Sebie v Pham (No 4) [2021] NSWCA 326

Sebie v Pham (No 4) [2021] NSWCA 326

The stay application was dismissed because the proposed special leave application had no substantial prospects of success: the challenged Court of Appeal decision concerned practice and procedure, namely refusal of leave to appeal from judgments and orders, and no obvious question of principle arose. In addition, insofar as the application was brought for ENA, it had not been carried on in accordance with the rules governing company representation, and the Court was not persuaded to dispense with those requirements.

Jurisdiction
Australia
Judgment Date
16 December 2021
Procedural Posture
Application for Stay of Orders Pending Application for Special Leave to Appeal to the High Court / Court of Appeal Procedural Ruling on Amended Notice of Motion
Outcome
Application dismissed with costs.
Legal Topics
['stay Pending Special Leave Application' 'payment Out of Funds Held in Court' 'leave to Appeal' 'corporate Representation' 'uniform Civil Procedure Rules 2005 (nsw) Rr 7.1 and 7.2']
['civil Procedure' 'appellate Procedure'] ['stay Pending Special Leave Application' 'payment Out of Funds Held in Court' 'leave to Appeal' 'corporate Representation' 'uniform Civil Procedure Rules 2005 (nsw) Rr 7.1 and 7.2']

Case Brief

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Procedural Posture

Application for Stay of Orders Pending Application for Special Leave to Appeal to the High Court / Court of Appeal Procedural Ruling on Amended Notice of Motion

Legal Issues

  1. 1 ['Whether orders for payment of funds out of court should be stayed pending an application for special leave to appeal to the High Court.' 'Whether there was a substantial prospect that special leave to appeal would be granted.' 'Whether ENA Development Pty Ltd had carried on the application in accordance with the rules governing company representation by a director.' 'Whether the rules requiring a company to act through a solicitor or authorised director should be dispensed with.']

Ratio Decidendi

The stay application was dismissed because the proposed special leave application had no substantial prospects of success: the challenged Court of Appeal decision concerned practice and procedure, namely refusal of leave to appeal from judgments and orders, and no obvious question of principle arose. In addition, insofar as the application was brought for ENA, it had not been carried on in accordance with the rules governing company representation, and the Court was not persuaded to dispense with those requirements.

Court Disposition

Application dismissed with costs.

Orders

  • ['Dismiss the amended notice of motion dated 27 November 2021 with costs.']