Pham v Enterprise ICT Pty Ltd (No 2) [2017] NSWSC 583

Pham v Enterprise ICT Pty Ltd (No 2) [2017] NSWSC 583

Because the transfer of the property from Robert Sebie to Enterprise ICT Pty Ltd had been found fraudulent and intended to defeat the plaintiffs' rights as purchasers, the Court set aside and regularised the title, vested the property in Robert Sebie, ordered specific performance of the contract, refused damages for lack of proved loss, ordered indemnity costs against the first and third defendants due to dishonesty, required completion arrangements preserving any second defendant claim, and removed Rose Sebie's caveat as transparently unsustainable.

Jurisdiction
Australia
Judgment Date
15 May 2017
Procedural Posture
Equity Proceedings Concerning Fraudulent Transfer of Land, Specific Performance, Caveat Removal and Costs / Post Judgment Hearing on Appropriate Orders Following Reasons Delivered on 26 April 2017
Outcome
Declarations and orders made; damages not awarded; plaintiffs awarded costs against the first and third defendants with indemnity costs as specified; caveat removed.
Legal Topics
['fraudulent Conveyance' 'defeasibility for Fraud' 'vesting Order' 'specific Performance of Contract for Sale of Land' 'indemnity Costs' 'removal of Caveat' 'registrar General Cancellation and Creation of Folio']
['equity' 'real Property' 'costs' 'contract'] ['fraudulent Conveyance' 'defeasibility for Fraud' 'vesting Order' 'specific Performance of Contract for Sale of Land' 'indemnity Costs' 'removal of Caveat' 'registrar General Cancellation and Creation of Folio']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Fraudulent Transfer of Land, Specific Performance, Caveat Removal and Costs / Post Judgment Hearing on Appropriate Orders Following Reasons Delivered on 26 April 2017

Legal Issues

  1. 1 ['What orders should be made to give effect to the finding that the transfer of the Chiswick property from Robert Sebie to Enterprise ICT Pty Ltd was fraudulent.' 'Whether the existing folio and certificate of title should be cancelled and replaced under the Real Property Act 1900 (NSW).' 'Whether the third defendant should specifically perform the contract for sale of land dated 29 October 2014.' "Whether the plaintiffs proved loss and damage caused by the third defendant's breach of contract represented by rent paid for the Abbotsford premises." "Whether the first and third defendants should pay the plaintiffs' costs on an indemnity basis." 'Whether Caveat No AM326605 lodged in the name of Rose Sebie should be removed.' 'How to preserve any claim by the second defendant while allowing completion of the contract.']

Ratio Decidendi

Because the transfer of the property from Robert Sebie to Enterprise ICT Pty Ltd had been found fraudulent and intended to defeat the plaintiffs' rights as purchasers, the Court set aside and regularised the title, vested the property in Robert Sebie, ordered specific performance of the contract, refused damages for lack of proved loss, ordered indemnity costs against the first and third defendants due to dishonesty, required completion arrangements preserving any second defendant claim, and removed Rose Sebie's caveat as transparently unsustainable.

Court Disposition

Declarations and orders made; damages not awarded; plaintiffs awarded costs against the first and third defendants with indemnity costs as specified; caveat removed.

Orders

  • ['Declaration that the transfer of lot 2 in DP 241738, known as 11 Tutt Crescent, Chiswick, from the third defendant to the first defendant registered on 10 August 2015 dealing number AJ713539 was fraudulent, and that the title of the first defendant in the Property is defeasible for fraud within the meaning of ss...