Judgment No. 346/2019/DS-PT dated april 23, 2019 on dispute over reclaiming property

THE PEOPLE’S COURT IN HO CHI MINH CITY

JUDGMENT NO. 346/2019/DS-PT DATED APRIL 23, 2019 ON DISPUTE OVER RECLAIMING PROPERTY

On February 26, March 26, 2019 and April 23, 2019, at the Ho Chi Minh City People's Court, an appellate trial is conducted to hear a civil case No.  644/2018/TLDS-PT dated December 13, 2018 on "Dispute over reclaiming property”,

 as the First Instance Civil Judgment No. 528/2018/DS-ST dated November 6, 2018 of the People's Court of Tan Phu District, Ho Chi Minh City is appealed.

Based on the decision to bring the case to appellate trial No. 115/2019/QD-PT dated January 7, 2019 and the Court's decision to postpone court No. 615/2019/QD-PT dated January 24, 2019 of the People’s Court of Ho Chi Minh City, between the involved parties below:

- Plaintiff:  Ms. Le Thi L, born in 1976.

Address: 539/23 L B B, Ward P T, District T, Ho Chi Minh City (Absent);

authorized representative: Mr. Nguyen Minh H, born in 1988.

Address: 27 - 29 Ky Con, Nguyen Thai Binh ward, District 1, Ho Chi Minh City,  according to the letter of authorization No. 004535 signed on June 25, 2018 at the Nguyen Kim Chi Notary Office, Ho Chi Minh City (Present).

Defense lawyer: Mr. Tran Van Hop - Lawyer of Sai Gon Tre Lawyer Office Branch, Ho Chi Minh City Bar Association.

Address: 16D Nguyen Van Giai, Da Kao Ward, District 1, Ho Chi Minh City (Absent on April 23, 2019).

- Defendant: Ms. Phan Thi Kim L1, born in 1973 (absent).

Address: 40A, Street 29, Ward 6, Go Vap District, Ho Chi Minh City. authorized representative: Ms. Nguyen Thi A, born in 1968.

Address: Neighborhood 4, B L, City B, Province D. according to the letter of authorization No. 00335 signed on January 11, 2019 at the Phu My Hung Notary Office, Ho Chi Minh City (Present).

- Persons with interests and obligations related to the case:

+ Ms. Duong Thi Bach Ph, born in 1968 (Absent).

Address: 416 L D T, Ward 6, District G V, Ho Chi Minh City.

+ Mr. Le Van Qui, born in 1984 (absent).

Address: 43/16/10 D T L, Ward T Q, District T P, Ho Chi Minh City.

- Appellant:  Ms. Phan Thi Kim L1 – Defendant.

THE CASE

Representation of Mr. Cao Thanh T, Ms. L1's representative, in the lawsuit petition dated September 26, 2017 and testimony in the process of resolving the case at the first instance trial:

In late 2015, seek to buy a house for her children, Ms. Le Thi L had an agreement with Ms. Phan Thi Kim L1 on the transfer of house No. 10 Hard Catstle Avenue, Ldsdale 6065 WA Perth Australia for AUD 700,000, equivalent to about VND 11,000,000,000 (Eleven billion), the transfer shall be made in VND and the deposit was VND 2,000,000,000 (Two billion).

At that time, Ms. L was abroad, so Ms. L's brother, Mr. Q handed VND 2,000,000,000 (two billion) of deposit to buy a house in Australia to Ms. Duong Thi Bach Ph - a friend of Mrs. L1 who was asked to receive money on behalf of Ms. L1. On December 11, 2015, Ms. Ph and Mr. Q made a receipt of deposit. Ms. Ph has handed all this money over to Ms. L1. In reality, Ms. L1 and Ms. L did not have any deposit contract or house purchase contract; it is only shown on the mentioned receipt of the deposit.

Ms. L1 has repeatedly urged Ms. L to complete paperwork for the house transfer, but until now, Ms. L has not done yet, so Ms. L1 has sued Ms. L for breach of the deposit contract.

