Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen

Proceedings 2019/00296623 C Lambert (Applicants/Defendants/Cross Claimants) J Doyle (Respondent/Second Cross Defendant)

Solicitors: Proceedings 2017/00060096 Ausino Lawyers (Respondents/Plaintiffs)

Proceedings 2019/00296623 Ausino Lawyers (Applicants/Defendants/Cross Claimants) File Number(s): 2017/00060096; 2019/00296623

Judgment

1. The Court published its principal judgment in these two related proceedings on 24 June 2021: Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen [2021] NSWSC 753.
2. The Court also published a second judgment on 5 August 2021 that dealt with a number of disputes between the parties concerning the orders that should be made to give effect to the principal judgment: Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyens (No 2) [2021] NSWSC 978. The second judgment contains a broad explanation of the effect of the principal judgment.
3. The Court has before it two notices of motion. The first one I will consider was filed by the Nguyens on 1 December 2021. As I will explain in more detail below, it seeks orders against Mr Lam that he withdraw a caveat he has lodged that is preventing the Nguyens from executing on a judgment made by the Court in their favour against Mr Hoang. The second notice of motion was filed by Mr Hoang on 5 November 2021. It seeks an order setting aside a judgment of Ward CJ in Eq (as her Honour then was) entered by the Court in favour of the Nguyens.
4. The two proceedings have been called the 2017 proceedings and the 2019 proceedings. In the 2017 proceedings, the Nguyens, as plaintiffs, obtained a judgment for $239,906 against Mr Hoang, the second defendant. The Nguyens then sought to enforce their judgment by having the Sheriff execute a writ for levy of property issued by the Court against the Smithfield property owned by Mr Hoang. The Sheriff was unable to execute the writ because Mr Hoang's mother, Ms Dang, lodged a caveat against the title to the Smithfield property in which she claimed an equitable estate in that property. The 2017 proceedings then involved attempts by the Nguyens to obtain an order for the withdrawal of Ms Dang's caveat.
5. In the 2019 proceedings, Ms Dang, who was the plaintiff, sought a declaration as against the Nguyens, as the first three defendants, and Mr Hoang, as the fourth defendant, that the equitable estate that she claimed in the Smithfield property was valid. That claim failed, as the Court determined that the evidence did not establish that Ms Dang was entitled to the estate claimed.
6. The issue at the heart of both proceedings arose out of the terms of s 74MA of the Real Property Act 1900 (NSW), which gives the Court power to order the withdrawal of caveats. The only persons authorised to apply for that relief are persons who are or claim to be entitled to an estate or interest in the land described in the caveat. Under the law of this State, judgment creditors to whom writs for levy of property are issued do not have an estate or interest in the land the subject of the writ. It therefore appeared that the enforcement of this Court's judgment in favour of the Nguyens would be thwarted by reason of the lodgement by the judgment debtor's mother of a caveat, irrespective of the validity of the caveat and whether or not the estate claimed by Ms Dang existed.
7. For the reasons contained in the principal judgment I found that, notwithstanding that the Nguyens lacked standing to apply under s 74MA of the Real Property Act, as the Court had found on a contested hearing on the merits between Ms Dang and the Nguyens that the estate claimed by Ms Dang did not exist, the Court in its inherent jurisdiction had power to order Ms Dang to withdraw the caveat that sought to protect the non-existent estate and that an order to that effect should be made.
8. However, the Nguyens discovered, before the Court was able to make final orders in their favour in the 2019 proceedings that would lead to the removal of Ms Dang's caveat and the issue of a new writ for levy of property in favour of the Nguyens, that Mr Lam, who is a friend of Ms Dang, had lodged a new caveat against the title to the Smithfield property, in which Mr Lam claimed a different estate in that property than had Ms Dang. Mr Lam's caveat had the effect of prohibiting the registration by the Registrar-General of the new writ for levy of property.
9. The evidence on the hearing of the notice of motion was that Mr Lam was in court supporting Ms Dang during the hearing that led to the publication of the principal judgment. Mr Lam must have known that the whole purpose of the hearing on the part of the Nguyens was to obtain an order for the withdrawal of Ms Dang's caveat. Mr Lam did not lodge his caveat until 13 August 2021, which was after the principal judgment was delivered on 24 June 2021, but before final orders were able to be made on 15 November 2021. As will be seen, Mr Lam has claimed that the estate in the Smithfield property upon which his caveat is based was created by an instrument dated 20 January 2018.
10. The Nguyens' notice of motion is the culmination of further steps by the Nguyens in the 2019 proceedings to cause Mr Lam's caveat to be withdrawn, so that they will be able to register their new writ for levy of property and try again to enforce their judgment by means of the Sheriff executing that writ.
11. This application raises the s 74MA standing problem again, although in a more acute form than in relation to Ms Dang's caveat. As I have explained, the object of Ms Dang's failed 2019 proceedings was to obtain a declaration on a final hearing binding the Nguyens that Ms Dang was entitled to the estate that was the basis of her caveat. In the case of Mr Lam's caveat, he has neither sought to enforce the underlying estate that he claims against the Smithfield property, nor has he sought a declaration binding the Nguyens that the estate that he claims is valid. The Nguyens' standing problem remains to be addressed.
12. In these reasons I will use the same terms and abbreviations as I have used in the two earlier judgements.

Nguyens' notice of motion

1. The following extract from the principal judgment provides the starting point for an understanding of the background against which the two notices of motion have been filed: [32] The parties accepted that it is sufficient to start with the orders made by Ward CJ in Eq that constitute the substantive orders in the 2017 proceedings, and by which those proceedings were otherwise dismissed. [33] None of the defendants in the 2017 proceedings took any serious steps in this Court to prosecute their defences after those defences were filed. [34] The Nguyens filed a notice of motion seeking orders striking out the defences and for summary judgment to be given in their favour. The notice of motion was dealt with by Ward CJ in Eq sitting as duty judge. [35] On 29 January 2018, her Honour made the following relevant orders: 3. Strike out the defence filed 12 July 2017 by [Mr Hoang] in these proceedings pursuant to UCPR 12.7(2). 4. Strike out the defence of [Ms Dang] filed 24 July 2017 in these proceedings pursuant to UCPR 12.7(2). 5. Judgment for the [Nguyens] in the amount of $103,380 jointly and severally as against [Mr Hoang] (pursuant to UCPR 13.1) and [Sage] (pursuant to UCPR 16.3). 6. Judgment for the [Nguyens] against [Mr Hoang] (pursuant to UCPR 13.1) in the sum of $136,526. 7. Order [Mr Hoang] to pay the [Nguyens] costs of the proceedings on an indemnity basis. 8. Otherwise dismiss the proceedings. [36] The total amount of the judgment entered against Mr Hoang was $239,906. [37] Ward CJ in Eq published her reasons for making these orders on 6 February 2018: Nguyen v Sage Consultant Group Pty Ltd [2018] NSWSC 65. Her Honour struck out the defences filed by Mr Hoang and Ms Dang for want of prosecution: [45]. Her Honour found that the evidence justified an order for summary judgment against Sage and Mr Hoang for breach of contract, or alternatively on the basis of a total failure of consideration: [47]. It was not necessary for her Honour to deal with the separate claims made for damages for misleading and deceptive conduct: [49]. In relation to Ms Dang, her Honour noted at [50] that the only allegation against her in the pleading was that she owed fiduciary obligations to the plaintiffs because she was a director of the company in question. Ward CJ in Eq did not accept that this claim was made out on the evidence before her.

