Andy Duc Pham v Enterprise ICT Pty Ltd

[2021] NSWSC 447

Supreme Court

New South Wales

Medium Neutral Citation:

Andy Duc Pham v Enterprise ICT Pty Ltd [2021] NSWSC 447

Hearing dates:

28 April 2021

Decision date:

29 April 2021

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

See para [13]

Catchwords:

COSTS — Costs assessment — Determination — Review/appeal

Legislation Cited:

Legal Profession Act 2004 (NSW)

Legal Profession Uniform Law Application Act 2014 (NSW)

Cases Cited:

Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555; [2019] HCA 29

Category:

Costs

Parties:

Andy Vuong Duc Pham (first plaintiff)
Thi Hunog Giang Pham (second plaintiff)
Enterprise ICT Pty Ltd (first defendant)
Ms Musabwasoni (second defendant)
Robert Sebie (third defendant)

Representation:

Counsel:
B Zipser (plaintiff)
A Duc (second defendant)

Solicitors:
Pham Lawyers
Mills Oakley (2nd def)
Ms S Georgy with leave (ENA)
R Sebie (self represented)

File Number(s):

2015/325044

Judgment – ex tempore

1. I will now deal with the costs incurred in relation to the plaintiffs in respect of the Court of Appeal proceeding (2018/172378). These costs are dealt with first in Mr Zipser's submission, which was filed in court on 17 April 2021 followed up by a further submission filed yesterday 27 April. The amount involved is $45,296.06 and there is an amount of interest to be added to that amount.

2. Mr Sebie, against whom the order is sought, opposes that, and I will hear him in a moment on the actual amount claimed. Prior, however, to his opposition, Mr Sebie seeks to have heard out of time an application to review the costs certificate issued by Mr Rosier, the costs assessor, dated 30 April 2020, which he certified on 25 June 2020, and by which he fixed the amount of costs.

3. The costs assessment was conducted pursuant to the Legal Profession Uniform Law Application Act 2014 (NSW) ss 70 and 78. I have before me that certificate. There is, in addition, reasons for determination of Mr Rosier dated 30 April. I will return to those in a moment.

4. Mr Sebie has filed or, I should say, has attempted to file in court an application to review as that costs assessment but has only done so, so it seems, for the first time on 26 April this year. He has acknowledged that he was previously aware of the costs assessment and therefore the certificate at some point in the middle of 2020, although he did not tell me precisely when. But I am proceeding upon the basis that he was well aware of the process and indeed the certificate perhaps shortly after the certificate was issued.

5. In the review application, which he seeks to agitate, amplified by some oral submissions this morning, he seeks to submit that the costs assessor was biased towards him. He calls in aid a decision of the High Court of Australia. He wishes to make serious allegations, it seems to me, about Mr Zipser and the scope of conduct he submits Mr Zipser was entitled to undertake for the purposes of the assessment.

6. He also submitted this morning that one of the reasons why there has been a significant delay of many months - probably eight or nine - is first a series of health issues on his part. As he described it, he has been bombarded with materials and other applications and on top of which he has only just discovered or recently had drawn to his attention the decision of Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555; [2019] HCA 29 (“Bell v Pentelow”).

7. The reasons for determination of Mr Rosier of 30 April 2020 set out clearly the terms of the review, and indeed those reasons expressly refer to Bell v Pentelow in the review. The review, as I have indicated, is under the hand of a Mr Rosier. Mr Rosier indicates that he wrote to the parties seeking any objections, and he also says in his review that it became clear to him, since some costs were probably not recoverable, that the first named applicant at least, as a lawyer, had been acting for himself. So he took into account Bell v Pentelow, the very matter Mr Sebie indicates he would like the assessor, if the new assessment were to take place, to be taken into account.

8. Mr Rosier then considered various invoices which were before him and various provisions of the Legal Profession Act 2004 (NSW) and then issued his certificate accordingly.

9. In my view, leave should not be granted for the application for review now sought to be made for numerous reasons. First, it is out of time, and I do not regard any of the reasons in writing or alternatively added to by Mr Sebie orally this morning as adequate to explain his delay in terms of explaining his delay in seeking the review of the application. Secondly, in my view in any event, because of the materials Mr Rosier had before him and because he was acutely alive to the issue of Bell v Pentelow, I would regard any opportunity now to seek a review of that assessment as entirely unmeritorious and grossly unfair.

10. In those circumstances, I refuse Mr Sebie the leave to proceed with a belated review of that assessment.

11. Application in addition is made this morning by Mr Zipser on behalf of the plaintiffs that I make an order in terms of paragraph 9 of his submissions, namely that the liability of Mr Sebie to pay the plaintiffs' costs of the Court of Appeal in relation to the particular proceeding be paid forthwith from the fund.

12. First, prior to today, I have invited Mr Sebie as it turns out numerous times to comment on the actual amounts claimed. He points to an invoice of $7,000 and to other items, and reiterates his allegation about the kind of work Mr Zipser was performing. The problem with that is that the review reasons for determination notes that no objections were received by the assessor to the process. The invoice of $7,000 it seems was taken into account. That is clear from Mr Rosier’s reasons at paragraph 5.

13. I do not regard any of the submissions made as to the amounts that are claimed as explaining or challenging, in any material way, those amounts and so therefore I would direct that those amounts be paid.

14. The final issue on the question of the $47,000 odd arises on the question of whether it should come out of the fund currently in court, excluding the amount quarantined previously for ENA, and I am talking of course about the fund as defined.

15. It is time for Mr Pham to get away from these proceedings if at all possible. It seems that he has been incurring additional costs for no particularly good reason, and although it is put by Mr Sebie, and has been put constantly, that the moneys are ENA's or at least not Mr Pham's, and it has certainly been supported by Ms Georgy for ENA, in my view as a matter of discretion as there is doubt about the question it seems to me that I should direct that these moneys be paid out of the fund and be paid forthwith, and that is the order I propose to make.

16. I should add, though, that Mr Sebie has made a series of allegations which have absolutely nothing to do with the question of priorities. They have to do with some allegations of impropriety or misconduct that at some point he or Mr Jermott for ENA may wish to move against Mr Zipser as a practitioner. It does not seem to me that that is relevant at all to the question I have to deal with this morning. So I propose to make an order in accordance with paragraph 9 of Mr Zipser's outline.

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Decision last updated: 29 April 2021