Nguyen v Nguyen (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Nguyen v Nguyen (No 2) [2021] NSWCA 325

Hearing dates:

On the papers

Date of orders:

16 December 2021

Decision date:

16 December 2021

Before:

Bell P at [1];
Meagher JA at [16]

Decision:

1.        Prayer 3 of the Notion of Motion of 18 August 2021 dismissed with costs.

2.       If the Applicant wishes to pursue the balance of the relief sought in the Notice of Motion, the Applicant to file and serve written submissions of no more than 5 pages by 4pm on 25 January 2022, with the Respondent to file and serve any submissions in reply by 4pm on 2 February 2022.

Catchwords:

PROCEDURE – no issue of principle

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:

B M Zipser (Respondent)

Solicitors:

A T Nguyen (Applicant) (In person)
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. BELL P: In February 2019, Slattery J (the primary judge) relevantly declared that the Applicant in these proceedings, Mr Anh Tuan Nguyen (the Applicant) held a property in Terrigal on constructive trust for his sister, Ms Thi Anh Thuy Nguyen (the Respondent) as to 40%, and ordered that the Applicant pay the Respondent’s costs: see Nguyen v Nguyen [2019] NSWSC 131 (the principal judgment).

2. Dissatisfied with the principal judgment, there have been a number of attempts by the Applicant to set aside the primary judge’s orders.

3. First, on 1 February 2021, the Applicant filed a Summons in the Court of Appeal, seeking leave to appeal from the principal judgment. Although leave to appeal was not required, an extension of time in which to commence an appeal was, and thus the Summons was treated as an application for an extension of time in which to file a Notice of Appeal.

4. Following a hearing before Meagher JA and myself on 23 July 2021, on 3 August 2021, we refused with costs the application for an extension of time to appeal: see Nguyen v Nguyen [2021] NSWCA 161. As was explained at [31] of that judgment, the delay involved in commencing the appeal was excessive, and was unaccompanied by any satisfactory explanation on the part of the Applicant. The Court also dismissed with costs the Applicant’s misconceived application for leave to appeal.

5. Secondly, on 14 March 2021, the Applicant filed a Notice of Motion seeking to set aside the principal judgment, with serious yet unsubstantiated allegations of fraud by the Respondent and her legal representatives. The application was heard by Rein J on 14 May 2021, and dismissed with costs: see Nguyen v Nguyen [2021] NSWSC 718.

6. Before this Court is yet another Notice of Motion…