Thi Tuoi Vu & Anor v Ngoc Bich Nguyen & Anor

Judgment 1Ms Anna Vu has operated the business, "Martino's French Hot Bread" from shop premises at 132 Queen Street, St Marys since 1 February 2010. Mrs Mary Nguyen was the proprietor of the business before that date. Ms Vu claims that in late 2009 Mrs Nguyen orally agreed to sell the business to her, or her nominee, for a price of $150,000 payable by a deposit of $20,000 and followed by weekly instalments of $900. But Mrs Nguyen claims that Ms Vu was only licensing the business from her from that date for $900 per week. The parties did not make a written agreement recording their arrangements about Ms Vu's presence at and operation of the shop. Their failure to document their arrangements has led to the present dispute, which the Court is asked to resolve. 2These proceedings have been heard on an expedited basis. On 27 December 2010 Mrs Nguyen gave written notice terminating her arrangements with Ms Vu by the end of January 2011. On 31 January 2011 Ms Vu refused to hand back the business to Mrs Nguyen. On 23 February 2011 Mrs Nguyen and her husband Mr Lee Nguyen forcibly resumed occupation of the shop premises and changed the locks. In response Ms Vu commenced these proceedings, as first plaintiff, in the Equity Division of the Court against Mrs Nguyen as second defendant. On 25 February 2011 Gzell J made orders in the duty list restoring possession of the shop to Ms Vu pending trial. Pembroke J expedited the proceedings on 25 February 2011. 3There are other parties to these proceedings: Ms Vu's son, Mr Kim Cuong Pham, who she claimed was her proposed nominee to purchase the business was joined as second plaintiff; Mr Lee Nguyen, the first defendant, was the lessee of the real estate on which his wife conducted the business prior to 1 February 2010. 4The proceedings were conducted efficiency by solicitors and counsel on both sides, at a hearing over five days, on 18, 19, 20, 23 May and 8 June 2011. Mr Tregenza of counsel represented Ms Vu and Mr Kim Pham. Mr Drummond of counsel represented Mr and Mrs Nguyen. 5The issues raised by the parties included a small money claim by the plaintiffs and a cross-claim in the event that the injunction granted on 25 February [2011] were dissolved. 6In the result I have found that Mrs Nguyen did agree to sell the shop to Ms Vu although the parties' failure to document their transaction properly has created some practical difficulties in enforcement of their agreed arrangement. 7The proceedings require the resolution of a puzzle of probabilities. There are ambiguous indications in the evidence, some that support Ms Vu's case and others Mrs Nguyen's case. But I am satisfied that Ms Vu's account is the one to be preferred in most but not all respects. Deciding between the competing accounts requires analysis of the parties' disputed dealings over a period of almost three years. 8There were difficulties in wholly accepting the accounts given by each of Ms Vu and Mrs Nguyen, the principal witnesses on each side. The documents that they each produced, reflecting different aspects of their transactions, were often a poor guide to their true contemporaneous dealings. 9The parties had extensive dealings in cash. There was little evidence of money being drawn out of bank accounts to fund these cash payments. No receipts were issued for the payments, some of which were admitted and some of which were denied. The difficulty in fact finding in this case is largely the product of the parties' own informal cash based dealings. Thus, the Court was required to look to independent witnesses and the objective probabilities to assess whether or not Ms Vu established the agreement for which she contented. 10Of Vietnamese descent, both Ms Vu and Mrs Nguyen also use Anglicised first names. Ms Vu uses the name "Anna" and Mrs Nguyen uses the name "Mary". But they also have full Vietnamese names, the names in which their evidence to the Court was formally sworn. Ms Vu's full name is Thi Tuoi Vu. Mrs Nguyen's full name is Thi Ky Hoa Nguyen. The evidence became somewhat confusing at times as each referred to the other by their Vietnamese names (or abbreviations of those names) in addition to their Anglicised names. Both forms of reference, the Vietnamese and the Anglicised, appear in the extracts from the evidence in these reasons. 11There was less confusion in naming the other parties. The second plaintiff was generally referred to as Mr Kim Pham, to distinguish him from his father, Mr David Pham, Ms Vu's former husband. Mr Lee Nguyen was generally described by that Anglicised name although his full Vietnamese name is Ngoc Bich Nguyen.