Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie

4. The plaintiffs' entitlement to interest on costs is $2,392 + $4,986 + $19,115 = $26,493."
5. The plaintiffs now seek payment out of Court of the sum of $26,493, in interest on the costs they incurred in the calendar years 2015, 2016 and 2017.
6. Mr Robert Sebie opposes the making of such an order on two main grounds: (1) the way the interest is calculated; and (2) wider grounds, including a ground that I should disqualify myself from further hearing these proceedings.
7. As to ground (2), Mr Sebie has directed the Court's attention to a notice of motion dated 4 April 2019 that was filed on his behalf and on behalf of ENA Development. Among other things, this motion sought orders (in Order 3) that I recuse myself from further hearings in these proceedings and (in Order 4 which is strictly not in the form of an order requiring anything to be done) contended that "ENA Development Pty Limited has not fallen away from its claim". This is a reference to paragraph [16] of my judgment of 20 February 2019, which stated that ENA Development's claim had fallen away because its cross claim was stayed: Pham v Sebie [2019] NSWSC 115. Since the matter was last before me, Mr Sebie contends that Rose Sebie has paid $100,000 into Court on 20 March 2019, in order to provide a basis to lift the stay orders against ENA Development.
8. The question whether or not I should disqualify myself from further conduct of these proceedings came before Lindsay J on the return date of the motion. His Honour, in accordance with conventional principle, indicated, as I understand it from what I am told, that he was not in a position to disqualify me from sitting in these proceedings. But the issue has been raised again before me today. But it seems to me that it is not necessary to hold a full hearing with submissions on that question. I do not have to determine it, because Mr Pham's application fails today for another more elementary reason.
9. As to ground (1), Mr Sebie makes a purely mathematical point. He says that the calculation of interest on costs in Exhibit "A" uses the mid-point of each calendar year (1 July) as the point from which the interest on costs is calculated, for each of the three calendar years 2015, 2016 and 2017. This is a legitimate way of calculating the interest on costs incurred during the year, if the expenditure on costs was incurred evenly throughout the calendar year and the costs expenditure in the first half of the year equals the expenditure incurred in the second half of the year.
10. That is not an assumption which can necessarily be made here. On the existing evidence an interest calculation based on that assumption may create unfairness to Mr Sebie. The interest calculation can properly be done either with the interest calculated based upon the timing of each item of actual costs expenditure (an onerous task), or the interest calculation could be done more conservatively, based upon the total costs expenditure for the year but calculated only from the last day of the year. If the latter approach is chosen, the interest is always calculated upon the full amount of whatever has been expended by way of costs in any one calendar year.
11. That is not how the calculation has been done in Exhibit "A". In the absence of evidence as to when each item of costs was actually expended, the Court is not prepared to make the orders sought in the form of Exhibit "A". Either a new more conservative interest calculation will have to be done, or evidence will need to be filed as to when costs were incurred during each calendar year, to establish that using the 1 July date as a notional date for the incurring of the year's costs is not unfair to Mr Sebie.
12. As the Court has already indicated, there is no need for these proceedings to be listed before me any longer. They will be listed before the Registrar. Fresh applications should be brought before the Registrar in the first instance. The parties should not contact my Chambers further, but should contact the Registrar.

Conclusion and Orders

1. Accordingly, the Court makes the following orders and directions: 1. Dismiss the plaintiffs' present application for interest based upon Exhibit "A". 2. 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 interest. 3. All future applications and correspondence on behalf of any party in these proceedings must be made to the Registrar and not to the Chambers of Slattery J. 4. Costs of today are reserved. 5. The Court notes that Mr Simons on behalf of Ms Musabwasoni has stated to the Court that he has not been served with the motion of 4 April 2019 or any affidavits in support that are the subject of these applications, and the Court further notes that Mr Pham says that these documents were only served on counsel and not at his address for service. 6. Direct Mr Robert Sebie, Ms Rose Sebie and ENA Development (the applicants on the motion) to serve on the plaintiffs and the second defendant copies of the notice of motion of 4 April 2019, together with any affidavits in support of that motion, by 4pm on Monday 13 May 2019 at their addresses for service in these proceedings. 7. Adjourn these proceedings before the Registrar to 22 May 2019 at 9.30am. 8. Note that Mr Robert Sebie's address for service is [address not published] and his email address for service is [address not published].

Amendments 10 May 2019 - Parties /coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2019