Nguyen v Grancroft Pty Limited [2020] NSWSC 1644

Supreme Court New South Wales

Medium Neutral Citation: Nguyen v Grancroft Pty Limited [2020] NSWSC 1644 Hearing dates: 6 November 2020 Date of orders: 18 November 2020 Decision date: 18 November 2020 Jurisdiction: Equity - Applications List Before: Parker J Decision: See [50]-[52] Catchwords: CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – duplication of proceedings – vexatious litigant order Legislation Cited: Vexatious Proceedings Act 2005 (Qld) Cases Cited: Jorgensen v Grancroft Pty Ltd [2015] NSWSC 1723 Jorgensen v Jorgensen [2016] QSC 193 Mantonella Pty Ltd v Grancroft Pty Ltd [2015] QSC 191 Category: Procedural and other rulings Parties: Grancroft Pty Ltd (Applicant/Defendant) Tieu My Nguyen (Respondent/Plaintiff) Representation: Counsel: R Ivessa (Applicant/Defendant)

Solicitors: Miller Harris Lawyers (Applicant/Defendant)

In Person: TM Nguyen (Respondent/Plaintiff) File Number(s): 2020/221724 Publication restriction: Nil

Judgment 1. Before the Court is an application by way of notice of motion. The defendant seeks orders summarily dismissing the proceedings; or staying them; or transferring them to the Supreme Court of Queensland. 2. The proceedings are part of a long running dispute between two brothers, Alan Jorgensen and Brian Jorgensen. For convenience, and without disrespect, I will refer to them and to other family members involved in the proceedings by their first names. 3. The dispute centres on a motel in Cairns called the Rainbow Motor Inn. Until 2015 the defendant Grancroft Pty Ltd ("Grancroft") was the registered proprietor of the motel as trustee for a unit trust called the Rainbow Motor Inn Unit Trust ("RMIUT"). Originally 45 per cent of the units (nine out of the issued twenty) belonged to a discretionary trust established for the benefit of Alan and his family. I will refer to this trust as the Alan Jorgensen Family Trust. 4. The dispute arises out of a transaction in 1992. Brian, through a company called Mainrace Pty Limited ("Mainrace"), bought the RMIUT unit holding belonging to the Alan Jorgensen Family Trust from a receiver appointed by Alan's financier, ANZ. The purchase price was $125,000. 5. This is the tenth case to have been brought since 2015 by Alan or parties associated with him about the Mainrace sale or subsequent corporate dealings within Grancroft. The plaintiff in these proceedings is Tieu My Nguyen ("Tieu"). She is Alan's de facto wife and her claim in the proceedings purports to be made on behalf of the Alan Jorgensen Family Trust. 6. Tieu and Alan are currently living in Bali. The proceedings were begun in July this year. Owing to the Covid-19 emergency, documents have been filed and exchanged by electronic means and the hearings have been conducted by audio-visual link or telephone. 7. At the call-over hearing before the Chief Judge on 8 September Alan appeared on Tieu's behalf. In the lead-up to the hearing before me, he communicated with the Court on her behalf and appeared to assume that he would represent her at the hearing. 8. Tieu is of course entitled to conduct the proceedings herself. But as an unqualified person, Alan had no right to represent her. Alan is not himself a party to the proceedings. 9. Having regard to the background to this matter, which I discuss in more detail below, I was not prepared to permit Alan to conduct the proceedings on Tieu's behalf. I allowed him to participate in the hearing (which took place by telephone) as a McKenzie friend. As such he was permitted to be present so as to advise Tieu but was not permitted himself to address the Court on her behalf. Apart from an episode where he took over the telephone for a few minutes, Alan complied with these requirements.