Duong v Vo - [2009] WASC 210

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DUONG -v- VO [2009] WASC 210

CORAM: SIMMONDS J

HEARD: 19, 20, 23-26, 30 MARCH 2009

DELIVERED : 29 JULY 2009

FILE NO/S: CIV 1084 of 2007

BETWEEN: THI TUYET ANH DUONG
Plaintiff
AND
LUONG NGOC VO
First Defendant
THE REGISTRAR OF TITLES
Second Defendant

Catchwords:

Registration of transfer under Transfer of Law Act 1893 - Fraud exception to indefeasibility principle - Whether oral purchase agreement in respect of the land - Whether signature of plaintiff on document acknowledging purchase and loan by purchaser to vendor was a forgery - Whether signatures of plaintiff on transfer of land and settlement authority form were obtained by deception

Creditor and debtor - Whether there were oral loan arrangements between parties - Whether signature of plaintiff on document acknowledging purchase and loan by purchaser to vendor was a forgery

Evidence - Proof of forgery of signature to documents - Principles to be applied

Legislation:

Transfer of Land Act 1893 (WA), s 68, s 138C

Result:

Judgment for the plaintiff
Counterclaim dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr J G Hanly
First Defendant              :     In person
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Hotchkin Hanly
First Defendant              :     In person
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Cherrycoast Enterprises Pty Ltd v Dr Francis John Roberts as Executor of the Estate of Kennyth Peter Roberts (Dec) [2002] WASC 28
Gawne v Gawne (1979) 2 NSWLR 449
Grainger v Williams [2009] WASCA 60
Jeans v Cleary [2006] NSWSC 647
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
New Resource Holdings Pty Ltd v Lunt [No 2] [2008] WASC 140
R v Doney (2001) 126 A Crim R 271

SIMMONDS J:

Introduction

This is an action commenced by originating summons but, as a result of case management orders, treated as if commenced by writ.
The plaintiff and the first defendant are both of Vietnamese origin.
By the statement of claim the plaintiff seeks principally a declaration that she is the sole legal and beneficial owner of a certain residential property in Stratton, Western Australia; that the first defendant deliver up to the plaintiff the duplicate certificate of title to the Stratton property; in the event the first defendant complies with that order the second defendant cancel the entry of the first defendant as registered proprietor of the Stratton property, substituting the plaintiff as its registered proprietor; and in the event the first defendant fails to comply with the order for delivery up the second defendant cancel the certificate of title and substitute a certificate of title for the Stratton property which shows the plaintiff as its registered proprietor. The plaintiff was formerly the registered proprietor of the Stratton property. She pleads the first defendant became the registered proprietor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duong v Vo

Details

AGLC: Duong v Vo [2009] WASC 210
Case: [2009] WASC 210
Decision Date: 29 JULY 2009

CaseChat Overview and Summary

In the matter of Duong v Vo, the dispute before the court centred on the validity of a transfer of land and the circumstances surrounding the agreement and transfer between the parties. The case was heard in the Supreme Court of Victoria. The central issues involved whether the transfer of the land was validly registered and if there was any fraud that could invalidate the indefeasibility principle provided under the Transfer of Land Act 1893. Specifically, the court had to determine if there was an oral purchase agreement, whether certain signatures on documents were genuine or forged, and if there were any creditor-debtor relationships that could affect the validity of the transfer.

The primary legal issues before the court were whether the plaintiff's signatures on the transfer of land and the settlement authority form were genuine or obtained by deception. Additionally, the court needed to ascertain if the signatures on the document acknowledging the purchase and the loan from the purchaser to the vendor were genuine or forged. This included examining the circumstances under which these signatures were obtained and whether there was any evidence to support the claim of forgery. The court also needed to consider whether there were any oral loan arrangements between the parties and if these arrangements could be proven to exist or not.

The court examined the evidence presented regarding the signatures and the circumstances of their procurement. It found that the plaintiff's signature on the document acknowledging the purchase and the loan was indeed a forgery. The court also concluded that the signatures on the transfer of land and the settlement authority form were obtained by deception. Based on these findings, the court ruled that the transfer of land was invalid due to the fraud exception to the indefeasibility principle. Consequently, the court determined that the transfer was not validly registered.

The court ordered that the transfer of the land be set aside, and the property be returned to the vendor. Furthermore, the court found that there were no valid oral loan arrangements between the parties. The court's decision effectively nullified the fraudulent transfer and restored the vendor's title to the land.

Orders