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Gall v Pham (No. 2)

Gall v Pham (No. 2)

Case [2019] NSWSC 1294 27 September 2019

Jurisdiction

Stay of Proceedings

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Gall v Pham (No. 2) [2019] NSWSC 1294
Hearing dates: 24 September 2019
Decision date: 27 September 2019
Jurisdiction: Equity
Before: Lindsay J
Decision:
Order that a motion to set aside orders made as reported in Risa Gall v Andrew Minh Luan Pham [2015] NSWSC 1710 be dismissed with costs

Catchwords: PROCEDURE — judgments and orders — amending, varying and setting aside — notice of motion to set aside judgment— motion dismissed with costs.
Legislation Cited: Uniform Civil Procedure Rules 2005 NSW
Cases Cited: Cronau v Vavakis (No. 3) [2008] NSWSC 1973
Integrated Growth Solutions Pty Ltd v Latesha Elizabeth Campbell (No. 2) [2015] NSWSC 765
Northey v Bega Valley Shire Council [2012] NSWCA 28
O’Connor v Perry [2014] NSWSC 1386
Risa Gall v Andrew Minh Luan Pham [2015] NSWSC 1710.
Taylor v Taylor (1979) 143 CLR 1
University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481
Vacuum Oil Pty Ltd v Stockdale (1942) 42 SR (NSW) 239
Weber v Aquaqueen International Pty Ltd [2013] NSWSC 1181
Xie v DY United Pty Ltd [2013] NSWSC 48
Texts Cited: -
Category: Procedural and other rulings
Parties: Plaintiff: Risa Gall
Defendant: Andrew Minh Luan Pham
Representation:
Counsel:
Plaintiff: B Le Plastrier and NY Li
Defendant: MK Meek SC and CD Wood
Solicitors:
Plaintiff: Morgan Mac Lawyers
Defendant: KPL Lawyers

File Number(s): 2015/00132068

Judgment

INTRODUCTION

By a notice of motion filed on 26 October 2018, the defendant applies to the Court (under rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 NSW) for an order that a declaration and consequential orders made by me, and entered, on 13 November 2015 (in disposition of the principal proceedings) be set aside so as to permit him to file a defence in answer to a statement of claim filed on 4 May 2015.
The subject matter of the principal proceedings was an entitlement to the proceeds of a lottery win (of a $75,000 annuity payable in December each year, for 15 years commencing in December 2008).
On the evidence adduced before me I held, in essence, that the plaintiff was beneficially entitled to the annuity “going forward” and that the defendant should pay compensation of $132,226.65 to the plaintiff by way of an accounting for his earlier receipt of part of the annuity: Risa Gall v Andrew Minh Luan Pham [2015] NSWSC 1710.
The orders under challenge were made, in the absence of any appearance by the defendant, following a hearing of the plaintiff’s claim in open court in the ordinary course, on 13 November 2015.
I am informed by counsel that, although the plaintiff has received instalments of annuity paid out by New South Wales Lotteries Corporation Pty Limited after 13 November 2015, she has not recovered from the defendant any of the compensation he was ordered on 13 November 2015 to pay.

THE DEFENDANT’S NOTICE OF THE PROCEEDINGS

Although personal service of the plaintiff’s statement of claim had not been effected…

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 Gall v Pham (No. 2)

Details

AGLC: Gall v Pham (No. 2) [2019] NSWSC 1294
Case: [2019] NSWSC 1294
Decision Date: 27 September 2019

CaseChat Overview and Summary

Gall commenced proceedings against Pham for, among other things, the recovery of damages for trespass and nuisance. Pham filed a notice of motion to set aside a judgment made against him in the proceedings. The court was required to determine whether Pham's notice of motion was valid and whether the judgment should be set aside. The court held that Pham's notice of motion was invalid as it did not comply with the relevant rules of court. The motion was dismissed with costs awarded against Pham.

The court considered the requirements for a valid notice of motion to set aside a judgment, including the need for compliance with the relevant rules of court. The court found that Pham's notice of motion did not comply with these requirements and was therefore invalid. The court also considered Pham's arguments for setting aside the judgment on its merits, but found that these arguments were not sufficient to overcome the invalidity of the notice of motion. The court held that the notice of motion was invalid and dismissed the motion with costs awarded against Pham.

No further orders were made by the court. The judgment remains in place and Pham's motion to set it aside was dismissed. The costs of the motion were awarded against Pham, and he was responsible for paying them.

Orders