Soueid v Pham

[2025] NSWSC 611

Supreme Court

New South Wales

Medium Neutral Citation:	Soueid v Pham [2025] NSWSC 611
Hearing dates:	On the Papers
Date of orders:	16 June 2025
Decision date:	16 June 2025
Jurisdiction:	Equity
Before:	Elkaim AJ
Decision:	1. The defendant is to pay the plaintiff’s costs, on the ordinary basis, of these proceedings to date: In particular the defendant is to pay the plaintiff’s costs of the proceedings so far as the proceedings have concerned the plaintiff’s application for withdrawal of caveat AV41522 pursuant to s 74MA(2) of the Real Property Act 1900 (NSW).
Catchwords:	COSTS — withdrawal of caveat — no caveatable interest — substituted service on defendant — relevance of no personal service on defendant — costs follow the event
Legislation Cited:	Real Property Act 1900 (NSW), ss 74MA, 74P
Category:	Costs
Parties:	Laurie Soueid (Plaintiff) Han Trang Pham (Defendant)
Representation:	Counsel: A Gerard (Plaintiff) Q Nguyen (Defendant) Solicitors: Lionheart Lawyers (Plaintiff) QV Law (Defendant)
File Number(s):	2025/187882
Publication restriction:	No

JUDGMENT

1. These reasons concern the plaintiff’s application for costs arising out of its application to remove a caveat that had been lodged by the defendant on the title of a property in the Sydney suburb of Croydon Park.

2. The withdrawal was ultimately achieved by agreement between the parties. But they did not agree on costs, leading to this decision. The specific order sought by the plaintiff is:

“The defendant pay the plaintiff’s costs, on the ordinary basis, of these proceedings to date: Namely, that the defendant should pay the plaintiff’s costs of the proceedings so far as the proceedings concerned the plaintiff’s application for withdrawal of caveat AV41522 pursuant to s 74MA(2) of the Real Property Act 1900.”

3. The plaintiff relied, in respect of costs, on the affidavit of his solicitor, Nazih Touma, dated 15 May 2025, which had been served with the summons. The plaintiff also relied on his own affidavit of 20 May 2025 and affidavits of Yuqian Shang (also known as Ryan Shang) dated 23 May 2025, 26 May 2025 and 10 June 2025. Yuqian Shang is a solicitor working at the same firm as Mr Touma. The defendant relied on her own affidavit dated 2 June 2025.

4. The defendant opposed the plaintiff’s proposed order, suggesting the appropriate order was that each party pay its own costs. The parties agreed that costs should be decided on the papers. Written submissions were received from counsel for the plaintiff (Mr Gerard), and the defendant’s solicitor (Mr Nguyen).

5. The background includes reference to separate proceedings concerning the same property. The plaintiff (the same in both proceedings) sought specific performance against a Ms Dang, the registered owner of the subject property, to enforce a contract for the sale of that property by Ms Dang to the plaintiff. The contract was dated 2 December 2021.

6. On 14 June 2024, Peden J granted the plaintiff default judgment whereby Ms Dang was ordered to specifically perform the contract of sale.

7. On 15 October 2024, Ms Dang filed a notice of motion endeavouring to set aside the orders made by Peden J. This motion was dismissed by Kunc J on 6 December 2024. There had been no appearance by Ms Dang.

8. Consequent upon the orders made by Peden J, the Registrar, on 3 April 2025, signed a transfer of the property to the plaintiff and, on 4 April 2025, ordered that settlement of the contract of purchase was to occur at 2:30pm on 9 May 2025.

9. There was also a mortgage on the property in favour of Westpac Banking Corporation. The outstanding balance of the mortgage exceeded the purchase price of the property. Nevertheless, the plaintiff was prepared to pay the whole amount owing to Westpac on settlement. Part of the urgency in the current proceedings was that the outstanding mortgage sum was increasing as time passed without settlement of the sale.

10. On 8 May 2025 the Registrar made the following orders:

“1. ORDER:

(a) that the Settlement Adjustment Statement prepared by the Plaintiff on 6 May 2025 attached to these orders is approved; and

(b) direct the Plaintiff to pay the balance of the purchase price due to the Defendant under the Contract, being the sum of $1,920,000.00, in accordance with the “Settlement Directions” in the Settlement Adjustment Statement.

