Sebie v Pham [2018] NSWCA 332

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sebie v Pham [2018] NSWCA 332 Hearing dates: 5 December 2018 Date of orders: 05 December 2018 Decision date: 05 December 2018 Before: Beazley P Decision: Notice of motion filed 19 November 2018 is dismissed with costs. Catchwords: CIVIL PROCEDURE – summary disposal – dismissal of notice of motion seeking stay of orders – non-appearance of applicant Category: Principal judgment Parties: Ramzy Sebie (Applicant) Andy Vuong Duc Pham (First Respondent) Thi Huong Giang Pham (Second Respondent) Representation: Counsel: No appearance (Applicant) B Zipser (Respondents)

Solicitors: Andy Pham Lawyers (Respondents) File Number(s): 2018/252265 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Date of Decision: 26 March 2018; 13 July 2018; 28 September 2018 Before: Slattery J; Kunc J File Number(s): 2015/325044; 2015/56505

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment 1. HER HONOUR: There is listed before me for hearing today a notice of motion filed by the applicant, Ramzy Sebie, seeking a stay of the orders made by Kunc J which were said to have been made on 4 October 2018. In fact, the order to which reference is made was made by Kunc J on 28 September 2018 when his Honour granted leave for the issue of a writ of possession. 2. Earlier in the year, on 13 July 2018, Slattery J had given judgment for the respondents, Mr and Mrs Pham, for possession of the property which was the subject of a contract for sale some years previous to that and in respect of which there have been long running proceedings in this Court. The reference to the orders having been made on 4 October 2018 is to be taken as a reference to the fact that although Kunc J made orders on 28 September 2018, his Honour delivered his judgment in the matter on 4 October 2018. I take note there is no particular matter of importance that relates to the wrong reference to the date that the orders were made. 3. The matter was listed today at the request of the applicant, Mr Ramzy Sebie, rather than on Monday of this week in circumstances where Mr Ramzy Sebie said that he had engaged barristers in the matter but they were not available on Monday. The registrar informed Mr Ramzy Sebie that his request that the matter be listed today was acceded to, and it is in that circumstance that Mr Ramzy Sebie's notice of motion is before the Court today. 4. The matter was listed at 9.15am, and in the registrar's email to him, Mr Ramzy Sebie was informed that that was the case. The matter also appeared in the Court list today at 9.15am. It is currently 9.50am. At about 9.45am, the matter was called outside the Court three times, and there was no appearance by Mr Ramzy Sebie. 5. In that circumstance, the respondents through their counsel, Mr Zipser, have asked that the notice of motion filed on 19 November 2018 be dismissed. In the absence of any appearance, the application of the respondents should be acceded to. 6. Accordingly, the order that I make is that the notice of motion filed 19 November 2018 is dismissed with costs.