Pham v Sebie [2015] NSWSC 745

Pham v Sebie [2015] NSWSC 745

Because a purchaser's specific performance suit is properly between the purchaser and vendor, and because removal of caveats is the vendor's responsibility rather than a basis for joining mortgagees and caveators, the second, third and fourth defendants should be struck out. The first defendant was allowed time to identify the issues and file evidence because he appeared, denied evading service, wished to defend, and an immediate costs order was inappropriate while the substituted service issue might later affect costs.

Jurisdiction
Australia
Judgment Date
12 June 2015
Procedural Posture
Purchaser's Suit for Specific Performance / Directions and Joinder Applications
Outcome
Matter adjourned for directions; second, third and fourth defendants struck out; costs reserved.
Legal Topics
['specific Performance' 'breach of Contract for Sale' 'joinder of Non Parties to Contract' 'torrens Title Caveats' 'removal of Caveats' 'substituted Service']
['conveyancing' 'equity' 'practice and Procedure' 'real Property'] ['specific Performance' 'breach of Contract for Sale' 'joinder of Non Parties to Contract' 'torrens Title Caveats' 'removal of Caveats' 'substituted Service']

Case Brief

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Procedural Posture

Purchaser's Suit for Specific Performance / Directions and Joinder Applications

Legal Issues

  1. 1 ["Whether the mortgagee and caveators should remain parties to a purchaser's specific performance suit against the vendor." 'What directions should be made after the first defendant appeared, indicated an intention to defend, and sought time to file material.' 'Whether costs should be ordered immediately in relation to the adjournment and the struck-out defendants.']

Ratio Decidendi

Because a purchaser's specific performance suit is properly between the purchaser and vendor, and because removal of caveats is the vendor's responsibility rather than a basis for joining mortgagees and caveators, the second, third and fourth defendants should be struck out. The first defendant was allowed time to identify the issues and file evidence because he appeared, denied evading service, wished to defend, and an immediate costs order was inappropriate while the substituted service issue might later affect costs.

Court Disposition

Matter adjourned for directions; second, third and fourth defendants struck out; costs reserved.

Orders

  • ['That the defendant, no later than 26 June 2015, serve on the plaintiff and file with the Court a statement of the issues that he says operate to deny the plaintiff relief in these proceedings.' 'The defendant should also file and serve by that date the affidavits on which he relies to substantiate the matters in...