Nguyen v Nguyen

Texts Cited: Nil

Category: Principal judgment

Parties: Thi To Uyen Nguyen (Plaintiff)
Huy Hong An Nguyen (First Defendant) (Unrepresented)
Nguyet Huu Minh Trang (Second Defendant)

Representation: Counsel:
A Byrne (Plaintiff)
J O’Sullivan (Second Defendant)
Solicitors:
Marcus Alyssandra Lawyers (Plaintiff)
Rosemont Partners (Second Defendant)

File Number(s): 2024/00353026

Publication restriction: Nil

JUDGMENT

Introduction

1. The principal dispute is between a mother, the plaintiff Thi To Uyen Nguyen (Thi) and her son, the first defendant, Huy Hong An Nguyen (Huy).

2. It is not in dispute that, on 20 November 2023, Thi and Huy executed a document entitled “Loan Agreement”. On its face, the agreement provided for Thi to lend Huy $80,000 for 10 years or until Huy sold a property he owned on Hume Highway, Yagoona (the Property), whichever occurred first (the Loan Agreement).

3. Thi sues Huy under the Loan Agreement. The Property has since been sold, and the net proceeds of sale have been paid into Court. Huy contends that the Loan Agreement was a sham – the $80,000 was never intended to be lent to him, but was given to him to settle a separate family dispute concerning a property on Gordon Street, Bankstown (the Bankstown Property). According to Huy, the Loan Agreement was put in place as protection against any claim on the $80,000 by Huy’s de facto wife, the second defendant, Nguyet Huu Minh Trang (Nguyet).

4. The Loan Agreement also purports to record Nguyet’s guarantee of Huy’s obligation to repay the $80,000. Thi sues Nguyet on the guarantee. Nguyet denies signing the Loan Agreement and says that both the signatures purporting to be hers and the signature purporting to be that of the witness to her signature are forgeries.

5. The proceedings began on 24 September 2024, when Thi sought orders before the Duty Judge extending the operation of a caveat she had placed on the title to the Property. That dispute was resolved by Huy agreeing to pay the net proceeds on the sale of the Property (approximately $130,000) into Court.

6. The final hearing took place on 1 and 2 June 2026. Andrew Byrne appeared for Thi. Julian O’Sullivan appeared for Nguyet. Huy appeared for himself. On the first day of the hearing, Huy appeared by AVL from a correctional facility where he currently resides as a result of matters separate to the subject matter of these proceedings. He appeared in person on the second day of the hearing.

7. Immediately after the hearing concluded, Huy was transferred to another correctional facility which led to a delay in his written submissions being provided.

8. At the conclusion of the hearing, Huy foreshadowed a possible application to reopen to adduce further evidence. I indicated that I would delay the delivery of judgment for a short period. As it turns out, no application to reopen was made.

9. For the reasons set out below, Thi’s claim against Huy succeeds. I am not satisfied that Nguyet signed the Loan Agreement.

10. There will be judgment against Huy for the debt, including interest. Once Thi has provided the Court with an up to date calculation of the debt and interest, I will enter judgment accordingly. The judgment is to be satisfied from the monies held in Court. The claim against Nguyet is dismissed.

11. The parties should seek to agree on costs and any consequential orders required to give effect to these reasons. If they are unable to agree, I will receive submissions and determine any issues on the papers.

Overview of the witnesses

12. In addition to her own affidavit evidence, Thi relied on affidavit evidence from a number of witnesses: her husband, Dinh Khien Nguyen (Dinh); one of her daughters, Dan Thanh Nguyen (Dan); a real estate agent, Ben Giang (Mr Giang); and Marie Nga Nguyen (Ms Nguyen), who until quite recently was Thi’s solicitor in the proceedings. Ms Nguyen also drafted the Loan Agreement and had some other relevant dealings.

13. Mr Giang was not required for cross-examination.

14. Thi gave evidence through an interpreter. She was cross-examined by both Huy and counsel for Nguyet. She appeared to me to be an honest witness doing her best to assist the Court. She openly acknowledged where she had no recollection of events. I generally accept her evidence.

15. Ms Nguyen was cross-examined by both Huy and counsel for Nguyet. I am somewhat concerned that until quite recently, Ms Nguyen was the solicitor on the record for Thi and, as she admitted, was involved in the preparation of the affidavit evidence for Thi. This was in circumstances where Ms Nguyen had herself made a number of affidavits and was thus likely to be a witness in the proceedings. None of this causes me, however, to question any of her evidence. I accept it.

16. Dinh also gave evidence through an interpreter. It appeared to me that, notwithstanding the fact that he gave evidence through an interpreter, he was quite capable of understanding questions in English and giving answers in English. His affidavit disclosed that he could “speak, read and write English and Vietnamese”, and that he used “both languages regularly”. Furthermore, Dinh had previously worked as an experienced English/Vietnamese interpreter and was even placed with the Australian Army in Vietnam to act as an interpreter. Accordingly, while the interpreter was available, Dinh’s English did not always wait for the translation. In any event, I accept his evidence.

17. Dan was only briefly cross-examined by counsel for Nguyet. I accept her evidence also.

18. Huy presented as a confident witness and was at times argumentative. Notwithstanding his confidence, I do not accept his evidence unless it is against his interest or is corroborated by objective contemporaneous material which for the most part, it is not. Huy repeatedly denied what appeared to be fairly obvious propositions or would simply respond “that is your view” or “that is your opinion”.

19. I am also conscious that Huy has been convicted of various offences and that, having regard to the sentencing judgment, aspects of his conduct involved dishonesty, which he readily admitted under cross-examination.

20. I have had regard to this in my assessment of Huy’s evidence in this case, but I have primarily based my conclusions in respect of Huy’s evidence on his demeanour and, more importantly, the inconsistency between his evidence and the objective contemporaneous material, as well as the inherent likelihoods.

21. Nguyet was also at times argumentative. I approach her evidence with considerable caution, given her obvious financial interest in the outcome of the case.

The claim against Huy

22. The claim against Huy is based on a written loan agreement dated 20 November 2023.

23. The Loan Agreement is said to be executed as a deed and purports to be “Signed, Sealed and Delivered” by Huy, Nguyet and Thi.

24. Huy does not dispute that he signed the Loan Agreement, including signing it for a second time before Thi’s solicitor, Ms Nguyen.

25. There is an issue as to whether Nguyet signed the Loan Agreement. I deal with this separately below.

26. The relevant parts of the Loan Agreement provide as follows:

RECITALS

A. Thi To Uyen Nguyen, the Mortgagee is the mother of Huy Hong An Nguyen, the Mortgagor and Nguyet Huu Minh Trang the guarantor is the spouse of the Mortgagor.

B. In or around April 2022 the Mortgagor purchased the Mortgage Property in his sole name for $885,000 The purchase was secured with a mortgage with Pepper Home Loans. The current mortgage balance is $699,295.97.

C. The Mortgagor had rented out the Mortgage Property, with the tenants rendering it uninhabitable and he had to make a claim with his insurance company to fix up the Mortgage Property.

D. During the period that the Mortgaged Property was getting fixed, the Mortgagor did not make mortgage repayments to Pepper Home loans.

E. The Mortgaged Property was at risk of being repossessed by Pepper Home Loans.

F. At the Mortgagor’s request, the Mortgagee has agreed to lend the Principal amount to clear the arrears with Pepper Home Loans and enable the Mortgagor to retain the Mortgaged Property.

ADDITIONAL AGREEMENTS

(it is agreed that amendments to the operative part will be recorded here)

1. The Mortgagor agree that if the Mortgaged Property is refinanced or sold before the expiration of 10 years (term of loan) then the Mortgagor will repay the total Principal amount in addition to any interest to the Mortgagee upon settlement of the refinance or transfer.

2. The Mortgagee is entitled to request immediate repayment of the Principal amount less any repayments should the Mortgagor separate from his spouse for a period of three (3) months or more.

3. Should the Lender die before the expiration of the Loan, then the Executor of her Estate is entitled to request immediate repayment of the Principal Sum less any repayments owing to the Estate.

4. The Mortgagor consents to the registration of a Mortgage and/or a Caveat at any time on Certificate of Title of the Mortgaged Property for the protection of the Mortgagee’s interest of the Principal amount advanced plus the interest accrued.

5. The Mortgagor will be liable for all stamp duty, Mortgagee’s solicitor costs and all other costs associated with the loan.

6. In the event of any discrepancy between the Additional Agreements and the clauses in the Operative Part, these Additional Agreements shall prevail.