Caveat filed by Mr Lam

1. On 5 October 2021, before the Court's orders could be made on 15 November 2021 in the two proceedings, the Nguyens' solicitor conducted a search of the title to the Smithfield property and discovered that Ms Dang's friend, Mr Lam, had lodged a caveat against the title to the Smithfield property on 13 August 2021.
2. Caveat AR331007 lodged on behalf of Mr Lam by Victor Lawyers Pty Ltd prohibited the recording in the Register against the title to the Smithfield property of any dealing other than a plan affecting the estate or interest claimed by the caveator. The estate or interest claimed was an estate in fee simple pursuant to a loan agreement dated 20 January 2018 between Mr Lam and Mr Hoang.
3. The effect of the Lam caveat was to prohibit the registration of the new writ that was finally issued on 15 November 2021.

Nguyens' cross summons

1. Following the discovery by the Nguyens of the caveat lodged by Mr Lam, on 28 October 2021 they filed a cross summons in the 2019 proceedings, whereby they sought the following relief: 1. The Court grants an injunction in favour of [the Nguyens] against [Mr Hoang] and orders that [Mr Hoang] being the registered proprietor of [the Smithfield property] (the 'Land') is restrained from selling or transferring or granting any charge or mortgage to any person or entity in the whole or any part of the Land until the judgment debt owed to [the Nguyens] under the judgment against [Mr Hoang] by Ward CJ (sic) of this Court on 18 December 2018 plus the interest according to section 101 of the Civil Procedure Act 2005 (NSW) is satisfied in full. 2. Pursuant to rule 39.20 of the Uniform Civil Procedure Rules (NSW) 2005 ('UCPR') the Court orders that the writ for the levy of property against any and all [Mr Hoang's] personal and real property located at [the Smithfield property] issued on 10 May 2018 be further renewed for 12 months ('the Renewed Writ) from the date of the making of these orders. 3. The Court directs the Registrar General that the Renewed Writ, issued in accordance with Order 2 herein, be recorded on the title to the Land with same priority as the original Writ on 7 June 2018 previously recorded on the title to the Land as dealing No. AN 402095. 4. Pursuant to UCPR 39.18, it is declared that service of documents upon [Mr Hoang] in relation to the sale of the Land by the Sheriff of New South Wales in execution of the Renewed Writ for the levy of property against the Land is effected if they are affixed to a gate or door of the premises of the Land. 5. Where the Court finds that [Mr Lam] holds only a mere equity or holds no equitable interest in the Land the Court orders that [Mr Lam] is to cause to be prepared and to lodge with the Registrar-General a "Form 08WX Withdrawal of Caveat" on [the Nguyens] within seven days of the making of these orders. 6. The Court orders that in the event that [Mr Lam] fails to lodge a Form 08WX Withdrawal of Caveat for the Caveat AR 331007 with the Registrar-General, in accordance with Order 5 herein, within seven days of the making of these orders, the Registrar in Equity, pursuant to s 94 Civil Procedure Act, is to prepare and execute a Form 08 WX Withdrawal of Caveat for the Caveat AR 331007 under the seal of the Court and lodge the completed Form 08 WX Withdrawal of Caveat for the Caveat AR 331007 with the Registrar-General within seven days of being notified by [the Nguyens'] solicitor that [Mr Lam] has failed to comply with Order 5 of these Orders. 7. Subject to Order 5 above, the Court grants an injunction against [Mr Lam] and orders that [Mr Lam] is restrained forthwith from lodging any further caveat on the title to the Land which interferes with the entitlement of [the Nguyens] to register and/or record a renewed writ on the title to the Land or cause any action which attempts to hinder the sale of the Land by the Sheriff of New South Wales in execution of the Writ for the levy of property against the Land. 8. The Court orders [Mr Hoang and Mr Lam] jointly and severally to pay [the Nguyens'] costs of this Summons as agreed or assessed.
2. It is sufficient for the purposes of these reasons to note in relation to prayer 1 that the Court has made and extended orders in terms of that prayer until further order of the Court to protect the Nguyens pending the delivery of this judgment.
3. While it is not necessary to explain the detail in these reasons, the Court has previously indicated that it would not make an order in terms of prayer 3, because an order to that effect would give the Nguyens priority over another party who has lodged a caveat against the title to the Smithfield property that may protect an interest validly granted by Mr Hoang to that party. The priority of the claim of the Nguyens and that of the other party is an open question that is not relevant to the issue the subject of these reasons.

Orders made in 2017 proceedings and 2019 proceedings

1. Following attempts by the parties to the two proceedings to agree the orders that the Court should make to give effect to the two judgments, the Court made the following orders on 15 November 2021: 2019 Proceedings 1 The Court declares that [Mr Hoang], being the registered proprietor of [the Smithfield property] (the "Land"), does not hold the Land on constructive trust for [Ms Dang]. 2 The Court declares that [Ms Dang] is not entitled to an equitable lien over the Land. 3 The Court declares that [Ms Dang] is not presently entitled to any charge over the Land for the recoupment from [Mr Hoang] of funds contributed by [Ms Dang] in relation to the Land. 4 The Court grants an injunction in favour of the [Nguyens] against [Ms Dang] and orders that [Ms Dang] is to cause to be prepared and to lodge with the Registrar-General a Form 08WX Withdrawal of Caveat and withdraw Caveat AN448892 previously lodged by [Ms Dang] on 26 June 2018 and serve a copy of the lodged Form 08WX Withdrawal of Caveat on the [Nguyens] within 14 days of the service of these orders on [Ms Dang]. … 6 The Court grants an injunction in favour of the [Nguyens] and against [Ms Dang] and orders that [Ms Dang] is restrained forthwith without the prior leave of the Court from lodging any further caveat on the title to the Land which interferes with the entitlement of the [Nguyens] to register and/or record a renewed writ on the title of the Land. … 2017 Proceedings 1 The Court notes that on 10 May 2018 the Court issued to the [Nguyens] a writ for the levy of property (the first writ) in respect of the judgment entered against [Mr Hoang] in favour of the [Nguyens] on 29 January 2018 (the judgment) and that on 22 May 2019 the Court made a new order for the issue of a writ for the levy of property in respect of the judgment (the second writ). 2 The Court notes that NSW Land Registry Services issued a registration notice dated 7 June 2018 to the effect that the first writ had been registered as dealing No AN402095 against the title [Smithfield property] (the Land). 3 The Court notes that on 25 June 2019 the [Nguyens] lodged a request for the registration of the second writ, which request was given dealing No AP330678R (the request). 4 The Court notes that on 26 May 2020 the [Nguyens] filed a notice of motion seeking an order that the second writ be renewed for a further 12 months but on 29 May 2020 the Principal Registrar of the Court made an order that the [Nguyens'] application was refused until the issues relating to the operation of Caveat No AN448892 (the Caveat) lodged by [Ms Dang] against the title to the Land were resolved by this Court in these proceedings and related proceedings case number 2019/296623 (the related proceedings). 5 The Court notes that the Court delivered its primary reasons for judgment in this and the related proceedings on 24 June 2021. 6 The Court notes that following the lodgement by [Mr Hoang] of an Application to Cancel Recording of Writ dated 24 September 2021 the registration of the first writ and the request were removed from the title to the Property. 7 The Court notes that by order made in the related proceedings against [Ms Dang] in these proceedings on the same date as these orders she is ordered to withdraw the Caveat which will have the result that the [Nguyens] will be entitled to lodge any new or renewed writ for the levy of property against the title to the Land. 8 Pursuant to rule 39.20 of the Uniform Civil Procedure Rules (NSW) 2005 (UCPR), the Court orders that the first writ as renewed by the issue of the second writ be further renewed for 12 months from the date of the making of these orders. 9 The Court grants the [Nguyens] leave to apply on three days' notice by arrangement with the Associate to Robb J for any further orders necessary to give effect to these orders, and in particular to ensure that an effective writ for the levy of property is recorded against the title to the Land in such manner as may be necessary to enable the [Nguyens] to enforce the judgment. 10 Pursuant to UCPR r 39.18, the Court directs that service of documents upon [Mr Hoang] in relation to the sale of the Land by the Sheriff of New South Wales in execution of the renewed writ for the levy of property against the Land may be effected by: a. emailing the documents to [email address]; and b. leaving a copy of the documents, addressed to [Mr Hoang] at [address]. …

