Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446

Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446

The plaintiffs held an equitable interest arising from the 29 October 2014 contract for sale. The alleged secured loan agreement and associated documents were not genuine, Robert Sebie's evidence about service of the lapsing notice was false, and Robert and Richard Sebie acted dishonestly to transfer the property to Enterprise ICT Pty Ltd for the purpose of defeating the plaintiffs' existing rights. That conduct constituted fraud within the meaning of sections 42 and 43 of the Real Property Act 1900 (NSW), so Enterprise ICT Pty Ltd's registration did not defeat the plaintiffs' interest. The plaintiffs were entitled to relief including setting aside the registration, specific performance,...

Jurisdiction
Australia
Judgment Date
26 April 2017
Procedural Posture
Equity Proceedings Concerning Land, Specific Performance, Fraud and Indefeasibility Under the Real Property Act 1900 (nsw) / Principal Judgment After Hearing; Final Orders to Be Settled
Outcome
Plaintiffs' claim upheld against the first and third defendants; the defences of the first and third defendants rejected; the second defendant's cross claim described as misconceived and to be dismissed; final declarations and orders to be settled.
Legal Topics
['fraud Exception to Indefeasibility' 'sections 42 and 43 Real Property Act 1900 (nsw)' 'torrens Title' 'caveats and Lapsing Notices' 'specific Performance of Contract for Sale of Land' 'equitable Interest of Purchaser' 'equitable Compensation' 'costs']
['real Property' 'equity' 'contract' 'civil Procedure'] ['fraud Exception to Indefeasibility' 'sections 42 and 43 Real Property Act 1900 (nsw)' 'torrens Title' 'caveats and Lapsing Notices' 'specific Performance of Contract for Sale of Land' 'equitable Interest of Purchaser' 'equitable Compensation' 'costs']

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Procedural Posture

Equity Proceedings Concerning Land, Specific Performance, Fraud and Indefeasibility Under the Real Property Act 1900 (nsw) / Principal Judgment After Hearing; Final Orders to Be Settled

Legal Issues

  1. 1 ['Whether the plaintiffs acquired an equitable interest in 11 Tutts Crescent, Chiswick under the contract for sale dated 29 October 2014.' 'Whether the alleged secured loan agreement in favour of ENA Development Pty Ltd was genuine.' "Whether Robert Sebie served a lapsing notice on 19 June 2015 in relation to the plaintiffs' caveat." 'Whether the transfer of the property to Enterprise ICT Pty Ltd was fraudulent within the meaning of sections 42 and 43 of the Real Property Act 1900 (NSW).' "Whether the registration of Enterprise ICT Pty Ltd's title should be set aside and the contract with Robert Sebie specifically performed." "Whether the second defendant's cross claim disclosed a sufficient equitable interest in the land."]

Ratio Decidendi

The plaintiffs held an equitable interest arising from the 29 October 2014 contract for sale. The alleged secured loan agreement and associated documents were not genuine, Robert Sebie's evidence about service of the lapsing notice was false, and Robert and Richard Sebie acted dishonestly to transfer the property to Enterprise ICT Pty Ltd for the purpose of defeating the plaintiffs' existing rights. That conduct constituted fraud within the meaning of sections 42 and 43 of the Real Property Act 1900 (NSW), so Enterprise ICT Pty Ltd's registration did not defeat the plaintiffs' interest. The plaintiffs were entitled to relief including setting aside the registration, specific performance,...

Court Disposition

Plaintiffs' claim upheld against the first and third defendants; the defences of the first and third defendants rejected; the second defendant's cross claim described as misconceived and to be dismissed; final declarations and orders to be settled.

Orders

  • ["The plaintiffs' solicitors are to provide draft declarations and orders reflecting the reasons to the judge's associate and circulate them to all parties." 'When orders are made, there should be a stay for 21 days pending any application by the second defendant to protect her possible interest in the land.' "The...