Judgment no. 528/2018/DS-ST dated november 6, 2018 on claim for property

THE PEOPLE’S COURT OF TAN PHU DISTRICT OF HO CHI MINH CITY

JUDGMENT NO. 528/2018/DS-ST DATED NOVEMBER 6, 2018 ON CLAIM FOR PROPERTY

On November 1 and 6, 2018, the first instance trial court was conducted at the office of People’s Court of Tan Phu District to hear the civil case No. 317/2017/TLST-DS dated October 5, 2017 regarding claim for property according to the Decision to Bring the Case to Trial No.276/2018/QDXXST-DS dated October 10, 2018 between the following litigants:

Petitioner:  Mrs. Le Thi Lan, born in 1976; address: 539/23 Luy Ban Bich, Phu Thanh Ward, Tan Phu District, Ho Chi Minh City.

Authorized representative of Mrs. Lan: Mr. Nguyen Minh Hien, born in 1988; residing in: 27-29 T3 Ky Con, Nguyen Thai Binh Ward, District 1, Ho Chi Minh City (present)

Protector of legitimate rights and interests of Mrs. Le Thi Lan: Mr. Tran Van Hop -  Lawyer of Sai Gon Tre Lawyer’s Office, a member of Bar Association of Ho Chi Minh City. (present).

Respondent:  Mrs. Phan Thi Kim Lien, born in 1973; address: 40A Street 29, Ward 6, Go Vap District, Ho Chi Minh City.

Authorized representative of Mrs. Lien: Mr. Cao Thanh Tuyen, born in 1960; residing in: 563/25 Nguyen Dinh Chieu, Ward 2, District 3, Ho Chi Minh City. (Letter of Authorization No. 010456, volume No. 01 TP/CC-SCC/HDGD dated September 1, 2017) (present)

Person with relevant rights and obligations: (absent)

Mrs. Duong Thi Bach Phuong - born in 1968

Address: 416 Le Duc Tho, Ward 6, Go Vap District

Mr. Le Thanh Qui - born in 1984

Address: 43/16/10 Do Thua Luong, Tan Quy Ward, Tan Phu District.

THE CASE

Representation of the lawsuit petition dated September 26, 2017 and depositions during the case settlement of Mr. Cao Thanh Tuyen, representative of Mrs. Lien:

In late 2015, wishing to buy a house for her child, Mrs. Le Thi Lan agreed with Mrs. Phan Thi Kim Lien on the transfer of the house No. 10 Hard Catstle Avenue, Landsdale 6065 WA Perth Australia for AUD 700,000, equivalent to VND 11 billion, Vietnamese currency applied to money transfer and advance deposit is VND 2 billion.

At that time, Mrs. Lan was abroad so her younger brother Mr. Qui gave VND 2 billion of advance deposit to Mrs. Duong Thi Bach Phuong - a friend who Mrs. Lien asked to receive the advance deposit. On December 11, 2015, Mrs. Phuong and Mr. Qui made a note of deposit receipt. Mrs. Phuong forwarded all this sum of money to Mrs. Lien. Mrs. Lien and Mrs. Lan engaged in the sale of above house without any deposit contract or house purchase contract, only with the said notice of deposit receipt.

Mrs. Lien constantly urged Mrs. Lan to complete the house transfer paperwork, but until now, Mrs. Lan still has not completed so Mrs. Lien initiates a lawsuit on a dispute on house deposit contract.

Now that the two parties do not continue to perform the house purchase contract, Mrs. Lien agrees to return Mrs. Lan VND 2 billion.  However, because she did not have money to pay immediately, Mrs. Lien offered to sell the house in Australia and get to repay Mrs. Lan immediately

Mrs. Lan's claim for the repayment of VND 110,500,000 which was transferred to Mrs. Lien as the amount Mrs. Lan asked Mrs. Lien to buy a car for Mrs. Lan’s son in Australia.  Mrs. Lien confirmed that she received this sum of money. Mrs. Lien agreed to repay Mrs. Lan VND 110,500,000 but because she did not have money to pay immediately, Mrs. Lien offered to sell the house in Australia and get money to repay Mrs. Lan immediately.

Representation in the counterclaim dated July 30, 2018 and depositions during the case settlement of Mr. Nguyen Minh Hien, representative of Mrs. Lan:

Mrs. Phan Thi Kim Lien and Mrs. Le Thi Lan are previously acquainted with each other. From 2014, Mrs. Lien persuaded Mrs. Lan to send her child to Australia to study abroad under the sponsorship of Mrs. Lien, all costs of living and studying would be covered by periodical sum of money sent by Mrs. Lan. After Mrs. Lien's child studying in Australia for a while, Mrs. Lien proposed Mrs. Lan to engage into a fake marriage and complete the marriage paperwork to be eligible for legal residency and have good conditions to take care of her child. In addition, Mrs. Lien also recommended Mrs. Lan to buy a house in Australia to qualify for immigration under Australian law, and buy a car for her child to prove her financial situation in the host country.

On December 11, 2015, Mrs. Lien asked Mrs. Lan to give Mrs. Duong Thi Bach Phuong VND 2 billion, as orally agreed by them to complete the fake marriage paperwork for Mrs. Lan.

At this time, Mrs. Lan was not present in Vietnam, so she asked her younger brother named Qui to give Phuong VND 2 billion. In order to confirm the receipt of money, Mrs. Phuong took a note with the content “receiving deposit for house purchase”. In fact, the two parties did not have any deposit contract or house purchase contract in Australia and Mrs. Lan did not have a need to buy a house in Australia. On the other hand, Mrs. Lien does not have the right to own or right to use the house in question under Australian law.  Information about the house is unidentified.

In addition, Mrs. Lien also asked Mrs. Lan to transfer a sum of money to buy a car for Mrs. Lan's child, the transferred amount was VND 110,500,000.  So far, Mrs. Lien still does not buy a car and does not return the money to Mrs. Lan (enclosed with the payment slip dated September 8, 2015 at ACB Bank, amount of VND 110,500,000)

As for the lawsuit request of Mrs. Lien, Mrs. Lan has the following opinions:

+ Force Mrs. Phan Thi Kim Lien to pay Mrs. Le Thi Lan VND 2 billion according to the receipt dated December 11, 2015 and VND 110,500,000 transferred to buy a car in Australia. Total: VND 2,110,500,000. Such amount of money must be paid in lump sum no later than the effective date of this Judgment.

Person with relevant rights and obligations:

Representation of Mrs. Duong Thi Bach Phuong:  She and Mrs. Phan Thi Kim Lien have knew each other before.  Mrs. Lan agreed to buy Mrs. Lien's house in Australia to enable Lan's child to go to school more conveniently.  At that time, Mrs. Lan was not in Vietnam, so she asked Mr. Qui (Lan's younger brother) to give Mrs. Phuong VND 2,000,000,000 deposit on Mrs. Lien’s house in Australia.  When she received this money, she gave it all to Mrs. Lien.  Now the lawsuit between Mrs. Lien and Mrs. Lan is not related to her, so she asks to be absent from all court sessions.

Representation of Mr. Le Van Qui: at the time of Mrs. Le Thi Lan was abroad, she asked him to give Mrs. Duong Thi Bach Phuong VND 2,000,000,000.  After receiving the full amount of VND 2,000,000,000, Mrs. Phuong took a note of receipt dated December 11, 2015. He was only asked by Mrs. Lan to hand over the money so he did not know the purpose of money transfer and did not care about the contents of the receipt, he only knew that the actual amount of transfer was 2 billion.  Due to busy work, he asked to be absent from all court sessions.

At today's trial:

Mrs. Lien's representative withdrew all lawsuit requests and other requests, agreed to return the amount of VND 2,000,000,000 which Mrs. Lien deposited to buy the house and the amount of VND 110,500,000 that Mrs. Lan had paid to Mrs. Lien's account but Mrs. Lien offered to sell the house in Australia and get money to pay Mrs. Lan immediately.

Mrs. Lan's representative still maintained the above opinion, claiming that there was no purchase of house between the two parties. Requesting Mrs. Lien to pay immediately the amount of VND 2,000,000,000 and VND 110,500,000.  Totaling VND 2,110,500,000, repayment no later than December 15, 2018.

Representation of protector of legitimate rights and interests of Mrs. Le Thi Lan: Since Mrs. Lien withdrew all the lawsuit requests, the protector proposes the Trial Panel to consider changing the positions of litigants in accordance with the law.  Mrs. Lien and Mrs. Lan do not have a deposit contract to sell house, there is no information about the house, no payment method for selling house and does not meet the format of a deposit contract or house purchase contract, it is recommended for the Trial Panel to accept all of Mrs. Lan's request because Mrs. Lan's request is in accordance with the law.

* Representative of Tan Phu District People's Procuracy participated in the trial express opinions as follows:

+ Regarding proceedings:  During the case settlement, the Judge, the Trial Panel, and procedural participants have complied with regulations of law on procedures from the acceptance of case time until the deliberation time as per the law.

+ With reference to content: Accept the request of Mrs. Le Thi Lan.  Force Mrs. Phan Thi Kim Lien to pay Mrs. Le Thi Lan the amount of VND 2,000,000,000 (according to the receipt dated December 11, 2015) and the amount of VND 110,500,000 (according to the payment slip dated September 8, 2015 at ACB Bank) no later than December 15, 2018.

JUDGEMENT OF THE COURT

After studying the documents in the case file that were verified at the trial and based on the results of the arguments at the trial, after hearing the opinions of representative of the People's Procuracy of Tan Phu District, after deliberating, the Trial Panel judges:

1. With reference to the proceedings:  Considering the petition of Mrs. Phan Thi Kim Lien and petition for counterclaim of Mrs. Le Thi Lan.  The Trial Panel finds that:

+ Mrs. Lien's representative said that the amount of VND 2,000,000,000 that Mrs. Lien had received from Mrs. Lan was the deposit on the house in Australia according to the receipt dated December 11, 2015, showing the transfer of house deposit to Mrs. Lien.  The Trial Panel finds that the transfer of deposit on the house does not specify house’s address, location, payment period and method, the defendant also does not confirm the purchase of the house in Australia. So, there are no valid grounds for determining that this is a deposit contract to buy the house at 10 Hard Catstle Avenue, Landsdale 6065 WA Perth Australia in Australia.

