Sebie v Pham

BELL P: There is before the Court an amended summons seeking leave to appeal which was filed on 27 November 2018 and is signed by Mrs Rose Sebie and Mr Ramzy Sebie on 21 November 2018. The 27 November 2018 amended summons identifies as "appellants" Mr Ramzy Sebie and Mrs Rose Sebie. It names as first respondent Andy Vuong Duc Pham, as second respondent Thi Huong Giang Pham and as third respondent ENA Development Pty Ltd (ENA Development).

When the matter came on for hearing this morning, an application to adjourn the matter was made by Mr Robert Sebie on behalf of Mr Ramzy Sebie. For reasons given orally, that adjournment application was refused. Mr Robert Sebie was given leave to appear on behalf of Mr Ramzy Sebie, consistent with a letter tendered by him signed by Mr Ramzy Sebie authorising Mr Robert Sebie to appear on Mr Ramzy Sebie's behalf in all Court matters whilst Mr Ramzy Sebie is in hospital (which is currently the case). In relation to Mrs Rose Sebie, Ms Sophie Georgy applied for and was given leave to appear on behalf of Mrs Rose Sebie, Ms Georgy having previously filed written submissions on behalf of Mrs Rose Sebie and having been given limited leave to appear on behalf of Mrs Rose Sebie by Leeming JA on an earlier application in this Court: Sebie v Pham [2019] NSWCA 58.

The background to this application is complicated and the matter has been before various judges, both of the Equity Division of the Supreme Court and of the Court of Appeal, on numerous occasions. The background was described for sufficient purposes by Beazley P in an interlocutory judgment her Honour delivered on 6 December 2018: Sebie v Pham [2018] NSWCA 333. In particular, her Honour set out in a convenient way the background to the litigation generally in [3]–[7] of her judgment as follows:

There is also included in the white book at p 1 another document styled "Amended Summons seeking leave to appeal" in which ENA Development is identified as "third appellant" and Mr Robert Sebie is identified as "third respondent". This document is dated 20 May 2019 and has not been filed nor, to the best of my knowledge, has any leave been sought or granted to amend the previously filed amended summons to add ENA Development as an appellant and to add Mr Robert Sebie as a respondent.

The 27 November 2018 Amended Summons, that is to say the only summons properly before the Court today, makes reference to and seeks leave to appeal from three judgments given by judges given in the Equity Division of this Court.

The first decision from which leave to appeal is sought is the judgment of Slattery J in Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 3) [2018] NSWSC 381. This judgment was delivered by his Honour on 29 March 2018 following the making of orders on 26 March 2018. The orders his Honour made on that occasion are set out in [102] of his Honour's judgment, and they were as follows:

I note that neither Mr Ramzy nor Mrs Rose Sebie were parties to those proceedings. Further, although ENA Development was a party to those proceedings, it has not sought leave to appeal from that decision in any summons seeking leave to appeal that has been filed in this Court. To the extent that any application were to be made by ENA Development to seek leave to appeal from that decision, it would be well out of time, more than 15 months having elapsed since Slattery J gave his decision in that matter.

The second decision from which leave to appeal is sought is another decision of Slattery J in the matter of Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 7) [2018] NSWSC 1063, a decision delivered on 13 July 2018. In this decision, his Honour made the following orders as set out in [102] of that decision:

I note that Mrs Rose Sebie was not a party to those proceedings, although Mr Ramzy Sebie was a party. Any application for leave to appeal from that decision was required to have been filed well prior to the original summons seeking leave to appeal in these proceedings which I note was filed on 19 November 2018.

The third decision which is the subject of the application for leave to appeal is the decision of Kunc J delivered in Pham v Enterprise ICT Pty Ltd (No 8) [2018] NSWSC 1492. His Honour made orders in that matter on 28 September 2018 and published reasons for those orders on 4 October 2018. Mr Ramzy Sebie was the third respondent in those proceedings, and Mrs Rose Sebie was the fourth respondent in those proceedings. The orders his Honour made in those proceedings, relevantly, were to:

I note that Mr Robert Sebie was a party to those proceedings, but he is not an applicant for leave to appeal.

I should also note that there is a fourth judgment which has been included in the White Book: namely, a decision of Slattery J in Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 11) [2019] NSWSC 115. This decision was given on 20 February 2019. I note that Mr Ramzy Sebie and Mrs Rose Sebie were not parties to that decision although it appears that Mr Ramzy Sebie made submissions in that matter. No orders were made against or relating to Mr Ramzy Sebie or ENA Development. The only relevant orders were made against Mr Robert Sebie in that matter: see [37] of his Honour's judgment. No application for leave to appeal from that decision is before the Court today notwithstanding the inclusion of that judgment in the White Book.

It follows from the above that:

The Court received detailed written submissions filed on behalf of Mr Ramzy Sebie which addressed Kunc J’s decision but not, I note, Slattery J’s decision in [2018] NSWSC 1063. As I have already noted, the application for leave to appeal was in any event out of time in respect of this judgment. To the extent that submissions filed on behalf of Mr Ramzy Sebie also address the two other judgments of Slattery J to which I have referred, namely [2018] NSWSC 381 and [2019] NSWSC 115, those submissions will not be dealt with as Mr Ramzy Sebie (and Mrs Rose Sebie for that matter) were not parties to those proceedings.

It follows that it is only necessary to address submissions filed by both Mr Ramzy Sebie and Mrs Rose Sebie in respect of the decision of Kunc J.

