Pham v Sebie
[2021] NSWSC 440
•28 April 2021
Supreme Court
New South Wales
Medium Neutral Citation: Pham v Sebie [2021] NSWSC 440 Hearing dates: 28 April 2021 Decision date: 28 April 2021 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See paras [12], [13], [14]
Catchwords: COSTS — Party/Party — General rule that costs follow the event
Category: Costs 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 (plaintiff)
Mills Oakley (second defendant)
Ms S Georgy with leave (ENA)
R Sebie (self represented)
File Number(s): 2015/325044 Publication restriction: n/a
Judgment – ex tempore
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I shall give judgment on the costs issue both on 13 April and 22 March and today's date. I will deal with those dates separately.
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Mr Pham makes application that Mr Sebie pay costs of his counsel's attendance before me on 13 April and today's date. 13 April was a day which was convened by me to suit the Court's convenience for the purposes of sorting out orders that could not be agreed.
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In advance of 13 April, first on 9 April, there was an email from Mr Sebie which said:
"I ask if it is possible if this matter can be, please, stood over until the next hearing date, which is 28 April. Last week I did point to his Honour the next week is the school holidays.”
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He then goes on to make some statements about himself and his daughter. Whether that was an application for an adjournment, such was not done formally by a motion nor was it at all supported by anything but an assertion about himself and his daughter's condition.
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I convened the hearing on 13 April, but prior to the hearing, at 10.03 pm on 12 April, I received an email from a Ms Helen Tae, indicating that Mr Sebie had asked her to write apologising to the court he could not be available on the 13th because he was away on retreat with his daughter and had limited or no mobile phone coverage.
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At no time did Mr Sebie give the Court the courtesy of a formal application, by way of notice of motion with any supporting medical evidence, or an indication that a telephone hearing was an impossibility on 13 April. No such material was received by the Court. I decided to conduct the proceedings on 13 April for the purposes of finalising orders with which Mr Sebie did not agree.
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In support of the argument that no costs should be ordered for 13 April, Mr Sebie refers to a number of matters. In particular he refers to a medical report of 19 January, 2016 from a Dr Younan, together with a medical certificate dated 26 April, 2021. I emphasise those two dates. First of all, the latter date clearly is not a date in support of his going away to a retreat, because it has only been, presumably, procured recently. Secondly, the earlier report of 2016, it seems to me, now cannot be relevant because I have no idea whether Dr Younan is the treating doctor and whether the views expressed in that report are still current and, indeed, it is a report which is some years out of date.
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The medical report dated 26 April, simply indicates that the plaintiff suffers from a recurring medical illness, which is unspecified, and which states may adversely affect his ability to undertake assignments and meet deadlines.
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Dr Gambril, the doctor providing that report, would appear to be a medical practitioner, but, in any event, the report is so general in nature as to be entirely unhelpful. Mr Sebie therefore provided, in my view, no adequate reason why he could not be available at least by telephone, which has been the mode of conduct for these proceeding now for some considerable time, or to make some other arrangement upon the basis of a formal application based upon proper medical evidence, supporting the fact that he needed to be in another state during school holidays, for medical reasons, as opposed to for example taking a holiday. Either way the Court was required in my view to convene on 13 April because orders needed to be sorted out. This court cannot work around the diaries of parties, when it needs to formalise or finalise orders.
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Therefore in my view Mr Sebie should pay the costs of 13 April.
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So far as the costs of today are concerned he has been unsuccessful in his opposition to the orders sought. Costs should follow the event and so he should pay today’s costs.
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In each case, however, I would ask Mr Zipser to put a short note to me and then Mr Sebie and Mr Duc will do the same in relation to 13 April, so Mr Sebie has seven days to respond in writing and I will deal with the outstanding lump sum application on the papers. The reason lump sum costs applications are here appropriate, first I am familiar with the various motions argued before me. I am also familiar with my judgments previously given and I am familiar with the background of the proceedings. It seems to me to be a waste of time and money to have assessments of costs for these amounts. I also take into account that there will be, or may be, no invoices in relation to moneys which have been suggested, simply a record of the time spent.
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It seems to me I will then determine, on a lump sum basis, the costs in favour of Mr Zipser's client and Ms Musabwasoni of 13 April.
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The second matter I dealt with this morning was Mr Sebie's motion for contribution of the amounts ordered by Slattery J. He was unsuccessful in relation to either vacating or varying Slattery J's order and he was unsuccessful in moving the court to apportion some amount of the $17,000 in his favour.
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Again, it seems to me that the costs in relation to that motion should be borne by him, that is, Ms Musabwasoni's costs should be borne by Mr Sebie in relation to that motion. Again, I would invite, if he wants to take it further, for Mr Duc to provide the basis on which he claims the total, I think, of $3,483. Mr Sebie will have seven days in which to respond to that amount as well, but I do also propose to order that amount by way of lump sum.
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Decision last updated: 29 April 2021
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