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Nguyen v Nguyen

Nguyen v Nguyen

Case [2021] NSWSC 718 27 May 2021

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Thi Anh Thuy Nguyen v Anh Tuan Nguyen [2021] NSWSC 718
Hearing dates: 14 May 2021
Date of orders: 28 May 2021
Decision date: 27 May 2021
Jurisdiction: Equity
Before: Rein J
Decision:
See [19] and [29]-[31]

Catchwords:
JUDGMENTS AND ORDERS — Amending, varying and setting aside — Fraud, misrepresentation or suppressions of material fact – the Plaintiff and Defendants are siblings who disputed the ownership of a Property – in 2019 the Court held that the Plaintiff has a 40% interest in the Property which is registered in the name of the Defendant – the Defendant sought by way of Notice of Motion to have principal judgment and orders set aside and stay of an enforcement action and, in effect, of the costs assessment – where an application has been made to the Court of Appeal in respect of the same principal judgment and where a date to hear an application to extend the time for lodgement of an appeal has been set – the Defendant alleged fraud and “misconducts”, that there was no evidence to support the Court’s decision and made allegations against Plaintiff’s legal representatives – where the Defendant is self-represented – discussion of the requirements for a claim that a judgment has been obtained by fraud – the Court held that the Defendant’s Notice of Motion be dismissed and that it should not have been advanced by him
COSTS — Costs assessment — Procedure – where application for leave filed - an undertaking was made by the Plaintiff to the Defendant to take steps to not sell the Property or otherwise enforce the costs order prior to the determination by the Court of Appeal of the Defendant’s application – the Court held that the party who has obtained a costs order should not be precluded from embarking upon having costs assessed prior to the hearing of an appeal or application to extend the time for the lodgement of an appeal, notwithstanding the risk that the costs order may be set aside and that there ought be no stay in respect of the costs assessment process (as opposed to enforcement)

Legislation Cited:
Conveyancing Act 1919 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Muriniti v Kalil [2021] NSWCA 81
Nguyen v Nguyen [2019] NSWSC 131
Nguyen v Nguyen (No. 2) [2019] NSWSC 1103
Nicholls v Carpenter [1974] 1 NSWLR 369
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Texts Cited:
Nil

Category: Principal judgment
Parties: Thi Anh Thuy Nguyen (Plaintiff)
Anh Tuan Nguyen (Defendant)
Representation:
Counsel:
Mr B Zipser (Plaintiff)
Defendant in person
Solicitors:
Integrity Legal Specialists (Plaintiff)
Defendant in person

File Number(s): 2015/151521
Publication restriction: Nil

Judgment

The Court had before it a Notice of Motion filed by the Defendant on 14 March 2021 which sought…

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 [2021] NSWSC 718
Case: [2021] NSWSC 718
Decision Date: 27 May 2021

CaseChat Overview and Summary

In the matter of Nguyen v Nguyen, the siblings were engaged in a protracted dispute over the ownership of a property. The court had previously ruled in 2019 that the plaintiff had a 40% interest in the property, which was registered in the name of the defendant. The defendant sought to set aside the principal judgment and orders and to stay enforcement action and costs assessment. This application was made in the context of an appeal that had been lodged with the Court of Appeal regarding the same judgment, and an application to extend the time for lodging an appeal was scheduled.

The legal issues the court had to resolve included whether the defendant's notice of motion should be dismissed, given the pending appeal and the allegations of fraud, misconduct, and lack of evidence supporting the court's decision. The court also had to consider whether there should be a stay on the enforcement of the costs order, despite the pending appeal. Furthermore, the court had to decide whether the plaintiff should be required to take steps to ensure that the property was not sold or otherwise enforced upon prior to the determination of the appeal.

The court held that the defendant's notice of motion should be dismissed. The court found that the defendant had not satisfied the requirements for a claim that a judgment was obtained by fraud, as there was no evidence to support such a claim. The court also held that there should be no stay in respect of the costs assessment process, as opposed to enforcement. The court determined that the party who obtained a costs order should not be precluded from having the costs assessed prior to the hearing of an appeal or an application to extend the time for the lodgement of an appeal, despite the risk that the costs order may be set aside. The court also noted that an undertaking had been made by the plaintiff to the defendant to take steps to prevent the sale or enforcement of the property until the appeal was determined.

The final orders of the court were that the defendant's notice of motion be dismissed and that there should be no stay in respect of the costs assessment process. The court also confirmed that the plaintiff would take steps to ensure that the property was not sold or otherwise enforced upon until the appeal was determined.

Orders