Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sebie v Pham (No 5) [2022] NSWCA 111 Hearing dates: On the papers Date of orders: 01 July 2022 Decision date: 01 July 2022 Before: Brereton JA Decision: Notice of motion filed on 22 December 2021 and amended on 4 May 2022 dismissed with costs. Catchwords: CIVIL PROCEDURE – Court of Appeal – Application for stay of orders for payment of money out of court, pending application for special leave to appeal to High Court – Where leave to appeal against those payment orders and earlier orders refused by majority of this Court – Where similar application to present already refused for lack of prospect that special leave will be granted – Application for reconsideration under UCPR r 36.16 incompetent – No application made for review of previous decision nor suggestion that conclusion was incorrect – No change of circumstances since first decision identified – Stay not sought by only party potentially prejudiced by relevant orders – Application dismissed with costs Cases Cited: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84 Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446 Pham v Enterprise ICT Pty Ltd (No 3) [2018] NSWSC 381 Pham v Enterprise ICT Pty Ltd [2022] NSWSC 12 Sebie v Pham (No 3) [2021] NSWCA 277 Sebie v Pham (No 4) [2021] NSWCA 326 Sebie v Pham [2021] NSWCA 11 Sebie v Pham [2021] NSWCA 115 Category: Procedural rulings 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 (in liq) (Third Respondent) Representation: Counsel: Self-represented (Applicants) Solicitors: Andy Pham Lawyers (First and Second Respondents) ERA Legal (Liquidator of Third Respondent) 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 339. Date of Decision: 26 April 2017; 29 March 2018; 20 February 2019; 19 August 2020; 1 April 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.] Judgment 1. BRERETON JA: The relevant background is set out in the judgment of the Court (Bell P, Basten JA and Brereton JA) delivered on 19 November 2021, [1] dismissing with costs a summons by which the present applicants Robert Sebie and Ronald Jemmott sought leave to appeal from four series of orders made in the proceedings in the Equity Division between 2017 and 2020 ("the Earlier Orders"), and also from certain orders made by Sackar J on 18 March 2021 and 30 April 2021 for the payment out of Court to the respondents of certain sums to which Mr Sebie was prima facie entitled but on which the third respondent ENA had an arguable claim ("the Payment Out Orders"). The Court unanimously refused leave to appeal from the Earlier Orders, and by majority (Brereton JA dissenting) from the Payment Out Orders. 2. The Payment Out orders had been stayed pending the hearing of the application for leave to appeal. [2] By a Notice of Motion filed on 27 November 2021, Mr Sebie and ENA sought a further stay of the Payment Out Orders and other associated relief pending an application for special leave to appeal to the High Court of Australia. That motion was dismissed by Meagher JA on 16 December 2021. [3] Citing the statement of Brennan J (as he then was) that "A stay to preserve the subject matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted", [4] his Honour concluded that "there is not a substantial prospect that special leave to appeal will be granted". [5] 3. On 22 December 2021, Mr Sebie and ENA filed a further motion claiming substantially the same relief, and also seeking reconsideration of this Court's judgment pursuant to UCPR r 36.16. That motion has since been amended, on 4 May 2022, most relevantly by substituting Mr Jemmott for ENA, which has since gone into liquidation, as an applicant. After multiple adjournments, on 23 May 2022 the Registrar, declining further to adjourn the motion, but "to give the applicants one last opportunity to get their act into order and to provide their submissions", made directions that Mr Sebie and Mr Jemmott file and serve their submissions by 6 June 2022, reserved to the Court whether it required submissions in reply, and directed that the motion be dealt with on the papers. 4. The file contains a document entitled "Summary of Argument on behalf of the Appellant 4 April 2022", filed on 20 June 2022, two weeks after the deadline directed by the Registrar. It commences: "The purpose of this application is to re-visit the judgment made on 19 November 2021, Sebie v Pham (No 3) [2021] NSWCA 277 and to bring out the errors made within that judgment, second all not prayers were dealt within the application amended Summons seeking leave to appeal filed on the 2 July 2021. There is no leave sought from ENA Development Pty Ltd." 1. It is argued that the case is of importance and public interest because Mr Pham is said to be an officer of the Court who has infringed the integrity of the justice system. The submissions state four grounds, as follows: Ground 1 – Andy Pham has mislead the Court in the primary hearing. Ground 2 – Apprehend bias, against Ramzy Sebie and ENA Development. Ground 3 – Procedural unfairness, against Ramzy and ENA Development. Ground 4 – Miscarriage of justice, against Ramzy and ENA Development. 