Nguyen v Nguyen

[2021] NSWCA 161

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Nguyen v Nguyen [2021] NSWCA 161

Hearing dates:

23 July 2021

Date of orders:

03 August 2021

Decision date:

03 August 2021

Before:

Bell P; Meagher JA

Decision:

1.   Application for extension of time to appeal refused with costs.

2.   Application for leave to appeal dismissed with costs.

Catchwords:

APPEAL – where applicant incorrectly filed an application for leave to appeal – where, although leave to appeal was not required, an extension of time in which to bring the appeal was required – no satisfactory explanation provided for delay in commencing appeal proceedings – where no injustice would be suffered by the applicant if an extension of time to appeal was refused – application for extension of time to appeal refused

Legislation Cited:

Conveyancing Act 1919 (NSW) s 66G

Supreme Court Rules 1970 (NSW) Pt 51, r 56(1)

Uniform Civil Procedure Rules 2005 (NSW) rr 51.8, 51.9(1), 51.16(1)(c)

Cases Cited:

Dyason v Butterworth [2015] NSWCA 52

Gallow v The Honourable Justice Dawson (1990) 64 ALJR 458; [1990] HCA 30

Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114

Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235

O’Hare v Bradfield Bentley Pty Ltd (in liq) [2019] NSWCA 122

Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41

Rizk v FA Constructions Australia Pty Ltd (No 2) [2016] NSWCA 203

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Category:

Principal judgment

Parties:

Anh Tuan Nguyen (Applicant)
Thi Anh Thuy Nguyen (Respondent)

Representation:

Counsel:

A T Nguyen (Applicant) (In person)
B M Zipser (Respondent)

Solicitors:

Integrity Legal Specialists (Respondent)

File Number(s):

2021/28303

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2019] NSWSC 131; [2019] NSWSC 1103

Date of Decision:

22 February 2019; 27 August 2019

Before:

Slattery J

File Number(s):

2015/151521

Judgment

1. THE COURT: Before the Court is an application for an extension of time in which to file a Notice of Appeal in relation to two decisions of Slattery J (the primary judge) in the Equity Division of this Court.

2. The underlying proceedings concerned the ownership of a property in Terrigal (the Terrigal Property), which had been purchased in 2001 for $440,000. The Respondent in these proceedings (the Plaintiff below) had entered into an oral agreement concerning the purchase of the property with her brother, the Applicant (the Defendant below).

3. By 2015, the relationship between the siblings had broken down, and the Applicant disputed the Respondent’s claim to an equitable interest in the Terrigal Property. In 2015, the Respondent commenced proceedings in this Court, in which she sought declarations that the Applicant held the Terrigal Property on constructive trust for her as to 50% or, in the alternative, as to 40%. She also claimed, in the alternative, that the Applicant held the Terrigal Property on resulting trust for her.

4. Following a…