against their real property, in circumstances where the Phams' mortgagee would have security and priority. This would be a far inferior position to being a claimant on a fund in Court. Moreover, insofar as questions of convenience might be relevant to a grant of leave to appeal, setting aside the payment out orders does not prevent the Phams from enforcing the costs orders in their favour by other means. 5. The final and significant argument in opposition to granting leave was that the only competing claim on the fund was that of ENA, which having chosen to be removed as an applicant was no longer complaining about the payment out orders. While it was entirely legitimate for Mr Zipser as an advocate to so characterise the position, it tends to mask the reality. When the proceedings in this Court were commenced, ENA was not named as a party, though its director Mr Jemmott purportedly was. At the hearing of the stay application, on 20 May 2021, an order was made joining ENA, and Mr Sebie was granted leave to appear for ENA on that day only. [60] However, ENA did not thereafter retain a solicitor, and was not entitled to conduct proceedings except by a solicitor. [61] As was explained in the judgment delivered on the motion heard at the outset of the present hearing, [62] on 30 August 2021 the Registrar removed ENA as an applicant, substituted Mr Jemmott, and joined ENA as a respondent. In so doing, the Registrar acted in part pursuant to UCPR, r 13.6 (dismissal of proceedings for non-prosecution), and in part on an informal request by email by Mr Jemmott that he be the second applicant rather than ENA. The Registrar rightly supposed that this was in order to circumvent the requirement that a company can conduct proceedings in the Supreme Court only by a solicitor, but this attempt was misconceived: Mr Jemmott had no standing in his own right because no interest of his was at stake; and the provision that enables a director to appear for a company where the director is also a party operates only if the director is otherwise properly joined, [63] which Mr Jemmott is not. In other words, the informal application on which the Registrar acted was not capable of achieving its intended outcome. 6. Essentially because it seemed to me that the Court was being trifled with in the persistent attempts to evade the requirement that ENA act by a solicitor – regrettably abetted by a solicitor who undertook to come on the record at the last minute, who had instructions to do no more than to read a couple of sentences adopting Mr Sebie's submissions, who could provide no assistance to the Court at all, and who was instructed to appear only on the motion and not on the Amended Summons Seeking Leave to Appeal, which would have resulted in the position reverting to one in which ENA was not represented by a solicitor – I joined in the decision to dismiss the Notice of Motion to reinstate ENA as an applicant. 7. Nonetheless, ENA remains a party to the proceedings, albeit as a respondent. It is not uncommon, where a necessary party to a claim for relief declines to become a plaintiff, for it to be joined as a defendant. ENA's absence as an applicant is not a manifestation of acquiescence in the payment out orders, but of a misconceived attempt to avoid being required to act by a solicitor. Moreover, ENA continues to prosecute its claim before Sackar J. 8. In Farrell v Mulroney, Rath J observed that: [64] "… the defendants, although they have filed no cross-claim, are entitled to, and should have, declarations in their favour. Whether the defendants ask for them or not, I may still make them, but I would presume the defendants would ask for them." 1. His Honour explained that the power to do so