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Corbett v Nguyen

Corbett v Nguyen

Case [2008] NSWSC 1265 28 November 2008

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CITATION: Corbett v Nguyen & Ors [2008] NSWSC 1265

HEARING DATE(S): 24 November 2008

JUDGMENT DATE :
28 November 2008

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: 1. Order that the defendants’ notice of motion filed on 24 June 2008 be dismissed with costs; 2. exhibits may be returned after 28 days.

CATCHWORDS: PRACTICE AND PROCEDURE – costs – security for costs – plaintiff ordinarily resident in both Vietnam and Australia – extreme difficulty in enforcing costs order in Vietnam – sufficient Australian assets to meet costs order – plaintiff not shown to be lacking commercial probity – delay by defendant in bringing motion – application refused

CASES CITED: Inland Revenue Commissioners v Lysaght [1928] AC 234
Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194
Logue v Hansen Technologies Ltd [2003] FCA 81
Leyvand v Barasch (High Court of Justice, 15th February 2000 unreported; 2000 WL191256)
Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744

PARTIES: James Corbett
v
Hau Nhon Nguyen & 4 Ors

FILE NUMBER(S): SC 3137/04

COUNSEL: Applicants/Defendants: T Molomby SC
Respondent/Plainitff: B W Collins QC & N Potts

SOLICITORS: Applicants/Defendants: G J Gooden, Solicitor
Respondent/Plaintiff: Legal Recovery Solutions

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 28 November 2008

3137/04 James Corbett v Hau Nhon Nguyen & 4 Ors

JUDGMENT

1 HIS HONOUR: This is an application for security for costs against an individual plaintiff who is alleged to be ordinarily resident outside New South Wales.

2 The proceedings were commenced on 27 May 2004. The notice of motion seeking security for costs was filed on 24 June 2008. Security is sought in an amount of $160,000 by way of bank guarantee.

3 The proceedings relate to a superannuation fund of which the fourth defendant, Abaco Machines (Australasia) Pty Ltd (“Abaco”), is the trustee. Up to July 2001, the plaintiff and the first, second and third defendants were directors, shareholders and employees of Abaco. On or about 12 July 2001, the parties entered into an agreement for the plaintiff to relinquish his shares in Abaco. The plaintiff was to have certain superannuation entitlements from a fund of which Abaco is trustee. The defendants say that the plaintiff is entitled only to $50,000. The plaintiff contends that the defendants were required to roll over his superannuation entitlements into another fund of his nomination and pay him an additional $50,000. He contends that Abaco breached the trusts of the superannuation fund and of a unit trust in which the superannuation fund held units and of which it was also trustee. He claims superannuation entitlements as at 30 June 2007 and accruing in the sum of $263,873 and “loss and damage continuing to date of hearing”. The defendants seek an order for rectification of the deed of 12 July 2001 to provide that their obligations were to pay into the superannuation fund on behalf of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Corbett v Nguyen

Details

AGLC: Corbett v Nguyen [2008] NSWSC 1265
Case: [2008] NSWSC 1265
Decision Date: 28 November 2008

CaseChat Overview and Summary

In the matter of Corbett v Nguyen, the plaintiff, Corbett, pursued legal action against Nguyen in an Australian court. The dispute involved allegations of contract breaches and related claims. Corbett sought an order for security for costs from Nguyen, arguing that the defendant was ordinarily resident in both Vietnam and Australia, and that there was an extreme difficulty in enforcing a costs order in Vietnam. Nguyen, on the other hand, argued that Corbett had sufficient assets in Australia to meet any costs order and that Corbett's commercial probity was not in question. The court had to determine whether the plaintiff's residence in Vietnam, coupled with the difficulty in enforcing a costs order there, justified the order for security for costs. Additionally, the court considered whether Corbett's assets in Australia were sufficient to cover any potential costs order and whether Corbett's commercial probity was questionable. The court also examined the defendant's delay in bringing the motion for security for costs.

The court found that Corbett's dual residency did not automatically justify an order for security for costs, and the extreme difficulty in enforcing a costs order in Vietnam was not sufficient to warrant such an order without further evidence. The court emphasised that Corbett had sufficient assets in Australia to cover any potential costs order, and there was no evidence to suggest that Corbett was lacking in commercial probity. The court also noted the defendant's delay in bringing the motion, which was a relevant factor in its decision. Given these considerations, the court refused the application for security for costs.

The final orders of the court were that the application for security for costs was dismissed. The court did not grant the plaintiff's request for an order requiring the defendant to provide security for costs, finding that the conditions for such an order were not met. The court's decision hinged on the plaintiff's ability to meet costs from Australian assets, the lack of evidence regarding the plaintiff's commercial probity, and the defendant's delay in bringing the motion. The case underscores the importance of demonstrating significant difficulty in enforcing a costs order in another jurisdiction and the need for a balanced consideration of all relevant factors in security for costs applications.

Orders