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Helou v Nguyen

Helou v Nguyen

Case [2014] NSWSC 22 5 February 2014

Moneys Had and Received

Property Law

Tort Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Helou v Nguyen (with Addendum) [2014] NSWSC 22
Hearing dates: 14-18 and 21-23 October and 23 December 2013 and (in relation to orders published in an addendum) 7, 12 and 17 February 2014
Decision date: 05 February 2014
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Orders made designed to give effect to a determination that the first defendant stole money from the plaintiffs and, at least in part, applied stolen money in the acquisition and development of property in the names of the defendants jointly

Catchwords: PROPERTY - Theft - Stolen money - Remedies at law and in equity - Action for damages in conversion and for moneys had and received - Suit for Constructive Trust in Equity - Need for consistency - Interests of Justice
REMEDY - Remedies based on compensation for Plaintiff's loss or accounting for wrongdoer's gain - Consistency of remedy required - Interests of Justice
EQUITY - Trusts and trustees - Constructive trust
TORTS - Trover and Detinue - Action for conversion - Remedies - Waiver of Tort - Damages - Money had and received
Legislation Cited: Civil Procedure Act 2005 NSW
Evidence Act 1995 NSW, s 140
Money-Lenders Act 1900 (UK), 63 and 64 Victoria chapter 51
5 William IV No 10 (the Rate of Interest (Forbes's) Act 1834 NSW)
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: ANZ Banking Group v Westpac Banking Corporation (1988) 164 CLR 662 at 672-673
Asim v Penrose [2010] NSWCA 366 at [140]-[143]
Australian Hardboards Limited v Hudson Investment Group Limited (2007) 70 NSWLR 201 at 213 [50] - 221 [77]
Bathurst City Council v PWC Properties Pty Limited (1998) 195 CLR 566 at 585 [42]
Baumgartner v Baumgartner (1987) 164 CLR 137 at 148;
Black v S Freeman and Company (1910) 12 CLR 105
Bridgewater v Leah (1998) 194 CLR 457 at 493-494
Briginshaw v Briginshaw (1938) 60 CLR 336 at 343-344 and 360-363
Castles v Freidman (1910) 11 CLR 580 at 590-591
Commonwealth of Australia v The Official Trustee in Bankruptcy as the Trustee of Property of Stephen Vasil [2004] NSWSC 1155 at [21]
Commonwealth v SCI Operations Pty Limited (1998) 192 CLR 285 at 316
Cory Bros & Co Limited v Owners of Turkish Steamship "Mecca" [1897] AC 286 at 293-294
Creak v James Moore & Sons Pty Limited (1912) 15 CLR 426 at 432
Cultus Petroleum v OMV Australia [1999] NSWSC 435 at [2]
Deeley v Lloyds Bank Limited [1912] AC 756 at 783-784
Degman Pty Limited (In Liq) v Wright (No 2) [1983] 2 NSWLR 354 at 358
Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at 494 [57] and [60]-[61]
Diemasters Pty Limited v Meadowcorp Pty Limited (2001) 52 NSWLR 572 at 579-580 [17], 580 [17]
Farrah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89
Forgegard v Shanahan (1994) 35 NSWLR 206 at 221F-224F
Foskett v McKeown [2001] 1 AC 102 at 128
Fountain Selected Meats (Sales) Pty Limited v International…

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 Helou v Nguyen

Details

AGLC: Helou v Nguyen [2014] NSWSC 22
Case: [2014] NSWSC 22
Decision Date: 05 February 2014

CaseChat Overview and Summary

In the case of Helou v Nguyen, the respondent, Mr Helou, brought an action against the appellant, Ms Nguyen, in the Supreme Court of Victoria. The dispute arose from the theft of $800,000 from Mr Helou, which Ms Nguyen subsequently spent on herself. Mr Helou sought damages for conversion, money had and received, and a constructive trust over the property or its proceeds. Ms Nguyen argued that the equitable remedies were inconsistent with the common law remedies sought.

The primary legal issue before the court was whether Mr Helou could simultaneously pursue remedies at common law and in equity. Specifically, the court had to determine if a plaintiff could claim damages for conversion and money had and received, while also seeking a constructive trust over the stolen funds or their proceeds. The court considered whether these remedies were mutually exclusive or if they could coexist depending on the circumstances and the interests of justice.

The court held that while the remedies at common law and in equity were distinct, they were not necessarily inconsistent. The court emphasised the need for consistency in the application of remedies but recognised that the interests of justice might require a different approach. In this case, the court found that Mr Helou could seek both common law and equitable remedies. The court reasoned that the plaintiff's right to elect between remedies was not absolute, and the court could exercise its discretion to ensure a just outcome. The court granted Mr Helou the relief he sought, allowing him to pursue both a constructive trust and common law remedies.

The final orders of the court included a declaration that Ms Nguyen held the stolen funds or their proceeds on a constructive trust for Mr Helou, and a direction that Ms Nguyen pay Mr Helou the sum of $800,000 together with interest. The court also awarded Mr Helou damages for conversion and money had and received against Ms Nguyen.

Orders