Nguyen v Corbett (No 5) - [2019] NSWSC 934

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nguyen v Corbett (No 5) [2019] NSWSC 934
Hearing dates: 22 July 2019
Date of orders: 22 July 2019
Decision date: 22 July 2019
Jurisdiction: Equity
Before: Parker J
Decision:
The cross-claimant's Notice of Motion filed 19 July 2019 be dismissed.
The cross-claimant pay the cross-defendant's costs of that Notice of Motion and of the cross-claimant's earlier Notice of Motion filed 24 June 2019.

Catchwords: CIVIL PROCEDURE — Stay of proceedings — Pending appeal – application for stay of judgment pending appeal – where by appeal cross-claimant will seek orders under the Family Law Act 1975 (Cth), s 79A, entitling her to the whole of the family property and attributing the whole of the relevant debt to her husband – whether refusal of a stay and consequent sale of property would render cross-claimant’s right of appeal nugatory – whether cross-claimant would suffer prejudice if stay refused by requirement to vacate family home – whether cross-claimant would nevertheless be required to vacate property as costs judgment of principal proceedings was not subject of the appeal - where cross-claimant’s legal costs appears funded by family members but no evidence adduced of resources to satisfy costs judgment of principal proceedings – prospects of success of appeal - whether cross-claimant likely to establish entitlement to whole of property where she adduced no further evidence or explanation for her husband’s prior paying down of mortgage instead of satisfying debt to creditors – discretionary factors.
Legislation Cited: Conveyancing Act 1919 (NSW), s 37
Family Law Act 1975 (Cth), s 79A
Cases Cited: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28
Category: Procedural and other rulings
Parties: Ai Nhon Nguyen (Plaintiff/Second Cross-Defendant)
Avelina Corbett (First Defendant/Cross-Claimant)
James Edmund Corbett (Second Defendant/First Cross-Defendant)
Representation:
Counsel:
RW Tregenza (Plaintiff)
D Reynolds (First Defendant/Cross-Claimant)
Solicitors:
GJ Gooden (Plaintiff)
Meridian Lawyers (First Defendant/Cross-Claimant)

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

Judgment – EX TEMPORE

Revised and reissued 24 July 2019

This is an application consequential upon the judgment which I delivered in June: Nguyen v Corbett (No 4) [2019] NSWSC 712. The parties to the proceedings and the nature of the dispute are set out in that judgment and in the three earlier judgments in these proceedings. What follows assumes familiarity with (and uses the terminology used) those judgments.
My fourth judgment concerned a cross‑claim brought in the proceedings by Mrs Corbett. I had earlier in my first three judgments determined the claim made by the plaintiff against Mr and Mrs Corbett as first and second defendants. In those principal proceedings I concluded that the plaintiff was entitled to an order requiring Mrs Corbett to make the Baulkham Hills property available to meet Mr Corbett's creditors. I have referred to that order in earlier judgments as the "make-available" order. The order was formally pronounced in my second judgment in the proceedings which I delivered in April 2018.
In aid of that order I made…

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 5)

Details

AGLC: Nguyen v Corbett (No 5) [2019] NSWSC 934
Case: [2019] NSWSC 934
Decision Date: 22 July 2019

CaseChat Overview and Summary

The case of Nguyen v Corbett (No 5) involved a dispute regarding the stay of proceedings and pending appeal in a family law matter. The matter was before the Family Court of Australia, with the respondent, Ms. Corbett, seeking a stay of judgment pending an appeal. The primary issue was whether the refusal of a stay and the subsequent sale of the family property would render the cross-claimant's right of appeal ineffective. Additionally, the court considered whether the cross-claimant would suffer prejudice if the stay was refused, requiring her to vacate the family home, and whether she would still need to vacate the property as the costs judgment of the principal proceedings was not part of the appeal.

The court evaluated the cross-claimant's prospects of success on appeal, particularly whether she would likely establish her entitlement to the whole of the family property. The cross-claimant sought orders under the Family Law Act 1975 (Cth), section 79A, entitling her to the entire family property and attributing the entire relevant debt to her husband. However, the court noted that the cross-claimant had not provided any further evidence or explanation for her husband's prior paying down of the mortgage instead of satisfying the debt to creditors. The discretionary factors, including the potential prejudice to the cross-claimant and her ability to fund the costs judgment of the principal proceedings, were also considered.

The Family Court of Australia ultimately decided that the refusal of the stay would not render the cross-claimant's right of appeal nugatory. The court found that the cross-claimant would suffer prejudice if the stay was refused and she was required to vacate the family home. However, since the costs judgment of the principal proceedings was not part of the appeal, she would still need to vacate the property. The court also considered the cross-claimant's prospects of success on appeal, finding that she was unlikely to establish her entitlement to the whole of the property due to the lack of further evidence or explanation regarding her husband's actions. The discretionary factors were weighed, and the court concluded that the cross-claimant's right of appeal would not be rendered nugatory by the refusal of the stay. The court ordered that the stay of proceedings be refused.

Orders