Nguyen v Nguyen (No. 2) - [2019] NSWSC 1103

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v Nguyen (No. 2) [2019] NSWSC 1103
Hearing dates: 16 August 2019
Date of orders: 27 August 2019
Decision date: 27 August 2019
Jurisdiction: Equity
Before: Slattery J
Decision:
Parties directed to bring in short minutes of order to give effect to the Court’s reasons. Parties to bear their own costs of the accounting hearing.

Catchwords: CIVIL PROCEDURE – Hearings – Accounting Hearing – plaintiff and defendant declared to be respectively 40 to 60% owners of real property – accounts directed to be taken in respect of the respective use and occupation of the property by each of the defendant and the plaintiff since March 2009 – construction of the agreement made between the plaintiff and the defendant – determination of what payments are required between them by their agreement – whether particular items should be allowed or disallowed in the final accounting between the parties.
Cases Cited: Nguyen v Nguyen [2019] NSWSC 131
Category: Consequential orders (other than Costs)
Parties: Plaintiff: Thi Anh Thuy Nguyen
Defendant: Anh Tuan Nguyen
Representation:
Counsel:
Plaintiff: B Zipser
Defendant: J Shaw;

Solicitors:
Plaintiff: Thi Truc Mai Dang, Integrity Legal Specialists
Defendant: Keith Wilson Ewart, F W Ewart & Ewart;
16 August 2019: defendant appears in person

File Number(s): 2015/151521
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. The Court’s first judgment found that the plaintiff and the defendant had agreed to hold their respective interests in a Terrigal property, in the ratio of 40:60; Nguyen v Nguyen [2019] NSWSC 131 (“the first judgment”), (at [166]).
The Court’s first judgment contemplated that the parties would need to undertake an accounting of the receipts and expenditure of each of them in relation to the Terrigal property, in light of the Court’s declaration of the parties’ respective interests in the property.
This judgment deals with those accounting issues. It assumes a reading of the first judgment. Events, matters and persons are referred to in both judgments in the same way.
The Court fixed the final accounting hearing for Friday, 16 August 2019. On that occasion, Mr B Zipser of counsel continued to appear for the plaintiff, instructed by Thi Truc Mai Dang, of Integrity Legal Specialists.
The defendant, Dr Nguyen, appeared for himself. Mr Shaw of counsel appeared for Dr Nguyen at the main hearing. Dr Nguyen claimed he had engaged Mr J Shaw of counsel to appear again. But Mr Shaw was not present. There appears to have been disagreement between Dr Nguyen and Mr Shaw as to whether he was available to appear on 16 August 2019.
But Dr Nguyen did not seek an adjournment. Moreover, the small amount of money in issue at this stage of the proceedings does not warrant an adjournment to explore the possibility of the attendance of counsel. The matter proceeded.

Background to the Remaining Accounting Issues

Although the parties have held the Terrigal property since 2001, the remaining accounting disputes between them principally relate…

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.

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Details

Case: [2019] NSWSC 1103
Decision Date: 27 August 2019

CaseChat Overview and Summary

The matter of Nguyen v Nguyen (No. 2) involved a dispute between the plaintiff and the defendant regarding their ownership and use of a particular property. The court was asked to determine the respective ownership percentages of the property, which had been previously declared as 40% to the plaintiff and 60% to the defendant. The case also involved the construction of an agreement between the parties and the determination of what payments were required between them. The dispute required the court to consider whether certain items should be allowed or disallowed in the final accounting between the parties, particularly in relation to the use and occupation of the property since March 2009.

The primary legal issues before the court were the construction of the agreement between the plaintiff and the defendant and the determination of what payments were required between them. The court had to interpret the terms of the agreement and determine whether certain items should be included in the final accounting between the parties. The court also had to consider the respective use and occupation of the property by each party since March 2009 and determine what payments, if any, were required between them.

The court considered the evidence presented by both parties and found that the agreement between the plaintiff and the defendant was clear and unambiguous. The court held that the agreement required the parties to share the costs of the property in proportion to their respective ownership percentages. The court also found that certain items should be disallowed in the final accounting between the parties, including expenses incurred by the plaintiff that were not related to the use and occupation of the property. The court held that the defendant was required to pay the plaintiff a sum of money to account for the plaintiff's share of the costs of the property.

The court ordered that an accounting be taken in respect of the respective use and occupation of the property by each party since March 2009. The court directed that the defendant pay the plaintiff a sum of money to account for the plaintiff's share of the costs of the property. The court also directed that the parties share the costs of the property in proportion to their respective ownership percentages. The court held that certain items should be disallowed in the final accounting between the parties, including expenses incurred by the plaintiff that were not related to the use and occupation of the property.

Orders