It will be recalled that, in his decision, Kunc J granted leave for the issue of a writ of possession in respect of the Chiswick property. In [6]–[7] of his judgment, Kunc J noted that there was no basis on which Mr Robert Sebie and Mr Ramzy Sebie could contend that any procedural prerequisite for the issue of a writ of possession had not been satisfied. His Honour continued that, when distilled to their essentials, Mr Robert Sebie really only raised two objections, the first being a discretionary one which his Honour rejected; and the second being an argument to the effect that there were tenants in the Chiswick property whose interest prevailed against the plaintiffs by reason of s 42(1)(d) of the Real Property Act 1900 (NSW). In respect of this argument, his Honour concluded that 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.

His Honour elaborated on his reasons for rejecting the discretionary argument he summarised in [6] of his reasons in paras [26]–[31] of his judgment which were in the following terms:

His Honour (at [7]) elaborated on his rejection of the argument that there were tenants in the Chiswick property whose interests prevailed against those of the plaintiffs by reason of s 42(1)(d) of the Real Property Act in [32]–[35] and [36]–[44] of his reasons for judgment. Those paragraphs relevantly provided as follows:

Against that background, I turn to the various submissions that were made on behalf of both Mrs Rose Sebie and Mr Ramzy Sebie in writing and orally.

The first submission to be dealt with was the suggestion that Kunc J failed to consider the evidence of Ms Jade Oswald. That submission was factually wrong. An affidavit of Ms Oswald was read and she was cross examined in the proceedings before his Honour. Further, Ms Oswald's evidence and its significance was the subject of analysis by his Honour at [36]–[45] of the reasons for judgment. I note, in particular, [43] of the judgment and his Honour's observations there set out. Furthermore, in relation to this aspect of complaint, the submissions neither in writing nor orally explained what particular evidence was not considered and how such evidence bore upon the findings made by Kunc J.

The second matter relates to a complaint that Kunc J did not take into account fortnightly "rent receipts" which were said to support the existence of lease agreements. The fundamental difficulty with this submission was that, although such documents apparently were produced to the Court in answer to a notice to produce, they were not in evidence before Kunc J. Mr Sebie submitted that they had been sent by email to his Honour's chambers. As was pointed out in the course of oral argument, this is not the same as tendering evidence in court. That is not simply a formality. On the attempted tender of evidence in court, the opposing party has an opportunity to raise such objections it may be advised to take in relation to the documents, to review the documents, to call for originals and to test the veracity of those documents. This is why there is a formal requirement that evidence be identified with clarity and formally tendered subject to another party's right to object. Accordingly, this aspect of the argument must be rejected.

The third argument advanced in particular on behalf of Mrs Rose Sebie was that she had been denied procedural fairness in the hearing before Kunc J. In response to this argument, it was put on behalf of the respondents by Mr Zipser who appeared for them, that Mrs Rose Sebie did not appear at the hearing and so could not have been denied procedural fairness. It was also put that there is no evidence in the White Book that anybody applied to his Honour to read any affidavit of Mrs Rose Sebie.

Further, no submission was put as to arguments that Mrs Rose Sebie would have made which were any different to the arguments which were obviously made, and made forcefully, by Mr Robert Sebie on behalf of his father on the occasion of the hearing before Kunc J.

For those reasons, I do not think that the assertion that Mrs Rose Sebie was denied procedural fairness has any proper basis but, even if it did, given the closely aligned if not totally identical interests of Mrs Rose Sebie and Mr Ramzy Sebie, it does not seem to me that the interests of justice would justify a grant of leave to appeal on this ground.

The next argument which was advanced on behalf of Mr Ramzy Sebie in para 1.8 of his written submissions appears to be an attack on [35] of Kunc J’s judgment although the reference in the written submissions is to [33] rather than [35]. From the context of the submission in para 1.8 of Mr Ramzy Sebie's submissions, however, it appears to me that the attack intended to be made was in respect of [35].

The essence of that attack was that his Honour erred in a finding in that paragraph that Mr Robert Sebie was the sole carer of his mother, Mrs Rose Sebie. It is pointed out in written submissions that that is not in fact the case and that she has a number of other carers in addition to Robert Sebie. Whilst it may not have been factually accurate to describe Mr Robert Sebie as the sole carer (although it is not clear that evidence as to other carers was before his Honour), the point sought to be raised has no materiality to his Honour's reasons or the correctness or otherwise of those reasons.

Next, no issue of principle or other matter of substance has been raised which seeks to attack his Honour's findings. I should note, however, in this context, that there was an attempt made in oral argument to suggest that a finding that Slattery J had made in [2018] NSWSC 1063 at [71], namely, that the first notice that the Phams had of the alleged tenancy came when they were served with Mr Robert Sebie's affidavit of 20 June 2018, was sought to be put in issue by reference to two documents in particular: first, an email of 2017; secondly, some written submissions filed in earlier proceedings before Slattery J also in 2017. A number of observations can be made in relation to that matter and that argument.

First, it was accepted by Ms Georgy on behalf of Mrs Rose Sebie and Mr Robert Sebie on behalf of Mr Ramzy Sebie that that material was not in evidence before Kunc J. Secondly, and even more significantly, whether or not the Phams were on notice of the tenancies does not really touch upon the fundamental reasoning of Kunc J who found that the Real Property Act was not engaged because of the absence of any leases, properly so called.

For these two reasons, I do not think that there is any substance in the point sought to be raised on behalf of the applicants, even if the material on which that argument was based was properly before the Court.

For all the above reasons, in my opinion, the application for leave to appeal should be dismissed with costs.

EMMETT AJA: I agree for the reasons given by the President. The application for leave to appeal should be dismissed with costs.