Nguyen v Corbett (No 3) - [2018] NSWSC 890

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v Corbett (No 3) [2018] NSWSC 890
Hearing dates: 12 June 2018
Date of orders: 15 June 2018
Decision date: 15 June 2018
Jurisdiction: Equity
Before: Parker J
Decision:
At [52]

Catchwords:
LAND LAW – Conveyancing Act 1919 (NSW), s 37A – voidable dispositions – order that property be made available to meet debts – form of consequential orders
CIVIL PROCEDURE – orders for property to be made available to meet debts – stay of enforcement – where proposed cross-claim for property settlement proceedings under the Family Law Act 1975 – appeal
Legislation Cited: Conveyancing Act 1919 (NSW), s 37A
Family Law Act 1975 (Cth), ss 75, 79, 79A, 90AC, 90AE
Cases Cited: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Nguyen v Corbett [2017] NSWSC 1689
Nguyen v Corbett (No 2) [2018] NSWSC 441
Semmens v Commonwealth (1989) 99 FLR 294
Category: Procedural and other rulings
Parties: Ai Nhon Nguyen (Plaintiff)
Avelina Corbett (First Defendant)
James Edmund Corbett (Second Defendant)
Representation:
Counsel:
RW Tregenza (Plaintiff)
IR Coleman SC/SM Foda (First Defendant)
Solicitors:
GJ Gooden (Plaintiff)
Hicksons Lawyers (First Defendant)

File Number(s): 2015/226458
Publication restriction: Nil

Judgment

On 12 April I handed down my second decision in these proceedings, in which I made final orders: Nguyen v Corbett (No 2) [2018] NSWSC 441. The orders gave effect to my substantive decision in the proceedings, handed down in December 2017: Nguyen v Corbett [2017] NSWSC 1689. This judgment deals with three consequential issues arising from my second decision. References to orders are to orders made on 12 April.

Orders in consequence of make-available order

The first issue arises out of order 3, which provided as follows:

Order that the first defendant [Mrs Corbett] perform all acts and concur in all things necessary to make the Baulkham Hills property available for satisfying the debts owed by the second defendant [Mr Corbett] to the plaintiff [Mr Nguyen] and to any other creditors of the second defendant.

I will refer to this order as the “make-available order”. As directed (see order 4) counsel for Mr Nguyen has formulated consequential orders to carry this order into effect. Mrs Corbett seeks to have the Court stay the make-available order and resist the making of any further orders which are consequential upon that order.
The consequential orders which are sought provide for Mr Nguyen to place a newspaper advertisement calling for any other creditors of Mr Corbett to come forward; to seek information in support of any such claims; and to refer disputed claims to the Court for resolution. Mr Nguyen also seeks orders for the appointment of a receiver to sell the Baulkham Hills property and use the proceeds to discharge Mr Corbett’s debts in accordance with order 3.
In written submissions filed before the hearing, counsel for Mrs Corbett complained about these orders and the make-available order on which they are based. Counsel pointed out that Mr Nguyen…

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 Nguyen v Corbett (No 3)

Details

AGLC: Nguyen v Corbett (No 3) [2018] NSWSC 890
Case: [2018] NSWSC 890
Decision Date: 15 June 2018

CaseChat Overview and Summary

The court heard an appeal brought by the defendant, Corbett, against an order made by the primary judge that property be made available to meet the debts of the plaintiff, Nguyen. The case arose from an action brought by Nguyen against Corbett, seeking a declaration that a transfer of property was voidable under section 37A of the Conveyancing Act 1919 (NSW), as well as various consequential orders. The primary judge found in favour of Nguyen and ordered that the property be made available to meet the debts of Nguyen. Corbett appealed the decision, arguing that the primary judge had erred in making the order that the property be made available to meet debts and that the court should have stayed enforcement of the order pending the outcome of property settlement proceedings under the Family Law Act 1975.

The court considered whether the primary judge had erred in making the order that the property be made available to meet debts. The court noted that the order was a consequential order that followed from the finding that the transfer of property was voidable. The court held that the primary judge had not erred in making the order, as it was a necessary consequence of the finding that the transfer was voidable. The court also considered whether the primary judge should have stayed enforcement of the order pending the outcome of the property settlement proceedings. The court held that the primary judge had not erred in not staying enforcement of the order, as the interests of justice did not require it.

The appeal was dismissed. The court held that the primary judge had not erred in making the order that the property be made available to meet debts, and that the court did not err in not staying enforcement of the order pending the outcome of the property settlement proceedings. As a result, the order made by the primary judge stood.

Orders