Procedural orders in 2019 proceedings

1. Given the possibility that steps had been taken to frustrate the orders of the Court that were imminent when Mr Lam's caveat was lodged, on 19 November 2021 I made the following further orders in the 2019 proceedings: 1 Grants leave to the [Nguyens] to file in the Registry a first statement of cross claim in the form that has been signed by Robb J dated today's date and placed with the papers. 2 Grants leave to the [Nguyens] to file in the Registry a notice of motion seeking summary judgment on the relief sought in the first statement of cross claim. 3 Orders that the notice of motion be made returnable for hearing before the vacation judge at 10:00am on Thursday, 20 January 2022. 4 Orders that the first statement of cross claim, the notice of motion and any evidence in support and a copy of these orders be served on [Mr Hoang and Mr Lam] by Friday, 3 December 2021. 5 Orders that the documents referred to in order 4 may be served on [Mr Hoang and Mr Lam] in any manner authorised by any previous orders of the Court made in this or any related proceedings. 6 Orders [Mr Hoang and Mr Lam] to serve on [the Nguyens] their defences and any evidence to be relied upon in opposition to the [Nguyens'] notice of motion seeking summary judgment on the first statement of cross claim by 5pm on 13 January 2022. 7 Notes that issues raised by the first statement of cross claim is whether [Mr Hoang and Mr Lam] have taken steps by the production of a false document and the lodgement of a caveat against the title to the property referred to in prayer 1 of the first statement of cross claim in order to prevent the enforcement of the judgment of this Court referred to in paragraph 2 of the pleaded facts in the first statement of cross claim and if [Mr Hoang and Mr Lam] intend to oppose the application for summary judgment they must provide proper evidence to establish on an interlocutory basis the genuineness of the steps taken by them that have led to the lodgement of the caveat referred to in paragraph 16 of the pleaded facts in the first statement of cross claim. 8 On the [Nguyens] by their counsel giving to the Court the usual undertaking as damages extends order 4 made by the Court on 8 October 2021 until further order of the Court.

Nguyens' cross claim

1. The Nguyens filed their cross claim in accordance with the leave granted by order 1 on 24 November 2021. The relief claimed was as follows: 1. A declaration that [Mr Lam] holds no equitable interest or in the alternative only a mere equity in the property of [Mr Hoang] being [the Smithfield property]. 2. Pursuant to the Court's power under rules 25.14 (4) & (5) of the Uniform Civil Procedure Rules 2005 NSW respectively and its inherent power to enforce its own judgments the relief claimed in prayers 1, 5, 6 & 7 of the Cross Summons filed 28 October 2021. 3. Costs on the indemnity basis.
2. The Nguyens do not seek by the prayers in their cross claim the same relief as they sought in their cross summons. As they applied for and were given leave to file their cross claim they have implicitly abandoned or amended their cross summons except to the extent that they have incorporated its prayers by reference.
3. The first form of the relief sought by the Nguyens against Mr Lam is a declaration that he does not hold an equitable interest in the Smithfield property, or if he does, it is no more than a 'mere equity'. By seeking this declaration, the Nguyens are effectively attempting to achieve the same outcome as they achieved against Ms Dang in the 2019 proceedings. The difference is that while Ms Dang sought a declaration in the 2019 proceedings that she had the estate in the Smithfield property that she claimed, in the Nguyens' cross claim against Mr Lam they seek a declaration that Mr Lam does not have the equitable estate that he claims.
4. The second form of the relief sought by the Nguyens, by means of the reference in prayer 2 to prayer 1 of the cross summons, is an injunction against Mr Hoang prohibiting him from dealing with the Smithfield property until the judgment granted by the Court to the Nguyens against Mr Hoang plus interest has been paid in full.
5. The third form of the relief sought by the Nguyens, by means of the reference in prayer 2 to prayers 5 to 7 of the cross summons, is orders against Mr Lam that would have the effect that the form necessary to cause Mr Lam's caveat to be withdrawn, whether prepared by Mr Lam or the Registrar, will be signed, and an injunction will be issued against Mr Lam preventing him from lodging a further caveat against the title to the Smithfield property or taking any other step that hinders the Sheriff in the execution of the new writ for levy of property.

Relief sought in notice of motion

1. The Nguyens' notice of motion filed on 1 December 2021seeks the following relief: 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]. 2. Pursuant to Rule 13.1 of the Uniform Civil Procedure Rules 2005 judgment for the [Nguyens] as against [Mr Hoang and Mr Lam] jointly and severally. 3. Pursuant to the Court's power under Rules 25.14(4) and (5) of the Uniform Civil Procedure Rules 2005 NSW respectively and its inherent power to enforce its own judgments the Court grants the relief claimed in prayers 1, 5, 6 & 7 of the Cross Summons filed 28 October 2021. 4. The cost of these proceedings are payable by [Mr Hoang and Mr Lam] jointly and severally on an indemnity basis from and including 5 October 2021 up until such time as the Caveat AR331007 lodged by the Second Cross Defendant on the title to [the Smithfield property] on 13 August 2021 is removed from the title to [the Smithfield property] in accordance with prayers 5 and 6 of the Cross Summons filed on 28 October 2021.
2. Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 13.1 relevantly provides: (1) If, on application by the plaintiff in relation to the plaintiff's claim for relief or any part of the plaintiff's claim for relief - (a) there is evidence of the facts on which the claim or part of the claim is based, and (b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed, the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.
3. The effect of prayers 1 and 2 of the notice of motion is in substance that the Nguyens seek a summary declaration binding Mr Lam and Mr Hoang that Mr Lam does not have any estate or interest in the Smithfield property.
4. Rules 25.14(4) and (5) of the UCPR provide: (4) The court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur - (a) the judgment debtor, prospective judgment debtor or another person absconds, (b) the assets of the judgment debtor, prospective judgment debtor or another person are - (i) removed from Australia or from a place inside or outside Australia, or (ii) disposed of, dealt with or diminished in value. (5) The court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the court is satisfied, having regard to all the circumstances, that - (a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because - (i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or (ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or (b) a process in the court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.
5. It appears that the Nguyens rely upon the freezing order rule to support the claim in prayer 1 of the cross summons for an order that Mr Hoang not dispose of or deal with the Smithfield property in a manner that prevents the Nguyens executing on their writ for levy of property to recover the judgment debt owed by Mr Hoang.
6. The Nguyens appear to rely upon the Court's inherent jurisdiction to support their claims in prayers 5 to 7 of their cross claim for injunctive relief to cause Mr Lam's caveat to be withdrawn and to restrain him from lodging a further caveat against the title to the Smithfield property.