Representation of Ms. Le Thi L's representative, Mr. Nguyen Minh H, in the counterclaim request dated July 30, 2018 and testimonies in the process of resolving the case at the first instance:

Ms. Phan Thi Kim L1 and Ms. Le Thi L have got acquainted with each other before. Since 2014, Ms. L1 has persuaded Ms. L to send her children to Australia to study abroad under the sponsorship of Ms. L1, all living and studying expenses would be sent by Ms. L periodically.  After a period of studying abroad in Australia, Ms. L1 continued to propose a fake marriage procedure to enable Ms. L’s child to settle down abroad and take care of children. Additionally, Ms. L1 also convinced Ms. L to buy a house in Australia to qualify for immigration under Australian law, and buy a car for her child to prove that they can stay in the host country.

On December 11, 2015, Ms. L1 asked Ms. L to give Ms. Duong Thi Bach Ph an amount of VND 2,000,000,000 (Two billion) which is a sum of money agreed by both parties to carry out fake marriage procedures for Ms. L. At that time, Mrs. L was not present in Vietnam, so she asked her brother Q to give Ph the amount of VND 2,000,000,000 (Two billion). In order to confirm the receipt of the money, Ms. Phuong wrote herself a paper with content "receiving deposit on house purchase". In fact, the two parties do not have a deposit contract or house purchase contract in Australia and Ms. L has no need to buy a house in Australia.  On the other hand, the house mentioned is not under the right to own or use by Ms. L1 under the laws of Australia.  The property information is indefinite house.

In addition, Ms. L1 also required Ms. L to transfer a sum of money to buy a car for Ms. L's child, the transfer amount was VND 110,500,000 (One hundred ten million and five hundred thousand dong).  So far, Ms. L1 has not bought a car and has not refunded money to Ms. L.

As for the lawsuit of Ms. L1, Ms. L counterclaimed to the Court forcing Ms. Phan Thi Kim L1 to pay back VND 2,000,000,000 (Two billion) according to the receipt dated December 11, 2015 and VND 110,500,000 (One hundred ten million five hundred thousand dong) which has been transferred to buy a car in Australia.  That is 2,110,500,000 (Two billion one hundred ten million five hundred thousand) dong in total. This amount must be paid in lump sum after the judgment takes effect.

- Representation of person with related rights and obligations, Ms. Duong Thi Bach Ph: She and Ms. Phan Thi Kim L1 know each other.  Ms. L agrees to buy Ms. L1's house in Australia to facilitate L's children going to school.  At that time, Ms. L was not in Vietnam, so she asked Mr. Qui (Ms. L's sister) to give her an amount of VND 2,000,000,000 to deposit the house in Australia for Ms. L1. When she received the money, she transferred it all to Ms. L1.

- Representation of person with related rights and obligations, Mr. Le Van Q: at the time when Ms. Le Thi L was abroad, she asked him to give Mr. Duong Thi Bach Ph the amount of VND 2,000,000,000 (Two billion).  After receiving the full amount, Ms. Ph self-wrote the receipt dated December 11, 2015. He was only asked to gave money L, so he did not know the purpose of the money delivery, did not care about the content of the receipt, only knew that the actual amount of delivery was VND 2,000,000,000 (Two billion).

- In the first instance civil judgment No. 528/2018/DS-ST dated November 6, 2018, the People’s Court of Ho Chi Minh City judges:

Suspend all claims from Ms. Phan Thi Kim L1.

Accept the independent request of Ms. Le Thi L. Force Ms. Phan Thi Kim L1 to pay Le Thi L for the amount of VND 2,110,500,000 (including VND 2,000,000,000 in the receipt dated December 11, 2015 and VND 110,500. VND 000 according to the deposit slip dated September 8, 2015 at ACB bank). This amount must be paid in lump sum, no later than December 15, 2018.

