Nguyen v Nguyen - [2023] NSWSC 417

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:
B Zipser (Plaintiff)
Defendant (Self-Represented)
Solicitors:
Integrity Legal Specialists (Plaintiff)

File Number(s): 2015/00151521

EX TEMPORE JUDGMENT (REVISED)

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.
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.
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.
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.
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.
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.
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…

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 Nguyen

Details

AGLC: Nguyen v Nguyen [2023] NSWSC 417
Case: [2023] NSWSC 417
Decision Date: 14 April 2023

CaseChat Overview and Summary

The case of Nguyen v Nguyen was heard by the Supreme Court of New South Wales. The dispute between the parties revolves around the division and management of real property held in co-ownership. The plaintiff, Nguyen, claimed a 40% interest in the property, which was subject to a statutory trust for sale under the Conveyancing Act 1919 (NSW) section 66G. The primary issue for the court was to determine the appropriate course of action regarding the appointment of trustees to manage the sale of the property, given the plaintiff's established interest and the defendant's exhausted rights of appeal.

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