Lam v Lam

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0125

HAU LAM	Applicant
and
PHUNG THUONG LAM & ORS (According to the schedule annexed)	Respondents

S APCI 2016 0126

HAU LAM	Applicant
and
MAI NGUYEN & ORS (According to the schedule annexed)	Respondents

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JUDGES:	WHELAN, SANTAMARIA and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 May 2017
DATE OF JUDGMENT:	30 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 173
JUDGMENT APPEALED FROM:	[2016] VSC 298 (Almond J)

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PROPERTY – Fraud and forgery allegations – Irreconcilable accounts between family members – Whether incontrovertible facts rendered trial judge’s factual findings glaringly improbable – Sufficiency of reasons – Evidence and submissions at trial not referred to in the judgment – Requirements as to reasons considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr E N Magee QC with Mr A P Tragardh and Ms C Jones	Titanium Lawyers
For the Respondents Phuong Thong Lam, Pacific Far East Pty Ltd, Mai Nguyen and Vien Dong Tourist Service (Aust) Pty Ltd	Ms G A Costello with Ms R V Howe	Kabo Lawyers
For the Respondent Loan Tran	Mr R D Shepherd	DKP Lawyers
For the Respondent Registrar of Titles	Mr C A Connor	Land Victoria Legal

WHELAN JA
SANTAMARIA JA
KAYE JA:

The applicant, Hau Lam (‘Hau’) brought two proceedings in this Court against his sister, Phung Thuong Lam (‘Cynthia’),[1] and others, concerning land in Rockbank and a house and land in Altona. In substance, he alleged that these properties, of which he was the registered proprietor, had been fraudulently transferred away from him using forged documents. Cynthia, and those of the other defendants who were associated with her, defended the claims not only denying the alleged fraud and forgery but asserting that Hau had never had any equitable interest in either of the properties which at all times had been owned in equity by Cynthia.
[1]We use the given names of the members of the Lam family as that is the way they referred to each other at the trial, and the trial judge adopted the same practice in his judgment.

The two proceedings were heard before a judge in the Trial Division. Hau failed to establish his claims. The judge made adverse findings as to his credit and accepted the evidence of the principal witnesses against him.[2]
[2][2016] VSC 298 (‘the Reasons’).

Hau now seeks leave to appeal. In substance, he contends that the trial judge ignored two incontrovertible facts, which are said to be inconsistent with the acceptance of the account of events of the principal witnesses against him; and that the trial judge failed to address or adequately deal with important matters which had been relied upon by Hau.

The application for leave to appeal was argued on the basis that if leave were granted the appeal itself would be determined immediately without further argument.

Prior to the hearing of the application the Court of Appeal Registry alerted the applicant to the High Court’s judgment in Robinson Helicopter Company Inc v McDermott,[3] and in particular to that Court’s statement that a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.[4] In response, the solicitors for the applicant advised that the proposed grounds of appeal as set out in the application and in the applicant’s written case were to be significantly narrowed.
[3](2016) 331 ALR 550.
[4]Ibid 558 [43].

Before turning to the proposed grounds of appeal as narrowed, it is useful to set out an account of those factual matters which were uncontroversial at the trial, or which were no longer controversial before us; to broadly review the claims made and the defences in the two proceedings; and to set out the principal findings of the trial judge.

Uncontroversial facts — the Rockbank land

On 30 June 2001 Hau signed a contract note for the purchase of vacant land in Rockbank for the sum of $330,000. Hau signed the contract note after dealing with an estate agent, Mr Sam Latif.

On 24 October 2001 the purchase of the Rockbank land settled. The source of the funds used for the settlement was the subject of controversy between Hau and Cynthia, but it was uncontroversial that the physical cheques handed over at settlement were provided by Cynthia. There was no loan finance required to settle the purchase, notwithstanding that there was a ‘subject to finance’ clause in the contract note and a loan to Hau to finance the purchase had been approved by the Commonwealth Bank. The duplicate certificate of title was kept by Cynthia in her safe at her business premises.

On 14 January 2005 Hau applied for a new duplicate certificate of title on the basis that the prior certificate had been lost or destroyed.

On 2 February 2005 Cynthia placed a caveat on the Rockbank land claiming an interest as a beneficiary ‘under resulting constructive and implied trusts arising from direct and indirect financial contribution by the caveator to the acquisition, conservation and improvement’ of the land.

By a letter dated 10 May 2005 solicitors acting on behalf of Bank of Western Australia Limited (‘BankWest’) congratulated Hau on the approval of a loan to him, enclosed documentation which BankWest required him to execute and return, and enclosed a copy of Cynthia’s caveat indicating that he would need to arrange for its withdrawal. BankWest had agreed to advance to Hau a sum of $50,000. Interest was to be capitalised. As at 2005, interest up to the ‘equity limit’ of $50,000 was at the rate of 7.35 percent per annum and for any amount in excess of that limit at the rate of 16.6 percent per annum.

A conveyancer named Loan Tran, who conducted business under the name PT Conveyancing, acted on behalf of Cynthia in relation to the caveat on the Rockbank land and on behalf of Hau in relation to the BankWest mortgage.

