Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 3) [2018] NSWSC 381

Supreme Court New South Wales

Medium Neutral Citation: Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 3) [2018] NSWSC 381 Hearing dates: 20, 22 February & 15, 26 March 2018 Date of orders: 26 March 2018 Decision date: 29 March 2018 Jurisdiction: Equity Before: Slattery J Decision: Leave is not granted to a director of the corporate caveator, ENA, to appear on its behalf. Hearing should proceed in the absence of legal representation of ENA. ENA's motion to file a cross claim in support of its caveat dismissed. Orders made on the plaintiffs' motion to remove ENA's caveat. Catchwords: CIVIL PROCEDURE - appearance - director seeks leave to appear on behalf of corporation that seeks to support the maintenance of a caveat over certain real property - UCPR, rr 7.1 and 7.2 - no resolution passed by company authorising director to appear on its behalf - director declines to accept that he will be personally liable for the costs of the proceedings in which he represents the company, if leave were given for him to appear - director is of ill health and difficult to make himself understood by the Court - whether leave for the director to appear on behalf of the company should be refused.

REAL PROPERTY - Caveats - whether caveat should be removed under Real Property Act, s 74MA - whether caveat has or may have substance - no documents to support the substance of the caveat - no stamp duty paid on the document - caveat contains contradictory information - whether caveat complies with Real Property Act, s 74F(5).

SECURITY FOR COSTS - company propounding caveat is said to be a $2 company – liberty to apply granted as part of final orders - case proceeded urgently for good reasons without security for costs application being made - Court indicates that if any liberty to apply that has been granted is to be taken up by the corporate caveator, that the plaintiffs will be at liberty to file a motion on the liberty to apply date granted for orders that the corporate caveator provides security for costs. Legislation Cited: Civil Procedure Act 2005, s 61 Duties Act 1997, ss 205, 211, 304 Real Property Act 1900, ss 74F, 74K, 74MA, 74O Real Property Regulation 2014, Schedule 3 Uniform Civil Procedure Rules 2005, rr 7.1 and 7.2 Cases Cited: 21 Million Pty Limited v Clarence Street Pty Ltd [2003] NSWSC 1160 ACN 075 911 410 Pty Ltd v Almaty Pty Limited [2011] NSWSC 333 Arnautovic v Sutherland (2011) 199 FCR 1 Beechworth Land Estates Pty Ltd (Admin Apt) and Boral Recycling Pty Limited v Wake [2009] NSWSC 712 Damjanovic v Maley (2002) 55 NSWLR 149 Griffith Estates Pty Ltd (Admin Apt) (No 2) [2015] NSWSC 336 Martyn v Glennan [1979] 2 NSWLR 234 Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie [2017] NSWSC 1509 Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 2) [2018] NSWSC 22 Scotts Head Developments Pty Ltd & Anor v Pallisar Pty Ltd & Ors [1994] NSWCA 281 Category: Procedural and other rulings Parties: In proceedings 2015/325044: First plaintiff: Andy Vuong Duc Pham Second plaintiff: Thi Huong Giang Pham First defendant: Enterprise ICT Pty Ltd Second defendant: Nadine Musabwasoni Third defendant: Robert Sebie