Enterprise ICT Pty Ltd v Pham (No 3)

Enterprise ICT Pty Ltd (the applicant) sought orders against Mr. and Mrs. Pham (the respondents) for the payment of costs from a fund. The application was made out of time and involved unexplained delay. The matter came before the New South Wales Court of Appeal.

The primary legal issue before the Court was whether to grant an application for a gross sum costs order and payment from a fund, notwithstanding that the application was made significantly out of time and without a satisfactory explanation for the delay.

The Court considered the principles governing applications for costs orders, particularly where there has been a substantial delay in bringing the application. The Court noted that while it has broad discretion to make orders for costs, this discretion is not unfettered and is guided by considerations of fairness and the need for timely resolution of litigation. The unexplained delay in bringing the application was a significant factor weighing against the respondents. The Court found that the respondents had not provided a sufficient explanation for the delay, and that granting the application would be contrary to the principles of procedural fairness and the efficient administration of justice.

The Court dismissed the first and second respondents’ notice of motion filed on 26 February 2019 and made no order as to the costs of the motion.