Nguyen v Nguyen

1. [1]

   THE COURT: Before the Court is an application for an extension of time in which to file a Notice of Appeal in relation to two decisions of Slattery J (the primary judge) in the Equity Division of this Court.

2. [2]

   The underlying proceedings concerned the ownership of a property in Terrigal (the Terrigal Property), which had been purchased in 2001 for $440,000. The Respondent in these proceedings (the Plaintiff below) had entered into an oral agreement concerning the purchase of the property with her brother, the Applicant (the Defendant below).

3. [3]

   By 2015, the relationship between the siblings had broken down, and the Applicant disputed the Respondent’s claim to an equitable interest in the Terrigal Property. In 2015, the Respondent commenced proceedings in this Court, in which she sought declarations that the Applicant held the Terrigal Property on constructive trust for her as to 50% or, in the alternative, as to 40%. She also claimed, in the alternative, that the Applicant held the Terrigal Property on resulting trust for her.

4. [4]

   Following a hearing before the primary judge in June 2018, on 22 February 2019, his Honour made a declaration that the Applicant held the property on constructive trust for the Respondent as to 40% and ordered that the Applicant pay the Respondent’s costs. The primary judge’s orders were entered on this date: see Nguyen v Nguyen [2019] NSWSC 131 (the principal judgment).

5. [5]

   A further decision was handed down on 27 August 2019, following a supplementary hearing which took place on 16 August 2019 for an accounting between the parties: see Nguyen v Nguyen (No. 2) [2019] NSWSC 1103. A final order reflecting the outcome of the accounting hearing was given on 11 November 2019.

6. [6]

   On 1 February 2021, the Applicant filed a Summons in the Court of Appeal, seeking leave to appeal from the principal judgment, accompanied by a draft Notice of Appeal and a summary of argument which addressed grounds in the draft Notice of Appeal. The draft Notice of Appeal was in the following form:

7. [7]

   The procedure adopted by the Applicant in seeking leave to appeal was misconceived, as he did not need leave to appeal from the orders of the primary judge; rather, he needed an extension of time in which to bring his appeal.

8. [8]

   A notice of appeal would have been required to be filed within 28 days of the material date, pursuant to r 51.16(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Whether the “material date” was 22 February 2019, being the date of the declaration, or 11 November 2019, being the date of the final orders representing the accounting between the parties: see [5] above, no notice of appeal was filed by either of those dates. Alternatively, the Applicant would have been required to file and serve on the prospective respondent a notice of intention to appeal within 28 days of the material date, pursuant to UCPR r 51.8, which would have thereby allowed the Applicant to file a notice of appeal within 3 months of the material date, pursuant to UCPR r 51.9(1). This also did not occur.

9. [9]

   On the most beneficial view for the Applicant, if the material date was 11 November 2019 and the Applicant had filed a notice of intention to appeal followed by a notice of appeal, a notice of appeal should have been filed by 11 February 2020. The misconceived Summons seeking leave to appeal was filed just under one year later, on 1 February 2021.

10. [10]

    On 8 March 2021, the Registrar of the Court of Appeal ordered that the Summons seeking leave to appeal be treated as an application for an extension of time in which to file a Notice of Appeal, and that the Applicant file and serve an Affidavit as to delay by 29 March 2021.

11. [11]

    Before turning to a consideration of the Applicant’s arguments as to why an extension of time should be granted, it is necessary to set out the relevant principles relating to the grant of an extension of time.

12. [12]

    In Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [18] (Gilmore Finance), Meagher JA (with whom Macfarlan and White JJA agreed) outlined that the discretion to extend time is given for the purpose of enabling the Court to do justice between the parties, thereby ensuring that the time limitation does not become an instrument of injustice. His Honour made reference to the judgment of McHugh J in Gallow v The Honourable Justice Dawson (1990) 64 ALJR 458 at 459; [1990] HCA 30.