was clear: [65] "There is, I think, no doubt about the Court's power; to save counsel unnecessary research I will tell counsel where the Court's power is to be found. First of all it will be found in Pt. 40, r. 1 of the Supreme Court Rules, 1970. That gives the power to the Court to give a party relief, even though there is no claim made for the relief. Then there is further power in Pt. 31, which is the separate issues part, especially in r. 5 which empowers the Court to enter any declaratory judgment that it thinks proper so to do. Further reference to the Court's power, and perhaps this is basic in a way, is s. 78 of the Act. The power was exercised by Helsham J. in Graham H. Roberts Pty. Ltd. v. Maurbeth Investments Pty. Ltd. [[1974] 1 N.S.W.L.R. 93, at p. 109], and you will find his Honour deals with the matter on the last page of his judgment. Perhaps I could add to that that, if the Court has not got the power under any of those rules then I have got no doubt, as at present advised, that it has inherent power. So that the burden would be rather heavily upon anybody that wishes to contend that I cannot make the proper declarations here to achieve the proper determination on the matters in controversy. I should have given a further reference, of course, to s. 63 of the Act." 1. UCPR, r 36.1, is the current equivalent of former (NSW) Supreme Court Rules 1970, pt 40 r 1, and provides as follows: At any stage of proceedings, the court may give such judgment, or make such order, as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion. 1. ENA's claim, which at present must be regarded as bona fide and arguable, would be seriously prejudiced if the payment out orders were to stand. Leave to appeal from the payment out orders should be granted, and the appeal allowed, except in respect of order 5(d) of 18 March 2021 which, for the reasons explained above, [66] should remain on foot. 2. Although in my judgment the applicants should succeed in some respects, they fail in others, which have added very considerably to the complexity and length of, and documentary material in, what would otherwise have been an application in narrow scope. To the extent that any of them was ever legally represented, their representation was of no assistance to the Court. There should be no order as to costs. 3. I propose the following orders, the effect of which would be to set aside the payment out orders, other than order 5(d) of 18 March 2021: 1. Grant leave to appeal from orders 3, 4(a), and 5(d) of 18 March 2021, and from orders 1 and 7 of 30 April 2021; 2. Allow the appeal; 3. Set aside orders 3 and 4(a) (but not 5(d)) of 18 March 2021, and orders 1 and 7 of 30 April 2021; 4. Otherwise refuse leave to appeal; and 5. Without affecting any interlocutory costs order, no order as to costs, to the intent that each party bear its own costs. ********** Endnotes 1. [2021] NSWCA 274: see also Sebie v Pham [2021] NSWCA 115. 2. See, for example, Sebie v Pham [2019] NSWCA 184; Enterprise ICT Pty Ltd v Pham (No 3) [2019] NSWCA 138; Sebie v Pham [2019] NSWCA 58; Sebie v Pham [2018] NSWCA 333; Sebie v Pham [2018] NSWCA 332; Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185; Enterprise ICT Pty Ltd v Pham (No 1) [2018] NSWCA 180; Enterprise ICT Pty Ltd v Andy Vuong Duc Pham [2018] NSWCA 74; Enterprise ICT Pty Ltd v Pham [2017] NSWCA 236. 3. The case is referred to as Pham v Enterprise Pty Ltd; Sebie v Pham [2021] NSWSC 542 (16 March 2021) but is not available on Caselaw. 4. See Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]–[30] (Gleeson JA). 5. Andy Vuong Duc Pham v Enterprise ICT Pty Ltd [2020] NSWSC 1089 at [24]–[31] (as to the submissions) and [32]–[53] (legal principles). 6. Ibid at [71]. 