In the matter of ENA Development Pty Ltd (in liq) (Costs)

[2023] NSWSC 162

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

In the matter of ENA Development Pty Ltd (in liquidation) (Costs) [2023] NSWSC 162

Hearing dates:

31 January 2023

Decision date:

28 February 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the costs of the notice of motion heard on 6 January 2023 are to be paid by Ronald Jemmott and Robert Sebie, as assessed on an indemnity basis, fixed in a gross sum of $27,899;

(2)    The costs in relation to the proposed amended notice of motion dated 19 January 2023 are to be paid by the applicant on the proposed amended notice of motion.

Catchwords:

COSTS – Gross sum costs order – Indemnity basis –Where applicant and another interested party sought stay of writ of possession – Where stay application refused – Where subsequent attempts to reagitate stay application

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98(4)(c)

Real Property Act 1900 (NSW), s 74MA

Cases Cited:

National Australia Bank Limited v Sayed [2020] NSWSC 1316

Category:

Costs

Parties:

Ronald Jemmott (Applicant)
Robert Sebie (Interested Party)
Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liq) (First Respondent)
ENA Development Pty Ltd (in liq) (Second Respondent)

Representation:

Counsel:
M L Rose (Respondents)
R Sebie (in person)

Solicitors:
D Carbone (Applicants on motion)

File Number(s):

2022/00032115

JUDGMENT

Background

1. On 6 January 2023, sitting as Duty Judge, I heard a notice of motion which was filed on 22 December 2022 (“the notice of motion”) in which Ronald Jemmott, in his capacity as a director and manager of Enterprise INT Pty Ltd (INT) and the sole director of One T Development Pty Ltd (One T), sought a stay of execution of a writ of possession that has been granted to the liquidator of ENA Development Pty Ltd (ENA Development) in respect of premises owned by ENA Development which are located in Homebush (the Homebush property). Mr Jemmott claimed that INT was a leaseholder of the premises and that he personally resided there as a caretaker of the property. Rocco Ardino, a solicitor, was granted leave to appear at the hearing for Mr Jemmott as amicus curiae. Part of the basis of Mr Jemmott’s prayer that the order for possession be stayed was a claim that ownership of the Homebush property had been transferred from ENA Development to One T. Robert Sebie, a previous director and shareholder of ENA Development, sought leave to be joined in the proceedings. He also claimed to be a resident of the premises.

2. In an ex tempore judgment delivered at the conclusion of the hearing (which occupied one hearing day) I refused the stay application and Mr Sebie’s application to be joined. Evidence emerged during the course of the hearing that the premises had been expressly disapproved by the Local Council authority for residential use. I stood over a hearing in respect of the issue of costs of the application to 31 January 2023

3. On Friday 20 January 2023, Mr Jemmott, in his capacity as a director of INT, wrote to the Duty Judge in Equity, attaching an amended notice of motion dated 19 January 2023 (the amended notice of motion) and a statement of claim signed by him on 16 December 2022, requesting that the matter be listed during the following week and anticipating that he would seek leave to file those documents in Court. On Monday 23 January 2023, the matter was listed before me on the same date as the costs hearing, in view of the apparent overlap between the orders sought in the amended notice of motion and those that were sought in the applicant’s notion of motion which was determined on 6 January 2023. There are similarities between the statements of claim in that they bear the identical date of 16 December 2022 and are both signed by Mr Jemmott, but they differ somewhat as to their content. The amended notice of motion identified two entities seeking orders, being INT and Enterprise ICT Pty Ltd (ICT). The names Ronald Jemmott and One T had been typed in but then crossed out.

4. On 31 January 2023, there was an appearance by a solicitor, Dominic Carbone, for Mr Jemmott in relation to the amended notice of motion. He sought an adjournment in order “to put on further material” until 14 February 2023. He was invited to elaborate on that submission but declined to do so. Mr Sebie appeared, seeking leave to appear on behalf of ICT, and supported the application for an adjournment, for the reason that proceedings in other Courts would possibly obviate the need for the matter to proceed on 14 February 2023. The application was opposed, on the basis that an urgent hearing had been sought as early as 19 January 2023 by the amended notice of motion and there was now no explanation as to why the applicants were not ready to proceed.

