Enterprise ICT Pty Ltd v Pham (No 3)

[2019] NSWCA 138

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Enterprise ICT Pty Ltd v Pham (No 3) [2019] NSWCA 138
Hearing dates:	On the papers
Decision date:	13 June 2019
Before:	Basten JA; Meagher JA; Emmett AJA
Decision:	(1)   Dismiss the first and second respondents’ notice of motion filed on 26 February 2019.  (2)   No order as to the costs of the motion.
Catchwords:	PROCEDURE – judgments and orders – amending, varying and setting aside – application for gross sum costs order and payment from a fund – application made out of time with unexplained delay
Cases Cited:	Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185
Category:	Procedural and other rulings
Parties:	Enterprise ICT Pty Ltd (First Appellant) Robert Sebie (Second Appellant)   Andy Voung Duc Pham (First Respondent) Thi Huong Giang Pham (Second Respondent) Nadine Musabwasoni (Third Respondent)
Representation:	R Sebie (self-represented and with leave for First Appellant)   Andy Pham Lawyers (First and Second Respondents)
File Number(s):	2017/172378
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2017] NSWSC 583; [2017] NSWSC 446 Date of Decision: 15 May 2017; 26 April 2017 Before: Pembroke J File Number(s): 2015/325044

Judgment

1. THE COURT: On 15 August 2018 a bench of this Court dismissed an appeal by Enterprise ICT Pty Ltd and Robert Sebie from orders made in the Equity Division. [1] Order (3) required that the appellants pay the first and second respondents’ costs of the appeal, including a notice of motion filed by the appellants dated 24 July 2018, which was relevantly dismissed pursuant to order (1). The first and second respondents were Andy Voung Duc Pham and Thi Huong Giang Pham. The third respondent was the former wife of Mr Sebie, Nadine Musabwasoni.

   1. Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185 (Basten and Meagher JJA, Emmett AJA).

2. On 26 February 2019 the first and second respondents (the Phams) filed a notice of motion seeking three orders which, in summary, were as follows:

1. a gross sum costs order with respect to their costs in this Court payable by Robert Sebie;

2. an order that those costs be paid out of a fund held in the Supreme Court following completion of a contract of sale of land from Robert Sebie to the Phams on 2 May 2018; and

3. an order that Robert Sebie pay the costs of the motion.

3. Much evidence has been filed in support of the motion, together with written submissions by both parties and by the Phams in reply. It is not necessary to refer to any of this material except to note that the amount of the gross sum costs order sought by the Phams was $33,103 for the proceedings in this Court until the dismissal of the appeal, and $10,442 in respect of the present notice of motion. Both figures were contained in written submissions dated 21 March 2019. There has been further material filed since that date.

4. None of the orders sought should be made.

5. First, with respect to the application for a gross sum costs order in this Court, such an order would involve a variation of the costs order made on 15 August 2018. The application was made by notice of motion more than six months after judgment was delivered and the orders were entered. As the coversheet of the judgment indicated, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.16, any application to vary the orders of the Court must be made within 14 days of the date of entry, which is usually the date on which judgment is delivered. That was not done in the present case. Accordingly, the Court cannot entertain an application to vary the costs order.

6. Even if the Court had power, there is no explanation as to why the application was made after such a long delay and the power would not in any event be exercised. Order (1) is rejected.

7. With respect to the application for payment out of the fund, the fund was not created by an order of this Court and is subject, it appears, to directions of a judge in the Equity Division, from whence the appeal proceedings were brought. Any application with respect to the disbursement of the fund should be made to a duty judge in the Equity Division.

8. With respect to the costs of this motion, because the motion must be dismissed, the Phams are not entitled to costs.

9. The notice of motion filed by the Phams on 26 February 2019 should be dismissed. There should be no order as to costs.

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