Supreme Court New South Wales Medium Neutral Citation: Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen (No 4) [2022] NSWSC 782 Hearing dates: 7 June 2022 Date of orders: 15 June 2022 Decision date: 15 June 2022 Jurisdiction: Equity Before: Robb J Decision: See par [17] below Catchwords: CIVIL PROCEDURE — summary disposal — dismissal of proceedings — caveat lodged on basis of spurious claim to interest in land thwarting enforcement of writ for levy of property — caveator fails to prosecute claim when given opportunity to do so — summary declaration that caveator has no estate or interest in land Cases Cited: Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen [2021] NSWSC 753 Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen (No 3) [2022] NSWSC 515 Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyens (No 2) [2021] NSWSC 978 Category: Procedural rulings Parties: Proceedings 2019/00296623 Thu Thuy Dang (Plaintiff) Van Tuan Nguyen (Applicant/First Defendant/First Cross-Claimant) Phuong Anh Nguyen (Applicant/Second Defendant/Second Cross-Claimant) Ngoc Tu Nguyen (Applicant/Third Defendant/Third Cross-Claimant) Quoc Dung Hoang (Respondent/Fourth Defendant/First Cross-Defendant) Registrar-General of New South Wales (Fifth Defendant) Van Dung Lam (Respondent/Second Cross-Defendant) Representation: Counsel: Proceedings 2019/00296623 C Lambert (Applicants/Defendants/Cross-Claimants) Respondent/Second Cross-Defendant (self-represented) Solicitors: Proceedings 2019/00296623 Ausino Lawyers (Applicants/Defendants/Cross-Claimants) File Number(s): 2019/00296623 Judgment 1. The Court has published three judgments in these proceedings, being Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen [2021] NSWSC 753; Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen (No 2) [2021] NSWSC 978 and Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen (No 3) [2022] NSWSC 515 (J3). 2. For the purpose of these reasons, I will generally assume the reader has knowledge of the earlier three judgments. I will use the same abbreviations as in those judgments. 3. The issue before the Court is whether the Court should make order 1 sought in the Nguyens' notice of motion filed on 1 December 2021, which is in the following terms: 1. The Court declares [Mr Lam] holds no equitable interest or in the alternative, only a mere equity in the property of [Mr Hoang], being [the Smithfield property]. 1. On 20 January 2022, the Nguyens sought an order to that effect on a summary basis. As I explained at J3 [51]-[58], the evidence was not sufficient to satisfy the Court that it should declare on a summary basis that Mr Lam does not have any estate or interest in the Smithfield property. 2. However, at J3 [83], I noted that it remained open for Mr Lam to prove that he has a prior estate or interest in the Smithfield property to the claim made by the Nguyens based upon their judgment against Mr Hoang and the issue of the new writ for levy of property in their favour. I also observed at J3 [86] that Mr Lam could not be allowed to sit on his caveat, but that if he wished to establish that he had the estate or interest in the Smithfield property that he claimed, it would be necessary for him to file a cross claim in the 2019 proceedings seeking appropriate relief and to prosecute that claim with due expedition. 3. The orders that I made following the hearing included the following: The Court: … (5) Orders that if Mr Lam wishes to claim an interest in the Land, he do so by filing and serving a statement of cross claim in these proceedings by 13 May 2022 seeking a declaration as to the existence of the interest claimed that fully alleges the material facts and gives proper particulars of the claim. (6) Orders that if Mr Lam files and serves a cross claim in accordance with order 5 he shall at the time of filing produce to the Registry the original of the Promissory Note a copy of which was attached to an email dated 14 November 2021 sent by Mr Lam to the Associate to Robb J, and if Mr Lam is unable to produce the original of the Promissory Note he shall file and serve an affidavit that provides a full explanation of why the original document has not been produced. (7) Grants to the Nguyens the right to inspect the original Promissory Note if produced to the Registry. (8) Orders that if Mr Lam files and serves a cross claim in accordance with order 5 the Nguyens shall file and serve a defence to the cross claim by 27 May 2022. (9) Orders that these proceedings be listed before Robb J at 9:15am on 3 June 2022 for further directions. (10) Grants leave to the Nguyens to apply to the Court on five days' notice to Mr Lam on a date to be arranged with the Associate to Robb J to apply: (a) for an order in the terms of prayer 1 of their cross claim filed on 24 November 2021 if Mr Lam fails to file a cross claim in accordance with order 5; or (b) for an order that Mr Lam's cross claim be summarily dismissed for want of due dispatch if Mr Lam fails to prosecute his cross claim in accordance with case management orders made by the Court. (11) Orders that the Nguyens' costs of the 1 December 2021 notice of motion insofar as it seeks relief against Mr Lam be the Nguyens' costs in the cause as against Mr Lam. … (13) Reserves all other questions of costs including as to the basis upon which costs orders should be assessed. 1. Mr Lam was represented by counsel at the hearing on 20 January 2022. The orders were made on 5 May 2022, and on that day my Associate emailed to the email address of Mr Lam that he has used in his communications with my Associate a copy of the orders included at J3 [112], that judgment having been published by the Court on 29 April 2022. 