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:
Solicitors:
Mr B Zipser (Plaintiff)
Defendant in person
Integrity Legal Specialists (Plaintiff)
Defendant in person
File Number(s): 2015/151521 Publication restriction: Nil
Judgment
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The Court had before it a Notice of Motion filed by the Defendant on 14 March 2021 which sought…
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- AGLC
- Nguyen v Nguyen [2021] NSWSC 718
- Case
- [2021] NSWSC 718
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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