Thi Tuoi Vu & Anor v Ngoc Bich Nguyen & Anor [2011] NSWSC 1369 (11 November 2011)

Last Updated: 18 November 2011

Supreme Court New South Wales

Case Title:	Thi Tuoi Vu & Anor v Ngoc Bich Nguyen & Anor
Medium Neutral Citation:	[2011] NSWSC 1369
Hearing Date(s):	18, 19, 20 & 23 May 2011, 8 June 2011
Decision Date:	11 November 2011
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:	Agreement for sale of business established. Specific performance of contract decreed.
Catchwords:	EQUITY - remedies - specific performance - whether agreement made for the sale of a bread shop business - whether terms of contract certain - whether agreement can be specifically performed - terms of decree.
Legislation Cited:	Business Names Act 2002 (NSW) Conveyancing Act 1919 (NSW), s 54A Real Property Act 1900 (NSW)
Cases Cited:	Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Halloran v Minister Administering National Parks and Wildlife Act 1974 [2006] HCA 3; (2006) 80 ALJR 519 Kennedy v Vercoe [1960] HCA 64; (1960) 105 CLR 521 Khoury & Anor v Khouri [2006] NSWCA 184 McBride v Sandland [1918] HCA 32; (1918) 25 CLR 69 McMahon v Ambrose [1987] VicRp 66; [1987] VR 817
Texts Cited:	Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4th ed)
Category:	Principal judgment
Parties:	First Plaintiff/Cross Defendant- Thi Tuoi Vu Second Plaintiff/Cross Defendant- Kim Cuong Pham First Defendant/Cross Claimant- Ngoc Bich Nguyen Second Defendant/Cross Claimant- Hoa Thi Nguyen
Representation
- Counsel:	First & Second Plaintiffs/Cross Defendants- R. W. Tregenza First & Second Defendants/Cross Claimants- J.S. Drummond
- Solicitors:	First & Second Plaintiffs/Cross Defendants- James Lachlan McHarg, Bell Lawyers First & Second Defendants/Cross Claimants- Dan Nguyen, DPN Company Solicitors
File number(s):	2011/00063013
Publication Restriction:	No.

JUDGMENT

1. Ms 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.

2. These 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.

3. There 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.

4. The 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.

5. The 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.

6. In 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.

7. The 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.

8. There 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.

9. The 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.

10. Of 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.

11. There 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.

Ms Vu and Mrs Nguyen - 2006 to 2011

132 Queen Street, St Marys

12. Mrs Nguyen has had a long association with the shop premises at 132 Queen Street, St Marys. In about 1985 she and her former husband, Mr Thang Dang, opened the business then known as "Martino French Hot Bread" at that site. They installed equipment and shop fittings to operate the business as a hot bread shop. Mrs Nguyen and her former husband separated in 1988 and were divorced in 1992. After the separation Mrs Nguyen continued to operate the business. She married Mr Lee Nguyen in 2000.

13. In April 2005 Mr Nguyen, as lessee, entered a five-year lease of the 132 Queen Street shop from Mr Antonios Calokerinos, together with an option to renew for a further period of 5 years. This lease was registered under the Real Property Act 1900 (NSW). In January 2010 Mr Nguyen gave notice to the landlord of exercise of this option to renew and thereby extended the lease over the shop until 31 January 2015. Although the Calokerinos lease contained a covenant against assignment or subletting (Clause 3(q)), the 132 Queen Street business had been operated in Mrs Nguyen's name for years. There seems to have been an informal subletting by Mr Nguyen to his wife which the landlord had either overlooked or acquiesced in over the years. The defendants paid the rent on the Calokerinos lease to the landlords' agent, APF Real Estate.

The Defendant's Other Shops

14. The defendants operate a number of other retail bakery, bread and pastry shops and a poultry business. The number, nature and operating burden of these other businesses figure in the parties' narrative about the many facts in issue between them. The defendants owned or occupied four other premises in the 2008-2010 period: (1) 110 Queen Street, St Marys; (2) Shop T20 Southlands Shopping Centre, Birmingham Street, Penrith; (3) 124 Stafford Street, Penrith; and (4) 222 Redmayne Road, Horsley Park.

15. 110 Queen Street, St Marys . The plaintiff purchased shop premises at 110 Queen Street, St Marys in late 1999 or early 2000. Since that time Mr and Mrs Nguyen have conducted from that location a business known as "Martin Bakery", which specialises in the manufacture of cakes and the sale of cakes and bread. The two Queen Street, St Marys businesses are interdependent. The bread sold at 110 Queen Street is made at 132 Queen Street. The cakes and pastries sold at 110 Queen Street and 132 Queen Street are all made and prepared at 110 Queen Street. No bread is made at 110 Queen Street and no cakes are made at 132 Queen Street. Mr and Mrs Nguyen continue to conduct the business at 110 Queen Street. Given this interdependence one obstacle to Mrs Nguyen selling 132 Queen Street was the need to make substitute arrangements to maintain bread supply to 110 Queen Street.

16. Shop T20 Southlands Shopping Centre . From about 1986 - 87 Mrs Nguyen and her first husband together also operated the "Evan Hot Bread" business from the Southlands Shopping Centre in Birmingham Street, Penrith. This business involved the manufacture and sale of bread and cakes. After her divorce Mrs Nguyen and her second husband, Mr Lee Nguyen, continued to operate the business at Southlands until early January 2009, when the Shopping Centre was closed for general refurbishment. They had originally operated their business out of Shop 12 at that Centre. After the Centre refurbishment they were permitted in late November 2009 to recommence the business then renamed as "Martino Southland Bakery" from Shop 12 at the Southlands Shopping Centre. By then Mr and Mrs Nguyen had redeployed all the old plant and equipment from Southlands Shop T20 to outfit a new shop at 124 Stafford Street, Penrith. So when they recommenced business in the reopened Southlands Shop T20, they were needed to purchase all new plant and equipment to restart operations.

17. 124 Stafford Street, Penrith . In mid 2008 Mrs Nguyen purchased 124 Stafford Street, Penrith for $240,000. Following settlement she and Mr Nguyen commenced to renovate those premises and install the plant and equipment they had removed from Southlands, Shop 12. They then commenced to operate from those premises a business, "Stafford Bakery", which also involved the manufacture and sale of bread and cakes.

18. 222 Redmayne Road, Horsley Park . Before they married in 1996 Mr and Mrs Nguyen had purchased together the property at 222 - 230 Redmayne Road, Horsley Park for $600,000. This property hosted a chicken farm operation housed in four production sheds spread over approximately 5 acres. Mr and Mrs Nguyen operated the chicken farm between 1996 and December 2008. They ceased operating the chicken business at that time but retained this property. Given the moves that were taking place between the Southlands Shopping Centre and Stafford Street Penrith, the closure of the Horsley Park chicken operation was not entirely surprising.

19. T his short survey shows that in 2009 Mr and Mrs Nguyen were negotiating quite high levels of operational change in their business interests. By late 2008 they had shut down chicken production at Horsley Park and completed the purchase of Stafford Street. It is common ground that late 2008 - early 2009 Mrs Nguyen asked Ms Vu to assist at the 132 Queen Street shop on weekends. Ms Vu alleges that later the same year Mrs Nguyen agreed to sell the 132 Queen Street business. In 2009 Mr and Mrs Nguyen vacated the Southlands Centre Shop 12, prepared to re-establish operations there in November, fitted out and starting up the Stafford Street Penrith shop, and continued operations at 110 Queen Street. Asking Ms Vu to work on weekends a 132 Queen Street was a logical step for a couple with several demanding businesses.

Ms Vu and Mrs Nguyen - Early Contract

20. Ms Vu and Mrs Nguyen have known each other for about 8 or 9 years. They met when Ms Vu worked in a butcher shop operated by Ms Vu's former husband Mr David Pham. Mrs Nguyen purchased her meat there. The butcher shop closed down. Ms Vu came to Mrs Nguyen looking for work. Mrs Nguyen says, and I accept, that Ms Vu approached her in about August that year and explained that she (Ms Vu) needed to find a full time position because her husband was no longer operating his butcher shop business. Mrs Nguyen first employed her in mid 2005 at 110 Queen Street as a pastry chef and shop assistant. She worked for Mrs Nguyen at 110 Queen Street for three years until late 2008 - early 2009, when she started to do weekend relief work at 132 Queen Street.

21. It is common ground that as early as August 2006 the parties discussed Mrs Nguyen selling the 132 Queen Street business to Ms Vu for $150,000, payable in one lump sum. But the parties also agree that Ms Vu was unable at that time to raise the money to go ahead with this purchase and it did not proceed. The negotiations broke down after Ms Vu and her husband applied for a loan. They were only able to raise $140,000 toward the purchase price. Mrs Nguyen would not provide vendor finance for the remaining $10,000, so the negotiations stalled.

22. These August 2006 negotiations were important background to what happened later. They set the parameters of a possible later sale between Ms Vu and Mrs Nguyen. Mrs Nguyen was willing to sell for a single payment of $150,000 in August 2006 and Ms Vu was a then willing buyer of the shop at that price. But terms for payment of the consideration could not then be agreed. It is common ground that Ms Vu remained employed at 110 Queen Street for a further two years.

Arrangements for Ms Vu to Occupy 132 Queen Street

23. After Ms Vu commenced working weekends at 132 Queen Street the parties had discussions about Ms Vu possibly taking over the shop. But the parties gave very different accounts of the timing and content of these conversations. Mrs Nguyen says they first took place only in late 2009, were brief, and did not result in any concluded sale agreement. Ms Vu says the conversations started in late 2008 about the time she started to work at the shop and continued throughout 2009 until an agreement was made and were consummated with a formal handover to Ms Vu that took place on 1 February 2010. Both accounts of the important parts of their conversations appear below in English, although it was accepted on both sides that all conversations took place in Vietnamese.

24. Mrs Nguyen says: that in late 2009 she and her husband were preparing to recommence business operations at Southlands Shop T20; that Ms Vu approached her; and, that they had a conversation with her in Vietnamese to the following effect:-

"Ms Vu: 'David and I have separated. I need to earn more money as I can't pay the bills.'

Mrs Nguyen: 'Lee and I are about to recommence the business at Southlands. When it starts, I may not have much spare time to look after this shop. Would you be willing to run this shop for me on a full time basis?'

Ms Vu: 'What would the arrangements be?'

Mrs Nguyen: 'You run the business. You pay me $900 per week. You pay the rent and all the other expenses, electricity, phone, flour, wages, etc. I will pay from the $900 workers compensation insurance, the contribution to superannuation for Greg (Scott).'

Ms Vu: 'How will I pay the expenses?'

Mrs Nguyen: 'You deposit into the Account the money to cover the expenses. I will write the cheques. I will come once a week to check on the business. At that time you can give me the invoices and I will write the cheques for rent and those other expenses.'

Ms Vu: 'Okay I will think about it.'"

25. Ms Vu has a very different version of what happened, a version which I accept. She says in about late 2008 Mrs Nguyen first said to her and again repeated on a number of occasions throughout 2009 words to the effect, "Do you want to buy my bread shop at 132 Queen Street, St Marys for $150,000 with a deposit of $20,000?" Ms Vu says that the conversation continued on these occasions in words to the following effect.

"Ms Vu: 'I do not have $150,000.'

Mrs Nguyen: 'It does not matter, you pay me every weekend in a few years it will be your shop. You give me $900 per week. You don't need to see a lawyer. We can talk about it together and write a contract later.'

Mrs Vu: 'I agree to that.'

Mrs Nguyen: 'Do you want to put your name down or your son's name?'

Ms Vu: 'Put my son's name down to buy the business.'"

26. Ms Vu says that she then spoke to her son who agreed to have the shop put in his name once it was acquired. The parties have many differences about these arrangements: they place the first conversation a year apart; Ms Vu says the conversations were continuous, Mrs Nguyen says that there was only one; and, Mrs Nguyen disputes Ms Vu's claim that they concluded a sale. I prefer Ms Vu's evidence, as she was the better witness. The evidence of other witnesses and objective factors both support Ms Vu's version.

Ms Vu Takes Over - 1 February 2010

27. The parties agree that Ms Vu took over operations of the 132 Queen Street shop on Monday, 1 February 2010. But they disagree in what capacity she did so, as purchaser under an instalment contract or as a licensee of the business. There was a degree of ceremony attached to the takeover. But the elements of the occasion that each woman remembers tends to support her own case. Both sides accept though that Mrs Nguyen gave Ms Vu a key to the premises that day.

28. According to Ms Vu, Mrs Nguyen said to her on this occasion, "Today I give the shop to you. You work here from now on." Ms Vu says she replied "I take it." And then she paid Mrs Nguyen $900.00 in cash according to Ms Vu. This was the first $900 instalment payment. Ms Vu says that after that she paid Mrs Nguyen $900.00 every week for 49 weeks, usually on a Monday morning when Mrs Nguyen attended the shop.

29. As might be expected, consistently with her case, Mrs Nguyen has a more limited version of what happened on 1 February 2010. She says she attended 132 Queen Street at approximately midday "to check whether everything was ok". And at the time she says she had a conversation with Ms Vu in words to the following effect:

"Mrs Nguyen: 'Anna are you ok with what we spoke about?'

Ms Vu: 'Yes.'

Mrs Nguyen: 'Is everything ok then?'

Ms Vu: 'Yes.'"

Mrs Nguyen says that she then gave Ms Vu the deposit and cheque books in respect of bank account, more fully described later in these reasons.

30. On Mrs Nguyen's version this is a strangely deficient conversation. Mrs Nguyen is asking Ms Vu to operate the shop for her. There had certainly on Mrs Nguyen's version been some conversation about the practical details of her doing that back in November the previous year. But the conversation lacks any of the practical content one might expect with a licensor (Mrs Nguyen) giving instructions to her new licensee (Ms Vu) about operating the shop that Mrs Nguyen was going to take back at some stage. After all, on Mrs Nguyen's version she was not selling the shop and presumably wanted to take back a healthy functioning business. One would expect her to have given some memorable instructions to Ms Vu on this occasion. But they are absent from her version.

31. Another deficiency in Mrs Nguyen's version is that if there was a licensing arrangement between herself and Ms Vu, it would have been of critical importance for her to point out to Ms Vu at the beginning how long the licence would be expected to last. Equally it might be expected that Ms Vu would wish to know this. There is nothing in Mrs Nguyen's version of what happened either on or before 1 February 2010 that deals with this issue. This is one of the reasons that her evidence does not ring true.

32. But there is another problem with Mrs Nguyen's version of what happened on 1 February 2010. She goes on to say that she spoke on that day to the employee of the business, Mr Greg Scott, in words to the following effect:

"Mrs Nguyen: 'Scott, from today, Anna will be helping me run the shop. I will come here at least once a week to check on things. If you are unhappy abut anything then you ring me and let me know.'

Mr Scott: 'Yes.'"

33. Thus on Mrs Nguyen's version Mr Scott, the employee, is still answerable to her, Mrs Nguyen, as Ms Vu is still "helping me" run the shop. The instruction that she says she gives Mr Scott is not really compatible with her version, which does not have Anna as a manager but an independent licensee. The other difficulty for Mrs Nguyen is that Mr Scott gave evidence which is quite inconsistent with Mrs Nguyen's account of what happened, both on this day and afterwards. I found Mr Scott to be a highly credible witness and I wholly accept his evidence. He says that in January or February 2010 Mrs Nguyen said to him words to the effect "I'm going to sell the business to Anna". He understood that to mean Ms Vu. He was cross-examined to suggest that this was a reference to "Anna" Nguyen, Mrs Nguyen's sister, but I do not accept that Mrs Nguyen was talking to Mr Scott about her sister. A little later in January or February 2010 he recalls Mrs Nguyen saying to him "when Anna becomes boss she may treat you differently. If she is not good to you I will always have a job for you." He gave other evidence which separately corroborated Ms Vu's version which I will deal with later in these reasons. Mr Scott was an important anchoring point for Ms Vu's case. He repelled all attempts to discredit him. I found him to be a person who had no particular preference for one or other of the parties to these proceedings and gave a reliable, and at times a blunt account of the events that occurred around him.

34. The other witness who I accept and who supported Ms Vu's version was her former husband Mr David Pham. He says that in late 2009 Mrs Nguyen said to him on several occasions "watch out for Anna, she is going to be richer than you because I have sold her the shop." As Ms Vu's former husband he was cross-examined about this statement, but his evidence became even firmer that this was said several times.

35. It was suggested to him that he was confusing Mrs Nguyen's alleged admission with the proposed sale in 2006 that did not proceed. But I am satisfied he was not confusing the two transactions and that Mrs Nguyen made these statements to him in 2009. He was not an independent witness. Despite his being on good terms with Ms Vu, his evidence was highly credible and I accept it all.

36. Mr Pham also said, and I accept, that Ms Vu said to him in Mrs Nguyen's presence in October 2009, "we are going to buy the shop. Mary is going to sell the shop to me for $150,000. The money is the deposit for the shop." He steadfastly adhered to this evidence in cross-examination and I do not think he was either mistaken or inventing an admission by Mrs Nguyen.

37. From 1 February 2010 Ms Vu attended daily, gave directions to the staff and took control of most of the financial affairs of the business. She also gave directions to the pastry cook, Mr Scott.

The Transfer of Business Name

38. One day soon after she commenced operations at the shop on 1 February 2010 Ms Vu says that Mr and Mrs Nguyen attended at the premises. Mr Nguyen had brought with him what appeared to be an official form. He wrote the name and address of the second defendant on the form and said to Ms Vu, "Write your name or your son's name on this form and I will change the business name." The contest about this form became a central issue in the case.

39. Ms Vu says that after she started running the shop at 132 Queen Street that Mr Nguyen brought with him what to her "appeared to be an official form". She says that Mr Lee Nguyen wrote the name and address of Mrs Nguyen on the form and said to Ms Vu, "write your name or your son's name on this form and I will change the business name". He then left the form with her. Although much of the evidence about this form is disputed, and I do not accept everything that Ms Vu says about it, I do accept this part of her evidence. Mr Lee Nguyen gave a particularly unsatisfactory account of his handling of this form and I place no reliance upon anything that he said about it other than his denial that he signed the form.

40. The form was an "Application to Change Proprietors of a Business Name", Form 6, a prescribed form which may be used for the transfer of the business name under the Business Names Act 2002 (NSW) . The form contains the logo of the Department of Fair Trading of the State of New South Wales. The form is designed to identify the contact details of the person lodging the application, the registration details of the business, the details of the new proprietor, the assent of the proprietor who has ceased to carry on business under the business name, and a number of other parts which are not of present relevance.

41. I find that Mr Nguyen did bring this form into the business in about February or March 2010. I also find that he filled out the first two boxes on the document showing the Vietnamese name of his wife as the person lodging the application and the registration details of the business "Martino French Hot Bread", together with business names registration numbers. But in my view he did not sign it at this time, although I think it is probable that he printed his wife's name in the section on the second page which asked "The following proprietor has CEASED to carry on business under the business name" but it was not signed on behalf of the ceasing proprietor.

42. If a sale had been agreed between Ms Vu and Mrs Nguyen and if Mr Lee Nguyen had been told by his wife about it, then the steps that he took with this form were quite logical. Mrs Nguyen was a proprietor of a business so he could not sign the form himself. But before it was lodged, he needed to get the details of and the signature of the new proprietor. I have found Ms Vu'S version of the conversation with Mrs Nguyen to be the preferable version. It includes a statement that she was proposing that her son, Mr Kim Pham, become the purchaser of the business. In my view, Mr Nguyen's delivery of the form confirms he was well aware of the sale through his wife. His leaving the form with Ms Vu, rather than having her sign it on the spot and taking it away is consistent with her account that her son was going to be nominated as purchaser. His details needed to be entered and his signature obtained. That could not be done immediately.

43. So the form remained at the shop for a period of time. The plaintiff says that some time later she put Mr Kim Pham's name on the form and he signed it. That did happen in my view, but only much later. The "signature of new proprietor" on the form is that of Mr Kim Pham, and it is dated 24 November 2010, a date in my view well after the parties had realised they had different views about whether Ms Vu was a purchaser of the business or not.

44. But at this point on this issue, Ms Vu's evidence becomes distinctly less reliable. I do not accept the later part of her evidence about this form. She says that sometime later after Mr Kim Pham signed the form, that Mr Lee Nguyen returned to the premises and said to her "do you have that form?" and Ms Vu then gave it to him. She says that she presumed that one of the defendants had arranged for the transfer of the registration of the business name. Ms Vu's account was contradicted by her own son who said that he lodged the application with the Department of Fair Trading on 6 December 2010 and that he did so at the direction of his mother, Ms Vu. In my view, Mr Kim Pham should be accepted on this. Ms Vu did not return the form to Mr Lee Nguyen. Rather it remained in the shop. As my findings later in these reasons make clear, by November 2010 Ms Vu realised that Mrs Nguyen wanted to take the business back. In my view, at that time Ms Vu panicked and asked her son to lodge the form. In my view, Ms Vu had consigned this document to the same basket as many other legal formalities that would be attended to by Mr and Mrs Nguyen when the full purchase price was paid. But Ms Nguyen's later change of attitude and Ms Vu's overwhelming fear of losing the business caused her to give attention back to the document.

45. By the time the document was lodged it did contain a signature against "signature for ceasing proprietor". The signature looks quite unlike that of either of Mr and Mrs Nguyen, and I accept their denials that it was either of their signatures. The logical inference was that the signature was placed there by either Ms Vu, Mr Kim Pham or someone at either of their request. The evidence does not enable the Court to decide which of those it was. But that is how the document was lodged.

46. Despite this misuse of the document in December 2010, the document is of great significance in my view to confirm Ms Vu's story about the making of a contract and about Mr Lee Nguyen's knowledge of and participation in the sale of the business in February 2010. Mr Lee Nguyen went to very considerable lengths to maintain a denial that he had given this document to Ms Vu in February 2010. He propounded what in my view was an elaborate fiction that he went to the Department of Fair Trading in Penrith and collected the form in early 2009, well before Ms Vu took over, filled in the first and second sections and returned the form in an incomplete state to the Department of Fair Trading for the purpose of effecting a transfer of the business name into his and his wife's name, as distinct from his wife's name alone, where it then stood. He says that the Department of Fair Trading told him that with the form filled out the way it was, the business name could not be transferred into his and his wife's name. He says he took the form back to 132 Queen Street and left it with other papers at the shop.

47. Mr Lee Nguyen's version cannot be accepted. If his purpose was what he states it to be, there is no reason why he could not have simply taken it to his wife and completed the details of the transferee with his and his wife's name in it and had it properly signed, and taken it back to the Department of Fair Trading. Alternatively, he would have disposed of the form and started again. His account was that the partially completed form was left in the shop and was "discovered" by Ms Vu. I doubt, given her lack of commercial sophistication Ms Vu would have realised what the document was if it had just been left with loose papers in the shop. In my view, Mr Lee Nguyen participated in a degree of ceremony when he gave the document t o Ms Vu, which emphasised its significance to her.

48. But why did he give the document to her unsigned? In my view there were two reasons for this. The evidence demonstrates that he was in the habit of undertaking a variety of administrative tasks for his wife at her request or direction. In my view this was one of them. It was logical for him to get the other details on the form ready so that he did not waste his wife's time before the document was lodged. So he took it unsigned and left it with Ms Vu. Also, in my view, like Ms Vu, Mr Lee Nguyen and Mrs Nguyen's understanding of the contract that had been made was that she would not formally transfer the business until the full purchase price was paid. Mrs Nguyen was an astute business woman who was not prepared to fully transfer the business to Ms Vu until the whole purchase price was paid. There was no reason for her to or her husband to ask for the form back until that time came.

Ms Vu conducts the business

49. The parties used aspects of Ms Vu's and Mrs Nguyen's financial dealings in 2010 when Ms Vu was running the business to support their completing cases.

50. The defendants point to Ms Vu's management of the business as being inconsistent with her case that she had purchased it. The point in most cases would be a telling one. But in the present case, it is not persuasive, because of Ms Vu's lack of financial sophistication. The defendants point to the fact that Ms Vu did not in respect of the business that she says she purchased: effect any business or public liability insurance; obtain an ABN number until February 2011; open or operate any independent bank account, other than one in the name of the defendants, until about December 2010 or January 2011; did not lodge income tax returns or BAS statements for the business; and failed to obtain an assignment of the lease.

51. Ms Vu was considerably less commercially sophisticated than Mrs Nguyen. The relationship between them was one of friendship and Ms Vu, in my view, saw no difficulty in making large cash payments to Mrs Nguyen without obtaining receipts, expecting that Mrs Nguyen would not later deny that she had received the money. There is no doubt, for example, that Ms Vu did pay Mrs Nguyen $900 per week from 1 February 2010 for some 49 weeks. Mrs Nguyen admits this. But no written receipts for these payments were issued. The fact that there could have been other cash payments made that are not recorded in documentary receipts is therefore not surprising.

52. But it is equally consistent with Ms Vu's informal approach to her business dealings with Mrs Nguyen and her general trust that Mrs Nguyen was not trying to take advantage of her that Ms Vu really approached the transaction in a slightly unusual way, with the attitude that Mrs Nguyen would look after the details of transferring the business to her with all the proper formalities, when the time came. So much was implicit in Mrs Nguyen's statement to Ms Vu "it does not matter, you pay me every week and in a few years it will be your shop " (emphasis added). In my view, Ms Vu believed that any final formalities would be attended to once payment by instalments had been completed.

53. An additional factor to explain why Ms Vu did not undertake these ordinary business formalities is that this was the first business that she had ever acquired and run. In my view, she was simply unaware of much of what had to be done. This largely explains the failure to take out appropriate insurance, to apply for an ABN number, and to seek any assignment of the lease. I am not convinced that Ms Vu really understood that she had to do any of these things. There is no evidence that she had consulted an accountant who had pointed out to her an obligation to file a BAS statement. The lack of income tax returns does not assist the defendants' case as it is equally consistent with Ms Vu operating the business independently as a licensee.

54. Much the same explanation accounts for Ms Vu's strange use of the same cheque account that Mrs Nguyen and her husband had used for the business prior to 1 February 2010. This account was held with the National Australia Bank, in an Account ****290 (and will be referred to in these reasons as Account 290). The account was held in Mr and Mrs Nguyen's name. I was styled "Martino's Hot Bread Shop" so that the precise name in which it was held was not obvious to a user, until enquiries were made at the bank. Ms Vu says, and I accept, that on 1 February 2010 Mrs Nguyen gave her the deposit book and the chequebook for Account 290. Ms Vu did not give any thought to who the account holder was. She had never held a bank account before. Her former husband, Mrs David Pham, had always dealt with their family finances. I accept that Mrs Nguyen said to Ms Vu at the time "when you get money, put it in here and pay for the rent, the flour, the ingredients, the phone and everything out of this account". That indeed is what Ms Vu did. She signed cheques on the account, which were honoured, not withstanding the fact that she was not a signatory on the account. She did not appreciate that she was not a signatory. The cheque ran out of forms in October 2010. I accept Ms Vu's evidence that she then asked her son, Kim, to go and get another chequebook from the bank, but was told by the bank that a new chequebook would only be released to Mrs Nguyen. By then, it had become obvious to Ms Vu, in my view, that there was tension with Mrs Nguyen about the issue of sale of the business, so Ms Vu decided to pay the accounts of the business thereafter in cash.

55. I do not regard Ms Vu's operation of Account 290 as inconsistent with her case. Her use of the account more shows a lack of sophistication than any consciousness that she was continuing to operate an account of a business of which Mrs Nguyen was the proprietor.

56. Another contest about the way that Ms Vu was running the business related to Mr Scott's superannuation. Ms Vu said that Mrs Nguyen gave her detailed instructions about Mr Scott's superannuation. She claims that Mrs Nguyen said to her that she had paid $8,479.90 on account of Mr Scott's superannuation and was seeking reimbursement for such payments. I accept that there was a conversation between Ms Vu and Mrs Nguyen about Mr Scott's superannuation and that Mrs Nguyen said to Ms Vu, at the same time as giving her a document in late May 2010 "the ATO and AMP payments are for Greg for his tax instalments and superannuation instalments. The whole quarter is $4,287.00". I accept that Mrs Nguyen then wrote some figures on this document to show that the superannuation payments in respect of Mr Scott were $2,858 for the two months of February and March in the first quarter of 2010. I am prepared to accept this conversation occurred because it is supported by the document and I prefer Ms Vu on the issue. But Ms Vu's evidence and the significance of the issue is much weakened by the fact that Ms Vu does not appear to have acted on the document, either by specifically reimbursing Mrs Nguyen or making a payment of $2,858 or any other similar figure on account of Mr Scott's superannuation. In the end this particular part of the evidence was quite neutral.

Funding the Purchase

57. The parties disputed how Ms Vu sourced the funds for her $20,000 deposit for the purchase of the business and whether she was ever in a position to source and apply these funds.

58. From Mrs Nguyen's perspective it was important for Ms Vu to pay a deposit of $20,000. I have accepted that she stipulated for such deposit from Ms Vu and obtain Ms Vu's agreement to provide it. But as is typical of the dealings between these two parties, the payments that Ms Vu assert were made were all made in cash and they do not add precisely to the sum of $20,000. The full monies that Ms Vu claims were paid under the contract are as follows:-

(i) Hui Scheme $17,000.00

(ii) 20 August 2009 $2,000.00

(iii) 23 October 2009 $15,000.00

(iv) 12 April 2010 $3,000.00

(v) 22 October 2010 $2,500.00

(vi) $900 per week for 49

weeks $44,110.00

(vii) Difference between

amounts paid to

Account 0290 and

Expenses $24,966.00

(viii) Loan $2,500.00

Total $111,066.00

Less $10,000 repaid

as part of amount

previously advance - $10,000.00

Balance $101,066.00

Of these sums the item (vi) is not disputed because Mrs Nguyen (and at times Mr Nguyen, and at times both of them together) collected those monies on a regular weekly basis from Ms Vu at the shop at 132 Queen Street. And these monies amount to $44,110.00. The amount at (vii) of $24,966.00 will be dealt with in relation to the plaintiff's supplementary money claim. The remaining amounts fall into three categories: (i) funds of $17,000 allegedly derived from a Hui Scheme; (iii) funds paid on 23 October 2009 to Mrs Nguyen with the assistance of Mr David Pham (being a bank cheque for $10,000 and cash of $5,000); and (ii), (iv), (v) are the smaller amounts paid in cash. This section deals with each of these claimed payments of the deposit under the contract. In my view, some of these payments were made, but not all of them. It is convenient to deal with them in the order of the 23 October 2009 payments, the Hui Scheme, and then other payments. But first there are two matters relating to Ms Vu's credit that must be resolved about these payments, a matter concerning Ms Vu's record keeping, and a matter concerning the timing of Ms Vu's payments.

59. Ms Vu says that each time she made a payment to Mrs Nguyen she kept a record of the payment on the inside back cover of an exercise book in which she used to record shop records for the first two weeks after she commenced trading in the shop. The entries were in Vietnamese and referred to Mrs Nguyen by her Vietnamese name "Hoa" and to Ms Vu by her Vietnamese name "Thi". The entries were as follows:-

"Hui Banking Hoa withdrawal $17,000.00

Hoa borrowed from me $2,000.00 on 20 August 2009

Date 17 August 2009 Hoa gave me cheque for $10,000.00

After the month of November Thi Vu (me) give to Hoa $15,000

(Pay back $10,000) still got left $2000

Borrow $2000

12 April 2010 Hoa borrowed $3,000.00 $24,000

$3,000

$27,000

Date 22 October 2010 Hoa borrow $2,500.

$29,500.

Gave Hoa 49 weeks x $900 = $44,100."

60. I accept that some such entries were made. But the defendant contends that the record was not contemporaneously made. The defendant says that had the document been produced contemporaneously that it would have had recorded on it a date for the Hui Scheme and the quantum of the payment received. Hui Schemes, common within the Vietnamese community and explained later in these reasons, would be unlikely to produce an even sum of $17,000. For that reason and because the document was apparently never shown to Mrs Nguyen I am not confident that it was a contemporaneous document. If it had been produced at the time it would have been quite easy for Ms Vu to show it to Mrs Nguyen and have her sign it at or shortly after the payments were made. I am not confident that there is any contemporaneous record of these various payments being made. The case becomes one of oath against oath upon the issue and I am not confident on Ms Vu's evidence on this subject.

61. The other matter of Ms Vu's credit in relation to the deposit is the timing of the payment of the deposit. The defendants cross-examined Ms Vu to the effect that it was odd that she had paid parts of the deposit a long time before assuming control of the business. But I do not think that this is a particular difficulty for Ms Vu's credit. From the time that Ms Vu started doing weekend relief work at 132 Queen Street, she was having discussions with Mrs Nguyen about purchasing the business. A consensus seems to have been reached some considerable time before 1 February 2010. So it is not unlikely that the deposit started to be paid in 2009 once the consensus had been reached. I now turn to the other matters of contention about the deposit.

62. Payment of $15,000 on 23 October 2009 . This and the evidence about the Hui Scheme were the least satisfactory parts of Ms Vu's case. She says that a transaction occurred on 22 and 23 October 2009 when she and Mr David Pham were together in the cake shop and Mrs Nguyen came in and asked for $15,000 to put a new oven into her shop at the Southlands Centre. Ms Vu says that the money was supplied with a bank cheque for $10,000 that Mr David Pham paid to Mr Nguyen, and $5,000 in cash which Mr David Pham gave to her, which she then paid to Mrs Nguyen. I accept her evidence that she raised $5,000 in cash and gave to Mrs Nguyen. But the case that the $10,000 payment by Mr David Pham to Mr Nguyen was part of the deposit on the contract is weak.

63. It is more likely in my view that Mr David Pham's payment of the $10,000 by bank cheque to Mr Nguyen was part of a more complex transaction to assist Ms Vu to buy a Honda motor vehicle, not to fund the deposit for the purchase of the shop. Mr David Pham had lent his wife $20,000 to buy a Honda motor vehicle which she did. Mr and Mrs Nguyen loaned Ms Vu $10,000 to pay back Mr David Pham, part of what he had lent to her. He then repaid this same sum to Mr Nguyen. Mr David Pham himself conceded that the payment was a repayment of monies which Mr and Mrs Nguyen had advanced to Ms Vu. The plaintiff's case fails on this aspect on this part of the deposit.

64. The Hui scheme . The plaintiff said that she raised $17,000 of the deposit from the proceeds of a Hui scheme, a kind of informal mutual banking arrangement. She said in her first affidavit that she raised the sum of $17,000 by "borrowing from my friends" and did not mention the Hui scheme at all. Admittedly that affidavit was drafted at short notice to get an urgent injunction. But a more detailed affidavit filed on 4 March 2011, declared that she borrowed $18,320 from the scheme and paid that money to Mrs Nguyen. This was further elaborated upon in her affidavit of 30 March 2011. The final thrust of her evidence was that the woman who was running the scheme, Mrs Nga, paid the product of the scheme directly to Mrs Nguyen.

65. The problem for the plaintiffs' case is that Mrs Nga was called to give evidence by the defendants and said that she did not give the product of the scheme to Mrs Nguyen at Ms Vu's request. Mrs Nga was an independent witness as the defendants assert. I accept Mrs Nga's evidence that she did not give the product of the scheme to Mrs Nguyen at Ms Vu's request and I reject Ms Vu's evidence that this is what happened. I also accept Mrs Nga's evidence that Ms Vu instigated the creation of the document that showed that Ms Vu had received the sum of $18,320 on 26 December 2008 based on a successful bid within the scheme at that time. This appears to be a regrettable attempt by Ms Vu to improve her case, which diminished the Court's confidence in her as a witness. Despite that damage to her credit, I still prefer her evidence to that of Mrs Nguyen on the fundamental question of the contract.

66. Other cash payments. The disputes about the remaining deposit monies are less complex, being simply word against word in relation to the making of cash payments. Ms Vu says that in addition to funds from the Hui Scheme and the payment by David Pham, that she paid $2,000 to Mrs Nguyen on 20 August 2009, $5,000 on 23 October 2009, $3,000 on 12 April 2010 and $2,500 on 22 October 2010. I find that Ms Vu did make all these payments totalling $12,500 to Mrs Nguyen. Ms Vu says the first and last of these payments were made when Mrs Nguyen said to her that she needed money to go on a trip to Vietnam. Mrs Nguyen says that she did not go to Vietnam at these times. But even if that is right, it does not meant that the demand was not made on that basis. Mrs Nguyen was a stronger and more commercially confident personality. In my view she was quite able to make such demands upon the quite trusting Ms Vu, on the basis the payments were part of the deposit.

67. Two of these payments raise other issues. I find that Ms Vu paid Mrs Nguyen $3,000 on 12 April 2010 as she asserts. A few days after the payment Mrs Nguyen asked whether Ms Vu needed the money back, to which she replied, "no, I pay for the shop". Ms Vu was simply not in the habit of asking for receipts. But I accept that she verbally appropriated the payment to the contract deposit in this way.

68. I draw a similar inference about the amount of $5,000 paid on 23 October 2010, being the remaining component of the disputed $15,000 payment on that day. This money was paid in cash, not by bank cheque. But I accept Ms Vu and Mr David Pham's evidence that he gave his former wife the $5,000 and she gave it to Mrs Nguyen.

The Licence Agreement - September 2010

69. Mrs Nguyen says that she saw her accountant, Mr Nghia Dong, in September 2010 to finalise her taxation affairs for the year ending 30 June 2010. She says that he advised her that she needed to make formal arrangements for the rental of the shop at 132 Queen Street because he need to understand just what the transaction was so as to declare it to the tax office. He drafted her a handwritten licence agreement which she then sought to have Ms Vu sign. It can be accepted that Mrs Nguyen did see Mr Dong and that meeting was the origin of the licence agreement Mrs Nguyen then gave Ms Vu.

70. But the odd feature of this licence agreement was that it provided for a licence fee of $1,000 per month, not the $900 per week that Ms Vu was actually paying to Mrs Nguyen.

71. Mrs Nguyen says she attended at 132 Queen Street and asked Ms Vu to sign this licence agreement. She says the following conversation then took place.

"Mrs Nguyen: 'Anna, my accountant has told me that you should no longer be depositing the takings into the NAB Account so please do not do it anymore. You will have to make your own arrangements. We will need to draw up a formal agreement. My accountant has prepared this agreement, you will need to consider it and then we must both sign it.'

Ms Vu: Very well I will look at it and get some advice.'"

72. She says that she handed the handwritten licence agreement to Ms Vu. She further says that after this occasion when she attended the premises, she collected $900.00 weekly and asked Ms Vu why she had not signed the licence agreement. Ms Vu is said to have responded, "I have asked my daughter to have a look at it but she has been too busy." Despite these requests, Ms Vu never gave back to Mrs Nguyen an executed copy of the licence agreement.

73. Ms Vu has a more convincing version of what happened with Mr Dong's draft licence agreement, a version which I accept. Ms Vu says that in about November 2010, Mrs Nguyen came into the shop and explained to Ms Vu that she was giving her a document to record Ms Vu's renting of the shop, to which Ms Vu replied "No Mary you said you sell the shop not rent it. Why would I rent for?". Mrs Nguyen then gave Ms Vu this draft licence agreement and said "My accountant gave me this piece of paper for you renting the shop", to which Ms Vu not surprisingly responded, "I do not agree with that. You said you selling it to me. I will not sign the paper. Why $1,000? I pay you $3,600 per month." Ms Vu then tried to hand the draft licence agreement back but Mrs Nguyen refused to take it and left the shop.

74. I accept Ms Vu's denial that she undertook to Ms Nguyen to show the draft licence agreement to her daughter. It is highly improbable that Mrs Vu would have agreed to show her daughter a document that did not on its face properly record the $3,600 per month in payments Ms Vu had actually been making to Mrs Nguyen. Ms Vu was astute enough, in my view, to have nothing to do with a document that, quite apart from the sale/licence problem, badly misstated the amount of money she had been paying in cash to Mrs Nguyen.

75. Ms Vu did not sign the licence agreement, because it did not represent what she believed to be the agreement that she had struck with Mrs Nguyen. It is common ground that the licence agreement was not signed. Ms Vu's non-signature or failure to deal with this document requires some explanation on Mrs Nguyen's version, which has Ms Vu compliantly agreeing as a mere licensee to leave the premises until a last minute volte-face in late January 2011. Mrs Nguyen's explanation of Ms Vu's non-signature (even after an amendment to the document) was that Ms Vu agreed to discuss the document with her daughter. But for the reasons already given, I find that improbable. Thus Ms Vu's non-signature of and non-dealing with this licence agreement is another reason to prefer Ms Vu's version of the conversation.

76. The defendant's submissions emphasise that the licence agreement was only a draft template so that the parties could draft a more formal agreement. It certainly has features of a draft. It operates from 1 July 2010 for example, rather than the actual start date of Ms Vu's occupation, 1 February 2010. It is clearly an accountant's creation as its term designed to coincide with the financial year. But draft or not Mrs Nguyen could read Arabic numerals and knew its essentials. Ms Vu understood it well enough to reject it. Mrs Nguyen's oral evidence as to why she provided this document to Ms Vu when she must have known it did not reflect the true agreement between the parties, even on her own version, was very unsatisfactory. I do not accept that it was just an acountant's document that needed to be changed. On her case, Mrs Nguyen was in a position to give her accountant proper instructions about the terms of the licence agreement she says she had by then made with Ms Vu.

77. Mrs Nguyen's propounding of this document, in my view, indicates a lack of clarity on her part as to what the terms of the licence agreement were that she believed she had made with Ms Vu. It is difficult to understand why she would have even handed over a draft with these terms in it if she had been sure of the agreement she had made with Ms Vu. Mrs Nguyen's propounding of this document is another reason to discount Mrs Nguyen's version of a licence agreement with a clearly agreed licence fee of $900 a week.

78. The defendant also submits that if the conversation that Ms Vu says took place on this occasion did take place, that one would have expected Ms Vu to have raised the issue of a deposit. I do not agree. Ms Vu rejected the document fairly quickly. I doubt that any occasion for extended discussion about the document's contents was either invited or was appropriate.

First Notice of Taking the Shop Back - Late October 2010

79. Mrs Nguyen says that she continued to attend each week at 132 Queen Street and that on one of these occasions in about late October 2010 she and Ms Vu had a conversation to the following effect.

"Mrs Nguyen: 'Anna, my shop at Southlands is now doing okay and I have employed people to manage it for me. I will therefore be taking back the shop at the end of December.'

Ms Vu: 'Very well.'"

80. According to Mrs Nguyen, Ms Vu seemed to accept that, Mrs Nguyen would take the shop back "at the end of December". Mrs Nguyen says that throughout November and December, when she attended at the shop she had regular conversations with Ms Vu in which she warned her that she would be returning to the shop at the end of December, to which Ms Vu is said to have responded, "Yes, I know."

81. But Ms Vu denies that she accepted that the shop would be going back to Mrs Nguyen at the end of the year. I accept her denial. She strongly fought Mrs Nguyen's attempts to take the shop back a few months later and gave very firm evidence of her version of the agreement. I do not think she changed her mind in the last quarter of 2010. Rather, in my view what happened was that in or about November 2010 Mrs Nguyen started proffering the accountant's licence agreement to Ms Vu in the terms that I have found above on Ms Vu's version of that encounter. It had become quite clear to Ms Vu through that encounter that Mrs Nguyen had apparently changed her mind about selling the shop and was seeking it back. It was equally apparent to Mrs Nguyen that Ms Vu would resist her attempts to take the shop back. My detailed findings in relation to this encounter are set out earlier in these reasons.

Formal Notice - Late December 2010

82. According to Mrs Nguyen on 27 December 2010 she formalised her earlier verbal notifications of her intention to take the shop back. She attended that day at 132 Queen Street and handed Ms Vu a note that she had pre-prepared in her handwriting (in Vietnamese). Translated into English it reads:

"Dear Anna,

Last month I did give notice to return to the shop at the end of December. I observe there is still a lot of stock so will extend another month. Will take shop back on 31 January 2011 (Monday).

Please do not order any more stock. Thank you very much.

Signed and witnessed."

83. Mrs Nguyen's signature appears at the bottom of the document together with signatures of two witnesses. These were witnesses only to Mrs Nguyen's signature, as Ms Vu did not sign the document.

84. Mrs Nguyen's version is that before 27 December 2010 she had already given oral notice to Ms Vu of the termination of the licence on 31 December 2010. Mrs Nguyen said that Ms Vu was co-operative with the idea of vacating the shop. But despite this Mrs Nguyen served a surprisingly formal final notice on Ms Vu on 27 December 2010. Mrs Nguyen wrote out a notice varying the end date of the licence; signed and had the document witnessed; and then handwrote a copy of what she proposed to give to Ms Vu.

85. This conduct is odd on Mrs Nguyen's version, as there had been no intimation of resistance from Ms Vu to Mrs Nguyen's expressed intentions to take the shop over. All that was happening on 27 December 2010 was that Mrs Nguyen was giving Ms Vu more time to exit the premises, hardly a reason in itself for such formality in a commercial relationship, which until then, had been notable for its informality.

86. I agree with the submission for Ms Vu that the reason Mrs Nguyen engaged in such formality at this moment was that she anticipated that Ms Vu would resist her (Mrs Nguyen's) steps to take the shop back. Either Ms Vu had already intimated prior to 27 December 2010 to Mrs Nguyen that she regarded the shop as hers (Mrs Vu's); or, she was aware from her earlier dealings with Ms Vu that she would take such a position; indeed possibly both were the case.

87. I do not accept Mrs Nguyen's version of her conversations with Ms Vu that in late 2010 she gave several oral notices to quit the shop to Ms Vu, to which Ms Vu showed no resistance. Rather I prefer Ms Vu's version of these communications, as I have indicated above, not only because I prefer Ms Vu as a witness, but because the conversations Ms Vu says took place in about November 2010 explain why Mrs Nguyen took her next and more formal step of a written notice of termination.

88. The defendants argue that there were other reasons for Mrs Nguyen ratcheting up the level of formality at this time. The defendants point to Mrs Nguyen making repeated attempts, on her version, to obtain back a licence agreement that was satisfactory to Ms Vu. But I do not accept Mrs Nguyen's evidence about asking for a licence agreement back.

29 January 2011 - A delivery slip is signed

89. Mrs Nguyen did sign a document on or about 29 January 2010 that recorded part of what she had agreed with Ms Vu. I accept Ms Vu's account of how the document, written on a delivery slip, came into existence. She says that about 29 January 2011, Mrs Nguyen said to her, "I gave you the shop for rent only for a year. I now want the shop back", to which Ms Vu protested, "you said you sell it to me, not rent". Ms Vu asserted that she had paid a deposit to which Mrs Nguyen said "I did not receive any money from you" (emphasis added). Ms Vu says this conversation made her think that Mrs Nguyen would try and take the shop from her, so the next occasion Mrs Nguyen called, Ms Vu had prepared a document to protect herself. It was written on a delivery slip addressed from "Anna" to Mrs Nguyen, by her Vietnamese name, Thi Ky Hoa Nguyen. The brief text of the document said:-

"- every week since 01.02.2010

$900.00 payment for shop"

Mrs Nguyen signed the document, "Mary".

90. The document is of some assistance to the plaintiff's case. The defendants argued that the document did not support the plaintiff's case because it did not refer to the sale of the shop or the payment of the deposit. The defendants submitted in their case that by signing this slip Mrs Nguyen was only conceding that she had received weekly licence fee payments of $900 since 1 February 2010.

91. The delivery slip does support Ms Vu's case for the following reasons. First, it is highly unlikely that the Ms Vu would have crafted a document designed to admit a licence agreement and not a sale, and have Mrs Nguyen sign it, so close to in time to conversations in which Ms Vu was asserting a sale. Thus, "payment for shop" in my view is Ms Vu's unsophisticated expression, unaided by any legal advice, that she was getting a receipt from Mrs Nguyen for "payment for [the purchase of] the shop". In my view, that is what she meant, although the document does not read that way.

92. Second, the defendant's criticism of this document not referring to the deposit is largely answered by a focus on Ms Vu's central concerns at the time. Mrs Nguyen had denied that she had received "any money" from Ms Vu. When cross-examined, Ms Vu could not provide any satisfactory explanation why she had not referred to that the deposit which she had alleged had been paid at the time of creating this document. But I am not satisfied that was because she had not paid a deposit, or had not made the agreement she alleged. I infer that in a state of some fear as to what Mrs Nguyen was going to do next, Ms Vu obtained Mrs Nguyen's signature for the payments that Ms Vu knew that Mrs Nguyen would not be able to dispute because of the regularity of an identical payment of $900. The deposit moneys had been paid some time past in odd amounts that were bound to be contentious. Although Ms Vu was not able to articulate this explanation, it does seem to me to be the logical reason for the way the document reads. I do not believe that Ms Vu was being disingenuous when she could not explain why the document did not contain reference to the deposit. I think she had forgotten her actual reasoning process at the time, a time of considerable fear for her.

31 January 2011 - Mrs Nguyen takes possession

93. The parties generally agree about the events of 31 January 2011, but they disagree about conversations that took place on that day. Mr Nguyen came into the 132 Queen Street shop and changed the locks, at which time Mrs Nguyen said, "it's my shop. I'm getting it back." When the defendants left the shop Ms Vu called the police who required the defendants to reinstall the original lock. Ms Vu was able to get continuous access to the shop after that. But from this time Mr and Mrs Nguyen did not attend to collect any further monies.

94. After Mrs Vu closed the business on 23 February 2011 the Nguyens changed the locks again, placed security guards at the front door of the shop, and reoccupied the premises. As the security guard had barred entry to Ms Vu, she did not have any conversation with Mrs Nguyen that day. Mrs Vu then commenced these proceedings within 24 hours.

95. Behind these agreed events there is an important disputed conversation on 31 January 2011, a conversation that Mrs Nguyen says she had with Ms Vu. The conversation and my reasons for rejecting Mrs Nguyen's version are set out below.

96. Mrs Nguyen attended at 132 Queen Street on 31 January 2011, as she says, to take "possession of the business". She says that she and Ms Vu there had a conversation to the following effect.

"Mrs Nguyen: 'I am here to take back the shop.'

Ms Vu: 'You can't take the shop back.'

Mrs Nguyen: 'Why not, I gave you notice that I was going to take it back on 27 December.'

Ms Vu: 'If you don't get off the premises I am going to call the police as the business has been transferred to my son, Kim Cuong Pham.'

Mrs Nguyen: 'Who is Kim Cuong Pham?'

Ms Vu: 'My son.'

Mrs Nguyen: 'I've had no dealings with your son.'"

97. From here the situation escalated. The police were called. Ms Vu showed Mrs Nguyen a Certificate of Business Name registration for the business name known as "Martino French Hot Bread". According to Mrs Nguyen they then had another conversation to the following effect.

"Mrs Nguyen: 'I have never agreed to sell to you the business and I have never agreed for your son to be registered as the owner of Martino French Hot Bread.'

Ms Vu: 'Well he is registered as the owner.'

Mrs Nguyen: 'How did he come to be registered? I have never been asked to transfer it and I have not transferred it to him.'

Ms Vu: 'Well he's registered as the new owner.'"

98. It is quite possible that this was when Mrs Nguyen first found out that Mr Kim Pham had become the new registered business owner. Mrs Nguyen did not recognise Mrs Vu's son as the owner. She soon wrote to the NSW Department of Fair Trading to have an amended certificate produced showing her as the owner of the business name.

99. There are several problems with Mrs Nguyen's version of what happened in late 2010 and early this year, which are exemplified by the events of 31 January 2010. An important question that Mrs Nguyen's version must deal with is just when did Ms Vu first show resistance Mrs Nguyen's desire to have the shop back? There is no doubt that, because the police were called on 31 January 2011 to avoid a breach of the peace, Ms Vu that day strongly resisted attempts to take the shop back from her. But how did she suddenly acquire that sense of entitlement that was so firmly entrenched that the police had to be called to avoid trouble? Mrs Nguyen's case has it that at some time during that month of January 2010 after a pleasant and compliant conversation on 27 December 2010 with Mrs Nguyen, that Ms Vu suddenly transformed into a fierce proponent of her entitlement to stay in the premises, based on an agreement alleged to have been made twelve months before. Although such a transformation is clearly possible, it is one which would require some explanation before it were accepted. No sensible explanation for this change at this time was forthcoming in Mrs Nguyen's case. Also, if Mrs Nguyen did really have a co-operative discussion with Ms Vu on 27 December 2010 and was being told for the first time on 31 January 2011 that Ms Vu thought the shop was hers based on an agreement struck twelve months before, Mrs Nguyen's version of their encounter does not ring true.

100. First, Mrs Nguyen has Ms Vu saying to her before the police are called "If you don't get off the premises I am going to call the police as the business has been transferred to my son, Kim Cuong Pham" and then Mrs Nguyen asks who he is. But on Mrs Nguyen's version, Ms Vu does not actually assert at this critical point that Ms Vu believes that she has purchased the business from Mrs Nguyen. This is odd given that on Mrs Nguyen's version this is the first time that she finds that out, that was the basis on which Ms Vu claimed a right of continued occupation.

101. Rather, in my view Mrs Nguyen's version is partly right. Ms Vu did not explain on 31 January 2010 her entitlement to stay. She had already explained that to Mrs Nguyen back in November 2010.

102. Secondly, despite on Mrs Nguyen's version, the lack of Ms Vu giving an explanation on 31 January 2011 that she thought she had purchased the business, Mrs Nguyen says to her, on her own version, after the police arrive, "I have never agreed to sell you the business...". Just how Mrs Nguyen knows that this is Ms Vu's claim, is unexplained on her version. Perhaps it is somehow to be inferred that Mrs Nguyen had worked out that this was Ms Vu's allegation from Ms Vu's statement earlier in the meeting that day. But that is improbable.

The Case in Contract

103. In my view Ms Vu has established a contract that she agreed to purchase and Mrs Nguyen agreed to sell the business known as "Martino French Hot Bread" at 132 Queen Street St Marys, and to transfer the business to her or her nominee for a price of $150,000. But I have found that she paid only $12,500 by way of deposit, not $20,000. The precise effect on relief of a finding that the contract was made but the deposit has not been fully paid in accordance with its terms is not a matter which has been properly explored with the parties in final submissions about the nature of relief that can be granted. So that there is no denial of procedural fairness, I have decided to give the parties an opportunity to put any supplementary submissions about whether these findings do affect the grant of relief.

104. But there were a number of issues raised by the defendant about the contract and about relief that can be dealt with now. I have decided that the smaller money issues between the parties can be dealt with at the same time as the determination of the form of relief to be granted.

105. The defendants say that there is no evidence of any agreement between Ms Vu and Mr Nguyen as distinct from Mrs Nguyen. The defendants say that a contract has not been established against him, and as such, no relief is available against him. This argument is not persuasive. My findings about Mr Nguyen's involvement in filling out and delivering the "Application to Change Proprietors of a Business Name" to Ms Vu is a clear basis to infer that Mrs Nguyen was negotiating the contract on his behalf as well and that he approved what she was doing. He visited the premises with Mrs Nguyen and was aware that instalments of the purchase price were being collected at the rate of $900 per week from Ms Vu. The contract is pleaded against him.

106. There was no express agreement for the assignment of the Calokerinos lease. The plaintiff argues that a term of the agreement was that the defendants would do all things necessary to obtain the transfer of the lease to Ms Vu or her nominee. As the term was not express, the plaintiff contended that it was implied to give business efficacy to the contract: Codelfa Constructions Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337, at 364; and Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410. In my view the term pleaded should be implied into this contract. It was negotiated between legally unsophisticated parties. If Ms Vu did not have a right to occupy the premises, she could not conduct the business which she was contracting to buy. The term is necessary to give the contract reasonable or effective operation.

107. The defendants also argued that to the extent that the contract did, through its implied term, require the assignment of the lease that it was bad for lack of writing: Conveyancing Act 1919 (NSW), s 54A. It can be accepted that the assignment of a lease is a disposition of an interest in land requiring to be evidenced under Conveyancing Act , s 54A before action may be brought upon the assignment: Khoury & Anor v Khouri [2006] NSWCA 184, at [51] and Halloran v Minister Administering National Parks and Wildlife Act 1974 [2006] HCA 3; (2006) 80 ALJR 519, at 528 [45]. But the plaintiffs have two main answers to this argument, which is not a basis in my view not to make orders for the specific performance of this contract.

108. The first answer is that the Conveyancing Act , s 54A point is not pleaded. The orders of the expedition judge, Pembroke J, were that the defendants' defence should be filed on 17 March 2011. A defence was filed on the first day of the hearing but it did not plead this issue. Although the Conveyancing Act , s 54A was discussed in the course of opening submissions it remained unpleaded. That is not a matter to be ignored because the plaintiff's ordinary response to such a plea is to advance evidence of part performance. That would depend upon the issue being taken up in the defence. The defendants cannot now rely upon this issue.

109. But even if the defendants had been able to advance this issue, in my view, they would have failed because Ms Vu has established sufficient part performance of the agreement on the evidence. To be part performance the acts relied upon must be referrable to some contract of the general nature of that alleged: McBride v Sandland [1918] HCA 32; (1918) 25 CLR 69 at 78, McMahon v Ambrose [1987] VicRp 66; [1987] VR 817 at 846-7, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4 th ed) paragraph 20;205. Here the payment of the deposit that I have found was conduct referable only to the purchase contract made between the parties. A deposit would not have been payable on the defendants' version of the contract. Ms Vu paid the part of the deposit in cash that she did on the faith of the contract that she had made.

The Form of Relief

110. The Court may make a decree of specific performance despite the fact that the consent of a third party is required for the transfer of property under the contract sought to be specifically performed. There are many examples of this in authority. The High Court (Dixon CJ, Kitto and Windeyer JJ) granted relief by way of specific performance in Kennedy v Vercoe [1960] HCA 64; (1960) 105 CLR 521 where a clause in the contract for the sale of a business made the contract conditional on the purchaser being accepted as the tenant of the landlord of the premises from which the business was conducted. When moulding the form of relief to be granted to the successful plaintiff in Kennedy v Vercoe (at 529 - 530), the High Court provided for: a declaration that the contract be carried into execution; an order that to that end the defendant (the purchaser in that case) do whatever may be reasonably required of him on the part of the plaintiff (the vendor in that case) to enable the plaintiff to procure his (the defendant's) acceptance by the landlords as a tenant of the premises; and an order that upon the defendant being so accepted as tenant that he do specifically perform the contract and pay the plaintiff the agreed consideration.

111. But the High Court in Kennedy v Vercoe (at 529 - 530) also provided for a result even if, despite its earlier orders, the landlord nevertheless failed to accept the defendant as a tenant. To cover that possible circumstance the High Court made further orders and declarations that: if within a reasonable time from the making of the decree the landlord failed to accept the defendant as a tenant of the premises either party was at liberty to apply to the Court for such order as may appear just; and an order that in the event of its appearing that the landlords will not accept the defendant as a tenant of the premises and that they will not do so for reasons which are not brought about by any act or default of the defendant under the contract, then the contract is not further specifically enforceable and the Court may give such relief to the parties as may appear just. Ordinarily if the matter was required to return to the Court because the landlord did not consent the new tenant, then the plaintiff/vendor would have to look to remedies to unwind the situation that had arisen and to his possible rights in damages against the defendant/vendor.

112. Similar relief can be moulded here to give effect to decree of specific performance to the extent possible, of the agreement the Court found Ms Vu made with Mr and Mrs Nguyen. That could be accomplished in this case by orders to the following effect: first, a declaration that the contract be carried into execution; secondly, an order that to that end the defendants do whatever may be reasonably required on their part to enable the second plaintiff to be accepted by the landlord as a tenant of the premises; thirdly, an order that upon the second plaintiff being so accepted as tenant that the defendants do specifically perform the contract; fourthly, if within a reasonable time from the making of the decree the landlord fails to accept the second plaintiff as a tenant of the premises either party is at liberty to apply to the Court for such order as may appear just; and fifthly an order that in the event of its appearing that the landlord will not accept the second plaintiff as a tenant of the premises and that the landlord will not do so for reasons which are not brought about by any act or default of the defendants under the contract, then the contract is not further specifically enforceable and the Court may give such relief to the parties as may appear just.

113. This seems to be an appropriate structure for the making of orders in this case. But the Court will not make such orders before hearing further argument about the precise form of relief to be decreed as there may be other considerations in moulding the form of relief that arise out of these reasons.

Conclusions and Orders

114. In the result the Court finds that a contract for the sale of the 132 Queen Street business was agreed orally on the terms for which Ms Vu contends but that only a part of the deposit has been paid. But I will hear argument about the form in which relief may be granted. I will reserve for further consideration issues on the plaintiffs money claim and the defendants' cross-claim. The parties should file their proposed short minutes of order by 5.00pm on 18 November 2011.

**********