2. NOTE:

(a) Westpac Banking Corporation (Westpac) has confirmed the amount necessary to discharge the mortgage AN981714 is $2,115,455.40, which exceeds the balance of purchase price and the amount of $1,903,684.92 directed to be paid to Westpac as per the

“Settlement Directions” in the Settlement Adjustment Statement; and

(b) that the Plaintiff proposes to pay to Westpac the additional amount $211,770.48 for the purpose of the discharge of mortgage AN981714”

11. The defendant (in the proceedings before me) lodged the caveat on 8 May 2025. There were in fact a number of other caveats lodged on the property, but the caveators had agreed to their removal on settlement.

12. The effect of the lodging of the caveat on 8 May 2025, was to frustrate the orders of Peden J and Kunc J and of the Registrar.

13. The caveat was lodged by the defendant through Victor Lawyers Pty Ltd who notified the plaintiff of the lodging of the caveat in the early afternoon of 8 May 2025. The defendant’s interest in the property was said to be an “Estate in Fee Simple” and to arise from a “deed of loan agreement”. Notably, Victor Lawyers also acted for the defendant in the specific performance proceedings.

14. On 16 May 2025, the plaintiff filed a summons seeking withdrawal of the caveat pursuant to s 74MA and compensation from the plaintiff pursuant to s 74P of the Real Property Act 1900 (NSW). Hammerschlag CJ in Eq abridged time for service on the defendant to 19 May 2025 and the matter was made returnable before the Duty Judge on 21 May 2025. I was the Duty Judge.

15. The defendant, having apparently ceased retaining Victor Lawyers, retained Mr Nguyen, a solicitor, to appear for her on 21 May 2025. Mr Nguyen sought an adjournment to enable him to take full instructions. Mr Nguyen said he was unaware of any connection between Ms Pham and Ms Dang, but he understood Ms Pham had provided finance to Ms Dang, the current balance being in the order of $1 million. Mr Nguyen also stated that the instructions he did have were that the summons was being defended.

16. On 21 May 2025, the parties agreed to directions which brought the matter back on 26 May 2025. The directions included the production to the plaintiff of the loan documents between Ms Pham and Ms Dang.

17. The loan documents were produced to the plaintiff and also sent to the court. The agreement seems to be dated 9 April 2024 and is short. It states that Ms Pham is the lender, and Ms Dang is the borrower. It goes on:

“Party A agrees to lend Party B and Party B agrees to borrow the amount of 01 million Australian dollars (One million Australian dollars)

ARTICLE 2: TERM AND METHOD OF LOAN

The loan term is 01 year from 09-04-2024 to 08-04-2025.

1. Party B agrees to pay interest of 10%/year to Party A (10 percent for 1 year)

2. Party B agrees to allow Party A to place this document on the house owned by Party B at xxxxx Street, Croydon Park NSW 2133 as security for the loan amount. In addition, Party B agrees to allow Party A to place this document on all houses in Party B’s name (in case Party B does not pay the principal and interest to Party A according to the Contract).

ARTICLE 3: AGREEMENT & RESPONSIBILITIES OF PARTY B –

Party B commits to comply with this Contract. – During the implementation of the Contract, If any dispute arises, Party B is responsible for returning the principal and interest to Party A. If Party B cannot resolve the payment (principal and interest) to Party A, Party A has the right to file a lawsuit requesting a competent Court to resolve the matter in accordance with the provisions of Australian law.

The Contract is effective from the date of signing and is made into 02 original copies with equal legal value, each party keeps 01 copy for implementation.”

18. It seems clear that the agreement does not substantiate the alleged caveatable interest.

19. When the matter came back before me on 26 May 2025, the parties had again reached an agreement which resulted in consent orders including the defendant’s agreement to the removal of the caveat. As I have said, the parties did not agree on costs.

20. The background seems to provide an overwhelming case for costs to be awarded in favour of the plaintiff. The defendant lodged a caveat, at the last moment, on the most uncertain grounds, refused to remove the caveat, thus leading to the commencement of the proceedings and the ultimate agreement to withdraw the caveat.

21. Consistent with the impression stated in the previous paragraph, Mr Nguyen says in his written submissions:

“The starting point is a concession by the Defendant that the consent orders of 26 May 2025 provide for the caveat lodged by the Defendant to be withdrawn. The Defendant also concedes that prayer 10 and 11 of the original Summons sought what was obtained by consent orders on 26 May 2025, namely the withdrawal of the caveat and that the Defendant be restrained from lodging further caveat on the property at xxxxxx.

Prima facie, the Plaintiff looks to be in a good position to recover the costs of the Summons on the principle that the successful party legal costs be paid by the unsuccessful party.”

22. Mr Nguyen then attempts to dispel the first impression. Drawing on the affidavit of Mr Touma, in particular paras 74 to 89, he is anxious to convey that the defendant “was not properly notified about the Plaintiff intention to commence proceedings to remove the caveat”.

