Nguyen v Nguyen

Issue One - Council and Water Rates for the 2015 Financial Year

1. There appeared to Ms Nguyen to be double counting in respect of the council and water rates being claimed by Dr Nguyen as expenses for the year 2015. Dr Nguyen's bank statements appeared to show figures (of $2,397.80 and $1,115.00) for council rates that was approximately double the council rates incurred for the previous few years and with a description in respect of each charge that was almost identical. Ms Nguyen's baseline calculation assumed this was double counting did not concede the larger of these two expenses.
2. But after discussion and examination of records, Ms Nguyen ultimately conceded there was no double counting, so 40% of both these amounts will need to be included in the baseline calculation as items for which Ms Nguyen is liable to Dr Nguyen.

Issue Two - Maintenance in the 2015 Financial Year

1. Ms Nguyen's baseline calculation does not concede a claim of $1,826 for the 2015 financial year, for maintenance, plastering, painting, gardening, clearing, and light replacement on the grounds that insufficient substantiation of the claim had been provided. But after informal discussion outside the Courtroom, it was conceded that an amount of $575.15 of the sum claimed has been substantiated for materials costs. Some 40% of that figure, or $230.06, should therefore be added to the baseline calculation for payment to Dr Nguyen.
2. In addition to the $575.15, Dr Nguyen claims labour costs of $1,250.85 for plastering, painting and house cleaning for this period. Ms Nguyen still challenges the labour costs, for which there are no invoices. One only needs to look at the invoices for the $575.15 to infer that some labour needed to be supplied and paid for, to apply the materials in question. The labour of which recovery is sought is directly related to the materials purchased. It does not seem excessive and will be allowed. Ms Nguyen will have to contribute 40% of that amount as well.

Issue Three - Home Insurance between 2002 and 2013

1. The principal accounting period directed by the Court was to commence in March 2009 and conclude on 30 April 2019. But Dr Nguyen raised an expense of $6,725 that he had incurred for home insurance between 2002 and 2013, as part of the accounting. To the extent that this home insurance was incurred before 2009, there is no prejudice identified to Ms Nguyen by the Court considering it now.
2. This matter is not included in Ms Nguyen's baseline calculation. If allowed, it was thought this would mean that Ms Nguyen may have to contribute 40% of $6,725 (namely $2,699.60) and add that sum to the net baseline calculation payment to Dr Nguyen. But Ms Nguyen contends that she is not liable to contribute to this sum, as home insurance is not an expense that she agreed to pay in the 2003 variation.
3. Ms Nguyen's argument is not persuasive on this issue. The Court's findings on the terms of the 2003 variation are set out in the first judgment, (at [93] to [105]). Her own account of the conversation, which the Court accepted, included the second option, which was taken up by Dr Nguyen. That account has her saying to him, "the second option is that I pay for the bathroom renovation, I pay for all council and water rates, all maintenance and expenses to the Terrigal property". In my view, that description of the expenses to be fully covered during her occupation upon the take up of the second option is wide enough to encompass household insurance, which falls within the description of "all…expenses" referable to the Terrigal property during her occupation.
4. This amount should be allowed wholly in Dr Nguyen's favour up to 2009 when Ms Nguyen was in occupation. This is more than Ms Nguyen had calculated she should pay, but is justified by the agreement she reached in 2003. And Ms Nguyen should contribute to 40% of this expense between March 2009 and March 2014.
5. This deals with Ms Nguyen's issues. The remaining issues were raised by Dr Nguyen between March 2009 and March 2014.

