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[2026] NSWSC 1019
Supreme Court of NSW
2026-08-19
Kunc J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Uyen-Kim Nguyen v James Michael Brown [2026] NSWSC 1019
Hearing dates: 19 August 2026
Date of orders: 19 August 2026
Decision date: 19 August 2026
Jurisdiction: Equity
Before: Kunc J
Decision: Motion dismissed with costs
Catchwords: CIVIL PROCEDURE — Default judgment — Setting aside — Bona fide defence on merits — No issue of principle
Cases Cited: National Australia Bank Limited v McCarthy [2014] NSWSC 1819
Category: Procedural rulings
Parties: Uyen-Kim Nguyen (Plaintiff/respondent)
James Michael Brown (First Defendant/first applicant)
Ishan Sappideen (Second Defendant/second applicant)
Representation: Counsel: N Kirby (Plaintiff/respondent)
C Carroll (First and second defendant/first and second applicant)
Solicitors: Watson Webb (Plaintiff/respondent)
Green & Associates (First and second defendant/first and second applicant)
File Number(s): 2025/00400299
On 17 October 2025, the plaintiff commenced these proceedings by summons filed in the Duty List. On that day, the Court made ex parte freezing orders against the defendants.
On 21 October 2025, the Court made orders including that Ms Nguyen was to file and serve points of claim no later than 7 November 2025 and the defendants were to serve points of defence by no later than 9 December 2025. The plaintiff's points of claim were filed on 11 November 2025 and served on the defendants by email to their solicitor, Mr Dominic Green of Green & Associates.
At the heart of Ms Nguyen's case as set out in her points of claim is this allegation of an agreement:
“7. On about 14 March 2025, Sappideen, holding himself out as Buxton, and Nguyen entered an agreement, the terms of which were:
a. Nguyen shall purchase some or all of Buxton’s shareholding in Tavus, Inc. in consideration for payments by Nguyen;
b. Nguyen shall purchase the shares by making payment into an account in the name of James Michael Brown with the payments to be described as ‘Kim Nguyen Loan’;
c. Sappideen shall, by June 2025, cause the shares to be sold again at ten to fifteen times the purchase price of the shares in Tavus, Inc.”
In reliance on that agreement, Ms Nguyen alleged that she had advanced in excess of $1,000,000 to an account controlled by Mr Brown. The fact of the advances to Mr Brown's account is not disputed by the defendants.
The day after Ms Nguyen's points of claim were served on the defendants' solicitor, a request for further and better particulars of the points of claim was sent by Mr Green. On 20 November 2025, Ms Nguyen's solicitors responded to that request.
The question of the adequacy of particulars was not the subject of any further correspondence from Mr Green until he raised the issue at a hearing before me on 5 May 2026. On that day, I had before me for hearing motions by the defendants for security for costs and for orders setting aside certain subpoenas. It became apparent that, in order for the matter to progress, it would be necessary for the Court to resolve what was said by Mr Green to be an ongoing inadequacy in the particulars provided on behalf of Ms Nguyen.
After hearing the parties, I made directions including:
2 Directs the defendant by 4pm on 6 May 2026 to provide to the plaintiff a request for particulars further to the answers provided by letter of 20 November 2025 from Watson Webb to Green and Associates.
3 The plaintiff is to answer that request by 5pm on 8 May 2026 subject to the right of the plaintiff to relist the matter for a short hearing at 9:30am on 8 May 2026 before Kunc J in relation to any dispute about the further request.
4 The defendants are to file and serve points of defence by 5:00pm on 14 May 2026.
On 7 May 2026, Mr Green requested further and better particulars of the points of claim. The matter was relisted before me on the application of Ms Nguyen and on 8 May 2026 I determined the dispute between the parties about the need to provide further and better particulars. On that occasion I directed Ms Nguyen to answer the defendants' request for further and better particulars in relation to paragraph 7 of the points of claim (set out in [4] above). Later that afternoon, Ms Nguyen's solicitors provided that answer to Mr Green. Importantly for present purposes, notwithstanding the provision of those further and better particulars, no defences were forthcoming by 14 May 2026. This was in breach of order 4 that the Court had made on 5 May 2026 (see [8] above).
