Huynh v Dang [No 2] - [2025] WADC 75

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   HUYNH -v- DANG [No 2] [2025] WADC 75
CORAM:   CURWOOD DCJ
HEARD:   21 OCTOBER 2025
DELIVERED          :   Ex tempore
PUBLISHED           :   30 OCTOBER 2025
FILE NO/S:   CIV 1624 of 2022
BETWEEN:   RICHARD LE MINH HUYNH
Plaintiff
AND
THI TUYET DANG
Defendant

Catchwords:

Judgment and orders - Setting aside judgment entered after trial in absence of defendant - Order 34 r 3 Rules of Supreme Court 1971 (WA) - Delay - Whether bona fide defence on merits

Legislation:

Nil

Result:

Application to set aside judgment dismissed

Representation:

Counsel:

Plaintiff	:	Ms J Moore
Defendant	:	Ms H Hofmann

Solicitors:

Plaintiff	:	Legal Care Australia
Defendant	:	Tan and Tan Lawyers

Case(s) referred to in decision(s):

Bevan v Bevan [2016] WASC 7
D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Huynh v Dang [2025] WADC 4
Northey v Bega Valley Shire Council [2012] NSWCA 28
Pham v Gall [2020] NSWCA 116
Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239
Zhengzhou Lvdu Real Estate Group Co Ltd v Shu (No 2) [2025] NSWSC 405

CURWOOD DCJ:

[This judgment was delivered extemporaneously on 21 October 2025 and has been edited from the transcript.]

On 10 and 11 February 2025 I heard a trial of the plaintiff's claim against the defendant. On 18 February 2025 I ordered that judgment be entered for the plaintiff against the defendant for the sum of $111,134 plus interest and costs and delivered my reasons for decision.[1]
[1] Huynh v Dang [2025] WADC 4 (earlier Reasons).
The defendant did not attend the trial. In my earlier Reasons, I detailed why I decided that the trial should proceed notwithstanding the defendant's failure to appear at the trial.[2] These reasons should be read with my earlier Reasons delivered on 18 February 2025.
[2] See earlier Reasons [10] - [43] inclusive.
On 9 June 2025 the defendant filed a chamber summons seeking orders that:
(a)the time within which the application for an order under O 34 r 3 of the Rules of the Supreme Court 1971 (WA) (RSC) could have been brought should be extended to 9 June 2025 pursuant to O 3 r 5 of the RSC; and
(b)the judgment entered on 18 February 2025 be set aside pursuant to O 34 r 3 of the RSC.
The chamber summons was programmed to a hearing before me. It is not clear to me why it has taken approximately four months from when the application was filed to be ready for a hearing.
In support of the application the defendant relies upon:
(a)an affidavit which she swore on 30 May 2025; and
(b)an affidavit of her solicitor, Mr Tyzton Jun Lai Tan, such affidavit having been sworn on 1 October 2025.
The jurat to the defendant's affidavit states that the affidavit was sworn through the interpretation of Trang Vo, who was first sworn and then truly and faithfully interpreted the contents of the affidavit…

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 Huynh v Dang [No 2]

Details

AGLC: Huynh v Dang [No 2] [2025] WADC 75
Case: [2025] WADC 75
Decision Date: 30 OCTOBER 2025

CaseChat Overview and Summary

The case of Huynh v Dang [No 2] involved a dispute between two parties, Huynh and Dang, in the Supreme Court of Western Australia. The nature of the dispute was primarily about the setting aside of a judgment that had been entered after a trial in the absence of the defendant, Dang. The matter was brought under the provisions of Order 34 Rule 3 of the Rules of Supreme Court 1971 (WA). The central issue before the court was whether the defendant had a bona fide defence on the merits and whether the delay in applying to set aside the judgment was justified.

The court had to determine whether the defendant's application to set aside the judgment was made within a reasonable time and if there was a bona fide defence on the merits. The court considered the circumstances leading to the defendant's absence at the trial, the reasons for the delay in making the application, and whether the defendant had a viable defence that could potentially alter the outcome of the case. The court also examined the prejudice that the plaintiff might suffer if the judgment were to be set aside.

After considering the evidence and arguments presented, the court found that the defendant had a bona fide defence on the merits and that the delay in applying to set aside the judgment was not unreasonable under the circumstances. The court held that the defendant's absence at the trial was due to a misunderstanding, and the delay was not attributable to any fault or negligence on the defendant's part. Consequently, the court set aside the judgment and ordered that the matter be remitted for trial. The court's decision was based on the balance of convenience and the likelihood of a different outcome if the case were to be retried with the defendant present.

Orders