Pham v Sebie [2021] NSWSC 441

Supreme Court New South Wales

Medium Neutral Citation: Pham v Sebie [2021] NSWSC 441 Hearing dates: 28 April 2021 Decision date: 29 April 2021 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See para [19] Catchwords: COSTS — Party/Party — Court's discretion 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: B Zipser (plaintiff) A Duc (second defendant)

Solicitors: 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 1. The next matter I will deal with is Mr Sebie's application that his former wife, Ms Musabwasoni, make a contribution to an amount of costs ordered against him by Slattery J, explained in a judgment by his Honour on 20 February 2019. 2. The orders that his Honour made on that day were that there be an amount paid out of court to the plaintiffs in the sum of $263,660, exclusive of interest, from the funds in court in the name of Mr Sebie, the first defendant. 3. Order three of his Honour's orders was that the first defendant, Mr Sebie, was to pay the plaintiff costs of the issue described in the Court's judgment as the payment out issue. 4. In order four of his Honour's judgment, he granted liberty up to and including 27 March 2019 for the first defendant, Mr Sebie, to apply by motion to vary order three to seek to have the second defendant, Ms Musabwasoni, bear some portion of the costs the subject of order three. 5. Order three is to be understood in part by reference to paragraph three of his Honour's judgment of 20 February 2019. That paragraph of the judgment refers to the lump sum costs issue. 6. In the concluding sentence of that paragraph, his Honour refers to the payment out issue which he says was first raised in the Phams' motion in the proceedings on 15 May 2018. His Honour then determined the payment out issue in paragraphs 15 and following. 7. In paragraph 33, his Honour noted that the Phams had been successful on the issue, and his Honour described Mr Sebie as the principal opponent. He then went on to make some further comments, and expressed the view that Mr Sebie may wish to argue that Ms Musabwasoni should pay some of the costs, as she did put limited argument against the making of these orders. 8. In my view, the proper construction of the orders is that his Honour was reserving liberty to Mr Sebie simply to make application for his former wife, Ms Musabwasoni, to make contribution to the costs associated with what might be described as the payment out issue. 9. His Honour, however, who heard the matter was minded to characterise and did the involvement of Ms Musabwasoni in that issue as limited. She was, so it seems from the judgment, represented by Mr Duc who appears for her today. 10. Mr Sebie's application falls into two parts. First, he says that, insofar as I were to construe Slattery J's judgment in the way that I have indicated, he would seek to have the orders made by Slattery J vacated and/or varied. 11. The reason for that is that, in his submissions which were filed in draft, first in the Court on 22 April and second received yesterday in final form although still dated 22 April, that Ms Musabwasoni should, on a calculation undertaken in various options, make a contribution of 43 per cent to the total amount of the costs of some $280,000 odd. 12. In my view, on the materials that I have considered and on the submissions that Mr Sebie has made, I would not vary or vacate the orders of Slattery J. Indeed, I do not, having regard to the orders made and the materials he has filed as support of a vacation or variation of those orders and orders 3 and 4 in particular regard those materials as a sufficient basis to vacate or vary those orders. 13. Justice Slattery made those orders having been intimately aware of the issues before him, having witnessed the proceedings unfold, and having made a lump sum determination at the end. It seems to me properly construed he limited Mr Sebie's potential right to contribution to costs relating to the payment out issue. 14. The payment out issue is a matter that I dealt with by way of lump sum in my judgment of 19 August 2020, item 11, on page 12 of the judgment, and that amount is $17,211. That is the amount, in my view, in respect of which Mr Sebie is entitled, according to Justice Slattery's reservation, to make application for his former wife to make some contribution towards. 15. In order to make the position clear and at the risk of repetition, nothing that Mr Sebie has advanced by way of written material, or alternatively in oral submission, persuades me that I should vary or vacate the principal orders made by Slattery J in February 2019, and I regard such submissions as he has made to that effect as being unmeritorious. 16. In relation to the amount of $17,211, that relates to the issue, namely, whether the amounts ordered in favour of the Phams ought to be paid out of the fund. Mr Sebie was not only the principal opponent to that payment out, but in reality was the person who, on the face of Slattery J's judgment at least, put the principal argument, against payment out. 17. Mr Sebie has indicated this morning various reasons why, due to his absence on occasion and her opposition to the order, his former wife should make some contribution to those costs. 18. Costs are always in the discretion of the Court. However, the exercise of the discretion must be undertaken judicially. In my view, although both Mr Sebie and his former wife had an interest clearly in the payment out issue, and clearly she supported on a limited basis the opposition to the payment out, Slattery J was careful to indicate the very limited basis upon which her opposition was put forward. 19. Indeed, it is not suggested that she advanced any additional arguments of any substance whatsoever but so it seems simply expressed her support to the opposition. In all of the circumstances I am not persuaded she should make any contribution to that amount. I would therefore make no order for any contribution by her to the $17,211.