Enterprise ICT Pty Ltd v Pham (No 3) [2019] NSWCA 138

Enterprise ICT Pty Ltd v Pham (No 3) [2019] NSWCA 138

The application to vary the costs order was made more than six months after the relevant judgment and the time limit under Rule 36.16 had passed; therefore the Court lacked power to entertain the variation application. Even if the Court had power, unexplained delay justified refusing to exercise discretion. Orders in respect to the fund should be sought in the Equity Division, not the Court of Appeal; the motion must be dismissed, and no order as to costs made.

Parties
First Appellant: Enterprise ICT Pty Ltd; Second Appellant: Robert Sebie; First Respondent: Andy Voung Duc Pham; Second Respondent: Thi Huong Giang Pham; Third Respondent: Nadine Musabwasoni
Jurisdiction
Australia
Judgment Date
13 June 2019
Procedural Posture
Notice of Motion / Post Appeal Application
Outcome
notice of motion dismissed
Legal Topics
Judgments and Orders, Amending, Varying and Setting Aside, Costs
Procedure Judgments and Orders Amending, Varying and Setting Aside Costs

Case Brief

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Parties

Enterprise ICT Pty Ltd

First Appellant

Robert Sebie

Second Appellant

Andy Voung Duc Pham

First Respondent

Thi Huong Giang Pham

Second Respondent

Nadine Musabwasoni

Third Respondent

Procedural Posture

Notice of Motion / Post Appeal Application

Legal Issues

  1. 1 Whether the Court should make a gross sum costs order payable by Robert Sebie
  2. 2 Whether costs should be paid out of a fund held in the Supreme Court following a contract of sale
  3. 3 Whether the Court should make an order for costs of the motion

Ratio Decidendi

The application to vary the costs order was made more than six months after the relevant judgment and the time limit under Rule 36.16 had passed; therefore the Court lacked power to entertain the variation application. Even if the Court had power, unexplained delay justified refusing to exercise discretion. Orders in respect to the fund should be sought in the Equity Division, not the Court of Appeal; the motion must be dismissed, and no order as to costs made.

Court Disposition

notice of motion dismissed

Orders

  • Dismiss the first and second respondents' notice of motion filed on 26 February 2019.
  • No order as to the costs of the motion.