Enterprise ICT Pty Ltd v Andy Vuong Duc Pham [2018] NSWCA 74

Enterprise ICT Pty Ltd v Andy Vuong Duc Pham [2018] NSWCA 74

The Court declined to adjourn because an adjournment had no utility in relation to the existing appeal and would deprive the stay application of utility. It declined to dismiss the appeal for want of due despatch because there was no formal application and no affidavit evidence supporting that drastic final measure. It declined to stay Slattery J's orders because the proposed appeal had little, if any, prospect of success and, although Mrs Sebie's condition was a powerful consideration, the balance of convenience did not favour a stay given the long-delayed completion, the Phams' finance position, and their undertaking not to further encumber or transfer the property for 6 months apart...

Jurisdiction
Australia
Judgment Date
12 April 2018
Procedural Posture
Civil Procedure Application in the Court of Appeal Concerning Adjournment, Dismissal for Want of Due Despatch, and Stay Pending Proposed Appeal / Urgent Referral From the Registrar's List Before a Single Judge of Appeal
Outcome
Application for adjournment declined; dismissal for want of due despatch declined; stay of Slattery J's orders declined; costs reserved.
Legal Topics
['stay of Judgment Pending Appeal' 'prospects of Success' 'balance of Convenience' 'adjournment' 'dismissal for Want of Due Despatch' 'specific Performance' 'caveat']
['civil Procedure' 'appellate Procedure' 'equity' 'property' 'contract'] ['stay of Judgment Pending Appeal' 'prospects of Success' 'balance of Convenience' 'adjournment' 'dismissal for Want of Due Despatch' 'specific Performance' 'caveat']

Case Brief

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Procedural Posture

Civil Procedure Application in the Court of Appeal Concerning Adjournment, Dismissal for Want of Due Despatch, and Stay Pending Proposed Appeal / Urgent Referral From the Registrar's List Before a Single Judge of Appeal

Legal Issues

  1. 1 ['Whether the proceedings should be adjourned to enable Enterprise ICT Pty Ltd and Robert Sebie to prepare and file a Red Book.' 'Whether the appeal against the orders of Pembroke J should be dismissed for want of due despatch.' "Whether the orders of Slattery J dated 29 March 2018 should be stayed pending the hearing of ENA Development Pty Ltd's proposed application for leave to appeal." 'Whether the proposed appeal had sufficient prospects of success to justify a stay.' "Whether the balance of convenience favoured a stay, including in light of evidence about Mrs Sebie's dementia and the undertaking offered by the Phams."]

Ratio Decidendi

The Court declined to adjourn because an adjournment had no utility in relation to the existing appeal and would deprive the stay application of utility. It declined to dismiss the appeal for want of due despatch because there was no formal application and no affidavit evidence supporting that drastic final measure. It declined to stay Slattery J's orders because the proposed appeal had little, if any, prospect of success and, although Mrs Sebie's condition was a powerful consideration, the balance of convenience did not favour a stay given the long-delayed completion, the Phams' finance position, and their undertaking not to further encumber or transfer the property for 6 months apart...

Court Disposition

Application for adjournment declined; dismissal for want of due despatch declined; stay of Slattery J's orders declined; costs reserved.

Orders

  • ['Decline application for adjournment of these proceedings.' 'Decline to order that the appeal be dismissed for want of due despatch.' 'Decline to make orders staying the orders of Slattery J dated 29 March 2018.' 'Reserve costs.']