Thi Anh Thuy Nguyen v Anh Tuan Nguyen

The Court had before it a Notice of Motion filed by the Defendant on 14 March 2021 which sought to set aside judgment of the Court and orders duly entered in 2019 and sought a stay of “the enforcement action” and in effect of the costs assessment application directed to assessing the costs to be paid by the Defendant, Dr Anh Tuan Nguyen, to the Plaintiff arising out of two judgments given by Slattery J (see Nguyen v Nguyen [2019] NSWSC 131 on 22 February 2019 and Nguyen v Nguyen (No. 2) [2019] NSWSC 1103 on 27 August 2019), and orders made by Slattery J on 11 November 2019.

The underlying proceedings relate to a property in Woodlands Road, Terrigal (“the Property”). The Plaintiff, Ms Thi Anh Thuy Nguyen, is Dr Nguyen’s sister. His Honour Slattery J held that Ms Nguyen has a 40% interest in the Property which is registered in the name of Dr Nguyen.

Following that judgment, Slattery J was required to determine what was owing as between Ms Nguyen and Dr Nguyen and he held that Ms Nguyen was required on the balance of accounts to pay Dr Nguyen $3,390.02: see his Honour’s reasons in Nguyen (No.2) (supra) and the orders made on 11 November 2019.

In support of his motion Dr Nguyen has filed:

Dr Nguyen has also provided written submissions, although in the main they repeat what is contained in the Statement of Issues and the Summary of Argument.

Dr Nguyen has, in fact, filed an Appeal in the Court of Appeal in respect of the decision of Slattery J. Because the time for an appeal expired long ago, the Court of Appeal registry has, to my understanding, treated his filing in that registry as an application to extend the time for lodgement of his appeal and has fixed 30 June 2021 to hear that application.

Dr Nguyen now appears for himself. He was represented at the first substantive hearing before Slattery J by both solicitors and Counsel. He appeared for himself at the hearing relating to the accounting issues, and he appears for himself in the Court of Appeal application. Mr B Zipser of Counsel appears for the Plaintiff, and has done so on the previous occasions before Slattery J.

Dr Nguyen’s Affidavit in support of the Notice of Motion, his Statement of Issues, his written submissions, and his Summary of Argument for his leave application to the Court of Appeal contain a common theme, namely assertions that (at page 1 of the Summary of Argument):

Dr Nguyen has also made allegations against Mr Zipser and Ms Nguyen’s solicitors, and a contention (at page 11 of the Summary of Argument) that:

Dr Nguyen’s submissions in the Summary of Argument also included an assertion that Slattery J having been made aware of the alleged “misconducts” declined to review them, and that Slattery J failed to “act fairly, rightly and follow relevant precedent”. He claims also that the trial judge’s approach was “incomplete”, failed to follow the “established doctrine of a Court of equity”, “misconstrued a material fact”, reached conclusions for which there was “no evidence”, and he advances arguments about the Court’s acceptance of Ms Nguyen’s evidence, asserts “concealment and obstruction” by her, and asserts that the “Court erred in finding out the actual common intention of parties”.

I have read his Honour’s judgment and I observe that:

There are discernible in Dr Nguyen’s material three elements:

At the hearing of the motion on 14 May 2021 I sought to ascertain whether, as Dr Nguyen’s affidavit in support of the motion seems to suggest, his application to set aside the judgment of the Court is driven by his concern that his sister will seek to enforce the costs orders that she has obtained against him. Dr Nguyen confirmed that this was so, and I raised with Mr Zipser the question of whether his client intended to proceed to take action to enforce the costs orders before hearing of Dr Nguyen’s application filed in opposition to Dr Nguyen’s motion. Mr Zipser pointed out that, as revealed in the Affidavit of Ms Mai Dang (solicitor for the Plaintiff) of 11 May 2021, the Plaintiff has obtained a cost assessment certificate in the amount of approximately $141K (the copy of that certificate was attached to Ms Dang’s affidavit at CB 92), she wishes to have those costs paid out of Dr Nguyen’s share of proceeds of the Property when it is sold and that to achieve that sale the Plaintiff will need to file an application for sale of the Property pursuant to s 66G of the Conveyancing Act 1919 (NSW). Mr Zipser also acknowledged that Dr Nguyen could seek a review by the costs assessment review panel of the costs assessment, either as a matter of right or by seeking an extension of time to do so. I encouraged Mr Zipser to ascertain whether the Plaintiff would be willing to undertake not to take steps to sell the Property or otherwise enforce the costs order prior to the determination by the Court of Appeal of Dr Nguyen’s application. Mr Zipser obtained those instructions and the Plaintiff gave an undertaking to the Court in those terms.

The undertaking removed any concern of Dr Nguyen that he might face an application to enforce the costs order before his application to the Court of Appeal is determined.

Dr Nguyen had complaints against the process of assessment of costs and also made unsubstantiated complaints against the Plaintiff’s solicitor in connection with the costs issue, but these are matters which can be taken up in the review panel’s process, should he wish to avail himself of it and if he meets the procedural requirements for such a review, and are not appropriately the subject of consideration here.

The resolution of the enforcement of the costs issue meant that the only viable part of Dr Nguyen’s Notice of Motion had been resolved. The Plaintiff sought an order for costs, accepting that she should not have costs for that part of the motion dealing with costs assessment.

Dr Nguyen contended that there should be no order as to costs.

