Pham v Enterprise ICT Pty Ltd & Ors (No 8) [2018] NSWSC 1492

Supreme Court New South Wales

Medium Neutral Citation: Pham v Enterprise ICT Pty Ltd & Ors (No 8) [2018] NSWSC 1492 Hearing dates: 28 September 2018 Date of orders: 28 September 2018 Decision date: 04 October 2018 Jurisdiction: Equity Before: Kunc J Decision: Writ for possession issued Catchwords: JUDGMENTS AND ORDERS — Enforcement — Writ for possession of land Legislation Cited: Real Property Act 1900 (NSW) Sheriff Act 2005 (NSW) Cases Cited: Enterprise ICT Pty Ltd v Pham (No 1) [2018] NSWCA 180 Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185 Pham v Enterprise ICT Pty Ltd (No 3) [2018] NSWSC 381 Pham v Enterprise ICT Pty Ltd & Ors; Pham v Sebie (No 7) [2018] NSWSC 1063 Texts Cited: P Butt, "Tenants, lodgers and boarders" (2006) 80 ALJ 423 Category: Principal judgment Parties: Andy Vuong Duc Pham (First applicant) Thi Huong Giang Pham (Second applicant)

Robert Sebie (First respondent) Nadine Musabwasoni (Second respondent) Ramzy Sebie (Third respondent) Rose Sebie (Fourth respondent) Representation: Counsel: B Zipser (Applicants)

Robert Sebie (In person) Ramzy Sebie (In person — by telephone)

Solicitors: Bui Lawyers (Applicants) File Number(s): 2015/325044 Publication restriction: No

Judgment

Summary 1. On 28 September 2018, I made orders that the Court: "1. Grants leave to the plaintiffs for the issue of a writ of possession of the property at XXX Crescent, Chiswick folio X in DP XXX (the "Property"). 2. Directs that the writ issue forthwith but lie in the Registry up to and including 26 October 2018 or such later date as the Court may order. 3. Robert Sebie and Ramzy Sebie are ordered to pay the plaintiffs' costs of the application for the issue of a writ for possession of the Property." 1. These are the reasons for those orders. 2. In Pham v Enterprise ICT Pty Ltd & Ors; Pham v Sebie (No 7) [2018] NSWSC 1063 (the "Possession Judgment"), Slattery J made an order for possession of the property referred to in order 1 above (the "Chiswick property") in favour of the plaintiffs (Mr and Mrs Pham) against the various defendants, including Robert Sebie. Robert Sebie and various members of the Sebie family have refused to leave the Chiswick property. Without intending any disrespect, I shall refer to the various family members by their given names. 3. Slattery J would have made an order for a writ for possession of the Chiswick property, but for the fact that an appeal was pending in the Court of Appeal in related proceedings. That appeal has now been resolved adversely to the Sebie family interests (Enterprise ICT Pty Ltd v Pham (No 1) [2018] NSWCA 180 (refusing Robert's application for an adjournment) and Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185 (dismissing the substantive appeal)). 4. In those circumstances, the only issue for determination before me was whether or not a writ for possession should issue. Robert appeared for himself. Ramzy, who attended by telephone due to ill health, appeared content to leave Robert to be the family's advocate. Mr B Zipser of Counsel appeared for the plaintiffs. 5. There was no basis on which Robert and Ramzy could contend that any procedural prerequisite for the issue of a writ for possession had not been satisfied. When distilled to their essentials, Robert really only raised two objections. The first was a discretionary one concerning the difficulties that he and, in particular, his elderly and sick mother, Rose, would have in relocating from the Chiswick property. I do not accept those matters are sufficient to deny the successful plaintiffs the right to enforce their judgment for possession of the Chiswick property. Ramzy and Rose own a property at Seven Hills (the "Seven Hills property"). If nothing else suitable can be found, the Court is satisfied that the Sebie family occupants of the Chiswick property can relocate to the Seven Hills property. In recognition of Rose's ill-health, I directed that the writ lie in the Registry for a period of four weeks to give the Sebie family additional time to relocate Rose. 6. The second argument was that there were tenants in the Chiswick property whose interests prevailed against the plaintiffs by reason of s 42(1)(d) of the Real Property Act 1900 (NSW) (the "Act"). I have concluded the relevant leases (if they be such) are either of no legal effect or would not prevail against the plaintiffs as registered proprietors of the Chiswick property.