Issue Four - Maximum Rent Received Between January 2010 and August 2010

1. Ms Nguyen claims she received rent of $12,000 from the tenants in the property, Mr and Mrs Jarvis, between 13 January 2010 and 13 August 2010, at the rate of $400 per week for those 30 weeks. Dr Nguyen says that the rent could have been more than this, and challenges this rent figure as being too low. He seeks a greater accounting from her for rent during this period, if indeed it was higher than this figure.
2. Whilst there are no receipts to substantiate this figure, the Court accepts Ms Nguyen's evidence about it. The Court has already made extensive credibility findings in the first judgment about the parties, (at [9] and [11]). The Court has not permitted further cross-examination in the accounting hearing. The Court found Ms Nguyen to be a reliable witness and accepts her evidence in relation to the receipt of rental of $12,000 for this period, and no more. She does not have to account for any other rental for this period.

Issue Five - Ms Nguyen's Liability for Council Rates from March 2009 to May 2011

1. Ms Nguyen's baseline calculation assumes Dr Nguyen is liable to pay 60% of council rates, between March 2009 and May 2011. She says the Terrigal property was vacant during parts of that period or rented. Under the 2003 variation Ms Nguyen was to pay for all council rates, while she was living in the property.
2. The council and water rates were paid by the agent, George Brand, after May 2011. But a dispute exists for part of the period January 2009 to May 2011, in respect of council and water rates. Ms Nguyen submits that the 2003 variation meant that, whilst she and her husband resided in the Terrigal property, she was liable to pay the expenses referred to in the 2003 variation, but not otherwise.
3. Dr Nguyen seeks further contribution from her to cover all those rates. He says that although Ms Nguyen was not physically living in the property, she had left some of her goods and chattels there for periods, which meant that in substance she was in occupation in parts of 2009 and 2010. He submits this should make her liable to cover council rates during this period.
4. Dr Nguyen says that some of Ms Nguyen's goods and chattels were only moved out of the Terrigal property in June 2014 and were there continuously before that. But the best available evidence as to what remained in the property in 2009 and 2010 is Ms Nguyen's evidence that the property was vacant. Dr Nguyen's evidence is not sufficient to establish any of Ms Nguyen's goods were at the property so early. Moreover, no attempt was made by Ms Nguyen to live in the property during this period, so as might trigger her liability to cover all outgoings.
5. Ms Nguyen does not have to bear all council and water rates for the March 2009 to January 2011 period.

Issue Six -Vacancy or Rent from March 2009 to January 2010

1. Ms Nguyen's baseline calculation assumes that the Terrigal property was vacant from March 2009 to January 2010, a period of which she says that she did not receive any rent for which she has to account to Dr Nguyen. He challenges this and says she was in occupation and should account for rent during this period.
2. The Court accepts what she says about this subject in her principal affidavit of 15 March 2016, at paragraph [102], that the property was vacant during this period. No other documentary evidence of vacancy would be expected to be available. The Court accepts her oral evidence of this.

Issue Seven - Vacancy or Rent from August 2010 and December 2010

1. Dr Nguyen challenges the basis on which Ms Nguyen accounts for rent for the period between 14 August 2010 and 2 December 2010. Ms Nguyen says the Terrigal property was vacant during that period and she does not have to account to Dr Nguyen for the receipt of rent during this period.
2. He contests this. He says that she continued to leave goods in the property and should account for rent. But as indicated above, the Court accepts Ms Nguyen's evidence in her principal affidavit that the property was vacant and infers no rent was received. The Court does not expect to see any documentary evidence to prove the vacancy.

Costs

1. The Court has now decided the remaining issues of principle. The parties should now do the necessary calculations and bring in an agreed short minutes to reflect the ultimate balance due to Dr Nguyen.
2. Both sides have had a measure of success on the accounting hearing. The result of the accounting hearing is that Ms Nguyen will need to pay a slightly larger figure to Dr Nguyen. The costs order that suggests itself in this situation is that each party should bear its own costs of this part of the hearing. That is the order that the Court will make.
3. The Court orders that: 1. The parties should bring in short minutes of order to give effect to these reasons. 2. Order that there be no order as to costs to the intent that each party shall bear his or her own costs of the accounting hearing.

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: 27 August 2019