Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen [2021] NSWSC 753

Supreme Court New South Wales

Medium Neutral Citation: Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen [2021] NSWSC 753 Hearing dates: 26 to 29 October 2020. Final submissions 18 December 2020. Evidence completed 31 March 2021. Decision date: 24 June 2021 Jurisdiction: Equity Before: Robb J Decision: See pars [238], [251], [268], [270], [337], [391]-[392], [397], [408], [417] and [421]-[425]. The parties are required to submit agreed or contending draft short minutes of order to give effect to these reasons as required by [421]. Catchwords: EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another's property — Whether defendant holds property on constructive trust for plaintiff — Where plaintiff claims constructive trust arose out of an oral agreement that defendant would hold title to and take out mortgage over the property for plaintiff's benefit — Where plaintiff claims that she provided all monies other than the mortgage for purchase of the property — Where plaintiff lodged a caveat against the property after judgment creditors had registered a writ for the levy of property against the title to the property — Where terms of the caveat and statements made by plaintiff's solicitors were inconsistent with plaintiff being the beneficial owner of the property — Where no objective contemporaneous or subsequent evidence corroborates plaintiff's claim — Where the Court found that the evidence does not justify a finding that the defendant holds the property on constructive trust for the plaintiff EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another's property — Whether plaintiff has an equitable lien over the property arising out of an oral agreement with defendant — Where plaintiff pleaded in the alternative an equitable lien over the property which secured recoupment from the defendant of funds contributed by the plaintiff towards the acquisition of the property — Where plaintiff lodged caveat against the property to protect claimed unregistered equitable lien — Where the plaintiff did not plead any alternative factual basis for the existence of the equitable lien than the constructive trust claim — Where no constructive trust — Where evidence has not established that plaintiff and defendant made any agreement to charge the property to secure any obligation of repayment of contributions plaintiff made towards acquisition of the property — Where the Court found that the plaintiff is not entitled to an equitable lien or charge on the basis of the oral agreement EQUITY — Equitable interests in property — Mere equities — Whether plaintiff has an equitable interest in the property capable of being protected by a caveat — Where plaintiff lodged a caveat against the property to protect a claimed unregistered equitable interest — Where plaintiff failed to establish a constructive trust or an equitable lien in her favour — Where plaintiff made some monetary contributions towards the acquisition of the property — Where plaintiff may be entitled to be subrogated to the registered mortgage in future but where that may not constitute a present proprietary right — Where the Court found that plaintiff's interest in the property if it exists is likely a "mere equity" LAND LAW — Caveats — Caveatable interest — Whether plaintiff has a caveatable interest — Where plaintiff lodged caveat against the property — Where plaintiff's interest in the property is likely a 'mere equity' and not an equitable interest — Where it is established caveats cannot protect 'mere equities' — Where the Court found no caveatable interest so that the caveat cannot be maintained LAND LAW — Caveats — Effect of caveat — Prevention of further dealings — Where caveat lodged after registration of a writ for the levy of property against title to the property prevents the subsequent registration of a writ issued on a judgment obtained before lodgement of the caveat — Where Sheriff unable to execute writ in favour of judgement creditors on the basis of the caveat on the title preventing future registration of a transfer procured under sale of the property by the Sheriff — Where caveator's claim does not have substance and caveat does not protect a caveatable interest — Where the Court found that the judgment creditors are entitled to an injunction requiring plaintiff to