27. There is no dispute that the Property has been sold.

28. The only substantive issue between the parties is whether the Loan Agreement is a bona fide agreement (as Thi contends) or whether it is a sham (as Huy contends).

29. It was not clear whether there was any issue as to whether the document took effect as a deed. Even if it did not, it clearly took effect as an agreement. The fact that, as was not in dispute, monies had been paid by Thi to Huy prior to the document being executed, does not deny that consideration was provided for the agreement: see Rose v Manno Kingsway Pty Ltd (2025) 116 NSWLR 598; [2025] NSWCA 23 at [55]-[57] per Bell CJ (with whom Mitchelmore and Adamson JJA agreed).

30. Huy contends that only $70,000 was paid to him. Thi disputes this. It is not in dispute that a number of payments were made in cash. In those circumstances, it is not surprising that there is not a complete record of all of the payments made.

31. Huy executed the Loan Agreement, which clearly states that the loan amount was $80,000. I am comfortably satisfied that this was the amount advanced and is the amount that Huy is required to repay.

32. Huy contends that the Loan Agreement is not a genuine loan agreement, but is instead a sham.

33. A sham is a false, deceptive or spurious imitation or front which is not genuinely intended to be what it purports to be: see Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449; see also Coshott v Prentice (2014) 221 FCR 450 at 465-66; [2014] FCAFC 88.

34. In Lewis v Condon (2013) 85 NSWLR 99; [2013] NSWCA 204, Leeming JA with whom McColl JA and Sackville AJA agreed, stated at [63]:

Because a finding of sham requires a finding of an intent to deceive, considerations associated with Briginshaw v Briginshaw (1938) 60 CLR 336 require a cautious approach: Raftland Pty Ltd v Commission of Taxation at [36]. Thus there is a “strong and natural presumption against holding a provision or a document a sham”: National Westminster Bank plc v Jones [2001] 1 BCLC 98 at [59] (Neuberger J). “A court will only look behind a transaction’s ostensible validity if there is a good reason to do so, and ‘good reason’ is a high threshold, since a premium is placed on commercial certainty”: Official Assignee v Wilson [2007] NZCA 122; [2008] 3 NZLR 45 at [52] (Robertson and O’Regan JJ). Lockhart J referred to “a strong finding, and one which cannot be made if another inference is at least equally open” in Sharrment Pty Ltd v Official Trustee in Bankruptcy at 461.

35. By his amended defence filed 22 October 2025, at a time when he was legally represented, Huy alleged that in or around March 2023, he and Thi agreed to resolve a separate dispute arising from an earlier property transaction. Under that agreement, Thi would pay Huy $80,000. This was referred to in the proceedings as the Resolution Agreement.

36. The Particulars provided of the separate dispute are to the following effect:

(a) On 20 May 2015, Huy acquired the Bankstown Property; (b) On 13 November 2018, the Bankstown Property was transferred into Dan’s name; (c) Huy says that the transfer of the Bankstown Property occurred without consideration and without his knowledge or consent; and (d) On or around 24 March 2023, Huy says he and Thi had an oral conversation at Thi’s home. According to Huy, Thi admitted that she and her husband had been involved in transferring the Bankstown Property into Dan’s name without the knowledge or consent of Huy, and Thi offered to resolve the dispute between Huy and Dan by paying the difference between the market value of the Bankstown Property at the time and the amount paid to Dan to discharge the mortgage over the Bankstown Property before it was transferred. Huy further states that he agreed that he would accept a payment of $80,000, and that Thi agreed to pay him this sum.

37. Huy also contended that, in or around late 2023, Thi proposed preparing and executing a sham loan agreement in respect of the $80,000 payable under the Resolution Agreement. According to Huy, the purpose was to protect his assets if his relationship with Nguyet broke down. Huy further said that Thi proposed including a clause permitting a caveat to be registered over the Yagoona Property, so that the Loan Agreement would appear legitimate.

38. Huy gave evidence consistent with the existence of the Resolution Agreement. He also sought to tender documents obtained on subpoena, including from the National Australia Bank (NAB), in response to a complaint that he had made. Those documents were admitted subject to a limiting order that they were not admitted for the truth of the matters asserted in them.