1. Expansive submissions are made as to the alleged wrongdoing of Mr Pham. There are also submissions which if accepted would be relevant to establishing that Rose Sebie, Ramzy Sebie and/or ENA might have a claim on the funds in Court. Extensive submissions are made impugning the judgment of Slattery J of 29 March 2018, [6] and also that of Pembroke J of 26 April 2017. [7] 2. Insofar as the motion seeks reconsideration by this Court of its earlier judgment pursuant to UCPR r 36.16, that course is not available: judgment of this Court was not a default judgment, nor given in the absence of a party (Mr Sebie and Mr Jemmott were present, by audio link, at the hearing), so sub-rule (2) is not applicable; the judgment dismissed the claims for relief, so sub-rule (3) is not applicable; and the motion of 22 December 2021 was filed more than 14 days after the judgment was delivered on 19 November 20921, so sub-rules (1) and (3A) are not applicable. The motion in that respect is out of time, and the time limit cannot by extended, by reason of sub-rule (3C) which prohibits it. Accordingly in that respect the motion is incompetent. 3. Insofar as the motion seeks a stay pending an application for special leave to appeal to the High Court, the test is as stated by Meagher JA in his Honour's judgment on the earlier application, extracted above. [8] On a second application for such a stay, it is relevant that no application was made for a review of the decision of Meagher JA, and no change of circumstances since Meagher JA's judgment declining to grant a stay has been identified. Nor has anything appeared to suggest that Meagher JA's conclusion that there was not a substantial prospect of a grant of special leave was not correct. Indeed it is not apparent whether an application for special leave has even been made: no Special Leave Application and supporting argument has been put before this Court. 4. The stay is not sought by ENA, which is the only party potentially prejudiced by the implementation of the Payment Out Orders. Moreover, after Meagher JA had refused a stay, the sum of $203,673.06 was paid out of court to Andy Pham Lawyers on 23 December 2021 in full performance of the Payment Out Orders. [9] The orders have already been fully performed and cannot now be stayed. 5. Although that is sufficient to dispose of the application, I shall briefly address the main further arguments. In respect of the judgments of Slattery J and Pembroke J, this Court was unanimously of the view that leave to appeal should be refused, for the following reasons (footnotes omitted): [10] Orders of Pembroke J – 26 April 2017 and 15 May 2017 [39] 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. [40] 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. [41] 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). 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 [42] 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. [43] 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. 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. 1. The recent submissions reiterate complaints of error affecting the above-mentioned judgments of Slattery J and Pembroke J, but they do not show why the reasons of this Court for refusing leave to appeal from them are even arguably wrong. Although they refer to an observation of Simpson AJA to the effect that the properties might be reconveyed, there is no prospect that the rights of third parties in properties they have acquired would now be disturbed. Insofar as it is alleged that Mr Pham has engaged in misconduct, that is not a subject matter of the present litigation which could conceivably result in a grant of special leave to appeal to the High Court. 2. Moreover, the rights asserted are not those of Mr Sebie or Mr Jemmott, but those of the late Mr Ramzy Sebie, Mrs Rose Sebie, and perhaps ENA (which now has a liquidator). None of them is a party to the present application. 3. In those circumstances, there is no prospect of the High Court granting special leave to appeal to Mr Robert Sebie and Mr Jemmott. 4. The notice of motion filed on 22 December 2021 and amended on 4 May 2022 is therefore dismissed with costs. ********** Endnotes 1. Sebie v Pham (No 3) [2021] NSWCA 277. 2. Sebie v Pham [2021] NSWCA 115. 3. Sebie v Pham (No 4) [2021] NSWCA 326. 4. Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 684-5 (Brennan J); [1986] HCA 84 5. Sebie v Pham (No 4) [2021] NSWCA 326 at [4]. 6. Pham v Enterprise ICT Pty Ltd (No 3) [2018] NSWSC 381. 7. Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446. 8. Above at [2]. 9. See Pham v Enterprise ICT Pty Ltd [2022] NSWSC 12. A further $171,460.70 was so disbursed on 6 May 2022, and the sum of $1,736,878.39, being the balance of the funds in court, was disbursed on 13 May 2022 to the liquidator of ENA, pursuant to consent orders made in the proceedings in the Equity Division. This exhausts the funds in Court. 10. Sebie v Pham (No 3) [2021] NSWCA 277. 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: 01 July 2022