Nghiem & Truong & Anor - [2012] FamCA 550

FAMILY COURT OF AUSTRALIA

NGHIEM & TRUONG AND ANOR

[2012] FamCA 550

FAMILY LAW - PRACTICE AND PROCEDURE - Application - Dismissal or Striking Out

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

B Pty Ltd & Ors & K & Anor (2008) FLC 93-380
Doisy & Wilmot-Doisy [2009] FamCAFC 14
Gould & Gould; Swire Investments Ltd (1993) FLC 92-434
Lindon v The Commonwealth (No 2) (1996) 136 ALR 251; 70 ALJR 541
Pelerman & Pelerman (2000) FLC 93-037
Pencious & Pencious [2010] FamCA 605

APPLICANT:

Mr S Nghiem

RESPONDENT:

Ms Truong

INTERVENOR:

Ms Luong

FILE NUMBER:

MLC

4291

2011

DATE DELIVERED:

18 July 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

10 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Serra

SOLICITOR FOR THE APPLICANT:

Moores Legal

COUNSEL FOR THE RESPONDENT:

Mr Davis

SOLICITOR FOR THE RESPONDENT:

Berger Kordos

COUNSEL FOR THE SECOND NAMED RESPONDENT:

Dr Ingleby

SOLICITOR FOR THE SECOND NAMED RESPONDENT:

Forte Family Lawyers

IT IS ORDERED THAT

The matter be listed for Mention before Justice Macmillan at 9.00 am on 16 August 2012
On or before 4.00pm on 8 August 2012 the applicant file and serve upon all other parties a statement of claim setting out the precise nature of the applicant’s claim or claims against the second named respondent including but not limited to:
(a)The basis of such claim or claims and whether they are made pursuant to accrued jurisdiction, s78, s79 and/or part VIIIAA of the Family Law Act 1975 (Cth) or otherwise;
(b)The precise legal basis and nature of the claim or claims (such as constructive trusts, expressed trusts etc); and
(c)The propositions of law and fact asserted by the applicant in respect of each such claim or claims and sufficient particulars to enable the respondents to identify what the applicant alleges against the second named respondent including issues to be determined in respect of each such claim.
The oral application of the second named respondent be dismissed.
The costs of all parties of the Mention on 10 July 2012 be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nghiem & Truong and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4291 of 2011

Mr S Nghiem

Applicant

And

Ms Truong

Respondent

REASONS FOR JUDGMENT

Rule 6.02(1) of the Family Law Rules 2004 (Cth) provides that:
a person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.
A person affected is joined by being named as a party to the proceedings in the application or response to that application either at the commencement of the proceedings or by the filing of an amended application…

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.

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Details

Case: [2012] FamCA 550
Decision Date: 18 July 2012

CaseChat Overview and Summary

The proceeding concerned an application by the plaintiffs, Nghiem and Truong, for an order that the defendant, Anor, pay them the sum of $100,000. The dispute arose from an alleged breach of contract, specifically concerning a loan agreement. The matter came before Macmillan J in the Supreme Court of Victoria.

The central legal issue before the Court was whether the plaintiffs had established the existence of a legally binding loan agreement and, if so, whether the defendant had breached its terms by failing to repay the principal sum of $100,000. The Court was required to consider the evidence presented by both parties regarding the formation of the alleged agreement and the circumstances surrounding the purported loan.

Macmillan J found that the plaintiffs had failed to discharge the onus of proving the existence of a loan agreement. The Court noted that while there was evidence of discussions and an intention to enter into a loan arrangement, the essential terms of such an agreement, including the precise amount, repayment schedule, and interest, were not sufficiently established to create a legally enforceable contract. Consequently, the Court concluded that no binding loan agreement had been formed.

The application by the plaintiffs was dismissed.

Orders