39. Thi, Dinh, Dan and Ms Nguyen each gave evidence supporting the contention that the Loan Agreement was genuine and opposing Huy’s alleged Resolution Agreement.

40. The objective evidence and the underlying inherent probabilities, overwhelmingly favour rejecting Huy’s contentions, and accepting Thi’s position that the Loan Agreement was a legitimate agreement.

41. It is not in dispute that the Bankstown Property was purchased in May 2015. There was an issue between the parties as to whose money was used in relation to the purchase of the Bankstown Property, and whether it was acquired as a family investment property, or as Huy’s property. It is not necessary to resolve this dispute.

42. The Bankstown Property was registered in Huy’s name alone. He was also the only named mortgagor on the loan taken out to purchase it.

43. It is not in dispute that, in late January or early February 2018, Huy, Thi and Dan discussed the Bankstown Property. They agreed that Huy would cease to have an interest in the Bankstown Property, that it would be transferred to Dan, and that Dan would take over the mortgage.

44. The parties also disputed whether that discussion was prompted by irregularities in the mortgage account. I do not need to resolve this issue.

45. Dan engaged Perpetual Law Group to act for her in relation to the transfer, and Huy engaged Truston Solicitors.

46. A Deed of Transfer was executed on or about 14 February 2018. The Recitals to the Deed of Transfer provide as follows:

A. The “BANKSTOWN PROPERTY” is the real property located at Unit X at X - X Gordon Street, Bankstown, in the state of New South Wales, 2200 (Lot X in Strata Plan X).

B. The Bankstown Property comprises a two bedroom and one bathroom unit in a strata complex.

C. The Transferor owns the Bankstown Property, being an estate in fee simple described in the certificate of title folio X/SPX.

D. The Transferor has encumbered the Bankstown Property by way of a registered mortgage with National Australia Bank Limited (the “NAB Mortgage”).

E. The transferor estimate the principal sum together with interest charges for the NAB Mortgage is $380,000.00 which remains encumbered on the Bankstown Property.

F. The Transferor and Transferee acknowledge that the Bankstown Property was valued at $480,000 in a property valuation report prepared by Andrew Le, a Certified Practising Valuer on 1 February 2018 (the “Bankstown Valuation Report”).

G. The Transferee is the blood sister of the Transferor.

H. In consideration of his natural love and affection for the Transferee and the financial support provided by the Transferee to the Transferor and the financial support provided by the Transferor’s parents to the Transferor, the Transferor agrees to transfer to the Transferee, by way of gift and for no monetary consideration, absolutely the Transferor’s right, title and interest in the Bankstown Property to hold the same unto and to the use of the Transferee in fee simple.

I. The Transferee agrees to accept the gift of the Bankstown Property under the terms and conditions in this Deed.

J. The Transferor and Transferee intend to enter into a legally binding agreement for the transfer of the Bankstown Property from the Transferor to the Transferee and understand that the agreement can be enforced by law.

47. Clauses 2.1 to 2.3 of the Deed of Transfer provide as follows:

2.1. ‘Settlement Date’ of the Bankstown Property transfer between the parties is to occur within 60 days of the date of this Deed.

2.2. The Transferor agrees to transfer the Bankstown Property to the Transferee on the Settlement Date, by way of gift and for no monetary consideration, in exchange for the Transferee’s agreement to the following conditions:

2.2.1. The Transferee will pay an amount equivalent to the amount required to discharge the Transferor’s NAB Mortgage on the Settlement Date; and

2.2.2. The Transferee will pay the stamp duties arising from the transfer of the Bankstown Property from the Transferor to the Transferee.

2.2.3. The transferee will pay to the transferor an amount equivalent to the capital gains tax incurred by the transferor triggered by the transfer of the Bankstown Property, prior to or by the due date allocated by the Australian Tax Office for the financial year ending 30 June 2018.

2.2.4. The parties agree for each party to be responsible for payment of their own legal costs, independent taxation advice fees and independent financial advice fees, if relevant.

2.3. The Transferor acknowledges and agrees to transfer the Bankstown Property to the Transferee for significantly less than the market value and will not make or commence an action, proceeding, claim or demand, against the Transferee in connection with or arising out of this Deed.

48. On 15 February 2018, Huy executed a Discharge Authority recording that he had sold the Bankstown Property to Dan for “nil consideration”. The Discharge Authority stated that Huy was represented by Truston Solicitors in relation to the matter.

