Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185

Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185

The appeal failed because the primary judge's findings that Robert Sebie sent the 11 February 2015 email with fabricated secured loan documents and that the alleged secured loan agreement was not genuine were supported by the evidence and credibility findings; Richard Sebie, as sole director and representative of Enterprise ICT Pty Ltd, knowingly gave false evidence supporting ENA Development Pty Ltd's possession proceeding and consent orders and thereby brought actual knowledge of the fraud home to Enterprise ICT Pty Ltd; the proposed further evidence was available at trial or could have been obtained earlier and did not satisfy the special grounds requirement; and the procedural...

Jurisdiction
Australia
Judgment Date
15 August 2018
Procedural Posture
Appeal From Orders Setting Aside as Fraudulent a Transfer of Land and Ordering Specific Performance of a Contract for Sale of Land; Application to Receive Further Evidence on Appeal / Court of Appeal Determination of Paragraph 2 of the Appellants' Notice of Motion Dated 24 July 2018 and Amended Notice of Appeal
Outcome
Paragraph 2 of the appellants' notice of motion dated 24 July 2018 dismissed; amended notice of appeal dismissed; appellants ordered to pay the respondents' costs of the appeal, including the notice of motion.
Legal Topics
['torrens Title' 'exceptions to Indefeasibility' 'fraud' 'specific Performance of Contract for Sale of Land' 'application to Receive Additional Evidence on Appeal' 'procedural Fairness']
['land Law' 'civil Procedure'] ['torrens Title' 'exceptions to Indefeasibility' 'fraud' 'specific Performance of Contract for Sale of Land' 'application to Receive Additional Evidence on Appeal' 'procedural Fairness']

Case Brief

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Procedural Posture

Appeal From Orders Setting Aside as Fraudulent a Transfer of Land and Ordering Specific Performance of a Contract for Sale of Land; Application to Receive Further Evidence on Appeal / Court of Appeal Determination of Paragraph 2 of the Appellants' Notice of Motion Dated 24 July 2018 and Amended Notice of Appeal

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that the transfer to Enterprise ICT Pty Ltd was fraudulent within Real Property Act 1900 (NSW), s 42.' "Whether a secured loan agreement executed in 2005 existed in the form used to justify ENA Development Pty Ltd's judgment for possession and the subsequent transfer to Enterprise ICT Pty Ltd." 'Whether fraud was brought home to Enterprise ICT Pty Ltd through Richard Sebie.' 'Whether further evidence should be received on appeal under Supreme Court Act 1970 (NSW), s 75A(7)-(9).' "Whether the primary judge denied procedural fairness by refusing to call further witness evidence or receive Rose Sebie's affidavit." 'Whether payment of stamp duty by Enterprise ICT Pty Ltd constituted consideration for the transfer.']

Ratio Decidendi

The appeal failed because the primary judge's findings that Robert Sebie sent the 11 February 2015 email with fabricated secured loan documents and that the alleged secured loan agreement was not genuine were supported by the evidence and credibility findings; Richard Sebie, as sole director and representative of Enterprise ICT Pty Ltd, knowingly gave false evidence supporting ENA Development Pty Ltd's possession proceeding and consent orders and thereby brought actual knowledge of the fraud home to Enterprise ICT Pty Ltd; the proposed further evidence was available at trial or could have been obtained earlier and did not satisfy the special grounds requirement; and the procedural...

Court Disposition

Paragraph 2 of the appellants' notice of motion dated 24 July 2018 dismissed; amended notice of appeal dismissed; appellants ordered to pay the respondents' costs of the appeal, including the notice of motion.

Orders

  • ["Dismiss paragraph 2 of the appellants' notice of motion dated 24 July 2018." 'Dismiss the amended notice of appeal.' "Order the appellants pay the first and second respondents' and the third respondent's costs of the appeal, including the notice of motion."]