Pham v Enterprise Pty Ltd; Sebie v Pham
[2021] NSWSC 339
•01 April 2021
Supreme Court
New South Wales
Medium Neutral Citation: Pham v Enterprise Pty Ltd; Sebie v Pham [2021] NSWSC 339 Hearing dates: 1 April 2021 Decision date: 01 April 2021 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See paras [8]-[9]
Catchwords: COSTS — Party/Party — lump sum costs — costs for the running of various costs applications — deduction for contingencies
Category: Procedural rulings Parties: Andy Vuong Duc Pham (first plaintiff)
Thi Hunog Giang Pham (second plaintiff)
Enterprise ICT Pty Ltd (first defendant)
Ms Musabwasoni (second defendant)
Robert Sebie (third defendant)Representation: Counsel:
Solicitors:
B Zipser (plaintiff)
A Duc (second defendant)
Pham Lawyers
Mills Oakley (2nd def)
Ms Georgy with leave (ENA)
R Sebie (self represented)
File Number(s): 2015/325033 Publication restriction: n/a
Judgment – ex tempore
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HIS HONOUR: This is a continuation of applications before me as part of a tidying-up exercise and which flows in part from my judgment last year of 19 August 2020 and in part from orders made by the Equity Registrar. The particular item I am currently dealing with is contained in paras 11 and 12 of Mr Zipser's most recent written outline provided to the Court and dated 31 March 2021.
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This relates to a lump sum costs order he seeks against ENA and Mr Sebie for the costs incurred in the running of the various costs applications before me, first, for the period up to 24 June 2020 and, secondly, from the period 24 June 2020 to 17 March 2021.
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I have carefully considered his written materials. I have also looked at the materials filed by Mr Pham and I have had regard to the invoices and the identification of the amounts claimed and the costs associated with those amounts.
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I have also received, in opposition or in comment upon those amounts, materials from Mr Jemmott who is a director of ENA. He is today represented by Ms Georgy in respect of whom I gave leave; and Mr Sebie is again appearing in his own right.
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I have taken on board what Mr Jemmott has had to say. He refers to invoices which have been rendered to him from other solicitors and he makes other submissions, some of which are relevant, some of which, if I may say so, are not.
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Mr Sebie, in his written outline in paras 13 and following, applies quite specific criticisms to amounts. I have taken Mr Jemmott's material on board and I have carefully read Mr Sebie's materials.
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In my view, the amounts which are claimed in paras 11 and 12, subject to one matter I will come to in a moment, are, I consider, reasonably incurred in what has been long-running and acrimonious proceedings contested at every level.
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In my view, I would make orders subject to a further 20% discount which I would apply for contingencies. This is routinely done in cases where lump sum costs orders are thought to be appropriate, which is the case here. Savings are obviously made by doing so if a court regards it as appropriate by a very broad-brush calculation. Hence, a further discount for contingencies.
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Therefore, I would reduce the amount of $40,828 by 20% and I would ask Mr Zipser to do that calculation. Likewise, I see the reduction from $57,654 to $45,571 which I think is an appropriate reduction for the reasons outlined in Mr Zipser's para 12. I would also reduce that ($45,571) amount by 20% so I will make orders in accordance with those rulings.
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I note I have made directions for the dispersal of other matters in due course.
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Decision last updated: 12 April 2021
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