13. [13]

    In Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [54]-[56], Basten JA (with whom Hodgson and Ipp JJA agreed) stated with reference to the former Pt 51 r 56(1) of the Supreme Court Rules 1970 (NSW):

14. [14]

    In Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [23], Brereton JA noted the relevant considerations on an application for an extension of time, as follows:

15. [15]

    As Gleeson JA noted in O’Hare v Bradfield Bentley Pty Ltd (in liq) [2019] NSWCA 122 at [34], it is also necessary to bear in mind the overriding purpose to ensure that litigation is resolved in a timely fashion. His Honour there noted that:

16. [16]

    The Applicant filed and served his Affidavit with respect to an extension of time on 29 March 2021. However, the Affidavit largely repeats verbatim the summary of argument that had been filed in support of the misconceived application for leave to appeal.

17. [17]

    The Affidavit does, however, contain a short section entitled “The reason for the case filed to Court of Appeal now”. The section begins with three paragraphs which contain bald assertions of fraud attributed to the Respondent, her husband and her legal advisers, and then notes that the primary judge took 8 months to reach his decision, this last point apparently being made not so much by way of complaint but rather as an indication of the complexity of the case.

18. [18]

    The Applicant then draws a contrast, stating “On another [sic: the other] hand the Appellant is just a medical officer who is busy with his family/medical professional commitment especially extra impact with pandemic”. The Applicant then continues:

19. [19]

    The serious allegations of fraud, bribery and deliberate professional misconduct were nothing more than assertion, and do not assist the Applicant’s case. His explanation, when stripped of these wholly unspecific and unsubstantiated allegations, comes down to nothing more than that the Applicant is “just a medical officer who is busy with his family/medical professional commitment especially extra impact with pandemic”, and that the case was complex and made more so by what the Applicant claimed was the fraud and misconduct of the Respondent and her legal advisers.

20. [20]

    On 21 April 2021, the Registrar of the Court of Appeal ordered, inter alia, that the Applicant’s submissions on evidence and an extension of time were to be filed and served by 12 May 2021.

21. [21]

    On 13 May 2021, the Applicant filed and served submissions dated 12 May 2021, which largely repeated the allegations of fraud on the part of the legal practitioners involved. The reasons expressed to justify the delay in the filing of the appeal were the same as those raised by the Applicant in his Affidavit dated 29 March 2021. The matter was not taken further in terms of a satisfactory answer for the lengthy delay in the filing of proceedings in the Applicant’s submissions in reply filed on 21 July 2021, or in the Applicant’s oral submissions where he was asked directly what his explanation was for the lengthy delay in the commencement of appeal proceedings.

22. [22]

    The Applicant endeavoured to suggest that certain documents supplied by the Respondent in relation to the taxation of costs in late 2020 disclosed the fraudulent conduct of which the Applicant complained but, when taken to the documents in question, the Applicant was unable to articulate in any coherent way how it was that these documents supported any allegation of fraud. That is, of course, a most serious charge to make and the gravity of such allegations is to be contrasted with the looseness with which the Applicant made them. It suffices to say that, in the Court’s view, so far as the allegations were comprehensible, they were baseless.

23. [23]

    The Respondent submitted that the application to extend time should be refused by reason of the sheer length of the delay; that the Applicant had failed to provide any adequate explanation for the delay, and that his being “busy” was not a satisfactory explanation; that the Applicant did not have a fairly arguable case; and that the Respondent would suffer prejudice if the application were granted.

24. [24]

    The Respondent further submitted that in the present case, the Court should find that the Applicant’s delay was “intentional”, as he did not provide any evidence that he was unaware of the relevant time limit, in circumstances where he did have legal representation at the time of the principal judgment.

Consideration

1. [25]

   In our view, the notional application for an extension of time within which to file a Notice of Appeal should be refused with costs.

2. [26]

   As we have explained, 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.