Mr Zipser submitted that his client had been forced to contest a motion raising very serious allegations against her and had in accordance with Ward CJ in Eq’s direction filed her own Notice of Motion contending that Dr Nguyen’s Notice of Motion constituted an abuse of process of the Court. The Plaintiff’s representatives had drawn attention to what the Plaintiff asserted was an abuse of process on the part of Dr Nguyen in a detailed letter of 7 May 2021 to Dr Nguyen: see CB 96. On 13 April 2021 at a directions hearing Ward CJ in Eq had warned Dr Nguyen that there was an issue with the form of his claims relating to the allegations of fraud, and that he was at risk in relation to an order for costs by reason of duplicate proceedings constituting an abuse of process: see T3.36-40 and T4.15-21 of the Transcript of 13 April 2021. Mr Zipser also pointed out that had Dr Nguyen simply sought an undertaking that no steps would be taken by the Plaintiff before Dr Nguyen’s application was determined that could have been done. A further matter to which Mr Zipser drew attention is that whilst Dr Nguyen is unrepresented he is unrepresented not because he cannot afford representation, but out of choice, an assertion which Dr Nguyen did not dispute.

In my view, Dr Nguyen’s Notice of Motion, leaving aside the issue of costs enforcement to which I have referred, should not have been advanced by him and ought be dismissed.

A judgment of the Court is binding and effective notwithstanding any appeal having been lodged (Uniform Civil Procedure Rules 2005 (NSW) r 51.44 and see Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694) and a fortiori where what has been lodged is an application for leave to appeal.

The material which Dr Nguyen advanced included matters that were clearly grounds of appeal. It is completely inappropriate to seek to have a judge at first instance, in effect, hear a backdoor appeal. This is even more obviously so where the applicant has lodged a Notice of Appeal in the Court of Appeal for which he needs to obtain an extension of time and has been given a hearing date.

Insofar as the material in the Statement of Issues advanced is not material that could be identified as grounds of appeal, it is an inadequate document for a claim that Ms Nguyen obtained the judgment by reasons of fraud. This is so, even putting aside that the Chief Judge in Equity sought to have Dr Nguyen provide details of his claim by ordering him to file Points of Claim (akin to a Statement of Claim), but he did not do so – his Statement of Issues is not a pleading or akin to a pleading. Ms Nguyen’s legal representatives and the Court were left with the task of endeavouring to discern what Dr Nguyen was asserting was the fraudulent conduct alleged without any proper identification of the material said to constitute such conduct.

There is no question that there is a difference between an appeal and a claim that a judgment should be set aside on the grounds of fraud: see Nicholls v Carpenter [1974] 1 NSWLR 369 at 374G-375B.

The Court of Appeal has made it clear that applications to set aside judgments on the grounds of fraud must be by way of a Statement of Claim in fresh proceedings: see Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691, 697C and Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75 at [15]-[19].

In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Kirby P (with whom Hope and Samuels JJA concurred) said at 538-9:

The portion of Kirby P’s judgment that I have emphasised appears apt to describe Dr Nguyen’s approach to the judgment made against him.

The Statement of Issues is not a pleading in fresh proceedings, but even more fundamentally it does not meet any of the criteria identified by Kirby P – part of the problem of the document is that it used the words “fraud” and “fraudulently” indiscriminately and to cover what are in reality at least in part the grounds of appeal.

I was therefore of the view that the Notice of Motion to set aside Slattery J’s judgment ought not be entertained. However, whilst Dr Nguyen did not properly articulate it, I was prepared to treat Dr Nguyen’s application as including an application for a stay of the enforcement of costs orders previously entered and now the subject of a certificate. It needs to be recognised that a party who has obtained a costs order should not be precluded from embarking upon and continuing to have her or his costs assessed. There is always a risk for a successful party that a costs order made in his or her favour might be set aside either because the unsuccessful party’s appeal succeeds in its entirety or on the issue of costs, but it is for the successful party to decide whether or not to embark upon that process. The successful party may decide that he or she does not want to await the outcome of the appeal (or application for leave to appeal), but would rather have the costs assessment carried out prior to the hearing of the appeal or application so that he or she can move to enforcement of that order as soon as the appeal or application is determined unfavourably to the appellant. That there ought be no stay in respect of the costs assessment process (as opposed to its enforcement) is reinforced by the recent decision of Brereton JA in Muriniti v Kalil [2021] NSWCA 81 at [9] and [10].

However, whilst I accept that a party who has suffered a costs order consequent upon a case in which he has been unsuccessful is entitled to apply for a stay of enforcement of those costs orders where an appeal has been lodged within time, different considerations may apply where the appeal has not been lodged in time and an application is made later to extend time for the appeal. It became unnecessary to determine that issue because very sensibly Mr Zipser sought and obtained instructions which saw Ms Nguyen give the undertaking to which I have referred. The consequence, in my view, is that the Plaintiff should not recover any costs for that aspect of Dr Nguyen’s Notice of Motion (and Mr Zipser accepted that). The balance of the costs of Dr Nguyen’s Notice of Motion and the costs of the Plaintiff’s Notice of Motion, as agreed or assessed, should, however, be paid by Dr Nguyen.

Because of the difficulties in relation to assessment of costs thus far and to reduce the potential for further dispute in relation to costs assessment of this motion, I will fix the percentage of costs to which the Plaintiff is entitled at 90% of her costs, but such costs are to include, without reduction, the filing fee for her Notice of Motion.

I therefore will make the following order: