Pham v Enterprise ICT Pty Ltd & Ors (No. 10) [2018] NSWSC 1805

Supreme Court New South Wales

Medium Neutral Citation: Pham v Enterprise ICT Pty Ltd & Ors (No. 10) [2018] NSWSC 1805 Hearing dates: 22 November 2018 Date of orders: 23 November 2018 Decision date: 23 November 2018 Jurisdiction: Equity Before: Lindsay J Decision: Application for stay of execution of writ of possession dismissed with costs Catchwords: Judgments and Orders – Enforcement – Writ for Possession of Land Legislation Cited: - Cases Cited: - Category: Consequential orders (other than Costs) Parties: Applicant: ENA Development Pty Ltd First Plaintiff: Andy Vuong Duc Pham Second Plaintiff: Thi Huong Giang Pham Third Defendant: Robert Sebie Representation: Counsel: Applicant: A Blank Plaintiffs: B Zipser Third Defendant: in person

Solicitors: Applicant: Shakenovsky & Associates Plaintiffs: Bui Lawyers Third Defendant: self represented File Number(s): 2015/00325044

Judgment 1. By a notice of motion filed on 25 September 2018 (without a return date), but only brought on for hearing yesterday (22 November 2018) in the Duty Judge list, in proceedings numbered 2015/00325044, ENA Development Pty Ltd ("the applicant") applies for an order, in effect, that execution of a writ of possession issued on 30 October 2018 be stayed pending the determination of: 1. proceedings numbered SYC0059/2010 in the Family Court of Australia; and 2. proceedings numbered 2018/252265 in the Court of Appeal. 1. The common denominator in the three sets of proceedings is a residential property in Tutt Crescent, Chiswick, in the state of New South Wales, the freehold title to which was formerly registered in the name of Robert Sebie ("the third defendant"), former husband of the Nadine Musabwasoni ("the second defendant"). 2. A property dispute between the second and third defendants lies at the heart of the proceedings in the Family Court. 3. In the current proceedings, an order for possession was made (by Slattery J), and at a writ of possession has been issued (with the leave of Kunc J), in favour of Mr and Mrs Pham ("the plaintiffs"), now registered as proprietors of the Chiswick property, as purchasers of the property from the third defendant. 4. Completion of the plaintiffs' purchase of the Chiswick property took place on or about 2 May 2018, upon which date (pursuant to orders made by Pembroke J on 15 May 2017) they paid into court the sum of $2,087,240.65, representing the balance of the purchase price payable by them after due allowance for deposit moneys earlier paid and adjustments on completion. Sums totalling $76,181.20, representing deposit moneys, were paid into court on 27 July 2018 by the real estate agent who had held those moneys as a stakeholder pending completion of the contract. 5. Exclusive of any accrued interest, the total amount presently held in court (representing the proceeds of sale of the Chiswick property by the third defendant to the plaintiffs) is $2,163,421.85. 6. Pursuant to orders made (by Pembroke J) on 15 May 2017, that money is held, as "funds in court", pending: 1. assessment of the plaintiffs' entitlements to costs; and 2. a determination by the Family Court of the amount, if any, of an entitlement claimed against it by the second defendant. 1. The current proceedings have a tortuous history, signposted by the following published judgments: 1. a judgment (by Pembroke J) reported as [2017] NSWSC 446 on 26 April 2017. 2. a judgment (by Pembroke J) reported as [2017] NSWSC 583 on 15 May 2017. 3. a judgment (by Slattery J) reported as [2017] NSWSC 1509 on 8 November 2017. 4. a judgment "(No. 2)" (by Slattery J) reported as [2018] NSWSC 22 on 30 January 2018. 5. judgment "(No. 3)" (by Slattery J) reported as [2018] NSWSC 381 on 29 March 2018. 6. Judgment "(No. 4)" (by Slattery J) reported as [2018] NSWSC 566 on 2 May 2018. 7. Judgment "(No. 5)" (by Slattery J) reported as [2018] NSWSC 567 on 1 May 2018. 8. Judgment "(No. 6)" (by Slattery J) reported as [2018] NSWSC 592 on 7 May 2018. 9. Judgment "(No. 7)" (by Slattery J) reported as [2018] NSWSC 1063 on 13 July 2018. 10. Judgment "(No. 8)" (by Kunc J) reported as [2018] NSWSC 1492 on 4 October 2018. 