Le v Pham

[2022] ACAT 25

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

LE & ANOR v PHAM & ANOR [2022] ACAT 25

XD 1231/2019

Catchwords:               CIVIL DISPUTE – sale and acquisition of a business – where liability between vendor and purchaser subject of previous litigation and determination – where monies for the purchase of the business comprised of a principal sum and supplementary sum under a business agreement – where supplementary sum in the form of a third-party loan – where apportionment of purchase sum now in dispute – where particulars of business arrangement disputed – implied business agreement –implied by conduct – Anshun estoppel and res judicata raised to defend claim – whether cause of action in this matter distinguishable from the liability litigation – implied business arrangement found – Tribunal orders apportionment of purchase sum at agreed rates, adjusted for forgiveness of the third-party loan

Cases cited:Cervo v Kingsley’s Pty Ltd [2018] ACTSC 179

Le v Nguyen [2016] ACAT 74
Le v Nguyen [2017] ACAT 55

Tribunal:  Senior Member K Katavic

Date of Orders:  28 March 2022

Date of Reasons for Decision:      28 March 2022

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 1231/2019

BETWEEN:

THI KIM THOA LE

First Applicant

CHINH NGUYEN

Second Applicant

AND:

HANNAH PHAN

FORMERLY KNOWN AS TAN DUY THI LE

First Respondent

MINH PHAN

Second Respondent

TRIBUNAL:Senior Member K Katavic

DATE:28 March 2022

ORDER

The Tribunal orders that:

1.   The first respondent is to pay the sum of $1,146.40 to the first applicant.

2.   The respondents are to pay the second applicant the sum of $4,884.86.

………………………………..

Senior Member K Katavic

REASONS FOR DECISION

Introduction

1.The parties in this matter intended to go into business together. They intended to purchase a nail salon and operate the business under a company, Mimosa Beauty & Nails Salon Pty Ltd (the Company).

2.The expected arrangement under that company was that Ms Le (the first applicant) and Ms Phan (the first respondent)[1] were the directors and Mr Nguyen (the second applicant), Ms Le and Le Consultants Pty Ltd (a company for which Ms Phan was the sole director and shareholder) were its shareholders. This was intended to give all of the interested parties an interest in the business.

[1] Ms Phan was formerly known as Tan Duy Thi Le

3.Mr Phan (the second respondent) had some dealings with the solicitor engaged to facilitate the purchase and purported to arrange a loan from Mr Nguyen for Ms Phan’s portion of the deposit. Mr Nguyen paid a total deposit of $75,000 to purchase the business.

4.The salon operated between January 2015 and March 2015 without the purchase being completed. Issues arising in relation to the purchase were the subject of earlier proceedings in the tribunal and an appeal.[2] In those earlier proceedings a finding was made that Ms Le was the sole purchaser of the business and the business was not purchased in the name of Mimosa Beauty & Nails Salon Pty Ltd. This was affirmed on appeal. The…