2. Mr Lam has not filed a cross claim seeking a declaration as to the existence of the estate or interest claimed by him in the Smithfield property by the date required by order 5 or at all. 3. The Nguyens have relisted the notice of motion before the Court by exercising the leave granted to them in order 10(a) made on 5 May 2022. 4. The proceedings were listed for hearing on 7 June 2022. The Nguyens were represented by Mr Lambert of counsel and Mr Lam appeared for himself. The hearing was conducted by telephone. Mr Lam is not proficient in English and was only able to speak in Vietnamese. The Court allowed a young woman known to Mr Lam to interpret for him. The woman concerned is apparently not an official interpreter, but I am satisfied that she was proficient in English, and nothing occurred during the hearing that caused me concern that Mr Lam was unable to understand the proceedings. I permitted the hearing to be conducted in this manner at Mr Lam's request. 5. In explaining the course that the Court will take it is to be noted that, at the hearing on 20 January 2022, counsel who appeared for Mr Lam explained that he had been asked to appear by Mr Lam's daughter who is a corporate counsel and holds a practising certificate. I mention this because it satisfies me that, even though Mr Lam is not proficient in English, he has had ready access to a daughter who may be taken to be competent to explain to Mr Lam the effect of the orders made by the Court on 5 May 2022. 6. Mr Lam offered to the Court a number of unsatisfactory explanations for why he had not filed a cross claim as ordered by the Court. It was difficult to follow those explanations, but they included that Mr Lam was old in age and forgetful. At one point Mr Lam asked the Court to adjourn the proceedings. However, Mr Lam has not made a formal application for an adjournment or provided any reasonable explanation either as to why he was unable to file his cross claim or as to why the Court should further adjourn the proceedings. 7. I explained at J3 [54]-[58] the circumstances that justified the Court in being suspicious that Mr Lam's claim to be entitled to an estate or interest in the Smithfield property is spurious. 8. At the conclusion of the directions hearing on 7 June 2022 I made the following relevant notations and orders: 1 Notes that on 5 May 2022 by order 12 the Court ordered [Mr Hoang] be restrained from encumbering the property defined as the Land until the writ for levy of property referred in order 4 has been executed in respect of the Land or the Sheriff finally declines to execute the writ for levy of property, or further order of the Court. 2 Notes that there has been lodged against the title to the Land by Lama Family Lawyers on behalf of Gushko Demolishing & Excavation Pty Ltd, Caveat AS158509 claiming a charge over the Land granted by Mr Hoang by agreement dated 19 May 2022. 3 Adjourns the hearing of these proceedings to 10:00am on Thursday, 16 June 2022 for the purpose of the Court deciding whether a it should issue an order against Gushko Demolishing & Excavation Pty Ltd requiring it to withdraw the caveat; and b it should order the Registrar General not to record the lodgement against the title to the Land of any further caveat without the prior leave of the Court. … 1. Not only have the Nguyens been thwarted from pillar to post in their legitimate attempt to enforce their judgment against Mr Hoang by executing on their writ for levy of property against the Smithfield property, principally by the conduct of Mr Hoang, Ms Dang, and apparently also of Mr Lam, but as is seen from the orders made by the Court on 7 June 2022, the execution of their judgment has been further impeded by a new caveat lodged by a previously uninvolved party on the basis of a charge allegedly created by Mr Hoang by agreement dated 19 May 2022, which has caused Mr Hoang prima facie to be in contempt of the restraining order extended by the Court against him on 5 May 2022. The relationship between Mr Hoang and the new caveator is not yet known but should be revealed at a further hearing fixed for 16 June 2022. 2. While the Court has taken all of the care that it can to avoid the possibility that Mr Lam has been prejudiced by his inability to communicate in English, I am satisfied in all of the circumstances that the Court should now make an order summarily declaring that Mr Lam does not have any estate or interest in the Smithfield property. As stated at J3 [86], a party in Mr Lam's position cannot be permitted to impede the due administration of justice by claiming an estate or interest in land the subject of a writ for levy of property issued by the Court, but then omitting to bring proceedings to establish the validity of the estate or interest that is claimed. 3. The orders of the Court are: 1. Declaration that the second cross defendant in the cross claim filed on 24 November 2021, Van Dung Lam, is not entitled to any estate or interest in the property of the first cross defendant, Quoc Dung Hoang, being [the Smithfield property]. 2. Order the second cross defendant to pay the cross claimants, Van Tuan Nguyen, Phuong Anh Nguyen and Ngoc Tu Nguyen, their costs of the cross claim insofar as it involved claims for relief against the second cross defendant. 1. The formal orders will contain a proper title description of the Smithfield property. 2. For the avoidance of doubt, the declaration in order 1 is not made in favour of Mr Hoang so that Mr Lam is not precluded from claiming as against Mr Hoang that he has an estate or interest in the Smithfield property or its proceeds of sale if, after the execution of the writ for levy of property issued by the Court to the Nguyens, there is a balance remaining after payment of all proper amounts due to parties having an estate or interest in the Smithfield property. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2022