Sebie v Pham [2019] NSWCA 58

Sebie v Pham [2019] NSWCA 58

Applicants failed to demonstrate a proper basis for a stay; the respondents' undertaking to preserve the property and substantial assets lessen any prejudice. The primary judge's orders for payment out should stand pending appeal, and applicants are protected by ongoing undertakings, rights against remaining funds, and personal restitution rights.

Jurisdiction
Australia
Judgment Date
25 March 2019
Procedural Posture
Appeal / Application for Stay Pending Leave to Appeal
Outcome
stay refused; paragraph 10 of application dismissed; costs ordered against applicants
Legal Topics
['stay of Execution' 'costs' 'appellate Practice' 'property' 'undertakings']
['civil Procedure'] ['stay of Execution' 'costs' 'appellate Practice' 'property' 'undertakings']

Case Brief

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Procedural Posture

Appeal / Application for Stay Pending Leave to Appeal

Legal Issues

  1. 1 ['Whether orders for payment out of moneys in court should be stayed pending determination of related proceedings and appeal' 'Whether applicants have demonstrated a proper basis for a stay' "Effect of undertakings proffered by respondents to protect applicants' interests"]

Ratio Decidendi

Applicants failed to demonstrate a proper basis for a stay; the respondents' undertaking to preserve the property and substantial assets lessen any prejudice. The primary judge's orders for payment out should stand pending appeal, and applicants are protected by ongoing undertakings, rights against remaining funds, and personal restitution rights.

Court Disposition

stay refused; paragraph 10 of application dismissed; costs ordered against applicants

Orders

  • ['I note the undertaking of counsel appearing for Mr and Mrs Pham on behalf of his clients not to further encumber or transfer the property until the earlier of four months from today or determination of the appeal, and not to transfer the property for six months without written notice to applicants.' 'Dismiss...