Acting on the failure to serve defences, Ms Nguyen moved for default or summary judgment against the defendants by motion filed on 14 May 2026. That motion came before me on 22 May 2026. Mr Green appeared for the defendants. In general terms, his answer to the motion was that the defendants did have defences and he sought to explain what they were. Mr Green assured the Court again that defences could be filed promptly. The defendants were ordered to file and serve verified points of defence by 5 June 2026 (being a further two weeks) and Ms Nguyen's motion for strike out or default judgment was adjourned part heard to before me on 17 June 2026.
In making those orders, I made the following observations to Mr Green:
HIS HONOUR: As I am presently advised, I would order summary judgment against the first defendant, I would not order summary judgment against the second defendant on the basis that you have presently told me that the defence is that the money he apparently received and applied to the car is a loan. I haven't heard Mr Berriman as to whether that is right or wrong in terms of being an available defence but I think it is a bit academic at the moment because I would rather like to see it pleaded.
GREEN: Of course. (Tcpt, 22 May 2026, p34(14)).
…
HIS HONOUR: That is also something that I will look at again, if necessary, on the 17th, but I want to make it very clear to you, Mr Green, if there hasn't been within the two weeks ‑ we are past the point of dogs eating homework, we are past the point of all sorts of problems and other things.
GREEN: Yes.
HIS HONOUR: If you don't file a defence by 5 June and if that doesn't present a defence that stands in the way of an order for summary judgment against the first defendant and potentially the second but I have said what I have said about that and Mr Berriman may persuade me otherwise, there will certainly be judgment against the first defendant.
GREEN: Yes, your Honour, I accept that. (Tcpt, 22 May 2026, p35(1)).
…
HIS HONOUR: But I just emphasise again, Mr Green, this is the last chance and if you do file a defence then Mr Berriman will still be able to make submissions, if he wishes, to persuade me why I shouldn't order summary judgment. (Tcpt, 22 May 2026, p37(1)).
Despite those admonitions, no defences were filed in accordance with the Court's orders.
On 17 June 2026, Mr Green appeared with verified points of defence from Mr Sappideen that he had circulated that morning and told the Court that the defence for Mr Brown was "almost complete" (Tcpt, 17 June 2026, p7(16)). Given the non-compliance with the Court's orders and having regard to the unsatisfactory history of the defendants’ conduct of the matter, on the application of counsel then appearing for Ms Nguyen the Court entered default judgment for the plaintiff against the defendants, but with an opportunity for the defendants to be allowed to persuade the Court that they should be permitted to defend the proceedings.
The orders giving effect to the default judgment were:
1 A declaration that the first defendant holds the amount of $1,109,952.31 on constructive trust for the benefit of the plaintiff;
2 A declaration that the first defendant holds Jaguar F-Pace VIN no. XXXX (“the Car”) on constructive trust for the benefit of the plaintiff;
As against the second defendant:
3 A declaration that the second defendant holds a 94% share in the Car on constructive trust for the benefit of the plaintiff;
4 Damages, including damages pursuant to s 236 and s 237 of the Australian Consumer Law, with damages to be assessed;
As against both defendants:
5 The defendants are to pay the plaintiff’s costs of the proceedings including for the avoidance of doubt the plaintiff’s costs of the motion filed 22 May 2026, with liberty to the plaintiff to apply for a special costs order by motion to be filed and served on or before 22 July 2026 and returnable for directions on 24 July 2026.
6 The Freezing Orders made by Brereton J on 17 October 2025 and varied by Slattery J on 1 December 2025 are continued in aid of execution;
And further:
7 Stays orders 1 to 6 above up to and including 24 July 2026 or, if the defendants comply with order 8, until further order;
8 Grants leave to the defendants to file and serve on or before 22 July 2026 a notice of motion seeking to set aside orders 1 to 6 above and for leave to file defences;
9 Stands the proceedings and any motions filed in accordance with orders 5 and 8 over for directions before Kunc J at 9:30am on 24 July 2026;
And the Court notes:
10 The solicitor for the defendants has informed the Court that if the defendants do not comply with order 8 above, then the defendants consent to the Court making an order for the sale of the Car by the Sheriff.
There is no dispute that to engage the Court's discretion to set aside the default judgment and allow the defences to be filed, the defendants had to show a proper explanation for their failure to file defences in accordance with the Court's orders, and establish that the defendants have a bone fide defence on the merits.
I have taken note of Mr Green's explanation for the failure to comply with the Court's orders. I assume, without deciding, in favour of the defendants that the delay has been adequately explained. However, for the reasons which follow, the Court is not satisfied that the defendants have established that they have a bona fide defence on the merits.
I respectfully observe that Mr Carroll properly acknowledged that he was not starting from a position of strength in advancing his clients’ application. He properly conceded that leave could not be given to file the defences because they were prolix, full of irrelevant material, internally inconsistent and therefore very difficult to follow. The operative parts of the points of claim are concisely pleaded in nine pages. Mr Brown’s purported defence is 23 pages long and Mr Sappideen’s is 31 pages long. To allow the defences to be filed would be to condone an abuse of process.
Mr Carroll submitted that what he described in his written submissions as "a narrower and more succinct pleading" could be filed in two weeks. It must be immediately observed, as Mr Kirby submitted, that the defences do not warrant the granting of the relief sought in the motion. It would be necessary to give the defendants a further indulgence by adjourning these proceedings with a part heard motion again and giving the defendants yet another opportunity to file a further version of their proposed defences.
However, Mr Carroll submitted that his clients could plead a bona fide defence. This was expressed in his written submissions as:
“[REDACTED]"
“[REDACTED]”
However, those two allegations are themselves not consistent. To add to the inconsistencies, and going directly to the bona fides of any proposed defence, there was no dispute that the defences themselves inconsistently contend at various points that there was no agreement at all with Ms Nguyen, and that there was an agreement with Ms Nguyen but not one of the kind alleged by Ms Nguyen.
These inconsistencies lead to the Court’s conclusion that the defendants do not advance any defence, including the defence foreshadowed in Mr Carroll's submission (see [20] above), bone fide. I am fortified in that conclusion by a medico-legal report in relation to Mr Brown of 24 November 2025 where the psychiatrist asked Mr Brown to give an account of this litigation. The report records:
“[REDACTED]"
There is one more reason why the Court will dismiss the motion. Mr Green's affidavit in support of the motion sets out his extensive efforts and time spent with his clients to obtain instructions from them for the purposes of drafting the defences. However, I consider it to be of dispositive significance in the exercise of the Court’s discretion that on the present application there is no affidavit from the defendants, especially from Mr Brown, setting out directly the conversation or conversations with Ms Nguyen on which they rely to support whatever agreement they allege.
While not an absolute requirement, an application to set aside default judgment should in most cases provide direct evidence of the material facts supporting the proposed defence. A convenient summary of the relevant principles, which I respectfully adopt and have applied in considering the motion, appears in the judgment of Hall J in National Australia Bank Limited v McCarthy [2014] NSWSC 1819:
“9 In Balanced Securities Ltd v Oberlechner [2007] NSWSC 80, Simpson J observed at [19] that three matters need to be established in an application to set aside a default judgment:
(1) An explanation for the failure to defend at the appropriate time;
(2) A good (arguable) defence on the merits; and
(3) That it is in the interests of justice to allow the proposed defence to be litigated.
