Nguyen v Nguyen (No 2)

1. [1]

   BELL P: In February 2019, Slattery J (the primary judge) relevantly declared that the Applicant in these proceedings, Mr Anh Tuan Nguyen (the Applicant) held a property in Terrigal on constructive trust for his sister, Ms Thi Anh Thuy Nguyen (the Respondent) as to 40%, and ordered that the Applicant pay the Respondent’s costs: see Nguyen v Nguyen [2019] NSWSC 131 (the principal judgment).

2. [2]

   Dissatisfied with the principal judgment, there have been a number of attempts by the Applicant to set aside the primary judge’s orders.

3. [3]

   First, on 1 February 2021, the Applicant filed a Summons in the Court of Appeal, seeking leave to appeal from the principal judgment. Although leave to appeal was not required, an extension of time in which to commence an appeal was, and thus the Summons was treated as an application for an extension of time in which to file a Notice of Appeal.

4. [4]

   Following a hearing before Meagher JA and myself on 23 July 2021, on 3 August 2021, we refused with costs the application for an extension of time to appeal: see Nguyen v Nguyen [2021] NSWCA 161. As was explained at [31] of that judgment, the delay involved in commencing the appeal was excessive, and was unaccompanied by any satisfactory explanation on the part of the Applicant. The Court also dismissed with costs the Applicant’s misconceived application for leave to appeal.

5. [5]

   Secondly, on 14 March 2021, the Applicant filed a Notice of Motion seeking to set aside the principal judgment, with serious yet unsubstantiated allegations of fraud by the Respondent and her legal representatives. The application was heard by Rein J on 14 May 2021, and dismissed with costs: see Nguyen v Nguyen [2021] NSWSC 718.

6. [6]

   Before this Court is yet another Notice of Motion filed by the Applicant on 18 August 2021 seeking, inter alia, to set aside this Court’s earlier decision of 3 August 2021, and seeking an extension of time in which to appeal the principal judgment of the primary judge delivered in February 2019.

7. [7]

   The Applicant seeks the following orders in his Notice of Motion:

8. [8]

   The Applicant affirmed an Affidavit on 28 August 2021 in support of his Notice of Motion. The Affidavit comprises a combination of complaints about his barrister in the proceedings at first instance, complaints about the legal representatives of the Respondent and complaints about evidence given at first instance. The Applicant asserts that the proceedings at first instance amounted to a miscarriage of justice.

9. [9]

   At a listing before the Court of Appeal Registrar on 30 August 2021, the Registrar identified as a preliminary issue for consideration the Applicant’s application in prayer 3, with the Registrar interpreting this as an application to the Court of Appeal for an order requiring the Respondent to produce documents. The Registrar made orders on this date that the parties file submissions with respect to prayer 3 of the Notice of Motion, and address in the submissions why the Court should entertain an oral hearing in respect of that prayer.

Consideration

1. [10]

   In his submissions dated 27 September 2021, the Applicant repeated attacks on the evidence of the Respondent given at first instance. In essence, the submissions filed were a repeat of arguments that the Applicant had either previously sought to make in this Court or which could have been made in his earlier application.

2. [11]

   In her submissions filed 9 November 2021, the Respondent pointed to the fact that the Applicant has provided no evidence in support of any allegation that the Respondent did not produce relevant documents or avoided service of a subpoena. The Respondent further provided relevant evidence that she had in fact cooperated and responded to all relevant court processes used by the Applicant to collect evidence leading up to the trial before the primary judge in June 2018, whilst querying the relevance of additional documents which the Applicant is now seeking, which were not required of the Respondent in the Notice to Produce issued to her in 2018, during the course of the proceedings at first instance.

3. [12]

   The Respondent further submitted that the Applicant’s attempt to seek an order from the Court of Appeal that the Respondent produce documents amounts to an abuse of process, in that the Applicant should have sought such an order from this Court before the hearing of his extension of time application in July 2021. In any event, the Respondent submitted that there were no hidden documents that she could produce, or any misconduct on the part of her or her husband in failing to produce any documents.

4. [13]

   There is no merit in prayer 3 of the Applicant’s Notice of Motion and a case for the production of documents has not been sustained. Nor is there any necessity for an oral hearing either in relation to prayer 3 or the balance of the Notice of Motion.

5. [14]

   If the Applicant wishes to pursue the balance of the relief sought in the Notice of Motion, he should file and serve written submissions of no more than 5 pages by 4pm on 25 January 2022 with the Respondent to file any submissions in response by 4pm on 2 February 2022 also of no more than 5 pages. The balance of the matter will then be dealt with on the papers.

6. [15]

   Prayer 3 of the Notice of Motion should be dismissed with costs.

7. [16]

   MEAGHER JA: I agree.