



COURT OF APPEAL FOR ONTARIO

CITATION: Nguyen v.
    Lee, 2015 ONCA 371

DATE: 20150526

DOCKET: C58653

MacPherson, Gillese and van Rensburg JJ.A.

BETWEEN

Bao Duc Nguyen

Appellant

and

Iwin Lee, 1634502 Ontario Inc., Phuoc Nghia Ly
    and Va Lay Duong

Respondents

Bao Duc Nguyen, acting in person

Harry J. Doan, for the respondents

Heard: May 20, 2015

On appeal from the judgment of Justice Stephen E. Firestone
    of the Superior Court of Justice, dated March 21, 2014.

ENDORSEMENT

[1]

This is an appeal of a trial decision awarding damages and pre-judgment
    interest in the sum of $57,566 to the appellant against the respondent Iwin Lee.
    The appellant contends that the trial judge erred in failing to award the total
    amount claimed: $135,000 plus interest, and in dismissing the action against
    the other respondents.

[2]

The appellant and Lee were parties to a loan agreement dated September
    25, 2004. The loan was for $135,000, consisting of $70,000 from before and a
    further $65,000 advanced by the appellant at the time of the agreement. The
    loan was for a one year term from September 30, 2004, to September 30, 2005,
    and the agreement provided that Lee can pay [Nguyen] anytime.

[3]

The respondent Lee operated a jewellery business. From time to time he
    provided jewellery for sale on consignment to Phuong Nguyen. Lee believed that Phuong
    was married to the appellant; at trial, they claimed to be divorced, and the
    trial judge observed that their marital status was unclear.

[4]

According to the evidence, Lee had borrowed $70,000 over time from the
    appellant to fund his jewellery business. The further $65,000 was advanced in
    order to complete Lees purchase of the appellants property at 1276 Bloor
    Street West, in Toronto. The purchase closed in October 2004. Title to the
    property was taken in the name of the corporate respondent, 1634502 Ontario
    Inc., a company owned by Lee and his wife, the respondent Va Lay Duong.

[5]

On July 19, 2005, the property purchased by Lee from the appellant was
    mortgaged for $170,000 to Lees sister, the respondent Phuoc Nghia Ly, and on
    May 2, 2006 the property was transferred for nominal consideration to Duong.

[6]

The central issue at trial was whether and to what extent the loan had been
    repaid. The appellant claimed that no payments had been made, and the
    respondents asserted that there had been an overpayment.

[7]

In concluding that a total of $90,700 had been repaid, the trial judge
    made three central findings. First, he found that there was a payment by a bank
    draft dated May 26, 2005 in the sum $23,200. The trial judge accepted the respondents
    evidence as to the circumstances of repayment: that the appellant and Phuong
    were in urgent need of money, and that Lee arranged to obtain a bank draft from
    his sister to pay the sum of $23,200 toward repayment of the loan. The trial
    judge rejected the evidence of Phuong that she received the bank draft made out
    to the appellant as payment for jewellery she had sold to Lee. He accepted that
    Phuong would occasionally sell Lees jewellery on consignment, and that Phuong
    would owe Lee money, not the other way around, as Phuong had testified.

[8]

Second, the trial judge found that payments (of $35,000, $10,000 and
    $22,500) had been made on May 27, 2005, September 14, 2005, and April 29, 2007,
    as noted and initialled by Phuong on the back of a second copy of the loan
    agreement. The trial judge rejected Phuongs evidence that, although she had
    made the notations acknowledging receipt of payments, she had never received
    the money.

[9]

Finally, the trial judge refused to credit Lee in respect of a May 28,
    2005, notation for $35,000 on the front page of the agreement. He observed that
    the notation was not initialled, and even if it did represent a credit, according
    to Lees evidence it was in respect of an agreement between Lee and Phuong
    regarding jewellery provided to Phuong on consignment, and not between the
    appellant and Lee.

[10]

Regarding
    the fraudulent conveyance claims, the trial judge stated that he considered the
    evidence regarding the sale and transfer of the Bloor St. W. property, and he
    concluded that there was no evidence that any dealings with the property should
    be found to be void as fraudulent conveyances.

[11]

On
    appeal the appellant did not provide oral submissions but relied on his factum.
    His central argument is that he was treated unfairly at trial, when the trial
    judge prevented him from doing certain things while permitting the respondents
    various liberties.

[12]

We
    have carefully read through the transcript of the trial proceedings. Contrary
    to the appellants assertion, during the five day trial, the judge treated all
    of the parties and witnesses with fairness, patience and respect. He provided
    appropriate guidance to the appellant as a self-represented litigant, ensuring
    at every step in the trial that he understood the process and that he had the
    opportunity to put forward his case.

[13]

The
    trial judge accommodated the appellant on several occasions, when he requested
    breaks to prepare for parts of the trial, in affording him a second chance to
    cross-examine the respondent Lee, and in permitting the appellant to read in
    passages from a discovery transcript during the defence case, and after the
    plaintiffs case was closed.

[14]

The
    appellant takes objection on appeal to certain rulings and directions of the
    trial judge. In our view, the trial judge exercised his discretion
    appropriately in his various rulings and directions, including: his decision to
    exclude the appellants daughter and son from the court room after it appeared
    that the son might be communicating with Phuong, contrary to an order excluding
    witnesses; his caution that the appellant not discuss his evidence with
    potential witnesses during the trial; his directions respecting the proper use
    of discovery transcripts in cross-examination; his refusal to accept into
    evidence a book of documents containing settlement offers and irrelevant
    materials, while ensuring that the relevant documents were in evidence; and his
    measured and appropriate response to the appellants contention that he had
    been threatened by someone at the respondents behest.

[15]

The
    trial judge was even-handed in responding to the objections of both sides. In
    fact, at the conclusion of the trial during closing submissions, the appellant
    expressed his appreciation to the judge for the fair manner in which the trial
    was conducted, a sentiment that was echoed by defence counsel.

[16]

There
    is simply no basis for the appellants argument that the trial was unfair. Accordingly,
    we reject this ground of appeal.

[17]

The
    appellant also contends that the trial judge erred in his findings with respect
    to the $23,200 payment. He asserts that the draft was money payable to Phuong
    from the sale of jewellery to Lee, and not a payment on account of the loan. This
    explanation of the payment was offered by Phuong at trial, and rejected by the
    trial judge. This he was entitled to do. His decision respecting the $23,200
    was amply supported by the evidence that he did accept. Accordingly, this
    ground of appeal cannot be sustained.

[18]

Finally,
    the appellant contends that the trial judge erred in dismissing the fraudulent
    conveyance claims. The conveyancing documents show that title to the Bloor St.
    W. property was taken in the name of the numbered company, with the knowledge
    of the appellant. The evidence respecting the mortgage was that it was security
    for Lees borrowings from his sister, which included the $23,200 bank draft.
    Lee and his wife Duong testified that the transfer of the property to her name
    in 2006 was out of concern for her security at a time when she had health
    problems. There was no evidence that Lee was insolvent or as to how the
    transfer affected his ability to meet his obligations. Indeed, he made a
    further payment on the loan after the impugned transactions. There is no basis
    for interfering with the trial judges conclusion respecting the fraudulent
    conveyance claims. This ground of appeal is without merit.

[19]

The
    appeal is therefore dismissed. The respondents are entitled to their costs of
    the appeal payable by the appellant. In view of the brevity of the respondents
    factum and oral submissions the costs are fixed at $1,000, inclusive of disbursements
    and applicable taxes.

J.C.
    MacPherson J.A.

E.E.
    Gillese J.A.

K.
    van Rensburg J.A.


