Nguyen v Nguyen [2023] NSWSC 417

Supreme Court New South Wales

Medium Neutral Citation: Nguyen v Nguyen [2023] NSWSC 417 Hearing dates: 14 April 2023 Date of orders: 14 April 2023 Decision date: 14 April 2023 Jurisdiction: Equity - Real Property List Before: Hammerschlag CJ in Eq Decision: Orders for the appointment of trustees for sale and ancillary orders. See [17] Catchwords: LAND LAW — co-ownership — Conveyancing Act 1919 (NSW) s 66G ­— statutory trust for sale — appointment of trustees — where plaintiff has been declared to have a 40% interest in real property — where defendant's rights of appeal are exhausted Legislation Cited: Conveyancing Act 1919 (NSW) Cases Cited: Nguyen v Nguyen [2019] NSWSC 131 Nguyen v Nguyen (No 2) [2019] NSWSC 1103 Nguyen v Nguyen [2021] NSWSC 718 Nguyen v Nguyen [2021] NSWCA 161 Nguyen v Nguyen (No 2) [2021] NSWCA 325 Nguyen v Nguyen (No 3) [2022] NSWCA 171 Category: Principal judgment Parties: Thi Anh Thuy Nguyen (Plaintiff) Anh Tuan Nguyen (Defendant) Representation: Counsel: B Zipser (Plaintiff) Defendant (Self-Represented)

Solicitors: Integrity Legal Specialists (Plaintiff) File Number(s): 2015/00151521