3. [27]

   It should be noted in that context that the procedural mechanism of a notice of intention to appeal, as provided for in the UCPR, is designed to give disappointed litigants an extended period of time (up to three months) in which to consider whether or not to appeal. That is expressly designed for complex cases of the kind which the Applicant asserted the present case was an example. The extended period allows for advice to be taken as to appeal prospects. The notice of intention to appeal procedure also operates to put a potential respondent to an appeal on notice of the possibility that the judgment in which he, she or it has had success may yet be the subject of an appeal.

4. [28]

   It is relevant to note that the solicitor for the Applicant in the proceedings before the primary judge did not cease to act for him until 1 April 2019, some 5 weeks after delivery of the principal judgment, and that Mr Shaw of counsel who had appeared for the Applicant in the principal proceedings, held himself out as appearing for and assisting the Applicant on a direct access basis between at least March and July 2019. Mr Shaw is an extremely experienced barrister, having been admitted for over 50 years. It may be readily inferred that the Applicant could have taken advice from Mr Shaw as to his appeal rights and the prospects of an appeal from the principal judgment. It is also likely that the Applicant was informed of the timeframes for lodgement of any appeal.

5. [29]

   The fact that the Applicant was represented at trial and continued to be represented for a number of months following delivery of the principal judgment answers in part the Applicant’s claim to have been “busy” and “just a medical officer”, with the implication that he did not have the ability to ascertain or assess his rights to or prospects on appeal. It should also be noted that the evidence is silent as to at what point, if any, Mr Shaw stopped acting for the Applicant or as to whether or not the Applicant has had access to any other legal advice since that time.

6. [30]

   In any event, the fact that a person may be acting for themselves does not mean that they are immune from the rules or is to be treated differently to any other litigant in relation to appeals. This is in part because the party against whom an appeal may be brought has a wholly legitimate interest in the finality of the dispute. That is the very reason why time limits are imposed upon a party’s right to appeal. As Bell P observed in Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [39]-[41]:

7. [31]

   As to the balance of the Applicant’s explanation for delay, we have already explained that we consider that the allegations of fraud and misconduct by the Respondent, her husband and her lawyers lack any proper foundation, but they also fail to supply any reason for the extreme delay in seeking to lodge an appeal. As Basten JA said in Rizk v FA Constructions Australia Pty Ltd (No 2) [2016] NSWCA 203 at [6] (Rizk), “[s]ome delay may well be excusable in circumstances where a proper explanation has been given. In this case, the delay is excessive and no adequate explanation has been given as to precisely what steps were taken prior to the filing of the summons in January 2016.” The delay in that case was approximately 16 months. In the present case, the delay was either 23 months or approximately 12 months. On either view, it was excessive and, like Rizk, has been unaccompanied by a satisfactory explanation.

8. [32]

   In the present case, the Respondent points to prejudice in an unchallenged Affidavit from her solicitor, Mr Dang. The prejudice asserted relates principally to steps taken to recover costs from the Applicant in relation to the proceedings at first instance which have involved expense and which it is said would not have been incurred had the Applicant appealed in a timely manner. It is also put that attempts by the Respondent to recover rent in relation to the property and an intention to seek an order pursuant to s 66G of the Conveyancing Act 1919 (NSW) consequent upon the Applicant’s failure to account will be frustrated if an extension of time is granted. To those instances of prejudice must be added the more general prejudice occasioned by the personal impact and pressures of litigation which the finality of proceedings is designed to put to an end.

9. [33]

   As to the arguability of the Applicant’s proposed appeal, the grounds set out in the draft Notice of Appeal (see [6] above) are not particularly illuminating. To the extent that the Applicant has expanded on these grounds in his written submissions, many of those submissions repeat unsubstantiated allegations of fraud against the Respondent, betray legal confusion or rely on material either not in evidence before the primary judge or which does not appear to have been drawn to the primary judge’s attention. Nothing advanced in the written submissions suggests that an injustice will be generated for the Applicant if an extension of time is not granted.

10. [34]

    For all of the above reasons, the notional application for an extension of time must be refused with costs, as must the Applicant’s misconceived application for leave to appeal.