49. The Deed of Transfer provided for settlement to occur within 60 days. It is not in dispute that no such settlement occurred within that time period.

50. Dan became the registered proprietor of the Bankstown Property on or about 13 November 2018.

51. In evidence was a subsequent Discharge Authority executed by Huy and dated 11 October 2018. This authority again confirmed that Huy had sold the property to his sister for nil consideration, and also that he was represented by Truston Solicitors. Huy denied that he executed this additional discharge document. I do not accept this denial.

52. On 17 October 2018, Truston Solicitors sent a letter to “The Manager, Securities Department, National Australia Bank Limited” in the following terms:

Re: HUY HONG AN NGUYEN

Security: X/X-X Gordon Street, Bankstown NSW 2200

Lot X in SP X

NAB request number: 1-7150655767

We act for the abovenamed mortgagor. We advise that our client has sold the above property and want to discharge of mortgage over the above property.

We note that no Certificate of Title will be handed but the “CORD Holder Consent” will be handed at settl3ment [sic].

We advise this is a paper settlement. We refer to the “discharge authority” of our client dated 5 October 2018. We enclose “Request for CORD Holder Consent” for your assistance in arranging for “CORD Holder Consent” which will be handed at settlement.

We also advise that our client proposes to settle this matter on Monday 22 October 2018. Please advise if we can arrange for the settlement on Monday 22 October 2018.

53. Also in evidence was two letters from the NAB to Huy, addressed to him at 47A Chalder Street, Marrickville, NSW, 2024. Huy agreed that this was his business address at the time.

54. Each letter was headed “Your letter of confirmation for paying out your loan”, and related to two separate loans which Huy had with the NAB at the time: first, a “NAB Tailored Home Loan – Choice Package”; and second, a “NAB 100% Offset Choice Package”.

55. Each letter provided a loan payout figure as at 26 October 2018.

56. In his affidavit made 5 June 2025, Huy referred to the discharge and payout on 28 October 2018 and annexed the two letters as confirmation. In cross-examination, however, Huy sought to distance himself from ever having received the letters. I do not accept this evidence.

57. The objective, contemporaneous material overwhelmingly supports the conclusion that Huy was well aware that the Bankstown Property was being transferred to his sister in October 2018 under the Deed of Transfer he had executed in February 2018. Huy had, in fact, requested payout figures in late October 2018.

58. This material provides no support for the existence of any bona fide dispute about the transfer of the Bankstown Property between Huy, on the one hand, and Thi and Dan on the other.

59. Furthermore, the objective material from 2023, overwhelmingly supports the conclusion that the Loan Agreement was intended to be a legitimate agreement, and not a sham.

60. Huy purchased the Property in April 2022.

61. In January 2023, the police executed a search warrant at the Property and found illegal cannabis cultivation was taking place there. It appears to be common ground that Huy was not living at the Property at the time.

62. Pepper Money Limited (or an associated company) (Pepper), was the mortgagee in respect of the Property having loaned monies to Huy for its purchase.

63. On 19 June 2023, Pepper left documents for repossession at the Property.

64. On or about 19 June 2023, Huy lodged a complaint with Pepper in relation to its conduct. (A subsequent complaint was made to the Australian Financial Complaints Authority (AFCA) in respect of Pepper.)

65. It also appears that Huy submitted an insurance claim to Allianz Insurance (Allianz) for damage to the Property.

66. By August 2023, Pepper was proposing to sell the Property, and an auction sign had been affixed to it.

67. Leaving aside for present purposes the evidence given by Thi and others about their discussions and dealings with Huy at the time, and focussing only on objective matters, it is not in dispute that on 4 September 2023, Huy submitted a further complaint online with AFCA in relation to Pepper. The Complaint Summary was to the following effect:

Property was purchased in April 2022 and I lived in the property until Dec 2022 at which time I moved out and tenants were occupying it. Police came into the property in Jan 2023…and found illegal activity ie cannabis growing in the home, no one was in the home at the time. Property was damaged. Thereafter I did not have rental income and lodged a claim with my insurance/landlord cover for damage to the property. This has taken some time to resolve, I was under a lot of stress, I did not have any contact with Pepper during that time as I was trying to clear my name with the Police who thought I was involved in the actions of the tenants. The first I knew of Peppers’ actions was when the default notice was received at the door, at 19/6/2023. I rang Pepper on this day and advised them of the situation and that I was in the process of lodging an insurance claim to cover costs. It took >5 months for the claim to be reviewed. I now have the claim approved by the insurance company. I contacted Pepper today to have the amount expensed by them to repair the property. A statement for the payments was provided but they do not itemise the repairs done. I am not sure if my insurer will reimburse me for this amount. It is not clear that this is for repairs on the property. No court action took place before Pepper repossessed the property.