10 Her Honour proceeded to consider that:
"Although, as Reinehr makes clear, it is not necessary that a defendant establish that the proposed defence will or must succeed, it is necessary to determine the question having in mind the competing interests of the parties - on the one hand, a plaintiff who has, properly, legitimately and regularly obtained judgment, and on the other, a defendant who has been deprived of an opportunity to advance what might be a legitimate defence." (at [20])
11 Accordingly, as a general proposition, if default judgment has been regularly obtained, the Court will require the defendant to show, by affidavit or otherwise, that they have a good defence on the merits, and also to explain the default which occasioned the entry of judgment. Although the Court does not need to embark upon a full hearing of the merits of the case, the Court must be satisfied that the asserted defence is bona fide and that there is an arguable or triable issue: Dai v Zhu [2013] NSWCA 412 at [89]-[92]; see also Reinehr, supra.
12 These principles were recently considered by the Court of Appeal in Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24:
"43. The court's jurisdiction to set aside the default judgement is found in the bald terms of Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 36.16(2)(a), providing the "court may set aside or vary a judgment or order after it has been entered if ...(a) it is a default judgment (other than a default judgment given in open court)". The fundamental (but not the only) principles guiding a court asked to exercise the unfettered discretion UCPR 36.16(2)(a) confers, are whether the applicant has a bona fide ground of defence, an adequate explanation for the failure to defend and the length of any delay: Adams v Kennick Trading (Int) Ltd (1986) 4 NSWLR 503 (at 506) per Hope JA (Glass JA agreeing). In the final analysis, it is necessary to consider whether it is in the interests of justice to allow the party seeking to set aside a default judgment to be permitted to defend the proceedings on the merits: Reinehr Industrial Lease & Finance Pty Ltd v Jordan (New South Wales Court of Appeal, 4 June 1974, unreported) cited with approval by Sackville AJA (Barrett and Leeming JJA agreeing) in Dai v Zhu [2013] NSWCA 412 (at [83]).
- In Dai v Zhu Sackville AJA also explained (at [89]) that the rationale for the requirement that the applicant for relief demonstrate a bona fide ground of defence is that "in the exercise of its 'unfettered, though judicial, discretion' the Court will consider ...(a) whether any useful purpose would be served by setting aside the judgment, and (b) how it came about that the applicant found himself bound by a judgment regularly obtained". His Honour also explained (at [92]) that in "determining whether the defendant has a bona fide defence on the merits, the court does not embark on a hearing of the full merits of the case...[a]ll that is necessary is for the defendant to show that the defence is asserted bona fide and that there is an arguable or triable issue [and] [t]he nature of the evidence required in a particular case may depend on the circumstances, including the cogency of the defendant's explanation for the delay or failure to comply with the orders of the court".
- In elaboration of the last proposition it is necessary to explain that the court considering the application to set aside a default judgment is not trying the issues of fact arising upon the defence advanced, but must be satisfied that the defence is "fairly arguable in law or fact" and that the applicant is bona fide in seeking to rely upon that defence: Reinehr Industrial Lease & Finance Pty Ltd v Jordan per Street ACJ (Glass JA agreeing).
- Finally, it should be observed that the application of these principles is subject to the provisions of the Civil Procedure Act 2005 (NSW): Dai v Zhu (at [93]); Richards v Cornford (No 3) [2010] NSWCA 134 (at [98]ff) per Allsop P (McColl JA agreeing.)."
…
72 It is well-established that where an application is made to set aside a default judgment, in order for a defence dependent on facts to be advanced, the applicant must lead some evidence of the facts on which the defence will be established on the merits: National Australia Bank v Priestley (No 3) [2012] NSWSC 1171 at [10].
73 In Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331, Hodgson JA (with whom Campbell AJA agreed), considered that the circumstances require "a reasonably clear case of merits to be shown". His Honour observed that:
"52. If that defence depends on facts, then there should be some evidence of those facts; and the circumstances may be relevant to the quality of the evidence that is required to show a defence on the merits in particular cases. Among such circumstances could be the degree of the applicant's default, and hardship to the respondent.
