Supreme Court
New South Wales
Medium Neutral Citation: Nguyen v Nguyen [2023] NSWSC 417 Hearing dates: 14 April 2023 Date of orders: 14 April 2023 Decision date: 14 April 2023 Jurisdiction: Equity - Real Property List Before: Hammerschlag CJ in Eq Decision: Orders for the appointment of trustees for sale and ancillary orders. See [17]
Catchwords: LAND LAW — co-ownership — Conveyancing Act 1919 (NSW) s 66G — statutory trust for sale — appointment of trustees — where plaintiff has been declared to have a 40% interest in real property — where defendant’s rights of appeal are exhausted
Legislation Cited: Conveyancing Act 1919 (NSW)
Cases Cited: Nguyen v Nguyen [2019] NSWSC 131
Nguyen v Nguyen(No 2) [2019] NSWSC 1103
Nguyen v Nguyen [2021] NSWSC 718
Nguyen v Nguyen [2021] NSWCA 161
Nguyen v Nguyen (No 2) [2021] NSWCA 325
Nguyen v Nguyen(No 3) [2022] NSWCA 171
Category: Principal judgment Parties: Thi Anh Thuy Nguyen (Plaintiff)
Anh Tuan Nguyen (Defendant)Representation: Counsel:
Solicitors:
B Zipser (Plaintiff)
Defendant (Self-Represented)
Integrity Legal Specialists (Plaintiff)
File Number(s): 2015/00151521
EX TEMPORE JUDGMENT (REVISED)
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The parties are brother and sister and, as the case number of these proceedings reveals, they have been in dispute since 2015. The dispute concerns a property at 56 Woodlands Road, Terrigal (being Lot 43 in DP 236998) (the Property) which was acquired by them as joint venturers and registered in the defendant’s name.
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In 2019, Slattery J declared that the plaintiff has a 40% interest in the property. His Honour ordered an accounting: see Nguyen v Nguyen [2019] NSWSC 131. The accounting took 2 years and resulted in an order that the plaintiff was liable to the defendant for $3,390.02: see Nguyen v Nguyen(No 2) [2019] NSWSC 1103.
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In March 2021, the defendant filed a motion to set aside the judgment for fraud and improper conduct by the plaintiff’s lawyers. That application was dismissed with costs by Rein J: see Nguyen v Nguyen [2021] NSWSC 718.
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The defendant then filed a Summons in the Court of Appeal seeking (out of time) leave to appeal against the original principal judgment, which application was dismissed with costs: see Nguyen v Nguyen [2021] NSWCA 161.
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The defendant then filed a Notice of Motion in the Court of Appeal to set aside the Court of Appeal judgment and for related orders, including for the production of documents. On 16 December 2021, the Court of Appeal dismissed the application to set aside the earlier Court of Appeal judgment: see Nguyen v Nguyen (No 2) [2021] NSWCA 325.
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The defendant then pressed on with the balance of his Notice of Motion (for the production of documents), which motion was dismissed by the Court of Appeal on 31 August 2022: see Nguyen v Nguyen (No 3) [2022] NSWCA 171.
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Against that background, the plaintiff now moves pursuant to s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the Property. Her…
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- AGLC
- Nguyen v Nguyen [2023] NSWSC 417
- Case
- [2023] NSWSC 417
- Decision Date
CaseChat Overview and Summary
The court had to consider whether the statutory provisions allowed for the direct appointment of trustees without further judicial intervention. It was essential to examine the statutory trust mechanism and whether it mandated judicial appointment or permitted the parties to proceed directly to appoint trustees. The court also needed to assess the implications of the defendant's exhausted rights of appeal on the urgency and manner of appointing trustees to facilitate the sale of the property.
In delivering the judgment, the court held that the statutory trust mechanism under section 66G of the Conveyancing Act 1919 (NSW) permits the direct appointment of trustees by the co-owners. The court noted that since the defendant's rights of appeal had been exhausted, there was no impediment to the plaintiff proceeding with the appointment of trustees. The court concluded that the plaintiff was entitled to appoint trustees without further judicial intervention, enabling the sale of the property in accordance with the statutory provisions. This decision ensures that the property can be managed and sold efficiently, respecting the plaintiff's established interest and the legislative framework governing co-ownership and statutory trusts.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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