Service on Mr Lam and Mr Hoang

1. The evidence of service that has been filed satisfies me that Mr Hoang and Mr Lam were served with all documents required by the Court's orders to be served in the manner authorised by those orders. In any event, both parties have communicated with my Associate in a way that demonstrates that in fact they have had notice of the Nguyens' application.
2. Neither Mr Hoang nor Mr Lam filed defences or affidavit evidence in response to order 6 made by the Court on 19 November 2021 before the hearing that took place on 20 January 2022.
3. Mr Hoang appeared in person by telephone at the hearing on 20 January 2022. Mr Hoang did not address the Nguyens' notice of motion filed on 1 December 2021 and he only made submissions in support of his notice of motion for an order setting aside the judgment made against him by Ward CJ in Eq.
4. Mr Lam did not formally appear, but he was informally represented by a barrister who advised the Court that he had been requested at the last moment by Mr Lam's daughter, who is a lawyer holding a practising certificate but who could not formally brief him because she is employed as a corporate counsel, to make a request on Mr Lam's behalf that the hearing of the motion be adjourned. That application was rejected for reasons set out in the transcript of the hearing on 20 January 2022. I am satisfied that Mr Lam had notice of the hearing, and I do not accept the reasons given on behalf of Mr Lam to the Court as to why Mr Lam did not comply with the orders that were served upon him.

Mr Lam's affidavit

1. On 13 November 2021, Mr Lam apparently sent an email to my Associate (with the assistance of a person who gave their name only as Tammy) which attached a copy of an affidavit of Mr Lam affirmed on 12 November 2021. Relevantly, the affidavit says: 1. In this proceeding, I am the purchaser of the [Smithfield property]. … 3. I make and affirm this Affidavit in support of my evidence of Promissory Note dated Service contract 2014 - 2015, promissory note on 20/01/2018. 4. I have known [Mr Hoang] since 2012, and I am his mother, the plaintiff [Ms Dang's] friend. 5. His mother is not my partner, and we do not live together. 6. I was a subcontractor back in 2012 all that I worked in the building construction industry, renovation. His mother is only friend. 7. Mr Hoang hired me to renovation his first restaurant at Cabramatta NSW in 2013. We signed a contract with $110,000 that was paid into the repayment plan along the process. 8. After the restaurant renovation finished but there were $25,000 outstanding, he promised to pay me in 3 months after the restaurant ran. 9. His ambition was impressive, that I always wanted to help young people like him. After that few months, he had trouble paying the outstanding money that I agreed to postpone that for a future time; 10. In mid-2014, he wanted to open another 2 restaurants in Canley Heights NSW 2116, that he asked if I could do the renovation. We agreed to the construction service fee and labour cost of $285,000 that included oil trape (sic), range hood and brand new commercial kitchen. 11. On August 2015, he did not commit to agreement payment plan that his repayments were late some occasions. He offers to me his real estate, located at [Smithfield property], as surety on the renovation contractor in the mutual agreement. 12. The restaurant was running smoothly first four months, that he has repaid me $105,500. 13. However, in September 2015, his restaurant went down that owing rental, staff, council fees. I helped him with that cost which is about $80,000 all up. 14. I was his security of $50,000 for bail and agreed to accommodate him in February 2017 after being released on bail. 15. In August 2017, I lent him some money for his criminal legal fees. 16. On 20/01/2018, I asked him to get into Promissory Note with a sum all of $275,000, that amount secured over the said property. In the event, he cannot pay my money that I will take over the said property. 17. I have been following his civil proceeding to make sure that it has any effects on my interest of debts owing to me. 18. As a result of his full-time sentence that he is subject to be removed out of Australia. I find that risk of losing my money that he owes me in the sum of $275,000. 19. In September 2021, I decided to lodge my caveat over the said property to secure my interest. The equity interest of protection of $275,000 is needed.
2. I note that Mr Lam's email was witnessed by a person with the first name Tammy who describes herself as a solicitor.

Promissory Note

1. On 14 November 2021, my Associate received a further email from Mr Lam, this time attaching a document called a Promissory Note. The document is in the following terms: PROMISSORY NOTE (this "Note") Borrower: [MR HOANG] of [Smithfield property] (the "Borrower") Lender: [MR LAM] of [address inserted] (the "Lender") Principal Amount: $275,000.00 AUD 1. FOR VALUE RECEIVED, The Borrower promises to pay to the Lender at such address as may be provided in writing to the Borrower, the principal sum of $275,000.00 AUD, without interest payable on the unpaid principal, beginning on 20 January 2018. 2. This Note will be repaid in full on 20 January 2022. 3. The Borrower shall be liable for all costs, expenses and expenditures incurred including, without limitation, the complete legal costs of the Lender incurred by enforcing this Note as a result of any default by the Borrower and such costs will be added to the principal then outstanding and shall be due and payable by the Borrower to the Lender immediately upon demand by the Lender. 4. This Note is given to secure the payment of the purchase price of the following security (the "Security"): [Smithfield property]. 5. Title to the Security will be retained by the Lender until all payments due under this Note are paid in full (i.e. caveat) 6. If the Borrower defaults in payment as required under this Note or after demand for ten (45) days, the Security will be immediately provided to the Lender and the Lender is granted all rights of possession as the owner. 7. If any term, covenant, condition or provision of this Note is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Note will in no way be affected, impaired or invalidated as a result. 8. This Note will be construed in accordance with and governed by the laws of the State of New South Wales. 9. This Note will enure to the benefit of and be binding on the respective heirs, executors, administrators, successors and assigns of the Borrower and the Lender. The Borrower waives presentment of payment, notice of non-payment, protest and notice of protest. 10. The borrower must inform the lender if repayment is late. 11. The borrower must bear legal costs property transferring occurred if the debt is not paid in full. IN WITNESS WHEREOF the parties have duly affixed their signatures under seal SIGNED, SEALED AND DELIVERED Signed [Mr Hoang] this 20th day of January, 2018. SIGNED, SEALED, AND DELIVERED Signed [Mr Lam] this 20th day of January, 2018. NOTARY ACKNOWLEDGEMENT - BORROWER NOTARY PUBLIC/JUSTICE OF PEACE IN AND FOR THE STATE OF NEW SOUTH WALES Declared at (city) [Smithfield] on the this 20th day of January, 2018. Before me, (Notary's name) [Name and number of JP hand-written] Signature [Apparent signature of JP] (Seal). NOTARY ACKNOWLEDGEMENT - LENDER NOTARY PUBLIC/JUSTICE OF PEACE IN AND FOR THE STATE OF NEW SOUTH WALES Declared at (city) [Smithfield] on the 20th January, 2018 Before me, (Notary's name) [Name and number of JP hand-written] Signature [Apparent signature of JP] (Seal) Required Disclosures [The Promissory Note then sets out information concerning disclosures required to be made by the National Credit Code in certain circumstances]
2. Mr Lam did not produce to the Court an original of the document, notwithstanding that he was served on 19 November 2021 by the Nguyens with a notice to produce that required him to do so. Consequently, neither the Nguyens nor the Court have had the opportunity to inspect the original document for the purpose of making a judgment as to its authenticity.