...
- Assertions in the affidavit of Mr Nassif that was read, to the effect that he believed that the defence and cross-claim 'have merit' or that the cross-claim is 'valid', do not in my opinion appropriately support any assertions of fact so as to amount to evidence supporting a defence on the merits or a cross-claim."
74 In National Australia Bank Ltd v McCann [2010] NSWSC 766, Davies J, citing Magnate Projects, supra, held that an affidavit verifying a Defence is not sufficient evidence on an application to set aside default judgment:
"In my opinion, it is quite insufficient for Ms McCann in the present case simply to swear that she believes the facts in the Defence are true to show, in the circumstances of this case, that there is a Defence on the merits to the claim. An affidavit verifying a Defence where the deponent swears to a belief that the allegations of fact in the Defence are true is not sufficient." (at [43])
75 It has been held that where a defence sought to be advanced involved oral representations on which the defendant relied to his or her detriment, what is required, at least, is some evidence as to the conversations in which the alleged representations were made: National Australia Bank v Priestley (No 3) [2012] NSWSC 1171 at [11].”
In a "word against word” case such as the present involving the terms of an alleged oral agreement, there should be some direct, probative evidence on behalf of the defendants from a party to the conversation of what was said. Given the history of delayed attempts to plead a defence and the inconsistent and objectionable form of what has finally been produced in the defences, the absence of direct evidence of the alleged conversation or conversations relied on by the defendants means that the Court cannot be satisfied that the defendants have a defence to advance bona fide and which raises a triable issue.
Mr Green’s evidence in support of the motion included:
“24. In the week commencing 25 May 2026, I had multiple conferences each day (including over the weekend) with each of the respective Defendants for the purpose of finalising the PODs. In the case of the First Defendant, they often took several hours and multiple drafts before only relatively small aspects of the POD could be finalised. I had anticipated finalising the First Defendant’s POD on or about 2 June 2026, however, for reasons set out further below, in addition to the continuous yet unexpected length of time required to assist the First Defendant properly and accurately, I was unable to do so.”
It is clear from his evidence that Mr Green spent more than enough time with his clients to have been able to prepare primary evidence of the alleged oral agreement. According to Mr Brown’s proposed defence, there was one “in-person meeting on or about 14 March 2025” (see [21] above) between Mr Brown and Ms Nguyen in which the relevant words were allegedly spoken. For the purposes of demonstrating a bona fide defence on the merits, the necessary evidence would presumably have been a relatively short affidavit from Mr Brown setting out the conversation or conversations which underpin whatever the agreement is that the defendants would wish to rely upon as a defence.
I do not accept Mr Carroll's submission that this deficiency is cured by the fact that the defences are verified. I do not take the point that Mr Carroll did not formally read the affidavits verifying. Nor do I read the citation from Davies J in McCann (see [25] above) as stating a universal proposition. There may be cases where the way a particular cause of action has been pleaded means that the affidavit verifying may be sufficient evidence for the purposes of an application to set aside a default judgment. In the ordinary course, in most cases, I would give such verification little, if any, weight. However, in this case, I give the affidavits verifying absolutely no weight at all because of the prolix and otherwise defective form of the defences, noting especially the inconsistent assertion at different points of the non-existence or existence of an agreement.
It is common ground that the defences are not in a form that could be allowed to be filed. For the reasons I have set out, the Court is not satisfied that the defendants have a bona fide defence that raises a triable issue. It is, therefore, not in the interests of justice, weighing the respective interests of the parties, nor consistent with the overriding purpose, to set aside the default judgment.
Defences were originally required to be filed as long ago as by December of last year. Every opportunity has been given to the defendants to file defences that disclose a triable issue, including in circumstances where the Court made it clear most recently that the chance they were being given was the last chance. They have failed at every turn to do so.
The motion will be dismissed with costs.
**********
Uyen-Kim Nguyen
James Michael Brown