Television Broadcasts Ltd v Van Loc Nguyen

[1992] FCA 231

JUDGMENT NO.=. 9 .%

NOT FOR PUBLICATION

IN THE FEDERAL COURT OF AUSTRALIA	)
1
SOUTH AUSTRALIAN DISTRICT REGISTRY )	No. SG 102 of 1989

1

GENERAL DIVISION	)
BETWEEN:
TELEVISION BROADCASTS LIMITED
m-TVB INTERNATIONAL
LIMITED JENRIM PTY LTD LE MINH HOANG

Applicants

- and -

VAN LOC NGUYEN

THI THAW SON NGUPEN

Respondents

EX TEMPORE REASONS FOR JUDGMENT

Corm: von Doussa J.

Date : 13 April 1992

In my view I should proceed to enter judgment against Messrs Wong and Lai for the sum of $6,000. That judgment will be entered pursuant to a settlement that was reached when these proceedings were taken out of the list back in July

one of which required the payment of the sum of $6,000 within pursuant thereto various terms of settlement were recorded,

1991.

On that occasion there was an application under FCR 0.62, r.9 by the fourth applicant seeking orders which included orders against Messrs Wong and Lai in respect of their conduct of the proceedings. When the matter came on before the Court, the Court was informed that a settlement had been reached and

six months by Messrs Wong and Lai. The affidavit since filed by Mr Pedler, sworn on 20 March 1992, shows that there were additional terms of settlement reached between the parties in addition to those recorded by the Court.

When the matter was last before the Court I ruled that the Court had jurisdiction to entertain an application by the fourth applicant for judgment against Messrs Wong and Lai. The ruling I then made is further supported by the decision of

Ellwood v Darl ing Downs Inves tments Pty L t d , (1987), 75 ALR

47, which counsel have referred to this morning. Mr Bryant has very fairly and properly conceded, as I would have expected him to do on instructions from Messrs Wong and Lai, that there was an agreement that is enforceable in respect of the $6,000. The request for judgment for that amount is, however, resisted on the ground that Messrs Wong and Lai have a "set-off" against the fourth applicant for fees which are payable by him to them.

At an earlier hearing I was led to believe that there were solicitors' costs included in the alleged set-off and that a bill of costs would be lodged in this Court for taxation on the earlier proceedings, which bill would have given an indication of the work that gave rise to those fees and of the extent of the fees themselves. No such bill has, however, been filed. Instead Mr Wong has filed an affidavit sworn on Friday last which raises issues as to counsel fees paid by his firm to Mr Tilmouth QC and a further bill which is

outstanding to Mr Robertson QC.

In my view neither of these matters should now be allowed as set-offs against the sum of $6,000 which was unequivocally agzeed to be paid within six months of the settlement in July 1991. The fees due to Mr Tilmouth in respect of this action, that is action number SG 102 of 1989, were to be paid out of the sum of $4,500 which was paid out of court pursuant to the settlement to Messrs Adams Kandelaars. The counsel fees were not paid to Mr Tilmouth out of that sum as Messrs Wong and Lai did not provide the necessary particulars to Messrs Adams Kandelaars to indicate how much of the outstanding fees were due in respect of action number 102 of 1989 and how much of the fees related to the earlier action.

Mr Pedler's affidavit sworn on 10 April 1992 indicates that the particulars required from Messrs Wong and Lai have still not been supplied. However, when they are supplied such of the fees as are payable to M r Tilmouth in respect of SG 102

Kandelaars trust account and that there is simply no need to	of 1989 will be paid out of the money held in Messrs Adams
protect Messrs Wong and Lai by set-off against the $6,000.
So far as M r Robertson's account is concerned, in my view it would be inappropriate to allow a set-off against the sum of $6,000 for any fees that are properly payable to Mr Robertson as those fees arose principally in a separate action and not in action number SG 102 of 1989. InsoTar as it might

have been possible outside the overall terms of that settlement to allow Messrs Wong and Lai to bring to account counsel fees owing to Mr Robertson in action number VG 184 of 1989, that should have been done by now in another way.

The terms of the settlement in action number SG 102 of 1989 indicate that payment of the $6,000 by Wong and Lai was to be deferred for a period of six months. The inference is that the period of deferral was to enable Messrs Wong and Lai to settle outstanding costs and to properly account to the fourth applicant, so that whatever adjustments between the parties were necessary would be made within the six months. All I know at the moment is that the fourth applicant paid to Messrs Wong and Lai $32,500 on account of costs and disbursements. I assume that that sum relates primarily to action number VG 184 of 1989. No account for fees has yet been submitted and for all I know that amount may be sufficient to cover Mr Robertson's costs on a proper assessment of the legal fees.

In any event, the accounts from Mr Robertson have not been provided to Messrs Adams Kandelaars who now act for the fourth applicant. The amount said to be due to Mr Robertson cannot be dissected and apportioned between the actions nor is it possible even to verify the total amount. In all the circumstances of the case, it would be quite inappropriate to allow the solicitors, Messrs Wong and Lai to rely on the amount owing to Mr Robertson as a means of avoiding judgment

for the sum of $6,000 which is payable by them under the
settlement to the fourth applicant.

In all the circumstances, I think it is appropriate that judgment for the sum of $6,000 be now entered and that the fourth applicant be at liberty to enforce that judgment. So I will enter judgment for the sum of $6,000 on the notice of motion seeking judgment for that sum by way of enforcement of the settlement reached on 11 July 1991.

I direct Messrs Wong and Lai to pay the costs of the fourth applicant's notice of motion fixed at $700.

I cert~fy that this and the

+ preceding pages are a

true copy of the Reasons for Judgment of Mr Justice von Doussa

Associate:  &&~~iZh/&??

Counsel for the applicants : Mr P D Pedler

Solicitor for the applicants	: Messrs Adams Kandelaars
Counsel for the respondents	: Mr T R Bryant
Solicitor for the respondents	: Wong Lai Kerr & Kiatos
Date of hearing	: 13 April 1992