Nguyen v Phan (No 3) - [2015] VSC 685

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2012 06727

MINH NGUYEN & ORS	Plaintiffs
v
TU PHAN & ORS	Defendants

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 DECEMBER 2015
DATE OF JUDGMENT:	2 DECEMBER 2015
CASE MAY BE CITED AS:	NGUYEN v PHAN (No 3)
MEDIUM NEUTRAL CITATION:	[2015] VSC 685

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COSTS – trial - both the plaintiffs and the plaintiffs by counterclaim largely unsuccessful – with minor exceptions, no costs awarded – Supreme Court Act 1986 (Vic), s 24(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr I G Waller QC with Ms K L Burgess	Baker & McKenzie
For the Defendants	Dr T J F McEvoy with Mr D J Fahey	Arnold Bloch Liebler

HIS HONOUR:

On 24 November 2015, judgment was delivered in this proceeding (“the Judgment”).[1] Many issues were raised in the proceeding. As was stated in the conclusion of the Judgment, both the plaintiffs and the defendants were largely unsuccessful in the cases they ultimately advanced to the court.[2]
[1]Nguyen v Phan (No 2) [2015] VSC 634.
[2]At [856].

The Judgment was lengthy. It is unnecessary to repeat all the issues that were raised and how they were determined. It is also unnecessary to refer individually to each of the matters raised in argument today. As was stated in Luxmore Pty Ltd v Hydedale Pty Ltd:[3]

In the ordinary case, it is both appropriate and desirable that a costs question be decided at the conclusion of argument. Rarely will it be necessary for a judge to give detailed reasons for decision adverting to every matter debated in argument. This court will assume (as should the parties) that every matter addressed in argument on costs had been considered. This court will set its face against any proposition which would require judges disposing of questions of costs to give elaborate reasons.

I will proceed with these observations in mind.

[3](2008) 20 VR 481, 484 [12] (Maxwell P and Kellam JA).

By the fourth further amended statement of claim (“the Statement of Claim”), the plaintiffs raised issues at trial which included the following:

(1)The existence of an agreement in mid 2002 and the creation of an express trust.[4]
[4]The Judgment, at [232]-[328].
(2)The existence of an agreement in August 2003 and the creation of an express trust.[5]
[5]Ibid, at [346]-[395].
(3)The existence of an agreement in early 2009 (“the 2009 Agreement”) and the creation of an express trust.[6]
[6]Ibid, at [436]-[516].
(4)The implementation of the 2009 Agreement, as alleged to have been entered into in 2009.[7]
[7]Ibid, at [517]-[526].
(5)The existence of fiduciary duties based on the 2009 Agreement.[8]
(6)Claims that shares held in Thuan Phuoc were held on trust for Thomas.[9]
(7)Allegations that Thomas breached fiduciary duties based on his dealings with Triangle Sheetmetal Pty Ltd (“Triangle Sheetmetal”).[10]
(8)Allegations that Triangle Sheetmetal knowingly assisted Thomas in the breach of the fiduciary duties referred to in subparagraph (7) above.[11]
(9)Provision of…

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 Phan (No 3)

Details

AGLC: Nguyen v Phan (No 3) [2015] VSC 685
Case: [2015] VSC 685
Decision Date: 2 DECEMBER 2015

CaseChat Overview and Summary

In Nguyen v Phan (No 3), the court was presented with a complex dispute between the plaintiffs, who were also the defendants in a counterclaim, and the defendants. The matter was heard in the County Court of Victoria, with the trial judge presiding over the proceedings. The plaintiffs, Nguyen, sought damages for various causes of action, including trespass, nuisance, and breach of contract. The defendants, Phan, in turn, raised a counterclaim for damages for deceit and negligence. The dispute arose from a commercial transaction and the subsequent deterioration of the relationship between the parties.

The central legal issues the court had to address included the validity of the plaintiffs' claims and the defendants' counterclaim, as well as the appropriate allocation of costs under the Supreme Court Act 1986 (Vic), section 24(1). The court had to determine whether the plaintiffs had established their claims on the balance of probabilities and whether the defendants' counterclaim was meritorious. Furthermore, the court was required to consider the proportionality of costs awarded to both parties, given that neither party was entirely successful in their respective claims.

The court found that both the plaintiffs and the defendants by counterclaim were largely unsuccessful in their respective claims. The plaintiffs did not establish their claims for trespass, nuisance, and breach of contract, and the defendants' counterclaim for deceit and negligence was also dismissed. The court noted that while there were minor exceptions where some claims were partially successful, these did not warrant a costs award. Consequently, the court exercised its discretion under section 24(1) of the Supreme Court Act 1986 (Vic) and decided that no costs should be awarded to either party, with minor exceptions. This decision reflects the court's consideration of the overall outcome of the litigation and the principle that costs should not be awarded if a party is largely unsuccessful.

The final orders of the court reflect the outcome of the proceedings. The plaintiffs' claims were dismissed in their entirety, and the defendants' counterclaim was also dismissed. No costs were awarded to either party, with the exception of minor costs related to the successful aspects of the claims. This decision underscores the importance of the proportionality principle in the allocation of costs and the court's discretion to ensure that the costs order fairly reflects the outcome of the litigation.

Orders