withdraw the caveat and to not lodge another caveat interfering with judgement creditors' entitlement to register a new writ on the title to the property or the ability of the Sheriff to execute the writ LAND LAW — Caveats — Removal of caveat — Whether judgment creditors have standing to seek an order for the withdrawal of a caveat pursuant to s 74MA of the Real Property Act — Where judgment creditors do not have an estate or interest in the property — Where it is established that the issue of a writ for the levy of property does not grant judgment creditors an estate or interest in property — Where the Court found that the judgment creditors do not have the requisite standing LAND LAW — Caveats — Removal of caveat — Service of lapsing notice — Whether judgment creditors to whom a writ has been issued and whose writ is prohibited from registration by terms of a caveat can use lapsing notice procedure in s 74I of the Real Property Act to procure both registration of the writ and also withdrawal or complete lapsing of the caveat on an interlocutory basis — Where caveator sought an order extending the caveat — Where caveator's claim does not have substance and caveat does not protect a caveatable interest — Where effect of s 74I of the Act is that the caveat only lapses to the extent necessary to enable writ to be registered — Where the Court found that this outcome does not compel the withdrawal or complete lapsing of the caveat to enable the Sheriffs to execute the writ LAND LAW — Caveats — Removal of caveat — Service of lapsing notice — Whether lapsing notice issued by the Registrar-General on the application of judgment creditors pursuant to s 74I of the Real Property Act was improperly issued or invalid — Where plaintiff claimed lapsing notice was invalid because second writ had already been registered — Where plaintiff failed to establish this in fact — Where the Court found that lapsing notice was probably not improperly issued or invalid Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Interpretation Act 1987 (NSW) Real Property Act 1900 (NSW) Real Property Amendment (Electronic Conveyancing) Act 2014 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Abraham v Abraham [2012] NSWSC 254 Abou-Hamad v Darwish [2012] NSWSC 231 Aged Care Services Pty Ltd v Kanning Services Pty Ltd (2013) 86 NSWLR 174; [2013] NSWCA 393 Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26; (2012) 16 BPR 30,397 Barnes v Addy (1874) LR 9 Ch App 244 Black v Garnock (2007) 230 CLR 438; [2007] HCA 31 Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210 Chetcuti v Scarf [2000] NSWSC 637; (2000) 10 BPR 18,193 Chubs Constructions Pty Ltd v Chamma (No 2) (2010) 78 NSWLR 679; [2010] NSWCA 225 Gandel Metals Pty Ltd, in the matter of Centennial Mining Limited (Subject to Deed of Company Arrangement) v Centennial Mining Limited (No 2) [2020] FCA 633 Global Minerals Australia Pty Ltd v Valerica Pty Ltd [2000] NSWSC 1143; (2000) 10 BPR 18,463 Hall v Richards (1961) 108 CLR 84 Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207 Iaconis v Lazar [2007] NSWSC 1103 In the matter of Harmon International Holdings Pty Ltd [2019] NSWSC 413 In re Shears and Alder (1891) 17 VLR 316 Nguyen v Sage Consultant Group Pty Ltd [2018] NSWSC 65 New South Wales Crime Commission v Lee (2010) 79 NSWLR 410; [2010] NSWSC 1012 Padovan v MGG Group Pty Ltd (in liq) [2011] NSWSC 1080 Phillips v Walsh (1990) 20 NSWLR 206 Queensland Estates Pty Ltd v Co-Ownership Land Development Pty Ltd [1969] Qd R 150 South Carolina Insurance Co v Assurantie Maatschappij De Zeven Provincien NV [1987] AC 24 State Bank of New South Wales v Geeport Developments Pty Ltd (1991) 5 BPR 11,947 Summit Acceptance Pty Ltd v Wild [2011] NSWSC 659 Wilkins v Gibson (1901) 38 S.E. 374 Woodcroft v Director of Public Prosecutions (DPP) [2000] NSWCA 128; (2000) 174 ALR 60 Texts Cited: F Ticehurst and P Blair, Baalman and Wells Land Titles Office Practice (5th ed, 1998, Looseleaf, Lawbook Co) JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, 2014, LexisNexis Butterworths) Peter Taylor SC et al, Ritchie's Uniform Civil Procedure NSW (2005, LexisNexis Australia) / Taylor P, Elms E, Bellew Justice G and Meek M, Ritchie's Uniform Civil Procedure NSW (Looseleaf, LexisNexis) G Stilianou, Land Titling Law and Practice in NSW (2013, Lawbook Co) Category: Principal judgment Parties: 2017 / 60096