In addition, the Court of First Instance also declared the court fee and appeal time limit as prescribed by law.

On November 23, 2018, the respondent appealed to the entire first instance judgment.

At the appellate trial:

- The authorized representative of the respondent retains the appeal request in the Appeal dated November 19, 2018 and the Explanation of Appeal dated February 14, 2019, requesting the Appeal Court to quash the first instance judgment with the reason:  The first instance court accepted a request for counterclaim and instituted counterclaiming procedures ultra vires or against regulations; the first instance court incorrectly determine litigant positions in proceedings and the disputed relationship; the first instance court omitted  the person with related rights and obligations in the case, who is Mr. Tran Van Vinh (Ms. L's husband). These are serious procedural errors, which infringe upon the involved parties' lawful rights and interests.

- The authorized representative and the defense lawyer of the plaintiff request the Court of Appeal not to accept the respondent's appeal and uphold the judgment of the First Instance Court.

- Opinions of the representative of Ho Chi Minh City People's Procuracy:

+ Regarding legal proceedings: Participants in legal proceedings and presiding officers have strictly complied with the provisions of the Civil Procedure Code at the Court of Appeal.

+ Regarding the content: The plaintiff sues the respondent to continue the transfer of property abroad, but the Court of First Instance of district accepted to settle the case as ultra vires under the provisions of law.  In the course of resolving the case, the Court of First Instance accepted the respondent's counterclaim, but did not serve the notice of acceptance, and did not conduct the conciliation of the counter-claimed request in accordance with civil procedure law; and changed Mr. Cao Thanh T's positions in proceedings beyond the scope of authorization.

Whereas, the Court of First Instance violated the legal proceedings that the Court of Appeal could not remedy, so the representative of the Ho Chi Minh City People's Procuracy requests the Trial Panel to accept the respondent's appeal, pursuant to Clause 3, Article 308 of the Civil Procedure Code, overturn the first instance judgment No. 528/2018/DS-ST dated November 6, 2018 of the People's Court of Tan Phu District, Ho Chi Minh City, uphold the case file for the People's Court of Ho Chi Minh City to resolve again according to the first instance procedure.

JUDGEMENT OF THE COURT

After studying the documents contained in the case files which have been verified at the trial and based on the results of the oral argument at the trial, the Trial Panel determines:

[1] With reference to the form of appeal: The respondent submitted an Appeal and paid the appellate fee advance in due time as prescribed in Clause 1 Article 273 and Article 276 of the 2015 Civil Procedure Code, so it is accepted.

Regarding the procedures for adjudication in the absence of involved parties:

Persons with related rights and obligations have been summoned by the Court for the second time but are absent from the trial.  Therefore, the Court conducts trials in the absence of the above mentioned people as per the law.

[2] With reference to the content of appeal:

[2.1] According to the documents in the case file, on October 5, 2017, the People's Court of Tan Phu District accepted the case about "Dispute over deposit contract for house purchase" between Ms. Phan Thi Kim L1, the plaintiff, and Ms. Le Thi L, the defendant, according to the Notice of Case Acceptance No.  317/2017/TB-TLVA. Accordingly, the plaintiff requests the respondent within 03 months from the date of filing the lawsuit (September 27, 2017), the respondent must continue to conduct the sale and transfer of the house located at: 10 Hard Catstle Avenue, Ldsdale 6065 WA Perth Australia.  Considering that the property in dispute is located abroad, so referring to Clause 3, Article 35; Point c Clause 1 Article 37 of the 2015 Civil Procedure Code, it should the case fall under the jurisdiction of the People's Court of Ho Chi Minh City.

[2.2] In the process of resolving the case, on July 30, 2018, Ms. L had a counterclaim asking Ms. L1 to pay back VND 2,110,500,000 (Two billion one hundred ten million and five hundred thousand dong).  The Court of First Instance accepted under the notice of acceptance of additional case No. 317A/TB-TLVA dated October 5, 2018.