EX TEMPORE JUDGMENT (REVISED) 1. The parties are brother and sister and, as the case number of these proceedings reveals, they have been in dispute since 2015. The dispute concerns a property at 56 Woodlands Road, Terrigal (being Lot 43 in DP 236998) (the Property) which was acquired by them as joint venturers and registered in the defendant's name. 2. In 2019, Slattery J declared that the plaintiff has a 40% interest in the property. His Honour ordered an accounting: see Nguyen v Nguyen [2019] NSWSC 131. The accounting took 2 years and resulted in an order that the plaintiff was liable to the defendant for $3,390.02: see Nguyen v Nguyen (No 2) [2019] NSWSC 1103. 3. In March 2021, the defendant filed a motion to set aside the judgment for fraud and improper conduct by the plaintiff's lawyers. That application was dismissed with costs by Rein J: see Nguyen v Nguyen [2021] NSWSC 718. 4. The defendant then filed a Summons in the Court of Appeal seeking (out of time) leave to appeal against the original principal judgment, which application was dismissed with costs: see Nguyen v Nguyen [2021] NSWCA 161. 5. The defendant then filed a Notice of Motion in the Court of Appeal to set aside the Court of Appeal judgment and for related orders, including for the production of documents. On 16 December 2021, the Court of Appeal dismissed the application to set aside the earlier Court of Appeal judgment: see Nguyen v Nguyen (No 2) [2021] NSWCA 325. 6. The defendant then pressed on with the balance of his Notice of Motion (for the production of documents), which motion was dismissed by the Court of Appeal on 31 August 2022: see Nguyen v Nguyen (No 3) [2022] NSWCA 171. 7. Against that background, the plaintiff now moves pursuant to s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the Property. Her application is supported by the following affidavits: Thi Truc Mai Dang (the plaintiff's solicitor) 25 February 2022, 22 November 2022, 23 February 2023, 20 March 2023 and 12 April 2023. The plaintiff has affidavits of consent from two trustees, to whom no objection has been taken, as well as affidavits of character. 8. The defendant read and relied upon his own affidavit of 13 April 2023. 9. His resistance consists of an assertion that the judgments against him were obtained by fraud and that he has been a victim of conspiracy. He also maintains that he did not have a full grasp of his legal position before the Court of Appeal. 10. An order for the sale of co‑owned property is discretionary, but the discretion is limited, and it is for the opposing co‑owner to establish a reason why an order should not be made: see, eg, Re Fettell (1952) 52 SR (NSW) 221 at 227-228; Ngatoa v Ford (1990) 19 NSWLR 72 at 73-76; Williams v Legg (1993) 29 NSWLR 687 at 691-693; Foundas v Arambatzis [2020] NSWCA 47 at [63]. 11. The defendant has established no such reason. To the contrary, there is every good reason why the property should be sold. 12. The dispute between him and the plaintiff has been finally determined and is res judicata. There is no extant appeal or other relevant application. 13. The plaintiff sought orders for payment to her out of the proceeds of sale of various amounts, including costs which have been ordered in her favour during the course of the various proceedings between them. Some costs orders have been the subject of final assessment but others have either not been assessed or have been assessed but the time of the defendant to challenge them has not expired. 14. In the circumstances, I am not prepared to accede to the plaintiff's application for her costs to be paid out of the proceeds of sale. These claims for payment out should all be dealt with at the same time, and after the amounts claimed are all finally determined. 15. It is also the position that the defendant may have earned rent from the property during the period of their dispute, in respect of which he has not accounted and in respect of which he should obviously account. 16. The plaintiff has certified costs assessments of $39,255.66, $144,888.71 and $3,500. Her unassessed costs will not exceed a further $77,000. This totals $264,644.37, which I think should be rounded down to $262,000, as reflecting a number approximating the maximum amount to which the plaintiff would, on any distribution, be entitled to receive, directly or indirectly from the proceeds of sale. It does not include any share of rent to which she may be entitled. 17. The Court made the following orders: Appointment of trustees for sale 1. Peter Hillig and Michael Smith of Smith Hancock Chartered Accountants are appointed trustees of all the land in folio identifier 43.236998, known as 56 Woodlands Road, Terrigal ("Property") ("Trustees"). 2. The Property be vested in the Trustees, subject to encumbrances affecting the entirety to be held by them on statutory trust for sale under Division 6 of the Conveyancing Act 1919 (NSW) as amended. 3. No later than 28 April 2023, the defendant is to give vacant possession of the Property to the Trustees. 4. Upon the sale of the Property, the Trustees shall pay out of the proceeds of sale in the following order of priority: 1. Any agent's commission and other costs of sale; 2. Any rates and charges relating to the Property which are liable to be paid; 3. The Trustee's fees in such amount as the parties agree or as the Court may determine; and 4. The plaintiff's costs of these proceedings as agreed by the parties or as finally assessed. 1. The Trustees have liberty to seek directions or further orders from the Court as may be necessary. Accounting and distribution in respect of rent 1. The defendant account to the plaintiff in respect of rent received by the defendant from renting out the Property, being that share of rent to which the plaintiff is entitled arising from her 40% interest in the Property. 2. The Trustees are to pay into Court any rent collected by the Trustees between the date the Trustees take control of the Property and the date of the sale of the Property. Distribution of proceeds of sale 1. Following the deductions from the proceeds of sale in order 4 above, in relation to the remainder of the proceeds of sale ("Remainder"): 1. The Trustees shall distribute 40% of the Remainder to, or as directed by, the plaintiff. 2. In relation to the remaining 60% of the Remainder ("60% Remainder"): 1. The Trustees shall pay into the Supreme Court $262,000, which amount shall remain in the Supreme Court until resolution of: 1. The amount for which the defendant must account to the plaintiff in respect of rent received by the defendant from renting out the Property; 2. The plaintiff's claim for costs against the defendant in the amount of $144,888.71 arising from an amended certificate of determination dated 26 April 2021 and "Certificate of determination of manager's assessment costs" dated 7 and 9 April 2021; and 3. The plaintiff's claim for costs against the defendant arising from a costs order made by Rein J in the proceedings on 27 May 2021, and costs orders made by the Court of Appeal on 3 August 2021, 16 December 2021 and 31 August 2022. 1. The Trustees shall distribute the balance of the 60% Remainder to the defendant. 1. [Not used]. 2. Costs of and associated with the plaintiff's Notice of Motion filed 4 April 2022 are reserved. 3. The matter shall stand over to 6 October 2023 in the Real Property List for directions in respect of the matters in orders 7, 8(b)(i), 10 above and prayer 7(b)(i) of the Notice of Motion filed 4 April 2022. 4. Liberty to apply on 3 days' notice.