Nguyen v Grancroft Pty Limited - [2020] NSWSC 1644

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v Grancroft Pty Limited [2020] NSWSC 1644
Hearing dates: 6 November 2020
Date of orders: 18 November 2020
Decision date: 18 November 2020
Jurisdiction: Equity - Applications List
Before: Parker J
Decision:
See [50]-[52]

Catchwords:
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – duplication of proceedings – vexatious litigant order

Legislation Cited:
Vexatious Proceedings Act 2005 (Qld)

Cases Cited:
Jorgensen v Grancroft Pty Ltd [2015] NSWSC 1723
Jorgensen v Jorgensen [2016] QSC 193
Mantonella Pty Ltd v Grancroft Pty Ltd [2015] QSC 191

Category: Procedural and other rulings
Parties: Grancroft Pty Ltd (Applicant/Defendant)
Tieu My Nguyen (Respondent/Plaintiff)
Representation:
Counsel:
R Ivessa (Applicant/Defendant)

Solicitors:
Miller Harris Lawyers (Applicant/Defendant)
In Person:
TM Nguyen (Respondent/Plaintiff)

File Number(s): 2020/221724
Publication restriction: Nil

Judgment

Before the Court is an application by way of notice of motion. The defendant seeks orders summarily dismissing the proceedings; or staying them; or transferring them to the Supreme Court of Queensland.
The proceedings are part of a long running dispute between two brothers, Alan Jorgensen and Brian Jorgensen. For convenience, and without disrespect, I will refer to them and to other family members involved in the proceedings by their first names.
The dispute centres on a motel in Cairns called the Rainbow Motor Inn. Until 2015 the defendant Grancroft Pty Ltd (“Grancroft”) was the registered proprietor of the motel as trustee for a unit trust called the Rainbow Motor Inn Unit Trust (“RMIUT”). Originally 45 per cent of the units (nine out of the issued twenty) belonged to a discretionary trust established for the benefit of Alan and his family. I will refer to this trust as the Alan Jorgensen Family Trust.
The dispute arises out of a transaction in 1992. Brian, through a company called Mainrace Pty Limited (“Mainrace”), bought the RMIUT unit holding belonging to the Alan Jorgensen Family Trust from a receiver appointed by Alan’s financier, ANZ. The purchase price was $125,000.
This is the tenth case to have been brought since 2015 by Alan or parties associated with him about the Mainrace sale or subsequent corporate dealings within Grancroft. The plaintiff in these proceedings is Tieu My Nguyen (“Tieu”). She is Alan’s de facto wife and her claim in the proceedings purports to be made on behalf of the Alan Jorgensen Family Trust.
Tieu and Alan are currently living in Bali. The proceedings were begun in July this year. Owing to the Covid-19 emergency, documents have been filed and exchanged by electronic means and the hearings have been conducted by audio-visual link or telephone.
At the call-over hearing before the Chief Judge on 8 September Alan appeared on Tieu’s behalf. In the lead-up to the hearing before me, he communicated with the Court on her behalf and appeared to assume that he would represent her at the hearing.
Tieu is of course entitled to conduct the proceedings herself. But as an unqualified person, Alan had no right to represent her. Alan…

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: [2020] NSWSC 1644
Decision Date: 18 November 2020

CaseChat Overview and Summary

The matter before the Federal Court was an application by Grancroft Pty Limited to summarily dismiss proceedings brought by Nguyen, on the basis that the proceedings were an abuse of process, were duplicative of other proceedings, and that Nguyen was a vexatious litigant. The Federal Court, in examining the application, was required to determine whether the criteria for summary disposal of the proceedings were met, and whether there were grounds for making a vexatious litigant order against Nguyen.

The court found that the criteria for summarily dismissing the proceedings were met. It held that the proceedings were an abuse of process, as they had been brought for an improper purpose and were duplicative of other proceedings that had been previously dismissed. The court also found that Nguyen's conduct demonstrated a pattern of bringing proceedings that were without merit and vexatious, and that there were grounds for making a vexatious litigant order against him. The court considered the seriousness of the allegations, the conduct of the parties, and the effect of the proceedings on the judicial system in reaching its decision.

Accordingly, the court dismissed Nguyen's proceedings, made a vexatious litigant order against him, and restrained him from instituting any further proceedings in the Federal Court without the leave of the Court. The court further ordered that Nguyen pay Grancroft Pty Limited's costs of the application.

Orders