Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 13) [2019] NSWSC 522

Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 13) [2019] NSWSC 522

The plaintiffs' application failed because their calculation assumed, without evidentiary support, that costs were incurred evenly across each calendar year so that interest could be calculated from 1 July. That assumption might be unfair to Mr Sebie. Without evidence of the actual timing of costs expenditure, the Court was not prepared to order payment out on the basis of Exhibit A; the plaintiffs must either provide evidence of when costs were incurred or adopt a more conservative calculation.

Jurisdiction
Australia
Judgment Date
08 May 2019
Procedural Posture
Civil Procedure Application for Payment Out of Court of Interest on Costs / Ex Tempore Ruling on Plaintiffs' Application Following Prior Costs Orders
Outcome
Application for payment out of Court of interest on costs dismissed; leave granted to recalculate interest and apply to the Registrar.
Legal Topics
['interest on Costs Under Civil Procedure Act 2005, S 101' 'calculation of Interest on Costs' 'payment Out of Court' 'recusal Application']
['civil Procedure' 'costs'] ['interest on Costs Under Civil Procedure Act 2005, S 101' 'calculation of Interest on Costs' 'payment Out of Court' 'recusal Application']

Case Brief

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Procedural Posture

Civil Procedure Application for Payment Out of Court of Interest on Costs / Ex Tempore Ruling on Plaintiffs' Application Following Prior Costs Orders

Legal Issues

  1. 1 ["Whether the plaintiffs' calculation of interest on costs using 1 July as a notional mid-point date for each calendar year should be accepted." 'Whether the application for payment out of Court of interest on costs should be dismissed or allowed to proceed on a recalculated basis.' "Whether it was necessary to determine Mr Robert Sebie's request that Slattery J disqualify himself from further hearings."]

Ratio Decidendi

The plaintiffs' application failed because their calculation assumed, without evidentiary support, that costs were incurred evenly across each calendar year so that interest could be calculated from 1 July. That assumption might be unfair to Mr Sebie. Without evidence of the actual timing of costs expenditure, the Court was not prepared to order payment out on the basis of Exhibit A; the plaintiffs must either provide evidence of when costs were incurred or adopt a more conservative calculation.

Court Disposition

Application for payment out of Court of interest on costs dismissed; leave granted to recalculate interest and apply to the Registrar.

Orders

  • ["Dismiss the plaintiffs' present application for interest based upon Exhibit A." 'Grant leave to the plaintiffs to recalculate the interest contemplated by Order 2 of the orders made on 20 February 2019 in accordance with these reasons, and to apply to the Registrar by motion for the payment out of Court of that...