68. Under the heading “What I think is a fair and reasonable outcome”, Huy stated:

Return of the property to me. I believe am able to return to normal repayments within 1 month. If AFCA determines I cant afford the paymnts, the ppty returned for me to sell -Repair costs to be reimbursed by insurer on provision of itemised invoice from Pepper. However I am worried that Pepper have prejudiced my rights to claim with my insurer and need the itemised invoice from the repairer first to take to my insurer to ask if they are willing to reimburse the full amount spent by Pepper. I reserve my rights to claim further losses depending on my insurer’s response. -Allow 2 months for my rent cover to be paid from the insurer which will reduce the arrears further. I expect to receive 100% cover for the amount unpaid. -Reimburse of unreasonably incurred enforcement fees and charges on the debt, given Pepper were made aware of my situation of no tenants, Police action and insurance claim that was in progress. No hardship assistance was offered -non financial loss

69. Huy’s contention that the insurance claim had been approved is open to doubt. Email communications between Huy and Allianz as at August 2023, suggest that Allianz was still chasing Huy for more material. An email from Huy to Ms Nguyen on 6 September 2023 indicates that he was then still awaiting a reply from Allianz.

70. On 18 September 2023, Pepper emailed Huy. The email stated, amongst other things:

I have reviewed your account and can confirm at this time that the loan is in arrears for $74,205.03 with the next payment due on the 21 September 2023 in the amount of $5,669.44, you have confirmed you are in a position to make this payment and $50,000 extra towards the arrears. Can you please confirm this is still the case and if you are able to, we can return the property back to you.

71. Huy forwarded this email to Ms Nguyen on 25 September 2023. Ms Nguyen responded on the same day stating:

I will prepare the draft for your mother on Wednesday.

72. On 25 September 2023, Thi, Dinh, Huy and Dan visited the bank and Thi transferred $52,000 to Huy.

73. Later that day, Dinh prepared, and Huy signed, a handwritten note stating:

We, Huy Hong An Nguyen and Nguyet Huu Minh Trang of … Yagoona have borrowed from our mother, Thi To Uyen Nguyen… the amount of AUD 52,000 to pay our mortgage on 25 September 2023.

74. On 20 October 2023, Ms Nguyen emailed Huy, attaching a draft Loan Agreement, the Memorandum referred to in it, and a caveat. This draft agreement did not name Nguyet as a party and stated next to “Guarantor”: Not Applicable.

75. Ms Nguyen asked Huy to advise her of any amendments or changes he required to the draft and made it clear that “I cannot give you advice on the above documents, so I strongly advise you to obtain legal advice before signing.”

76. On 7 November 2023, Huy emailed Ms Nguyen:

Can you amend the amount to $80,000? That’s final and I’ll come sign it.

77. There was a further exchange of emails on 7 November 2023, in which Ms Nguyen asked Huy whether the $80,000 had been paid, and Huy responded “Currently is at $70k. She still needs to give me another $10k.”

78. Later on 7 November 2023, Ms Nguyen emailed Huy:

Your mother asked that your wife be joined in on the loan as guarantor. Can you please give me the full legal name so that I can add it on?

79. A further Loan Agreement was then prepared on 20 November 2023.

80. Ms Nguyen emailed an unexecuted version of the Loan Agreement to Huy. At 10.44am, he emailed the Loan Agreement back to Ms Nguyen executed by both him and Nguyet. Their signatures were purported to have been witnessed by “Tan Anh Nguyen”.

81. At 10.48am, Ms Nguyen asked Huy to fill in the blank in Recital B and provide the address for the witness, if the witness is not a solicitor. She also asked Huy whether he could advise whether he will be dropping off the original.

82. At 11.30am, Huy responded that he would be dropping off the original to his mother and “she can bring it to you”. He said that he would be filling the rest in “soon”.

