Nguyen v Nguyen (No 3)

THE COURT: On 16 December 2021, we delivered judgment in Nguyen v Nguyen (No 2) [2021] NSWCA 325. That judgment was in relation to Prayer 3 of a Notice of Motion which had been filed by the Applicant in this Court on 18 August 2021 (the August Notice of Motion) and which sought, inter alia, to set aside our earlier judgment delivered on 3 August 2021: Nguyen v Nguyen [2021] NSWCA 161.

These reasons presuppose familiarity with both of our earlier judgments. For present purposes it suffices to note that, by our judgment of 3 August 2021, we refused an application for an extension of time to appeal from a decision of Slattery J delivered on 22 February 2019: Nguyen v Nguyen [2019] NSWSC 131.

Prayer 3 of the August Notice of Motion was, in effect, an application for an order requiring the Respondent to produce certain documents in aid of other relief sought in the August Notice of Motion. The relief sought in Prayer 3 was refused with costs in our judgment of 16 December 2021. We also ordered that:

What was left of the August Notice of Motion to be determined, other than Prayer 3, was as follows:

The principal substantive relief sought in the balance of the August Notice of Motion was that set out in Prayer 1, namely to “review and set aside” our judgment of 3 August 2021. Neither the August Notice of Motion nor the Applicant’s submissions identified the jurisdictional basis upon which that relief could be granted. It was open to the Applicant to seek special leave to appeal from our judgment of 3 August 2021 but, to our knowledge, no such application was made and, even if it had been made, the success or otherwise of any such application would be a matter for the High Court.

Nor did the Applicant suggest any irregularity, illegality or bad faith in our judgment of 3 August 2021 that might otherwise engage r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW).

Accordingly, there is no jurisdictional foundation for the relief sought in Prayer 1 of the August Notice of Motion.

Prayer 2 of the August Notice of Motion, which effectively sought to canvass our decision of 3 August 2021 refusing with costs the application for an extension of time to appeal, likewise has no merit. The application for an extension of time has been considered and refused. In doing so it was observed that “the delay involved was very lengthy. On the most charitable approach to the Applicant, the delay was just under a year had the Applicant taken the opportunity to file a notice of intention to appeal by the required date in February 2020 after the primary judge’s second decision which, of course, he did not do”: [2021] NSWCA 161 at [26].

In relation to Prayer 4 of the August Notice of Motion, the principal judgment there referred to, namely the judgment of Slattery J of 22 February 2019, was the subject of the application for an extension of time to appeal, which we refused. Prayer 4 is, de facto, an attempt to achieve the result of a successful appeal which the Applicant has no right to bring. Moreover, as we noted in our judgment of 16 December 2021 at [5], the Applicant, by Notice of Motion dated 14 March 2021, separately sought to set aside Slattery J’s judgment on grounds of fraud. That application was dismissed with costs by Rein J: Nguyen v Nguyen [2021] NSWSC 718.

Prayer 5 must necessarily fall with Prayer 4 of the August Notice of Motion.

In relation to Prayer 6, there is no basis for staying any enforcement application as the “appeal on the case in the Court of Appeal” has already been decided by our judgment of 3 August 2021, the necessary leave to bring the appeal out of time having been refused.

Prayers 7 and 8 were effectively dealt with in our earlier judgment, by the directions noted in [3] above and the indication that the balance of the August Notice of Motion would be dealt with on the papers.

There is no basis which would justify the relief sought in Prayer 9 of the August Notice of Motion, namely “[t]o put on hold immediately any or all costs assessment applications submitted to the Supreme Court”. The Respondent is entitled to enjoy the costs orders which she has secured in the long and unfortunate history of this litigation. For similar reasons, there is no basis for the relief sought in Prayer 10 and Prayer 13.

Prayer 11 is misconceived. There is no process or pleading calling for the filing of a Defence.

As to Prayer 12, the Applicant must pay the Respondent’s costs of and incidental to the August Notice of Motion which, for the reasons given above, is dismissed.