Thi Anh Thuy Nguyen v Anh Tuan Nguyen [2021] NSWSC 718

Supreme Court New South Wales

Medium Neutral Citation: Thi Anh Thuy Nguyen v Anh Tuan Nguyen [2021] NSWSC 718 Hearing dates: 14 May 2021 Date of orders: 28 May 2021 Decision date: 27 May 2021 Jurisdiction: Equity Before: Rein J Decision: See [19] and [29]-[31] Catchwords: JUDGMENTS AND ORDERS — Amending, varying and setting aside — Fraud, misrepresentation or suppressions of material fact – the Plaintiff and Defendants are siblings who disputed the ownership of a Property – in 2019 the Court held that the Plaintiff has a 40% interest in the Property which is registered in the name of the Defendant – the Defendant sought by way of Notice of Motion to have principal judgment and orders set aside and stay of an enforcement action and, in effect, of the costs assessment – where an application has been made to the Court of Appeal in respect of the same principal judgment and where a date to hear an application to extend the time for lodgement of an appeal has been set – the Defendant alleged fraud and "misconducts", that there was no evidence to support the Court's decision and made allegations against Plaintiff's legal representatives – where the Defendant is self-represented – discussion of the requirements for a claim that a judgment has been obtained by fraud – the Court held that the Defendant's Notice of Motion be dismissed and that it should not have been advanced by him COSTS — Costs assessment — Procedure – where application for leave filed - an undertaking was made by the Plaintiff to the Defendant to take steps to not sell the Property or otherwise enforce the costs order prior to the determination by the Court of Appeal of the Defendant's application – the Court held that the party who has obtained a costs order should not be precluded from embarking upon having costs assessed prior to the hearing of an appeal or application to extend the time for the lodgement of an appeal, notwithstanding the risk that the costs order may be set aside and that there ought be no stay in respect of the costs assessment process (as opposed to enforcement) Legislation Cited: Conveyancing Act 1919 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 Muriniti v Kalil [2021] NSWCA 81 Nguyen v Nguyen [2019] NSWSC 131 Nguyen v Nguyen (No. 2) [2019] NSWSC 1103 Nicholls v Carpenter [1974] 1 NSWLR 369 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Texts Cited: Nil Category: Principal judgment Parties: Thi Anh Thuy Nguyen (Plaintiff) Anh Tuan Nguyen (Defendant) Representation: Counsel: Mr B Zipser (Plaintiff) Defendant in person