Email exchange with witness to Promissory Note

1. As the Nguyens were not privy to the creation of the Promissory Note or the alleged events referred to in it, they were not in a position to give any direct evidence in support of their claim that the Promissory Note was a fabrication. Although Mr Lam did not read his affidavit at the hearing, the Nguyens relied upon the content of the affidavit and the Promissory Note in support of their application for summary judgment against Mr Lam.
2. The Nguyens also relied upon an exchange of emails between their solicitor and the Justice of the Peace who appears to have witnessed the execution of the Promissory Note, Ms Carol Yin. The emails were tendered into evidence as annexures to an affidavit of the Nguyens' solicitor.
3. As Mr Lam did not appear to contest the Nguyens' application, no objection was made to the tender of the email exchange. The solicitor's email to Ms Yin explained that the Nguyens had obtained a judgment against Mr Hoang and that for some time they had been attempting to enforce their judgment. The email then stated: The attached documents have been used by Mr Lam in concert with Mr Hoang to lodge a caveat on the title of the property which prevents the registration of our clients recent renewed writ being registered on the property to enable it to be sold and satisfy our clients judgment against Mr Hoang. It is our opinion that two attached documents (page 3 and Page 4) bearing your alleged signatures are fabrications invented by Mr Hoang in an attempt to defeat the judgment of the Court against him. We believe your signature on the attached documents has been placed on the documents by way of cutting and pasting your signature from another source because your handwriting and signature on both documents (page 3 and Page 4) appear exactly the same, which is practically not possible.
4. The email then sets out seven questions to which Ms Yin was requested to respond.
5. Although the solicitor's affidavit annexed a copy of the Promissory Note in the form in which it was provided by Mr Lam to my Associate, it did not separately annex what was referred to in the email to Ms Yin as "two attached documents (page 3 and Page 4) bearing your alleged signatures". I infer that the documents that were attached to the email were the pages of the Promissory Note headed "NOTARY ACKNOWLEDGEMENT - BORROWER" and "NOTARY ACKNOWLEDGEMENT - LENDER".
6. Ms Yin's email reply dated 17 November 2021 said: Just let you know that phone number is correct we don't answer phone calls as we are busy in the post office. I don't know both of them as mentioned in your email, and we don't have a record of JP service. I can't recall this matter back to 2018, handwriting & signature are mine, but I won't be able to do exactly the same 2 different pages, common sense. Please let me know if you have any further queries. Many thanks!
7. The handwriting on the two pages of the Promissory Note on which Ms Yin's signature appears consists of "Smithfield", Ms Yin's full name apparently in Chinese characters, her registration number as a Justice of the Peace, and her signature.
8. I accept that the handwriting appears to be identical in both places.
9. However, Ms Yin did not provide evidence in affidavit form, her email responses are truncated responses to the questions asked, and those questions were manifestly leading questions.
10. In their written submissions in support of their notice of motion, the Nguyens relied upon documents provided to my Associate by Mr Hoang, being an unsworn statement dated 19 October 2021 and a sworn affidavit of 5 November 2021. I consider that the Nguyens are entitled to rely upon that information in support of their claim for a continuation of the freezing order against Mr Hoang, but as it has not been read into evidence by Mr Hoang, it is not admissible on the Nguyens' claims against Mr Lam. Admissions made by Mr Hoang out of court do not bind Mr Lam.

Should summary judgment be entered in favour of the Nguyens?

1. It will now be convenient to address the Nguyens' claim for a declaration that Mr Lam has no estate or interest in the Smithfield property.
2. The Nguyens accepted that they are not entitled to summary judgment against Mr Lam unless they satisfy the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 (Barwick CJ); [1964] HCA 69, which requires that it be demonstrated that any defence to the claim is so obviously untenable that it cannot possibly succeed, or put another way, it is manifestly groundless or so manifestly faulty that it does not admit of argument.
3. The Nguyens' case is that it is clear beyond argument that the Promissory Note was fabricated in order to create an illusory foundation for Mr Lam's caveat to frustrate the Nguyens' attempts to enforce their judgment against the Smithfield property.
4. I set out below in paraphrased form the argument put by the Nguyens in par 34 of their written submissions:

• The Promissory Note is a fabrication.
• That is apparent from the conflicting evidence of Mr Lam and Mr Hoang as to the circumstances in which the Promissory Note came into existence.
• Mr Lam has not produced the original Promissory Note in response to the notice to produce served upon him.
• The Promissory Note relied upon by Mr Lam is an electronic document capable of having been manipulated.
• The handwriting and signatures on pages 4 and 5 of the Promissory Note "are exactly the same in every and all respects down to each individual letter, number, stroke and dot which is plainly impossible".
• Ms Yin has confirmed that she does not know either Mr Lam or Mr Hoang, she has no record of having provided any Justice of the Peace service to either of them and she could not have hand-written the material on the Promissory Note identically twice.
• The hand-written material must have been obtained from some other electronic source and pasted into the Promissory Note.
• Ms Yin therefore did not witness the execution of the Promissory Note.
• As the Promissory Note is expressed to be a deed it is void as its execution was not witnessed in conformity with s 38A of the Conveyancing Act 1919 (NSW) and did not create any interest in the Smithfield property in favour of Mr Lam.
• That the Promissory Note is a fabrication is also apparent from the stilted language used in the document.
• That the Promissory Note is a fabrication is apparent from the fact that it purports to secure the payment of the purchase price of the Smithfield property when the contract to purchase that property was settled on 25 May 2015, long before the date of the document.
• That the Promissory Note is a fabrication is apparent from the fact that it purports to have been given to secure the payment of the purchase price of the Smithfield property when Mr Lam's affidavit stated that the monies allegedly advanced were for the purpose of the conduct of Mr Hoang's restaurant business.
• There is no evidence of any monies being paid by Mr Lam to Mr Hoang.
• The reference in the Promissory Note to it being a credit contract for the purposes of the National Credit Code is inapt because that Code in fact has no application in the circumstances.

1. I am not satisfied that the Nguyens have established to the requisite degree of certainty that the Promissory Note is a fabrication and that, on the evidence that is now before the Court, Mr Lam cannot possibly succeed at a final hearing in proving that the Promissory Note is a genuine document.
2. As appears from the summary of the Nguyens' submission that I have set out above, they have assumed that the Court would treat the information provided by Mr Hoang and Ms Yin as evidence in their application against Mr Lam. As I have explained, I have not admitted the information provided by Mr Hoang against Mr Lam, and I have treated the email exchange between the Nguyens' solicitor and Ms Yin as being of doubtful probative value because it has not been sworn or affirmed and Ms Yin's responses were to leading questions.
3. The strongest point in the Nguyens' favour is the disparity between the statement in par 4 of the Promissory Note that it was given to secure the payment of the purchase price of the Smithfield property and the evidence given by Mr Lam in his affidavit that the whole of the money that was allegedly advanced was advanced for a number of different purposes concerning the operation of the restaurant by Mr Hoang and for payment of Mr Hoang's legal costs of his criminal proceedings.
4. While the Court is entitled on the evidence on this summary judgment application to doubt that Mr Lam will be able to support the validity of the Promissory Note at a final hearing, I do not consider that the Nguyens' claim is so unarguable as to justify the entry of summary judgment against Mr Lam.

Should injunctive relief be granted against Mr Lam?