7. The account which follows is largely taken from that contained in the judgment on an application for a stay in Sebie v Pham [2021] NSWCA 115 at [3]-[18] (Brereton JA) ("Stay Judgment"), the accuracy of which for present purposes no party disputed. 8. Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446 ("Pham 446"). 9. Pham v Enterprise ICT Pty Ltd (No 2) [2017] NSWSC 583 ("Pham 2017 No 2"). 10. Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185 ("Enterprise No 2"). 11. Pham v Enterprise ICT Pty Ltd [2017] NSWSC 1509. 12. Pham v Enterprise ICT Pty Ltd (No 2) [2018] NSWSC 22 ("Pham 2018 No 2"). 13. Pham v Enterprise ICT Pty Ltd (No 3) [2018] NSWSC 381 ("Pham No 3"). 14. Pham v Enterprise ICT Pty Ltd (No 7) [2018] NSWSC 1063 at [78]-[79] (Slattery J) ("Pham No 7"). 15. Pham No 7. 16. Pham v Enterprise ICT Pty Ltd (No 11) [2019] NSWSC 115 ("Pham No 11"). 17. Pham No 11 at [15]-[16] (Slattery J); see further Stay Judgment at [7]-[8] (Brereton JA). 18. Sebie v Pham [2019] NSWCA 58 ("Leeming JA Stay Judgment"). 19. Sebie v Pham [2019] NSWCA 184 at [12] (Bell P; Emmett AJA agreeing) ("2019 Leave Application"). This was an application for leave to appeal against Pham No 3; Pham No 7; and Pham v Enterprise ICT Pty Ltd (No 8) [2018] NSWSC 1492 ("Pham No 8"). 20. Pham v Enterprise ICT Pty Ltd [2020] NSWSC 1089 ("Pham 1089"). 21. Pham No 3 at [102] (Slattery J). 22. Pham v Enterprise ICT Pty Ltd (No 10) [2018] NSWSC 1805 at [11] (Lindsay J). 23. Pham v Enterprise ICT Pty Ltd [2019] NSWSC 1857 at [26] (Kunc J). 24. Pham 2018 No 2 at [17] (Slattery J). 25. Pham No 7 at [102] (Slattery J). 26. Pham No 8 at [1] (Kunc J). 27. Sebie v Pham [2018] NSWCA 333 at [32] (Beazley P). 28. Pham No 11 at [37] (Slattery J). 29. Pham v Enterprise ICT Pty Ltd (No 13) [2019] NSWSC 522 at [13] (Slattery J). 30. Pham 1089 at [71] (Sackar J). 31. Pham v Enterprise ICT Pty Ltd [2021] NSWSC 542 ("Pham 542"). 32. Stay Judgment at [52] (Brereton JA). 33. Not all these were impugned in the original Summons Seeking Leave to Appeal. 34. Pham 2017 No 2. 35. Pham 446. 36. Pham No 3. 37. Pham No 11. 38. Pham 1089. 39. The Amended Summons Seeking Leave to Appeal also refers (at [4]) to a judgment of 1 April 2021: Pham v Enterprise Pty Ltd [2021] NSWSC 339. This was not otherwise referred to in argument. It related to aspects of quantification of some of the lump sum orders. For present purposes, it was given effect in the orders of 30 April 2021. 40. Enterprise No 2. 41. 2019 Leave Application at [6]-[7], [30] (Bell P; Emmett AJA agreeing). 42. Leeming JA Stay Judgment. 43. Pham No 3; Pham No 7; Pham No 8. 44. 2019 Leave Application at [12] (Bell P; Emmett AJA agreeing). 45. Pham 1089 at [72] (Sackar J). 46. Pham 542. 47. Pham 542 at [5] (Sackar J). 48. Pham 542 at [6] (Sackar J). 49. Pham 542 at [5]-[9] (Sackar J). 50. Pham 542 at [10] (Sackar J). 51. Stay Judgment at [40] (Brereton JA). 52. (NSW) Uniform Civil Procedure Rules 2005 ("UCPR"), r 41.3. 53. Stay Judgment at [40]-[41] (Brereton JA), citing Aquatic Air Pty Ltd v Siewert (No 3) [2018] NSWSC 624 at [10] (Brereton J) and JKB Holdings Pty Ltd v de la Vega [2013] NSWSC 501 at [14] (Lindsay J). 54. Stay Judgment at [42] (Brereton JA). 55. See Pham No 3 at [45]-[47], [83]-[94] (Slattery J). 56. Pham 1089 at [71] (Sackar J). 57. Stay Judgment at [52(2)] (Brereton JA). 58. Referred to in Stay Judgment at [50] (Brereton JA). 59. Stay Judgment at [46]-[47] (Brereton JA). 60. Tcpt, 20 May 2021, p 8(4)-(12). 61. UCPR, r 7.1(2)(a). 62. See Sebie v Pham (No 2) [2021] NSWCA 274. 63. UCPR, r 7.1(3). 64. [1978] 1 NSWLR 221 at 224 (Rath J) ("Farrell"). 65. Farrell at 224-225 (Rath J). 66. At [55]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2021