Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen (No 4)

The Court has published three judgments in these proceedings, being Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen [2021] NSWSC 753; Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen (No 2) [2021] NSWSC 978 and Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen (No 3) [2022] NSWSC 515 (J3).

For the purpose of these reasons, I will generally assume the reader has knowledge of the earlier three judgments. I will use the same abbreviations as in those judgments.

The issue before the Court is whether the Court should make order 1 sought in the Nguyens' notice of motion filed on 1 December 2021, which is in the following terms:

On 20 January 2022, the Nguyens sought an order to that effect on a summary basis. As I explained at J3 [51]-[58], the evidence was not sufficient to satisfy the Court that it should declare on a summary basis that Mr Lam does not have any estate or interest in the Smithfield property.

However, at J3 [83], I noted that it remained open for Mr Lam to prove that he has a prior estate or interest in the Smithfield property to the claim made by the Nguyens based upon their judgment against Mr Hoang and the issue of the new writ for levy of property in their favour. I also observed at J3 [86] that Mr Lam could not be allowed to sit on his caveat, but that if he wished to establish that he had the estate or interest in the Smithfield property that he claimed, it would be necessary for him to file a cross claim in the 2019 proceedings seeking appropriate relief and to prosecute that claim with due expedition.

The orders that I made following the hearing included the following:

Mr Lam was represented by counsel at the hearing on 20 January 2022. The orders were made on 5 May 2022, and on that day my Associate emailed to the email address of Mr Lam that he has used in his communications with my Associate a copy of the orders included at J3 [112], that judgment having been published by the Court on 29 April 2022.

Mr Lam has not filed a cross claim seeking a declaration as to the existence of the estate or interest claimed by him in the Smithfield property by the date required by order 5 or at all.

The Nguyens have relisted the notice of motion before the Court by exercising the leave granted to them in order 10(a) made on 5 May 2022.

The proceedings were listed for hearing on 7 June 2022. The Nguyens were represented by Mr Lambert of counsel and Mr Lam appeared for himself. The hearing was conducted by telephone. Mr Lam is not proficient in English and was only able to speak in Vietnamese. The Court allowed a young woman known to Mr Lam to interpret for him. The woman concerned is apparently not an official interpreter, but I am satisfied that she was proficient in English, and nothing occurred during the hearing that caused me concern that Mr Lam was unable to understand the proceedings. I permitted the hearing to be conducted in this manner at Mr Lam's request.

In explaining the course that the Court will take it is to be noted that, at the hearing on 20 January 2022, counsel who appeared for Mr Lam explained that he had been asked to appear by Mr Lam's daughter who is a corporate counsel and holds a practising certificate. I mention this because it satisfies me that, even though Mr Lam is not proficient in English, he has had ready access to a daughter who may be taken to be competent to explain to Mr Lam the effect of the orders made by the Court on 5 May 2022.

Mr Lam offered to the Court a number of unsatisfactory explanations for why he had not filed a cross claim as ordered by the Court. It was difficult to follow those explanations, but they included that Mr Lam was old in age and forgetful. At one point Mr Lam asked the Court to adjourn the proceedings. However, Mr Lam has not made a formal application for an adjournment or provided any reasonable explanation either as to why he was unable to file his cross claim or as to why the Court should further adjourn the proceedings.

I explained at J3 [54]-[58] the circumstances that justified the Court in being suspicious that Mr Lam's claim to be entitled to an estate or interest in the Smithfield property is spurious.

At the conclusion of the directions hearing on 7 June 2022 I made the following relevant notations and orders:

Not only have the Nguyens been thwarted from pillar to post in their legitimate attempt to enforce their judgment against Mr Hoang by executing on their writ for levy of property against the Smithfield property, principally by the conduct of Mr Hoang, Ms Dang, and apparently also of Mr Lam, but as is seen from the orders made by the Court on 7 June 2022, the execution of their judgment has been further impeded by a new caveat lodged by a previously uninvolved party on the basis of a charge allegedly created by Mr Hoang by agreement dated 19 May 2022, which has caused Mr Hoang prima facie to be in contempt of the restraining order extended by the Court against him on 5 May 2022. The relationship between Mr Hoang and the new caveator is not yet known but should be revealed at a further hearing fixed for 16 June 2022.

While the Court has taken all of the care that it can to avoid the possibility that Mr Lam has been prejudiced by his inability to communicate in English, I am satisfied in all of the circumstances that the Court should now make an order summarily declaring that Mr Lam does not have any estate or interest in the Smithfield property. As stated at J3 [86], a party in Mr Lam's position cannot be permitted to impede the due administration of justice by claiming an estate or interest in land the subject of a writ for levy of property issued by the Court, but then omitting to bring proceedings to establish the validity of the estate or interest that is claimed.

The orders of the Court are:

The formal orders will contain a proper title description of the Smithfield property.

For the avoidance of doubt, the declaration in order 1 is not made in favour of Mr Hoang so that Mr Lam is not precluded from claiming as against Mr Hoang that he has an estate or interest in the Smithfield property or its proceeds of sale if, after the execution of the writ for levy of property issued by the Court to the Nguyens, there is a balance remaining after payment of all proper amounts due to parties having an estate or interest in the Smithfield property.