Pham v Enterprise ICT Pty Ltd & Ors (No. 10)

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:

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”).

A property dispute between the second and third defendants lies at the heart of the proceedings in the Family Court.

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.

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.

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.

Pursuant to orders made (by Pembroke J) on 15 May 2017, that money is held, as “funds in court”, pending:

The current proceedings have a tortuous history, signposted by the following published judgments:

Ancillary orders, court process, and developments to be noted (in addition to these judgments) , comprise the following:

The applicant’s notice of motion should be dismissed because:

Accordingly, I make orders to the following effect: