Nguyen v Sage Consultant Group Pty Ltd [2018] NSWSC 65

Nguyen v Sage Consultant Group Pty Ltd [2018] NSWSC 65

The first defendant had taken no step to defend the proceedings, justifying default judgment on the pleaded contractual claim. The second and third defendants had failed to serve evidence despite orders and had not prosecuted their defences, justifying strike out of both defences under UCPR r 12.7(2). On the evidence, the contractual claims against the first and second defendants were established because the relevant contracts were made, money was paid, the second defendant admitted he was not a legal practitioner or registered and qualified migration agent specialising in immigration, and there was evidence of rescission and total failure of consideration. Summary judgment was therefore...

Jurisdiction
Australia
Judgment Date
06 February 2018
Procedural Posture
Civil Proceedings Concerning Repayment of Sums Paid for Immigration Visa Services, Alleged Misleading, Deceptive and Fraudulent Conduct, and Alleged Breach of Fiduciary Duty / Plaintiffs' Notice of Motion for Default Judgment Against the First Defendant, Strike Out of the Second and Third Defendants' Defences, Summary Judgment, and Indemnity Costs
Outcome
The second and third defendants' defences were struck out; judgment was entered for the plaintiffs against the first and second defendants in part; indemnity costs were ordered against the second defendant; the proceedings were otherwise dismissed.
Legal Topics
['default Judgment' 'strike Out of Defences' 'summary Judgment' 'want of Prosecution' 'concurrent Criminal Proceedings and Civil Proceedings' 'breach of Contract' 'total Failure of Consideration' 'fiduciary Duty' 'indemnity Costs' 'holding Out as a Legal Practitioner']
['civil Procedure' 'contract' 'equity' 'migration Related Services' 'legal Profession Regulation'] ['default Judgment' 'strike Out of Defences' 'summary Judgment' 'want of Prosecution' 'concurrent Criminal Proceedings and Civil Proceedings' 'breach of Contract' 'total Failure of Consideration' 'fiduciary Duty' 'indemnity Costs' 'holding Out as a Legal Practitioner']

Case Brief

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Procedural Posture

Civil Proceedings Concerning Repayment of Sums Paid for Immigration Visa Services, Alleged Misleading, Deceptive and Fraudulent Conduct, and Alleged Breach of Fiduciary Duty / Plaintiffs' Notice of Motion for Default Judgment Against the First Defendant, Strike Out of the Second and Third Defendants' Defences, Summary Judgment, and Indemnity Costs

Legal Issues

  1. 1 ['Whether default judgment should be entered against the first defendant for failing to appear or defend the proceedings.' "Whether the second and third defendants' defences should be struck out for continued non-compliance with orders for service of evidence and want of prosecution." 'Whether summary judgment should be entered against the second and third defendants.' 'Whether the civil application should proceed notwithstanding concurrent criminal proceedings against the second and third defendants.' "Whether the plaintiffs' contractual claims for repayment of money paid under the relevant contracts were made good on the evidence." 'Whether the pleaded fiduciary duty claims against the second and third defendants justified summary judgment.' 'Whether indemnity costs should be ordered against the second defendant.']

Ratio Decidendi

The first defendant had taken no step to defend the proceedings, justifying default judgment on the pleaded contractual claim. The second and third defendants had failed to serve evidence despite orders and had not prosecuted their defences, justifying strike out of both defences under UCPR r 12.7(2). On the evidence, the contractual claims against the first and second defendants were established because the relevant contracts were made, money was paid, the second defendant admitted he was not a legal practitioner or registered and qualified migration agent specialising in immigration, and there was evidence of rescission and total failure of consideration. Summary judgment was therefore...

Court Disposition

The second and third defendants' defences were struck out; judgment was entered for the plaintiffs against the first and second defendants in part; indemnity costs were ordered against the second defendant; the proceedings were otherwise dismissed.

Orders

  • ['Strike out the defence of the second defendant pursuant to Uniform Civil Procedure Rule 12.7(2).' 'Strike out the defence of the third defendant pursuant to Uniform Civil Procedure Rule 12.7(2).' 'Judgment for the plaintiffs in the amount of $103,380 jointly and severally as against the second defendant (pursuant...