11. Judgment "(No. 9)" (by Slattery J) reported as [2018] NSWSC 1657 on 1 November 2018. 1. Ancillary orders, court process, and developments to be noted (in addition to these judgments) , comprise the following: 1. On or about 11 July 2018 the applicant apparently filed a document styled "amended cross claim" in which it claimed an entitlement to a charge on the proceeds of sale of the Chiswick property, a charge said to rank in priority over any entitlement of the plaintiffs or the second defendant. 2. Proceedings on that "cross claim" have been stayed, as against the plaintiffs, consequent upon the applicant's failure to provide $100,000.00 security for their costs pursuant to an order made by Slattery J on 13 July 2018. 3. On 13 July 2018 an order for possession of the Chiswick property was made by Slattery J in favour of the plaintiffs. 4. On 28 September 2018 (for reasons published on 4 October 2018) Kunc J granted leave to the plaintiffs for the issue, forthwith, of a writ of possession of the Chiswick property, subject to a direction that the writ lie in the Registry up to and including 26 October 2018 or such later date as the Court may order. 5. The writ of possession issued on 30 October 2018, and there is currently no impediment to its execution. The persons named in the writ as "persons liable to execution of judgment" are the third defendant, the second defendant, Ramzy Sebie and Rose Sebie. 6. By orders made on 1 November 2018, Slattery J listed the proceedings before him on 7 December 2018 for consideration of whether any remaining issues in the proceedings should be determined before the determination of the Family Court proceedings. 7. By an order made on 7 November 2018, the listing for 7 December 2018 was vacated and replaced by a listing before Slattery J at 9.30am on 12 December 2018. 8. In the Family Court proceedings (which are next listed before that Court on 18 December 2018), the applicant (as an intervenor) has applied to join the plaintiffs as respondents and the plaintiffs have applied for an order that any claim against them in the Family Court proceedings be summarily dismissed as an abuse of process. 9. The proceedings presently pending in the Court of Appeal comprise a summons (filed on 19 November 2018) in which a relative of the third defendant (Ramzy Sebie) seeks leave to appeal against the order for possession made on 13 July 2018 and the order made on 28 September 2018 granting leave for the issue of a writ of possession. That summons records that it is listed for directions on 4 February 2019. 1. The applicant's notice of motion should be dismissed because: 1. any entitlement the applicant presently has in the proceedings is limited (by the terms of its "amended cross claim") to a claim on funds held in court and, the applicant having failed to provide security, that claim is stayed as against the plaintiffs. 2. even if the applicant does have an entitlement to a charge on funds in court that ranks in priority to the plaintiffs' claim to have their costs paid out of those funds, that entitlement does not stand in the way of the plaintiffs' entitlement to possession of the Chiswick property. 3. whether or not the plaintiffs are let into possession of the Chiswick property can have no bearing upon any entitlement that the applicant might have to the funds in court or upon disposition of the Family Court proceedings. 4. the applicant is not a party to the proceedings presently pending in the Court of Appeal, although (overnight) the applicant has purportedly caused to be filed (electronically and without leave) an "amended summons" naming itself as a co-claimant, with Rose Sebie (but possibly not with Ramzy Sebie), for leave to appeal against the order for possession made, and the writ issued, in favour of the plaintiffs. Counsel for the applicant informed the Court that the "amended summons" was not filed by, or with the authority of, his instructing solicitor. It is an irregular document, irregularly filed. 1. Accordingly, I make orders to the following effect: 1. ORDER that the applicant's notice of motion be dismissed. 2. ORDER that the applicant pay the plaintiffs' costs of the motion.