5. The application for the adjournment was refused, and the parties were invited to proceed to a hearing. Mr Carbone then informed the Court that he would not seek leave to file the amended notice of motion.

6. In relation to the costs hearing, Mr Carbone appeared for the applicants. He and Mr Sebie sought an extension of time to respond to material that had been filed by the respondent that morning. I granted that application, allowing Mr Carbone and Mr Sebie eight days to file a response in writing. Accordingly, the respondents were to file any further written submissions as to costs by 5pm, Wednesday 1 February 2023 and the applicants and Mr Sebie were to provide any written submissions in reply by 5pm, Wednesday 8 February 2023. Written submissions as to costs were duly provided by the respondents within time. No submissions as to costs were received for the applicant or Mr Sebie.

Submissions of the respondents

7. The respondents seek that their costs for the notice of motion (and amended notice of motion), together with their costs of subsequent related applications, be paid by Mr Sebie and Mr Jemmott. The respondents submit that their costs ought to be assessed on the indemnity basis and fixed in a gross sum, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). They further seek that their costs of the amended notice of motion be paid on the ordinary basis.

8. The respondents note that on 5 January 2023, the day prior to the hearing of the stay application, a letter was sent by their solicitor to Mr Sebie and Mr Jemmott. That letter is annexed to an affidavit of Blake Joel O’Neill, affirmed on 31 January 2023, that was read on the costs application. It provides detailed reasons as to why the stay application would fail and invited Mr Sebie and Mr Jemmott to consent to orders dismissing the motion with the respondents’ costs paid on the ordinary basis. The offer was not accepted.

9. The calculation of costs incurred by the respondents is set out in detail in the affidavit of Mr O’Neill. Mr O’Neill calculated that the costs of the notice of motion, and subsequent attempts by Mr Sebie and Mr Jemmott to obtain similar relief, to be $29,955. A 10 per cent discount to the solicitors’ costs is applied such that the total costs claimed amount to $27,899.

10. The respondents submitted that a gross sum costs order for this amount is appropriate, having regard to the following:

1. the amount is consistent with the figure claimed in National Australia Bank Limited v Sayed [2020] NSWSC 1316, a case in which fixed costs of $31,000 were ordered in relation to a one-day hearing of an application to withdraw a caveat pursuant to s 74MA of the Real Property Act 1900 (NSW);

2. Mr Sebie and Mr Jemmott each served “voluminous” affidavits and made “lengthy” submissions to the Court over the course of the one-day hearing on 6 January 2023;

3. Mr Sebie and Mr Jemmott did not accept the offer made by the respondents prior to the hearing; the offer being reasonable and involving “a real element of compromise”; and

4. any costs assessment process would be delayed or frustrated by the conduct of Mr Sebie and Mr Jemmott, having regard to their attempts to reagitate the stay application before the Duty Judge in Common Law and the Duty Judge in Equity following my judgment on 6 January 2023.

Consideration

11. Although Mr Sebie was not ultimately granted leave to appear at the hearing on 6 January 2023, he served voluminous evidence and made detailed submissions, taking up much of the day of hearing time.

12. The principles relevant to the assessment of costs on a gross sum basis were, as noted by the respondents, summarised by Ward CJ in Eq (as her Honour then was) in National Australia Bank Limited v Sayed [2020] NSWSC 1316. I am satisfied that the amount sought is reasonable, taking into account each of the matters noted at [10](1)-(3) above, and that an order for costs on a gross sum basis is appropriate, given the steps taken by Mr Jemmott and Mr Sebie that are outlined in [10](4) above.

Orders

13. I make the following orders:

1. Pursuant to s 98(4)(c) of the Civil Procedure Act2005 (NSW), the costs of the notice of motion heard on 6 January 2023 are to be paid by Ronald Jemmott and Robert Sebie, as assessed on an indemnity basis, fixed in a gross sum of $27,899;

2. The costs in relation to the proposed amended notice of motion dated 19 January 2023 are to be paid by the applicant on the proposed amended notice of motion.

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Amendments

18 May 2023 - Typographical error corrected at [4]

Decision last updated: 18 May 2023