23. Mr Nguyen directed attention to the following:

1. Victor Lawyers only acted for the defendant in respect of the lodging of the caveat. Victor Lawyers did not act for the defendant in respect of the withdrawal of the caveat. On 13 May 2025, Victor Lawyers wrote to the plaintiff’s lawyers stating:

“I was retained to act for the lodgement of the caveat only. Any other matter please direct your correspondences to the caveator.”

2. The plaintiff did not request the defendant personally to remove the caveat before the summons was filed on 16 May 2025.

3. The substituted service of the summons on Victor Lawyers did not bring the matter to the defendant’s attention because Victor Lawyers did not act for her. Accordingly, she was effectively denied procedural fairness.

4. Mr Nguyen, through his firm QV Law, was “retained at the last minute to appear for the Defendant on 21 May 2025 for the return of the Summons”. The defendant was then overseas.

5. On 26 May 2025, after receiving instructions from the defendant, the consent orders were made for the removal of the caveat.

24. The denial of procedural fairness is at the core of Mr Nguyen’s submissions. He submitted:

“The Instanter Relief sought by the Plaintiff in their original Summons sought orders for substituted service of the Defendant by way of service on Victor Lawyers, despite the clear renouncement of acting for the Plaintiff on the question of the removal of the caveat. This instanter relief seems to have been granted and ordered on 16 May 2025. After this time, it could be argued that the Plaintiff were entitled to assume that the Defendant was properly served, but the question for the Court now becomes and we put this proposition strongly, did the Defendant have procedural fairness vis a vis service after the 16 May 2025 despite the orders for substituted service, which is very important given that she was not served directly and every indication to date was that Victor Lawyers did not act on any question of removal of caveat. This is now answered and presented to the court by the affidavit of Ms Han Trang Pham.”

25. The affidavit of the defendant referred to in the above quoted passage attaches the loan agreement and describes the defendant’s travel arrangements, engaging of Mr Nguyen and finally seeing the relevant court documents.

26. Victor Lawyers were served with the summons and supporting affidavit, under the orders for substituted service, on or by 19 May 2025. The defendant was then overseas and was presumably informed of the service by Victor Lawyers. There is no indication if this occurred on 19 May or later. It must have occurred by 21 May because that is when Mr Nguyen appeared and filed a notice of appearance. It is not clear when Mr Nguyen was first contacted. Nevertheless, when Mr Nguyen did appear on 21 May 2025 he said:

“The current state of my instructions is that the summons is defended and directions could be made. I am in your Honour’s hands in regards to the filing of materials so that this matter can be dealt with fully.”

27. I accept that when answering my question Mr Nguyen probably had very limited instructions, but it is worth repeating that Victor Lawyers acted for the defendant in the specific performance proceedings. It is perhaps conceivable that Victor Lawyers only acted for the defendant in lodging the caveat as part of an effort by the other defendant to delay the transfer of the property. I make no finding to that effect because it would not reflect well on Victor Lawyers.

28. Returning to the defendant’s substantial point; it is that she never knew about the application to withdraw the caveat until after the summons was filed. The defendant accepts this was not the fault of the plaintiff because of the order for substituted service but nevertheless the defendant argues that Victor Lawyers were not her lawyers, and she should not bear the consequences, for which she is blameless, of not being aware of the request to withdraw the caveat and the subsequent filing of the summons.

29. However, no evidence has been filed by the defendant substantiating the position and involvement of Victor Lawyers. The affidavit of the defendant does not help, and nothing has been forthcoming from Victor Lawyers. I find it hard to accept the defendant and Ms Dang had no connection to each other, especially if there had been a loan of $1 million. As I have already intimated, the lodging of the caveat on 8 May 2025 is, at least, suspicious.

30. While I entirely accept Mr Nguyen’s description of his involvement in the matter, I find the ‘innocence’ that he attributes to his client more difficult to accept. In any event, the plaintiff acted appropriately in seeking substituted service, he served the defendant accordingly and the defendant ultimately agreed to the withdrawal of a caveat that should never have been lodged in the first place.

31. Therefore, in respect of the withdrawal, the plaintiff achieved complete success which in my view is enough to justify the costs order that has been sought, although with some slight grammatical amendment.

32. I order that: The defendant is to pay the plaintiff’s costs, on the ordinary basis, of these proceedings to date: In particular the defendant is to pay the plaintiff’s costs of the proceedings so far as the proceedings have concerned the plaintiff’s application for withdrawal of caveat AV41522 pursuant to s 74MA(2) of the Real Property Act 1900 (NSW).

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Decision last updated: 16 June 2025