+ The defendant’s representative said that the amount of VND 2,000,000,000 was given to Mrs. Lien to complete fake marriage paperwork for Mrs. Lan to settle in Australia.  The Trial Panel shall base on the notice of the results of settling the source of information on crime No. 987 / TB-ANDT-D9 on May 18, 2018 of the Public Security of.  Ho Chi Minh City, which express that the documents provided by Lan are not grounded enough to prove that the act of "Obtaining property by fraud and organizing others to flee abroad illegally"

From the above judgments, the Trial Panel determines that this is a case of "claim for property" under the provisions of Clause 3, Article 26 of the 2015 Civil Procedure Code and the case under the jurisdiction of the People’s Court in Tan Phu District, Ho Chi Minh City as prescribed in Article 39 of the Civil Procedure Code 2015.

At today's trial, the petitioner’s representative withdraws all lawsuit requests so the request of the protector of legitimate rights and interests of Mrs. regarding the change positions of litigants is accordant with Article 245 of the Code of Law Civil litigation and it should be accepted. Mrs. Nguyen Thi Lan is the petitioner; Mrs. Phan Thi Kim Lien is the defendant;

Regarding the trial of absentia:  Mrs. Duong Thi Bach Phuong and Mr. Nguyen Thanh Qui asked for absence.  The Trial Panel shall decide to adjudicate without the litigants in accordance with the provisions of Clause 2 of Article 227; Article 228 of the Civil Procedure Code.

2. About the requests of litigants:

Representatives of the petitioner and defendant agree on the VND 2,000,000,000 transferred according to the receipt dated December 11, 2015 and VND 110,500,000 according to the payment slip dated September 8, 2015 at ACB Bank and Mrs. Lien agrees to pay this amount to Mrs. Lan, so the Trial Panel recognizes it. 

Payment deadline:

Mrs. Lan’s representative denied Mrs. Lien's representative request that Mrs. Lien will pay Mrs. Lan when she may sell the house in Australia, so the Trial Panel had no basis to consider.  Mrs. Lan's representative request the payment no later than December 15, 2018, the Trial Panel considers that this request is grounded to accept.

First instance civil court fee: Pursuant to Article 147 of the Civil Procedure Code; pursuant to the Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly.  Mrs. Phan Thi Kim Lien has to pay a court fee of VND 74,210,000, deducted from the paid advance payment of court fee according to the receipt slip No. 0009852 dated October 5, 2017 of the Civil Judgment Enforcement Sub-Department of Tan Phu District.  Mrs. Lien has to pay an additional fee of VND 73,910,000

Refund all court fee advances to Mrs. Le Thi Lan

Based on the above-mentioned facts and matters,

HEREBY DECIDES

- Pursuant to Article 26, Article 39, Article 245, Article 227, Article 228 of the Civil Procedure Code;

- Pursuant to Article 116, Article 131, Article 166 of the Civil Code 2015;

- Pursuant to the Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee.

Hereby judges: 

1 / Suspension of all lawsuit requests of Mrs. Phan Thi Kim Lien.

Accept the independent request of Mrs. Le Thi Lan.

- Force Mrs. Phan Thi Kim Lien to pay Mrs. Le Thi Lan the amount of VND 2,110,500,000 (including VND 2,000,000,000 according to the receipt dated December 11, 2015 and the amount of VND 110,500,000 according to the payment slip dated September 8, 2015 at ACB Bank).

Term and method of payment:  Lump sum payment, no later than December 15, 2018.

2/ First instance civil court fee: Mrs. Phan Thi Kim Lien has to pay a court fee of VND 74,210,000, deducted from the paid advance payment of court fee Mrs. Lien according to the receipt slip No. 0009852 dated October 5, 2017 of the Civil Judgment Enforcement Sub-Department of Tan Phu District.  Mrs. Lien has to pay an additional fee of VND 73,910,000

Refund all advance payment of VND 37,105,000 to Mrs. Le Thi Lan according to the receipt slip No. 0011745 dated August 28, 2018 of the Civil Judgment Enforcement Sub-department of Tan Phu District. 

Enforce at the competent civil judgment enforcement agency.

3- With reference to right to appeal: Litigants may rightfully appeal this Judgment within 15 days from the judgment announcement. The parties who are absent may appeal the Judgment within 15 days from the date on which the Judgment is received or posted up.

4/ Regarding the rights and obligations of judgment enforcement:

From the effective date of the Judgment (for cases where the judgment enforcement agency has the right to take initiative in issuing a judgment enforcement decision) or from the date on which the request for judgment enforcement made by judgment creditor is received (for the amounts payable to the judgment creditor) until the judgment enforcement is completed, all the monthly sums of money to be paid by the judgment debtor shall incur interest of the money amounts still payable according to the enforcement decision according to the interest rates stipulated in Clause 2 Article 468 of the Civil Code 2015.

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on Enforcements of Civil Judgments, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7, 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on Enforcement of Civil Judgments.