Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185 Hearing dates: 1 August 2018 Date of orders: 15 August 2018 Decision date: 15 August 2018 Before: Basten JA; Meagher JA; Emmett AJA Decision: 1. Dismiss paragraph 2 of the appellants' notice of motion dated 24 July 2018. 2. Dismiss the amended notice of appeal. 3. Order the appellants pay the first and second respondents' and the third respondent's costs of the appeal, including the notice of motion. Catchwords: LAND LAW – Torrens title – exceptions to indefeasibility – fraud – where purchasers seek specific performance of contract for sale of land – where vendor then transfers land to company of which his brother was sole director purportedly in accordance with consent judgment obtained by another, related company upon non-repayment of alleged secured loan – whether secured loan existed – whether fraud brought home to transferee company

CIVIL PROCEDURE – Court of Appeal – application to receive additional evidence – where expert reports available at or could have obtained before trial Legislation Cited: Duties Act 1997 (NSW), s 13 Real Property Act 1900 (NSW), ss 42, 74J Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 35.2 Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Assets Co v Mere Roihi [1905] AC 176 Chesterfield v Janssen (1751) 2 Ves Sen 125; 28 ER 82 Collins v Godefroy (1831) 1 B & Ad 951; 109 ER 1040 Hamilton v Whitehead (1988) 166 CLR 121 Sharp v Rangott (2008) 167 FCR 225 Tesco Ltd v Nattrass [1972] AC 153 Tjiong v Tjiong [2012] NSWCA 201 Waimiha Sawmilling Co v Waione Timber Co [1926] AC 101 Texts Cited: JD Heydon, Cross on Evidence, (11th ed 2017, LexisNexis) Category: Principal judgment Parties: Enterprise ICT Pty Ltd (First Appellant) Robert Sebie (Second Appellant) Andy Voung Duc Pham (First Respondent) Thi Huong Giang Pham (Second Respondent) Nadine Musabwasoni (Third Respondent) Representation: R Sebie (self-represented and with leave for First Appellant)