Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446

Supreme Court New South Wales

Medium Neutral Citation: Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446 Hearing dates: 11, 12, 13 and 19 April 2017 Date of orders: 26 April 2017 Decision date: 26 April 2017 Jurisdiction: Equity Before: Pembroke J Decision: See paragraphs [61] – [62] Catchwords: REAL PROPERTY – fraud – exception to indefeasibility – Sections 42 and 43 Real Property Act 1900 (NSW) Legislation Cited: Real Property Act 1900 (NSW) Family Law Act 1975 (Cth) Category: Principal judgment Parties: Andy Vuong Duc Pham – first plaintiff Thi Huong Giang Pham – second plaintiff Enterprise ICT Pty Ltd – first defendant Nadine Musabwasoni – second defendant Robert Sebie – third defendant Representation: Counsel: B Zipser – for the first and second plaintiffs M Southwick – for the first defendant A Duc – for the second defendant Robert Sebie – third defendant in person

Solicitors: Bui Lawyers – for the first and second plaintiffs Gardner/Ekes Lawyers – for the first defendant Remington & Co – for the second defendant Robert Sebie – third defendant in person File Number(s): 2015/325044

Judgment

Introduction 1. The central figure in this litigation is Mr Robert Sebie. I had a considerable opportunity before and during the hearing to form an opinion as to his motives, his honesty and his credibility. Mr Sebie represented himself at the hearing and at an earlier lengthy application for an adjournment. I gave him every indulgence to explain his actions and every opportunity to justify his conduct. Ultimately I formed the view that his evidence was unreliable and that his defence is unmeritorious. 2. Mr Sebie has learned his way around the legal system. He is a skilled amateur who conducted his case over four days with a commendable attention to detail, considerable acumen, impressive competence and reasonable knowledge of the systems, procedures, protocols and forms utilised in the litigation process. He has expertise in relation to information technology and computer software. He showed no sign whatsoever of the afflictions on which he based his adjournment application. 3. Regrettably, I have concluded that Mr Sebie was incapable of telling the truth unless he thought the subject matter was irrelevant to the contentions, assertions and propositions on which he had constructed his implausible case. I would not ordinarily use the expression 'tissue of lies', but this is one case where it is appropriate. I should reiterate that this is a civil case in which the court weighs the evidence only on the balance of probabilities, subject in the case of allegations of fraud to being appropriately firmly satisfied bearing in mind the seriousness of such an allegation. Given the evidence which I have seen and heard, I have no hesitation in upholding the plaintiffs' claim and rejecting the defences of the first and third defendants. 4. The second defendant is in a different category. She is Mr Sebie's former wife and another innocent victim of his dishonesty. It will be necessary to say something further about her position later in these reasons. 5. I should also mention by way of introduction Mr Richard Sebie. He is the brother of Robert Sebie. Richard Sebie is a sad case. He has been affected by chronic fatigue syndrome since suffering a motor vehicle accident in 1993 and has had no regular employment for many years. Although he is recorded as being its sole director, he says he has never had any substantial role with the first defendant Enterprise ICT Pty Ltd and has little to do with its day to day affairs. Indeed, he had little to do with the day to day affairs of ENA Development Pty Ltd also, although he signed certain documents on its behalf. 6. There were a number of documents in evidence signed by Richard Sebie on behalf of the first defendant. I infer that in relation to each document, Richard Sebie's signature was procured and requested by another family member, probably in each case his brother Robert Sebie. In reality, Richard Sebie was only a nominal director of the first defendant. In relation to the events in question, to which I will return in more detail, he acted at the request and instigation of Robert Sebie. I acknowledge that he was at pains to resist any such conclusion and repeatedly asserted that he acted at the request of his mother Rose, but I do not believe him. Rose is an octogenarian whose health commenced to deteriorate in 2014. She is not an officer or shareholder of the first defendant and never has been. She did not give evidence. 7. Richard Sebie was not a credible witness. His memory was faulty, his evidence was sometimes inconsistent, his demeanour was unpersuasive. The objective facts and other proved evidence tended to demonstrate that both brothers were highly unsatisfactory witnesses. Richard Sebie attended on several occasions during the hearing, including during the cross‑examination of Robert Sebie. He consorted with his brother and spoke to him. I infer that Robert Sebie controlled and directed Richard Sebie in relation to his attendance at court and the presentation of his evidence. Even during Richard Sebie's cross‑examination on the final day his brother Robert sought to intervene to assist and guide Richard in answering questions. 8. When his cross‑examination concluded and I excused him, Richard Sebie returned after speaking to his brother during the adjournment to attempt to introduce another affidavit and company documents said to have been created by his elderly parents and a third person only last week. The proposed affidavit was so inconsistent with earlier evidence and the genuineness and utility of the documents were so doubtful that I rejected the application.