1. I now turn to the question of whether the Court should at this stage of the proceedings grant the injunctions sought by the Nguyens in prayers 5 to 7 of their cross claim filed on 28 October 2021.
2. Although prayer 5 is drawn on the basis that the claim for the injunction is predicated upon the Court having found that Mr Lam "holds only a mere equity or holds no equitable interest in" the Smithfield property, I am satisfied that the Nguyens have made it sufficiently clear that they seek the injunctive relief if the circumstances justify those orders being made even if, as has happened, they did not succeed in obtaining on a summary basis a declaration that Mr Lam had no estate or interest in the Smithfield property.
3. It is trite law that the filing of a caveat has the effect of a statutory injunction restraining the registration by the Registrar-General of any dealing that is prohibited by the caveat. Where a party has standing under the Real Property Act to seek the withdrawal of the caveat, whether by means of the lapsing notice procedure under s 74J or by application for an order for withdrawal of the caveat under s 74MA, the burden will ultimately fall on the caveator who wishes to sustain the lodgement of the caveat to demonstrate by evidence that it is seriously arguable that the caveator is entitled to the estate or interest in the land claimed in the caveat and that the balance of convenience warrants a continuation of the caveat.
4. As the writ for levy of property issued by the Court in favour of the Nguyens does not give them an estate or interest in the Smithfield property, they do not have standing under s 74MA of the Real Property Act to institute any process for the withdrawal of Mr Lam's caveat. I will consider below the question whether the Court nonetheless has power, on the application of the Nguyens, to grant the injunctions that they seek. I will first, however, consider whether the evidence demonstrates on an interlocutory basis that Mr Lam's caveat should be extended or withdrawn.
5. The following factors would be relevant to the continuation of Mr Lam's caveat, if the Nguyens have standing to apply for the injunctions that they seek:

• Mr Lam has not responded to the cross claim served upon him by the Nguyens by making any application to the Court for a declaration as to the validity of the Promissory Note or the estate in the Smithfield property claimed in Mr Lam's caveat. That is significant even though clause 2 of the Promissory Note only made the debt repayable on 20 January 2022. Mr Lam appears to have been content to rely solely on the lodgement of his caveat. The Court will not usually extend a caveat in the absence of an application by the caveator for a declaration of validity of the interest in the land claimed in the caveat: Wu v Dardaneliotou [2008] NSWSC 1319 at [2]-[5] (Brereton J, as his Honour then was).
• The caveat claims an interest in fee simple in the Smithfield property, albeit pursuant to a loan agreement. Clauses 4 and 5 of the Promissory Note are confused as to whether it was intended to create a security interest or vest title in the Smithfield property in Mr Lam. It is clear, however, on the proper construction of the Promissory Note that it could only create a security interest. It is a ground for ordering the withdrawal of a caveat that it does not accurately describe the interest actually claimed by the caveator: see for example Andrews v Wilcox [2008] NSWSC 280 at [21]-[28] (Hammerschlag J, as his Honour then was).
• Mr Lam has not produced the original of the Promissory Note to the Court, notwithstanding the service upon him of the notice to produce that required production of the document. No explanation has been provided to the Court for this failure. The failure is highly material because on the face of the copy of the Promissory Note, there is a real question about the validity of its execution and the witnessing of the signatures by Ms Yin.
• The disparity between clause 4 of the Promissory Note, which provides that it is security for the payment of the purchase price of the Smithfield property, and Mr Lam's affidavit evidence concerning the purpose of the advances that he claims to have made to Mr Hoang, referred to above, justifies real doubt about the genuineness of the Promissory Note.
• Mr Lam has provided no evidence other than mere assertion of the advances to Mr Hoang that he claims to have made.
• Mr Lam has provided no explanation as to why he stood by between 20 January 2018, the purported date of execution of the Promissory Note, and 18 August 2021, when Mr Lam's caveat was lodged, without taking any step to protect his claimed estate or interest in the Smithfield property.
• The Court is entitled to be suspicious of the circumstances in which Mr Lam's caveat was lodged, as he waited until after the publication of the principal judgment on 24 June 2021 before lodging his caveat, when he was well aware of the proceedings, and the 20 January 2018 date of the Promissory Note was some 3 ½ years before that date. The Promissory Note even purports to predate the lodgement of Ms Dang's caveat, the subject of the principal judgment, on 26 June 2018.
• The lodgement of Mr Lam's caveat has the effect of neutralising any writ for levy of property issued by the Court in favour of the Nguyens to recover the judgment entered against Mr Hoang, as the Sheriff will not execute the writ unless the Nguyens come to some appropriate agreement with Mr Lam. There is no realistic prospect that any such agreement will be reached. Not only does Mr Lam's caveat have this effect, but if it remains on the Register a consequence of the delay in its lodgement by Mr Lam will be that substantially all of the costs of the 2017 and 2019 proceedings will have been wasted.
• The combined effect of Mr Lam's caveat remaining on the Register and his failure to take any action to establish the validity of the interest that he claims in the Smithfield property is likely to be that the 'equity' of Mr Hoang may be eroded by increases in the debt secured by the first registered mortgage over the property.

1. These considerations satisfy me that, if the Court has power on the application of the Nguyens to order the withdrawal of Mr Lam's caveat, it should do so.
2. The legal question that arises is whether the Court has power to grant the injunctions sought by the Nguyens, given that there is no mechanism in the Real Property Act for the Nguyens to make an application under that Act to achieve that result.
3. The answer to the question depends upon whether the Real Property Act was intended to be exhaustive of the means whereby caveats may be ordered to be withdrawn from the Register.
4. For the following reasons, that question should be answered in the negative and the Court does have power in its inherent jurisdiction to grant the injunctions sought by the Nguyens.
5. Since the decision of McLelland CJ in Eq in Stocks & Holdings (Imperial Arcade) Ltd v Fink [1965] NSWR 504; (1965) 82 WN (Pt 1) (NSW) 386, there has been authority that the Court has jurisdiction to grant an injunction restraining the lodgement of a caveat, at least in cases where it appears that an order under s 74P of the Real Property Act for the payment of compensation will not be adequate to compensate the applicant for the consequences of a wrongly lodged caveat. This proposition has been accepted by the learned editor of Butt's Land Law (7th ed, 2017, Thomson Reuters) at [12.1150]; see also Williams v Marac Australia Ltd (1985) 5 NSWLR 529 at 533-4 (Hodgson J, as his Honour then was); Halaga Developments Pty Ltd v Grime (1986) 5 NSWLR 740 at 747-9 (Waddell CJ in Eq); Milne Feeds Pty Ltd v Bride (Supreme Court (WA), Murray J, 7 May 1996, unrep; BC9601733 at 17); Crown Developments Australia Pty Ltd v Ginger Development Enterprises Pty Ltd [2003] NSWSC 593; (2003) 11 BPR 21,565 at [57] (Palmer J); Gangemi v Gangemi [2009] WASC 268 at [9]-[10] (Murphy J, as his Honour then was); and O'Neill v Kwon [2016] NSWSC 1706 at [51] (Davies J); see also in a different context Sandhurst Golf Estates Pty Ltd v Coppersmith Pty Ltd [2014] VSC 217; (2014) 285 FLR 267 at [109]-[115] (Robson J).
6. In Halaga Developments Pty Ltd v Grime, which concerned an application for an order restraining the Registrar-General from processing a primary application after a caveat preventing the Registrar-General from bringing the land under the provisions of the Real Property Act had lapsed, Waddell CJ in Eq said at 747-749: This should, I think, be taken as a finding that the ordinary jurisdiction of the Court to protect rights of property is not excluded by the caveat provisions but that if these are invoked by a claimant he might be refused relief in the exercise of the Court's discretion. I respectfully agree with this conclusion. I did not understand the plaintiff to submit that if the caveat provisions had not been enacted the Court would not have power to restrain the Registrar-General from proceeding with a primary application in order to protect the rights of a claimant to the property. If this is so s 26(b) is a recognition of the ordinary jurisdiction of the Court. I do not think that there is any doubt that the Court has such jurisdiction. The argument against it is that the Court is not entitled to restrain the Registrar-General unless he is doing, or proposes to do, something which is contrary to law. However, it seems to me to be well recognised that the jurisdiction of the Court to protect rights of property extends to granting an injunction against a person who has been made a party to the proceedings from doing something which is lawful if it is necessary to do so to protect the plaintiff's rights. One instance is the practice of granting injunctions restraining a bank from permitting a defendant to operate on his account where to do so would be an infringement of the plaintiff's rights. Hodgson J has considered the question in Williams v Marac Australia Ltd (1985) 5 NSWLR 529, and concluded that the Registrar-General may be restrained from acting lawfully in order to protect the rights of a plaintiff. I respectfully agree with his Honour's conclusions and reasons. Further, it seems to me to be now beyond question that the Court has jurisdiction to grant such an injunction derived from the Supreme Court Act 1970, s 23, which provides: "The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales." This clearly authorises the granting of an injunction against the Registrar- General if he has been made a party to the proceedings and it is necessary in order to do justice between the other parties. The plaintiff submits that the Court's jurisdiction to grant an injunction against the Registrar-General has been ousted by the caveat provisions. However, in my opinion, these do not form a code which is so comprehensive that it can be taken to exclude the jurisdiction of the Court which is necessary to do justice in circumstances for which the caveat provisions do not provide. For instance, a caveat might be permitted to lapse for reasons beyond the control of the caveator. In my view the legislation does not disclose an intention that in such a case the caveator should be remitted to his right to sue the successful applicant for damages when justice between the parties could more readily be achieved by preventing the grant of the application, if that is justified. In my opinion, the statements of principle in Walsh v Alexander, although directed to caveats under s 72, apply to caveats pursuant to s 24, and confirm this conclusion. [His Honour then considered a number of 19th-century cases which had been relied upon the plaintiff as authority for the proposition that resistance to a primary application under the Real Property Act could only be undertaken in accordance with the provisions of the Act and concluded as follows.] It seems to me that these nineteenth century cases do lend support for the proposition that it was then considered that the court had no jurisdiction to restrain the Registrar-General or, perhaps, an applicant, from proceeding with a primary application unless a caveat had been lodged and was on foot. There is no discussion of any independent power in the court to grant such relief. The decisions cannot, therefore, be taken to be a considered denial of any such power and they do not, in my opinion, prevent me from following Public Trustee v Murray, as I think I should.

