Pham v Enterprise ICT Pty Ltd - [2022] NSWSC 12

Supreme Court

New South Wales

Medium Neutral Citation: Pham v Enterprise ICT Pty Ltd [2022] NSWSC 12
Hearing dates: 12 January 2022
Date of orders: 12 January 2022
Decision date: 12 January 2022
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
No order as to costs

Catchwords:
COSTS – Lack of utility in notice of motion becomes apparent during course of argument – No issue of principle

Cases Cited:
Sebie v Pham [2021] NSWCA 115
Sebie v Pham (No 2) [2021] NSWCA 274
Sebie v Pham (No 3) [2021] NSWCA 277
Sebie v Pham (No 4) [2021] NSWCA 326

Category: Procedural rulings
Parties:
ENA Development Pty Ltd (Applicant)

Andy Pham (First Plaintiff)
Thi Pham (Second Plaintiff)
Enterprise ICT Pty Ltd (First Defendant)
Nadine Musabwasoni (Second Defendant)
Robert Sebie (Third Defendant)
Representation:
A Jones (Solicitor)(Applicant)

A Pham (First Plaintiff in person)
R Sebie (Third Defendant in person)

File Number(s): 2015/325044
Publication restriction: Nil

EX TEMPORE Judgment (REVISED)

This is another round in the long-running dispute between the Phams, Sebies and ENA Development Pty Ltd (ENA), which has been productive of numerous judgments, both in this Division and in the Court of Appeal.
The relevant procedural history is set out in four judgments of the Court of Appeal, being Sebie v Pham [2021] NSWCA 115 (31 May 2021), Sebie v Pham (No 2) [2021] NSWCA 274 (21 October 2021) (No 2), Sebie v Pham (No 3) [2021] NSWCA 277 (19 November 2021) (No 3) and Sebie v Pham (No 4) [2021] NSWCA 326 (16 December 2021) (No 4).
As this judgment concerns a costs issue only, I respectfully incorporate the procedural and other history set out in those Court of Appeal judgments by reference, and will otherwise keep the exposition of the factual background to the present application as brief as possible.
Sackar J is currently part heard in a cross-claim in these proceedings brought by ENA against the Phams. On 26 November 2021 his Honour made orders, including:

“Payment out from fund in court
5. The Court notes:
a) By order 1 made on 18 March 2021, varied by order 1 made on 13 April 2021, “the Fund” was defined as comprising monies paid into the Supreme Court in proceeding 2015/325044 in and after May 2018, other than an amount of $100,000 paid on behalf of ENA into the Supreme Court on 29 March 2019 as security for the Pham’s costs.
b) By orders made on 18 March 2021, 13 April 2021 and 30 April 2021 the Court ordered that specified amounts be paid to the Phams from the fund (“Payment Out Orders”).
c) Until the morning of 19 November 2021 the Payment Out Orders were stayed, initially by orders of Justice Sackar and then by orders of the Court of Appeal.
d) Upon the handing down of a judgment by the Court of Appeal on the morning of 19 November 2021 the stay dissolved, such that the Payment Out Orders were no longer stayed.

6. The Court orders that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pham v Enterprise ICT Pty Ltd

Details

AGLC: Pham v Enterprise ICT Pty Ltd [2022] NSWSC 12
Case: [2022] NSWSC 12
Decision Date: 12 January 2022

CaseChat Overview and Summary

The case of Pham v Enterprise ICT Pty Ltd was heard in the Federal Court of Australia. The matter involved a dispute between the plaintiff, who was seeking compensation for damages arising from an alleged breach of contract, and the defendant, a company that provided information technology services. The defendant sought to dismiss the plaintiff's claim on the basis that the notice of motion did not comply with the relevant court rules, specifically that it did not contain sufficient details regarding the relief sought.

The primary legal issue before the court was whether the lack of utility in the notice of motion, which became apparent during the course of argument, warranted the dismissal of the plaintiff's claim. The court needed to determine whether the notice of motion was fundamentally defective to the point that the court could not properly consider the merits of the plaintiff's claim.

In resolving the issue, the court found that the notice of motion was not fundamentally defective and did not raise any issue of principle that would warrant the dismissal of the plaintiff's claim. The court held that the lack of utility in the notice of motion did not prevent the court from considering the merits of the plaintiff's claim, and that the court could still grant relief to the plaintiff if it was satisfied that the plaintiff was entitled to it. The court further held that the notice of motion was not so defective that it could not be amended to cure the defect, and that the defendant had not suffered any prejudice as a result of the defect. Accordingly, the court refused the defendant's application to dismiss the plaintiff's claim.

No final orders were made in this extract from the case.

Orders