Nguyen v Nguyen (No 2)
[2021] NSWCA 325
•16 December 2021
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
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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).
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Dissatisfied with the principal judgment, there have been a number of attempts by the Applicant to set aside the primary judge’s orders.
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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.
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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.
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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.
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Before this Court is yet another Notice of Motion filed by the Applicant on 18 August 2021 seeking, inter alia, to set aside this Court’s earlier decision of 3 August 2021, and seeking an extension of time in which to appeal the principal judgment of the primary judge delivered in February 2019.
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The Applicant seeks the following orders in his Notice of Motion:
“1 To review and set aside decision 1 & 2 of Court of Appeal dated 03/08/2021 before Justice Bell P and Justice Meagher JA.
2 To review and grant the application for extension of time to Appeal and grant leave to appeal.
3 To order Respondent and lawyers to prove that they do not commit to set Applicant up with their invented litigation by simply providing supportive evidence for their invention especially: respondent & Mr. Luong’s incomes, financial capacity for $500,000 home loan, respondent signed sale of land contract and mortgage contract, tax invoices & receipts for renovation cost of $57,000; proof of the house condition as per Respondent Affidavit; evidence of their home loan payments as their onus of proof-as per ground 4; respond to Summary of Argument part b,
4 That the principal judgement [sic], in favour of the plaintiff, Thi Anh Thuy Nguyen, on 22 February 2019 be set aside.
5 That the enforcement action be stayed until the application to set aside the principal judgement [sic] be decided. (Case number 2015/00151521).
6 That the enforcement action be stayed until the application for appeal on the case in the Court of Appeal has been decided and on the outcome of the appeal. Case Number 2021/28303. Court of Appeal.
7 That the application for a stay of enforcement be dealt with on an urgent basis, in Chambers.
8 That the application for stay of enforcement be heard before Judges, with the attendance of both parties.
9 To put on hold immediately any or all costs assessment applications submitted to the Supreme Court, as the enforcement action by the Respondent.
10 That the Cost Assessor of the Supreme Court, to refrain immediately from making any further decision/ determination/ or make any judgment [sic] or issue of the Cost certificate, to any cost assessment application submitted by the Respondent/Plaintiff, until the hearing and outcome of the, set aside principal judgement [sic] and Court of Appeal application has been determined and a decision is made by the Court.
11 That the Respondent file a defence within 28 days.
12 Both parties pay their own costs for the notice of motion and hearing directions.
13 That the enforcement action by the Respondent/Plaintiff be stayed and the set aside of the principal judgment (Case number 2015/00151521) to be granted by the Court of Appeal”.
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The Applicant affirmed an Affidavit on 28 August 2021 in support of his Notice of Motion. The Affidavit comprises a combination of complaints about his barrister in the proceedings at first instance, complaints about the legal representatives of the Respondent and complaints about evidence given at first instance. The Applicant asserts that the proceedings at first instance amounted to a miscarriage of justice.
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At a listing before the Court of Appeal Registrar on 30 August 2021, the Registrar identified as a preliminary issue for consideration the Applicant’s application in prayer 3, with the Registrar interpreting this as an application to the Court of Appeal for an order requiring the Respondent to produce documents. The Registrar made orders on this date that the parties file submissions with respect to prayer 3 of the Notice of Motion, and address in the submissions why the Court should entertain an oral hearing in respect of that prayer.
Consideration
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In his submissions dated 27 September 2021, the Applicant repeated attacks on the evidence of the Respondent given at first instance. In essence, the submissions filed were a repeat of arguments that the Applicant had either previously sought to make in this Court or which could have been made in his earlier application.
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In her submissions filed 9 November 2021, the Respondent pointed to the fact that the Applicant has provided no evidence in support of any allegation that the Respondent did not produce relevant documents or avoided service of a subpoena. The Respondent further provided relevant evidence that she had in fact cooperated and responded to all relevant court processes used by the Applicant to collect evidence leading up to the trial before the primary judge in June 2018, whilst querying the relevance of additional documents which the Applicant is now seeking, which were not required of the Respondent in the Notice to Produce issued to her in 2018, during the course of the proceedings at first instance.
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The Respondent further submitted that the Applicant’s attempt to seek an order from the Court of Appeal that the Respondent produce documents amounts to an abuse of process, in that the Applicant should have sought such an order from this Court before the hearing of his extension of time application in July 2021. In any event, the Respondent submitted that there were no hidden documents that she could produce, or any misconduct on the part of her or her husband in failing to produce any documents.
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There is no merit in prayer 3 of the Applicant’s Notice of Motion and a case for the production of documents has not been sustained. Nor is there any necessity for an oral hearing either in relation to prayer 3 or the balance of the Notice of Motion.
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If the Applicant wishes to pursue the balance of the relief sought in the Notice of Motion, he should file and serve written submissions of no more than 5 pages by 4pm on 25 January 2022 with the Respondent to file any submissions in response by 4pm on 2 February 2022 also of no more than 5 pages. The balance of the matter will then be dealt with on the papers.
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Prayer 3 of the Notice of Motion should be dismissed with costs.
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MEAGHER JA: I agree.
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Decision last updated: 16 December 2021
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