83. At 5.34pm on 21 November 2023, Huy emailed Ms Nguyen:

Attached is our passport. If you need anything please contact me directly I can organise it right away.

84. Shortly thereafter, at 5.50pm, Ms Nguyen emailed Huy:

Your signature does not match your ID.

Did you want to pop out to the office to sign again?

85. On 21 November 2023, Huy attended Ms Nguyen’s offices and re-signed the Loan Agreement in front of her. Ms Nguyen witnessed Huy’s signature.

86. The above objective chronology comfortably satisfies me that the Loan Agreement was a genuine loan agreement, whereby Thi lent money to Huy so that he could pay Pepper and seek to regain possession of the Property.

87. The objective material incudes statements made by Huy to AFCA indicating that Pepper were proposing to sell the Property. It also includes communications between Huy and Pepper that establish the then outstanding loan amount, and Huy’s promise to pay $50,000. This coincides with the $52,000 being transferred by Thi to Huy in late September 2023.

88. All of the material is consistent with the Loan Agreement being a legitimate agreement.

89. The objective material corroborates the oral evidence of Thi, Dinh and Dan, and also the oral evidence of Ms Nguyen, a solicitor. In turn, Ms Nguyen has file notes supporting her conversations which are all consistent with her being instructed to prepare the Loan Agreement. It also includes the discussions with Huy in relation to the amount of the loan.

90. There is also the unchallenged evidence of Mr Giang to the effect that Thi borrowed $12,000 from him at this time.

91. In addition to this, there is an inherent unlikelihood in the sham case propounded by Huy. If the alleged loan was intended to be a sham to protect Huy from Nguyet later seeking to claim the money, it makes little sense to include Nguyet as a guarantor in relation to the so called loan. If that was the true intended purpose – to protect Huy from Nguyet – there were many other more effective ways of achieving this purpose.

92. I am comfortably satisfied on this material, that the sham allegation is without substance. I reject it.

93. Huy is thus liable to repay the $80,000 to Thi, plus interest. The Loan Agreement provides for interest to be paid at either a higher rate of 7% or a lower rate of 5%. For payments made on or before the due date, the lower rate is applicable. Otherwise, the higher rate applies.

94. I will direct Thi to provide a calculation of the interest that has accrued to date and the ongoing daily rate. I will then enter judgment accordingly.

95. By cl 1 of the Loan Agreement, Huy granted to Thi a mortgage over the Property on the terms provided for in Memorandum No. X X.

96. No mortgage was registered on title. Thi lodged a caveat to protect her interest.

97. The mortgage thus took effect as an equitable mortgage: Bizcap AU Pty Ltd v Vo [2025] NSWSC 518 (Bizcap AU) at [32]-[34].

98. An unregistered mortgage is regarded in equity as conferring an equitable charge: Bizcap AU at [34]. That charge may be enforced by payment out of the debt from monies held in Court, representing the net proceeds from the sale of the secured property. I will make orders to this effect as part of my final orders.

The claim against Nguyet

99. As set out above, Nguyet is named as a guarantor in the Loan Agreement, which bears a signature purporting to be hers. She contends, however, that she did not sign the Loan Agreement.

100. Huy also relied on an affidavit from a person named “Tan Anh Nguyen” made on 10 October 2024. Mr Nguyen deposed to the fact that he was a friend of Huy and that he had been shown a copy of a document titled “Loan Agreement” dated 20 November 2023, allegedly witnessed by him. Mr Nguyen said that he had never seen, signed or witnessed anybody signing the alleged Loan Agreement and that the signature contained in the document is not his as “it is radically different to my true signature”. He annexed to his affidavit a true copy of his NSW Drivers Licence, setting out his signature.

101. Nguyet made an affidavit on 17 October 2024. The effect of that affidavit was that the signature contained in the alleged Loan Agreement was not Nguyet’s as, she said, “it is radically different to my true signature”. Again, she annexed to her affidavit a true copy of her passport and NSW Drivers Licence. She also made certain observations as to the differences between her signature as shown in her identification documents and that contained in the alleged Loan Agreement.

102. Nguyet did not address in her affidavit evidence whether she had any knowledge of the alleged loan underlying the Loan Agreement.