What orders should be made in the present case?

1. The consideration of the strength of the interest in the Smithfield property claimed by Mr Lam and the balance of convenience that I have undertaken above justifies a conclusion on balance that Mr Lam should be ordered to withdraw his caveat and should be ordered not to lodge any further caveat against the title to the Smithfield property without the prior order of the Court.
2. However, as the Court has rejected the Nguyens' summary claim for a declaration that Mr Lam has no estate or interest in the Smithfield property, it remains 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.
3. The fact that the judgment entered by Ward CJ in Eq on 29 January 2018 has not yet been executed, and the Dickensian history of the proceedings since that date, cry out for the Court to take all steps available to remove all possible impediments to the Sheriff executing on the writ for levy of property if that can be done. As I have noted above, the complex issues that arise when the Sheriff is asked to execute on a writ for levy of property have been considered in the principal judgment. All the Court can do is to try to ensure that unwarranted impediments to the process are removed.
4. If the Sheriff is able to execute on the writ for levy of property that has been issued to the Nguyens, then until the validity of Mr Lam's claim to an estate or interest in the Smithfield property has been determined on a final basis, it will be necessary for the Sheriff to pay any net proceeds of sale of the property into court.
5. In the meantime, Mr Lam cannot be allowed to sit on his caveat but if he wishes to establish that he has the estate or interest in the Smithfield property that he claims it will be necessary for him to file a cross claim in the 2019 proceedings seeking appropriate relief and to prosecute that claim with due expedition. It is an unwarranted imposition on the Nguyens that they be required to prosecute prayer 1 of their cross claim that will require them to prove a negative.
6. I will therefore include in the orders made at the end of these reasons case management orders that will require Mr Lam to commence and prosecute his cross claim with expedition.
7. Given the centrality of the Promissory Note upon which Mr Lam relies, the orders will include an order that Mr Lam produce the original Promissory Note to the Court and, failing that, that Mr Lam file an affidavit that explains in detail why the original document has not been produced.
8. The orders will also grant leave to the Nguyens to apply to me on short notice for an order: (1) in terms of prayer 1 of their cross claim if Mr Lam does not file a cross claim in accordance with the orders that I will make; or (2) an order for summary dismissal of Mr Lam's cross claim for want of due dispatch if Mr Lam files the cross claim but then does not prosecute it in accordance with the orders.
9. Although I understand that it will disappoint the Nguyens, it is premature for the Court to make any order for costs against Mr Lam at this stage of the proceedings other than that the costs of their notice of motion be the Nguyens' costs in the cause. That is the conventional order made in favour of plaintiffs on a successful application for interlocutory relief. I will otherwise reserve the costs of the proceedings as between the Nguyens and Mr Lam.

Should the freezing order be continued against Mr Hoang?

1. In par 33 of Mr Hoang's 5 November 2021 affidavit that he sent to my Associate by email, he states that he has agreed to sell the Smithfield property to Mr Lam because he has not been able to repay to Mr Lam the money that he claims to owe to him. It is not clear from the affidavit whether this is a reference to a separate agreement or only to the Promissory Note.
2. I am satisfied in the circumstances that the interlocutory injunction that has already been granted by the Court should continue until further order to ensure that Mr Hoang does not take any step that puts the Smithfield property beyond the reach of the new writ for levy of property.

