One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (No 2)

[2023] NSWCA 136

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (No 2) [2023] NSWCA 136
Hearing dates:	On the papers
Decision date:	20 June 2023
Before:	Ward P; Leeming JA; Mitchelmore JA
Decision:	Application to vary order 1 made on 2 June 2023 refused.
Catchwords:	PRACTICE – application to vary costs order – no basis for variation made out
Cases Cited:	One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd [2023] NSWCA 120
Category:	Costs
Parties:	One T Development Pty Ltd (Appellant) Peter Krejci in his capacity liquidator of ENA Development Pty Ltd (First Respondent) ENA Development Pty Ltd (in liq) (Second Respondent) Andy Pham (Third Respondent) Thi Pham (Fourth Respondent)
Representation:	Counsel: Mr R Jemmott (Appellant) Solicitors: Sydney Law Practice (Appellant)
File Number(s):	2022/223074
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division – Corporations List Citation: [2022] NSWSC 919 Date of Decision: 11 July 2022 Before: Stevenson J File Number(s): 2022/32115

Judgment

1. THE COURT: This Court dismissed the appeal brought by One T Development Pty Ltd on 2 June 2023: One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd [2023] NSWCA 120. Orders 1 and 4 were in the following terms:

1. Appeal dismissed, with costs, and (subject to the determination of any application of the kind provided for by order 4 below), costs after the hearing of the appeal are to be on the indemnity basis.

4. If any application is to be made by the appellant for a different costs order than that suggested in the reasons for judgment, that application is to be made within the time specified by UCPR r 36.16, and accompanied by submissions not exceeding two pages to be supplied by email to the Associate to the President, with submissions in response not exceeding two pages to be supplied within 7 days thereafter, and any submissions in reply not exceeding two pages within a further 7 days, with the application then to be determined on the papers.

2. A submission exceeding two pages, signed by Mr Ronald Jemmott, was provided under cover of an email from Mr Carbone on 13 June 2023, which was written under the misapprehension that it was late and that he had only seven days to respond. Mr Carbone did not respond to the email from the President’s Associate advising him that the time provided for in UCPR r 36.16 was 14 days, but filed a further submission, once more signed by Mr Jemmott, on 16 June 2023. The submission is six single-spaced pages with four pages of annexures relating to stamp duty. It replicates the entirety of the earlier submission, but inserts additional paragraphs.

3. We pass over the length of the submission, and the fact that it purports to be authored by Mr Jemmott rather than the appellant’s solicitor. Save for two points, the submission is directed to matters other than those bearing on the question of indemnity costs for the period after the hearing of the appeal. The submission is mostly directed to an issue which arose during the hearing concerning the compliance with an undertaking to pay stamp duty. The submission stated, correctly, that this was not addressed in the Court’s judgment. It was not addressed because it was not necessary to do so.

4. The exceptional paragraphs which do purport to deal with the discretion as to costs of the appeal are difficult to summarise. It is best to reproduce paragraphs 2 and 13 verbatim:

On the 1 February 2023, Brereton J and Macfarlan J requested and were provided the alleged email from Mr Mentesh containing the clear docs invoice. That email is annexure to this submission. On 8 February 2023 Brereton J and Macfarlan J made orders for leave, taking that email from Mr Mentesh into consideration. Based on this information that was the respondent’s evidence which added to the White folder in front of Brereton J and Macfarlan J on the 2 February 2023. There should have been no further time or costs allocated by the respondent associated with re-drafting the white folder after appeal hearing on the 20 April 2023. Hence, indemnity costs should not apply after the 20 April 2023. Annexure “A” Page 1 is that email sent to Brereton J.

On the 8 February 2023, Brereton J and Macfarlan J provided leave for appeal, the evidence included in that leave application was the alleged email from Mr Mentesh which was forward to Mr Florian on the 12 May 2022 which determined the judgement [2023] NSWCA 120. If the Summons to Leave for Appeal didn’t have weight, their honours Brereton J and Macfarlan J would of not provided leave to puruse the Notice of Appeal. Hence the appellants ask this court vary the judgment [2023] NSWCA 120 as outline above and costs to be paid on party to party basis. [sic]

5. Nothing in those paragraphs (or anywhere else in the submission) provides any explanation for the weeks spent attempting to assemble white folders to include the basic documents which should have been included by the appellant prior to the hearing of the appeal and which, when belatedly they were provided, failed to include the portions of evidence which had been rejected or admitted only on a limited basis. There is no reason to depart from the costs order made on 2 June 2023.

6. Shortly after receiving the second submission from the appellant, the respondents were contacted by the Court stating that no response was required and listing the matter for judgment.

7. The Court’s order is that the application to vary the costs order made on 2 June 2023 is refused.

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Decision last updated: 20 June 2023