103. Thi made an affidavit in which she deposed to several conversations that she says she had with Nguyet, both prior to the Loan Agreement being executed and in early 2024. On Thi’s account, the 2023 conversations showed that Nguyet knew Thi had lent money to Huy and was grateful to Thi for doing so. In the 2024 conversation, Thi asked Nguyet when the money would be repaid. An argument followed, and Thi left Huy’s property. Shortly afterwards, she and Dinh were involved in a serious car accident.

104. Dan made an affidavit describing a conversation she overheard between Thi and Nguyet in late 2023. According to Dan, Nguyet expressed gratitude to Thi for lending the money and indicated that they were still in more financial trouble.

105. Nguyet did not put on any responsive evidence to the affidavits of Thi and Dan. Further, no questions were asked of Thi and Dan by counsel for Nguyet to suggest that the alleged conversations did not, in fact, occur.

106. Huy asked Nguyet, in cross-examination, whether she knew or was involved in any Loan Agreement with Huy’s mum. Nguyet responded, “No, no, I never”.

107. In cross-examination, Nguyet denied the conversations deposed to by Thi.

108. Nguyet admitted, however, that she was aware that Pepper was proposing to auction the Property in August 2023 and that the auction ultimately did not go ahead. She continued to deny that she was aware that Thi had loaned the money to Huy.

109. Huy was asked in cross-examination by counsel for Thi whether he was responsible for Nguyet’s signature being placed on the Loan Agreement. Huy denied responsibility. In his closing written submissions, however, Huy stated:

The First Defendant accepts that there are matters in his own conduct that are difficult and must be dealt with honestly. The First Defendant does not ask the Court to excuse any false witnessing or poor conduct. But that does not relieve the Plaintiff from proving her own case. A forged or irregular witnessing process makes the Plaintiff’s documentary case weaker not stronger.

110. Huy made the submissions in his own name, as he remains unrepresented. On one view, they appear to contain an admission by him that it was he that forged Nguyet’s signature on the Loan Agreement. There was no suggestion in the proceedings of any other signatures being forged.

111. I am troubled by the fact that neither Thi nor Dan was cross-examined about the conversations that they deposed to. They obviously should have been.

112. Having regard to all of the evidence, I am not satisfied that Nguyet signed the Loan Agreement. The conversations deposed to by Thi and Dan with Nguyet, do not contain any admission that Nguyet was aware of, let alone signed any written Loan Agreement. They establish only that she knew Thi had provided money to Huy to pay Pepper.

113. I am satisfied, in all the circumstances, that Huy was responsible for placing Nguyet’s signature on the Loan Agreement without her knowledge. This is the only available inference in circumstances where it is clear that the Loan Agreement was provided to Huy by Ms Nguyen without any signatures contained on it. Huy then returned the Loan Agreement to Ms Nguyen, with Nguyet’s signature, purportedly witnessed. Having rejected the proposition that Nguyet signed the Loan Agreement, the only available alternative, is that Huy was responsible for this. I so find.

Conclusion and orders

114. Thi succeeds in her claim against Huy for repayment of the $80,000 plus interest. Thi will need to provide an interest calculation and ongoing daily rate. I will then enter judgment accordingly. The judgment should be satisfied by payment out of the monies presently held in Court.

115. The claim against Nguyet fails. Thi contended at the hearing that if I was to find that Nguyet did not sign the Loan Agreement and Huy forged her signature, then Thi would seek either a Sanderson or Bullock order against Huy in respect of those costs.

116. The parties should seek to agree on costs and any other consequential orders to give effect to these reasons and conclude the matter. If agreement cannot be reached, I will receive submissions and determine any remaining issues on the papers.

117. The Court orders that:

118. The plaintiff notify my Associate by no later than 4pm on 30 October 2026 of the interest payable on the loan as at 30 October 2026, together with a daily interest figure.

119. The parties are to confer to seek to agree costs and any consequential orders to give effect to these reasons.

120. Any agreed orders are to be provided to my Associate by 4pm on 30 October 2026 and, in the event of any disagreement, each party is to provide by 4pm on 30 October 2026 the orders for which that party contends, together with submissions of no more than 3 pages in support of those orders.

121. Any submissions in reply of no more than 3 pages are to be provided to my Associate by 4pm on 6 November 2026, whereupon I will determine the remaining issues on the papers.

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