Application to set aside judgment of Ward CJ in Eq

1. The second notice of motion has been filed in what has been called the 2017 proceedings by Mr Hoang, the second defendant in those proceedings.
2. Although Ward CJ in Eq struck out Mr Hoang's defence for want of prosecution, she did not enter judgment against him solely on the basis of the absence of a defence. Her Honour considered the evidence that was before the Court on the application and decided that it warranted the entry of summary judgment against Mr Hoang.
3. Mr Hoang was not legally represented on the hearing of the application, but he was represented at the call over at which the application was fixed for hearing.
4. Mr Hoang filed a notice of motion on 5 November 2021 in which he sought the following orders: 1. That the Court set aside the Order striking out the Second Defendant's Defence in matter 2017/00060096. 2. That the Court set aside the Order against the Second Defendant for costs of proceedings 2017/00060096. 3. That the Court adjourn all proceedings in both matters to allow the Second Defendant to amend my Defence and file evidence in support of my Defence in proceeding 2017/00060096. 4. That the Court set aside the Writ for Levy of Property subject of matter 2019/00296623.
5. If these orders were made, they would undermine the judgment entered by her Honour in favour of the Nguyens for $239,906, which is the foundation of the whole of the 2017 and 2019 proceedings that led to the two judgments that I have published.
6. Mr Hoang relied in support of his application on an affidavit affirmed by him on 5 November 2021. In substance, Mr Hoang claimed that he was unable to file a defence or defend the summary judgment application because he had insufficient funds to retain legal representation and he was under stress and suffered from depression whilst on bail following criminal charges concerning taking a fee in respect of the preparation of migration applications whilst he was an unregistered migration agent and for fraud. Mr Hoang was ultimately convicted and incarcerated between 22 August 2019 and 5 January 2021.
7. The evidence given by Mr Hoang in his affidavit in support of his defence involved assertions in inadmissible form of criminal activity on the part of the Nguyens that had the result, he claimed, that he did not become indebted to them as alleged in the 2017 proceedings. The allegations, in the form in which they were made, are scandalous and should not be repeated in these reasons.
8. As noted above, Mr Hoang was given the opportunity to make oral submissions in support of his application at the audio hearing on 20 January 2022.
9. The judgment entered by Ward CJ in Eq was not a default judgment. It was a judgment on the merits, albeit on an application for summary judgment. Mr Hoang did not lodge an appeal against her Honour's orders. Although Mr Hoang did not cite the source of the Court's authority to set aside the orders made by her Honour, I agree with the observation made in the written submissions of counsel for the Nguyens that a possible source of power is UCPR r 36.15(1), which provides: (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
10. However, as Pembroke J explained in Dimitrovski v Australian Executor Trustees Ltd [2013] NSWSC 337 at [3], for a judgment to be found to have been made "irregularly", which is the only possibility in the present case from the alternatives "irregularly, illegally or against good faith", it must be shown that there was an "irregularity in the process by which the judgment was obtained, not with the correctness of the decision." The rule is not concerned with the situation that there may have been a different outcome if the case had been defended or the applicant wishes to reverse the judgment on the basis of a different defence.
11. In the present case, Mr Hoang has not identified any arguable irregularity in the manner in which the hearing determined by Ward CJ in Eq was conducted or her Honour entered judgment against him. Accordingly, the rule does not apply.
12. Furthermore, even where the rule is otherwise satisfied, it is necessary for the applicant to demonstrate "sufficient cause" to justify the judgment being set aside. As Pembroke J explained at [11], this is a discretionary consideration founded substantially on the principle of finality of justice. In the present case, Mr Hoang delayed in making his application until after both the 2017 and 2019 proceedings had been heard and finally determined. On his own evidence, he learned of the orders made against him in around March 2019, when the Sheriff's officers attended the Smithfield property to serve him with the initial writ for levy of property. As appears from the explanation of the history of the proceedings in the principal judgment, that was relatively early in the course of the 2017 proceedings and before the 2019 proceedings were commenced. In the circumstances, it would be entirely unjust to all the other parties to these proceedings to permit Mr Hoang to challenge the judgment of the Court that is the foundation upon which the two proceedings have been conducted.
13. An alternative source of power in the Court to set aside the judgment made by Ward CJ in Eq is UCPR r 36.16(2)(b) which provides: (2) The court may set aside or vary a judgment or order after it has been entered if - … (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order …
14. Mr Hoang's application satisfies this rule in that the judgment was made in his absence even though his legal representatives had notice of the hearing. However, the power is discretionary. The judgment will not usually be set aside unless, where the applicant is a defendant, the applicant demonstrates that the proposed defence is genuine and reasonably arguable: see Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331 at [48]-[52] (Hodgson JA, Campbell AJA agreeing at [77]); Ibrahim v Ayoubi [2013] NSWCA 405 at [26] (Emmett JA and Sackville AJA). In the present case, Mr Hoang has not demonstrated that his proposed defence is either genuine or reasonably arguable.
15. In stating that conclusion, I have had careful regard to the affidavit of the second plaintiff affirmed on 13 January 2022, which provided comprehensive objective evidence to support the Nguyens' original claim in the 2017 proceedings, and which refuted the unsubstantiated claims made by Mr Hoang in support of his application. Although the refutation has not been tested at a hearing, I am satisfied that it is entirely plausible and that there would be no point in the Court making the orders sought by Mr Hoang.
16. Further, the Court will not usually exercise its discretion to set aside a judgment that was regularly obtained where the applicant had notice of the hearing and chose not to appear: see Northey v Bega Valley Shire Council [2012] NSWCA 28 at [13], [29] (Barrett JA); Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116. As was stated by Emmett JA and Sackville AJA in Northey at [13] and [29]: [13] It is not disputed that Ms Northey was absent (and was not represented) on 21 March 2011 when the order was made. But that, of itself, is insufficient to justify setting aside of the order. There must be some added factor that makes it unjust for the order to stand. … [29] Against the background of this evidence, I return to the proposition that, to justify an order under rule 36.16(2)(b), the fact of the affected party's absence when an order is made must be accompanied by some additional factor that makes it unjust for the perfected order to stand.
17. I would in any case upon this application exercise my discretion to refuse relief because of Mr Hoang's delay in making the application, for the reason I have given above. As Payne JA (Leeming and McCallum JJA agreeing at [1] and [156] respectively) stated in Pham v Gall at [112]: [112] What is clear, based on the authorities in this court described above, is that the applicant's egregious delay in seeking to set aside an undefended judgment imposes a greater burden of persuasion in the present case.
18. Accordingly, the Court will order that Mr Hoang's notice of motion is dismissed with costs.

Orders

1. I set out below the orders that I propose to make. The parties have leave to provide my Associate within 3 days with any suggestions that they may wish to make concerning the wording of the proposed orders. It will be necessary for the Nguyens to give to the Court the required usual undertakings as to damages if they wish the Court to make the associated orders against Mr Lam and Mr Hoang.
2. The Court: On notice of motion filed on 1 December 2021 in proceedings No 2019/296623 (the 1 December 2021 notice of motion) 1. Orders that Van Dung Lam (Mr Lam) is to cause to be prepared and to lodge with the Registrar-General and to serve on the cross claimants (the Nguyens) within seven days of the making of these orders a "Form 08WX Withdrawal of Caveat" to cause the withdrawal of Caveat AR 331007. 2. Orders that in the event that Mr Lam fails to lodge a Form 08WX Withdrawal of Caveat for the withdrawal of Caveat AR 331007 with the Registrar-General, in accordance with Order 1, within seven days of the making of these orders, the Registrar in Equity, pursuant to s 94 of the Civil Procedure Act 2005 (NSW), is to prepare and execute a Form 08 WX Withdrawal of Caveat for the Caveat AR 331007 under the seal of the Court and lodge the completed Form 08 WX Withdrawal of Caveat for the Caveat AR 331007 with the Registrar-General within seven days of being notified by the Nguyens' solicitor that Mr Lam has failed to comply with Order 1. 3. On the Nguyens giving to the Court the usual undertaking as to damages orders that Mr Lam is by himself his servants and agents restrained forthwith without the leave of the Court from lodging any further caveat on the title to the land referred to in Caveat AR 331007 (the Land). 4. Orders the Sheriff of New South Wales to pay into court the net proceeds of sale (if any) that are received upon the execution of the writ for levy of property renewed by order 8 made by the Court on 15 November 2021 in proceedings in this Court No 2017/60096 if that writ for levy of property is executed by the Sheriff by the sale of the Land. 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: 1. 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 2. 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. 1. 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. 2. On the Nguyens continuing the usual undertaking as to damages given to the Court orders that Quoc Dung Hoang by himself his servants and agents be restrained from selling, transferring, encumbering or in any other way dealing with the Land until the writ for levy of property referred to 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. 3. Reserves all other questions of costs including as to the basis upon which costs orders should be assessed. 4. Otherwise dismisses the 1 December 2021 notice of motion. On notice of motion filed on 5 November 2021 in proceedings No 2017/60096 (the 5 November 2021 notice of motion) 1. Dismisses the 5 November 2021 notice of motion. 2. Orders Mr Hoang to pay the Nguyens' costs of the 5 November 2021 notice of motion.

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