Considering that, according to the authorization No. 010456 signed on September 1, 2017 at the Ben Thanh Notary Office, Ho Chi Minh City, Ms. L1 authorizes Mr. Cao Thanh T to participate in the proceedings on her behalf as the plaintiff requesting the continued performance of the deposit contract with respondent Le Thi L. However, after the Court of First Instance accepted Ms. L's counterclaim, Mr. Tuyen did not inform Ms. L1 but he arbitrarily accepted the request for counterclaim and withdrew the request for lawsuit, the Court of First Instance re-determined the positions of litigants and the dispute relation is "Reclaiming property", and also determined Mr. T is authorized to represent the respondent - Ms. Phan Thi Kim L1 is beyond the scope of authorization.

On the other hand, from the date of accepting the respondent's request for counterclaim under Notice No. 317A/TB-TLVA of October 5, 2018, until the end of the case, the Court of First instance did not notify the respondent, failed to conduct meetings to check the handing over, accessing to and disclosure of evidences and mediation on counterclaim requests, which is a serious violation of the proceedings, so the representative of the  People’s Procuracy of Ho Chi Minh City proposes that the Court of Appeal to accept the plausible appeal of the respondent.

[2.3] In the course of resolving the case, the Court of Appeal received a request for participation in the proceedings dated January 15, 2019 of Mr. Tran Van V. Mr. V said that the date on which Ms. L gave money to Ms. L1 (VND 2,000,000,000) was December 11, 2015, at that time he and Ms. L had not divorced, so this is considered to be the common property of him and Ms. L. However, in the process of resolving the case, the Court of First Instance did not summon him to participate in the proceedings as a person with related rights and obligations, thus affecting his lawful rights and interests.

Whereas, Mr. Tran Van V and Ms. Le Thi L were legally married couples under Certificate of marriage registration No. 150, issued by the People's Committee of Ward 27, Binh Thanh District, Ho Chi Minh City on November 29, 2002. Mr. V and Ms. L divorced under Decision No. 115/2016/QDST-HNGĐ dated February 4, 2016 of the People's Court of Tan Phu District, Ho Chi Minh City.  At the time when Ms. L handed money to Ms. L1 (December 11, 2015), they were still husband and wife.  The Court of First Instance was flawed when not summoning Mr. Vinh to participate as a person with related rights and obligations.

From the above analysis, the Appellate Trial Panel found that there is a basis for accepting the appeal request of the respondent, declare overturning the first instance civil judgment No. 528/2018/DS-ST on November 6, 2018 of the People's Court of Tan Phu District, Ho Chi Minh City, keeps the case file for the People's Court of Ho Chi Minh City to re-hear the case according to the first instance procedure.

[3] With reference to appellate civil fee: Since the appeal is accepted, the respondent is not liable appellate civil fee as per the law.

Therefore,

HEREBY DECIDE

Pursuant to Article 3 and Article 308 of the Criminal Procedure Code 2015 in Viet Nam;

Pursuant to Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly Standing Committee, stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof;

Pursuant to the Law on Civil Judgment Execution in Viet Nam,

1. Accepting the appeal request of the respondent, Ms. Phan Thi Kim L1.

Overturn the first instance civil judgment No. 528/2018/DS-ST dated November 6, 2018, the People’s Court of Tan Phu District, Ho Chi Minh City. Keep the file for the People's Court of Ho Chi Minh City to re-hear the case according to the first instance procedure.

2. Regarding appellate civil fee:

Ms. Phan Thi Kim L1 is not liable for a civil appeal fee. Refund to Ms. L1 the advance payment of the court fee of VND 300,000 (Three hundred thousand) that Ms. L1 (represented by Mr. Cao Thanh Tuyen) has submitted according to receipt No. AA/2017/0012079, dated November 23, 2018 of Civil Judgment Execution Department, Tan Phu District, Ho Chi Minh City.

The appellate judgment takes legal effect from the date of pronouncement./.