Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen (No 3) [2022] NSWSC 515

Supreme Court New South Wales

Medium Neutral Citation: Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen (No 3) [2022] NSWSC 515 Hearing dates: 20 January 2022 Decision date: 29 April 2022 Jurisdiction: Equity Before: Robb J Decision: See par [112] below Catchwords: LAND LAW — caveats — removal of caveat — removal by order of court — caveat lodged against title to real property subject of writ of levy of property preventing judgment creditors from executing on judgment — whether Court has power to order caveator to withdraw caveat that has already been lodged — whether Real Property Act 1900 (NSW) exhaustive of means whereby caveats may be ordered to be withdrawn — whether Court's power only exercisable after determining whether caveator does not have estate or interest claimed LAND LAW — caveats — removal of caveat — who may seek removal of caveat — parties seeking removal of caveat have no estate or interest in land as mere judgment creditors — whether Court's power to order caveator to withdraw caveat that has already been lodged only exercisable to protect interests of party with estate or interest in land CIVIL PROCEDURE — summary disposal — dismissal of proceedings — application for summary judgment based on allegation that instrument purporting to create security interest in real property a fabrication — application dismissed JUDGMENTS AND ORDERS — amending, varying and setting aside — application to set aside summary judgment made on the merits — whether summary judgment irregular — whether summary judgment ought to be set aside where judgment given in absence of party — application dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), ss 94, 101 Conveyancing Act 1919 (NSW), s 38A Personal Property Securities Act 2009 (Cth) Real Property Act 1900 (NSW), ss 74J, 74MA, 74P Uniform Civil Procedure Rules 2005 (NSW), rr 13.1, 25.14, 36.15, 36.16, 39.18, 39.20 Cases Cited: Crown Developments Australia Pty Ltd v Ginger Development Enterprises Pty Ltd [2003] NSWSC 593; (2003) 11 BPR 21,565 Dimitrovski v Australian Executor Trustees Ltd [2013] NSWSC 337 Gangemi v Gangemi [2009] WASC 268 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Halaga Developments Pty Ltd v Grime (1986) 5 NSWLR 740 Ibrahim v Ayoubi [2013] NSWCA 405 Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331 Milne Feeds Pty Ltd v Bride (Supreme Court (WA), Murray J, 7 May 1996, unrep) Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen [2021] NSWSC 753 Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyens (No 2) [2021] NSWSC 978 Northey v Bega Valley Shire Council [2012] NSWCA 28 O'Neill v Kwon [2016] NSWSC 1706 Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1; [2015] HCA 36 Sandhurst Golf Estates Pty Ltd v Coppersmith Pty Ltd [2014] VSC 217; (2014) 285 FLR 267 Stocks & Holdings (Imperial Arcade) Ltd v Fink [1965] NSWR 504; (1965) 82 WN (Pt 1) (NSW) 386 Wickham Hill Investment Pty Ltd v Ding [2019] NSWSC 631 Williams v Marac Australia Ltd (1985) 5 NSWLR 529 Wu v Dardaneliotou [2008] NSWSC 1319 Texts Cited: B Edgeworth, Butt's Land Law (7th ed, 2017, Thomson Reuters) JD Heydon, MJ Leeming, PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths) Category: Procedural rulings Parties: Proceedings 2017/00060096 Van Tuan Nguyen (Respondent/First Plaintiff) Phuong Anh Nguyen (Respondent/Second Plaintiff) Ngoc Tu Nguyen (Respondent/Third Plaintiff) Sage Consultant Group Pty Ltd (First Defendant) Quoc Dung Hoang (Applicant/Second Defendant) Thu Thuy Dang (Third Defendant) Kennie Thanh Khoi Nguyen (Fourth Defendant) Sherriff of New South Wales (Fifth Defendant)