Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyens (No 2) [2021] NSWSC 978

Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyens (No 2) [2021] NSWSC 978

Because the Nguyens lacked standing under s 74MA to seek removal of the caveat, but subsequently succeeded in separate proceedings for withdrawal following the failure of Ms Dang's proprietary claim, and given the findings on subrogation were not pleaded, only procedural orders could be made; costs were awarded per the nature and merits of each motion, with indemnity costs ordered for a misconceived application.

Jurisdiction
Australia
Judgment Date
05 August 2021
Procedural Posture
Equity – Consequential Orders and Costs Determination Following Principal Judgment / Post Judgment; Directions and Further Orders
Outcome
Interim procedural orders; parties required to submit draft short minutes of order reflecting the further reasons; clarification of cost orders for interlocutory motions; no final relief granted on subrogation without further process.
Legal Topics
['caveats' 'subrogation' "sheriff's Sale of Land" 'costs in Interlocutory Proceedings' 'standing to Withdraw Caveat']
['civil Procedure' 'equity'] ['caveats' 'subrogation' "sheriff's Sale of Land" 'costs in Interlocutory Proceedings' 'standing to Withdraw Caveat']

Case Brief

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Procedural Posture

Equity – Consequential Orders and Costs Determination Following Principal Judgment / Post Judgment; Directions and Further Orders

Legal Issues

  1. 1 ['Whether the plaintiff is entitled to an order for withdrawal of a caveat after judgment and enforcement proceedings' 'Whether the plaintiff has standing to seek withdrawal of caveat under s 74MA Real Property Act 1900 (NSW)' 'Whether Ms Dang is entitled to subrogation against the mortgage' 'Entitlement and basis for costs orders in respect of various interlocutory motions']

Ratio Decidendi

Because the Nguyens lacked standing under s 74MA to seek removal of the caveat, but subsequently succeeded in separate proceedings for withdrawal following the failure of Ms Dang's proprietary claim, and given the findings on subrogation were not pleaded, only procedural orders could be made; costs were awarded per the nature and merits of each motion, with indemnity costs ordered for a misconceived application.

Court Disposition

Interim procedural orders; parties required to submit draft short minutes of order reflecting the further reasons; clarification of cost orders for interlocutory motions; no final relief granted on subrogation without further process.

Orders

  • ["The amended notice of motion by the Nguyens dated 24 January 2019 is dismissed; the Nguyens shall pay Ms Dang's costs of that motion and costs of Ms Dang's 15 February 2019 motion, on the indemnity basis." "The Nguyens' notice of motion dated 4 June 2019 is dismissed; Nguyens to pay Ms Dang's costs on the ordinary...