Cynthia withdrew the caveat she had lodged on the Rockbank land so as to enable the BankWest loan to proceed and the BankWest mortgage to be registered. On 18 August 2005, after the mortgage to BankWest had been registered, Cynthia lodged a second caveat over the title to the Rockbank land. The ground of the claim in the second caveat was the same as in the first.

In 2006 Loan Tran had a series of dealings with BankWest concerning the discharge of the BankWest mortgage consequent upon an anticipated sale of the Rockbank land. In response to a query from Loan Tran, expressed to have been prepared for the purposes of a ‘section 27 statement’, BankWest advised as follows:

1. The amount secured by the Mortgage $51,539.00

2. The amount required to discharge the Mortgage $61,916.02

3. Does the mortgage provide for further advances? No

4. What is the interest rate? 7.85%

5. What is the default interest rate? 17.10%

6. Date by which the Mortgage is to be repaid N/A – Equity

7. Is the Mortgagor in default? If so, please provide details Customer is in default – total amount of $9,658.49

8. Name and Address of Mortgagee Bank of Western Australia Ltd
108 St Georges Terrace
PERTH WA 6000

9. Has the Mortgagee consented to the purchaser assuming the Vendor’s obligations? No

On 25 May 2007 a contract for the sale of the Rockbank land from Hau to Cynthia was signed. Hau denies having signed this contract. The purchase price was expressed to be $361,000. The sale was settled and a transfer, purportedly signed by Hau but which he denies having ever signed, was registered. The transferee was a company controlled by Cynthia named Pacific Far East Pty Ltd (‘Pacific Far East’). Loan Tran acted in that transaction. Amongst the documents prepared by Loan Tran and purportedly signed by Hau, but which he denies signing, was a document referred to by Hau’s counsel before us as the ‘Loan Tran’s protection document’. The document referred to the contract of sale and the purchase price of $361,000 and then continued:

I, Hau Lam agree and acknowledge that as at the date of the Contract of Sale I am indebted to Phung Thuong Lam [Cynthia] for the amount of $361,000.00 being monies previously advanced to me Hau Lam by Phung Thuong Lam for my purchase of this property, and as at the settlement date we agree that Phung Thuong Lam will pay the stamp duty and all other fees and charges of the purchase, and the balance of the settlement monies will be retained by Phung Thuong Lam to discharge my debt in the amount of $361,000.00.

Hau made no claim in relation to the Rockbank land until 2013. When solicitors acting on his behalf alleged that he had been deprived of the land as a result of fraudulent or dishonest dealings, solicitors acting on behalf of Pacific Far East, Lanham Lawyers Pty Ltd, wrote a letter dated 10 October 2013 (‘the Lanham letter’) which included the following passage:

Specifically, we are instructed that our client has retained extensive records and documentation which clearly evidences that the property in question was purchased by our client in 2001 solely with her funds, and further that she has solely been responsible for the payment of all the property outgoings since that time, including the repayment of a mortgage obtained by your client without her knowledge or consent, despite the fact that your client was merely holding the property on trust for our client and at no time made any financial contributions to the property or had any interest in same. We are further instructed that your client has at no time had any kind of fulltime employment or any assets of significance and in reality did not have the necessary funds to purchase the said property which we note was purchased without the assistance of finance.

Uncontroversial facts — Altona

By a contract of sale dated 12 November 2001 Cynthia and Hau agreed to purchase a house in Altona for $690,000. By the date of settlement on 25 January 2002, Cynthia’s sister, Mai Nguyen (‘Mai’), had replaced Cynthia as joint purchaser with Hau. Eighty percent of the purchase price was financed by a mortgage from GE Mortgage Solutions Limited (‘GE’). This mortgage was later refinanced by the National Australia Bank (‘NAB’).

On 2 February 2005 Cynthia lodged a caveat over the Altona property. The caveat claimed an interest in the same terms as the caveats over the Rockbank property.

On 19 May 2006, a firm of estate agents was engaged to sell the Altona property.

The property was sold to a third party unconnected with Hau and Cynthia on 2 May 2007. Documents effecting the sale were purportedly signed by Hau and were signed by Mai. Hau denies signing any of the relevant documents.

On 2 November 2007 a transfer of the Altona property was executed. The transfer was executed by Mai and purports to have been executed by Hau. Hau denies signing the transfer. The proceeds of sale were paid to Pacific Far East and another company controlled by Cynthia, Vien Dong Tourist Services (Aust) Pty Ltd (‘Vien Dong’).

Uncontroversial facts — the four documents prior to 2007

Prior to 2007 four documents were brought into existence, which were purportedly signed by Hau, which he denies signing, and which are inconsistent with his case.

We deal with these four documents in the context of uncontroversial facts because expert evidence was given in relation to each of them, which was not contested by contrary expert evidence, to the effect that Hau had signed them, or probably had signed them. This expert evidence was not challenged on this application, save in the sense that it was contended that errors the judge had made concerning issues relevant to Cynthia’s credit had had a consequential impact on all of the issues upon which Hau and Cynthia’s credit was important.[5]
[5]The trial judge’s findings concerning these four documents were challenged in the applicant’s written case but those parts of the written case were expressly abandoned when the applicant narrowed the matters upon which he relied.

There were two documents which concerned the Rockbank land. The first was a limited general power of attorney bearing the date 5 February 2005. The power of attorney authorised Cynthia to deal with the Rockbank land in any way. Hau denied on oath that he had signed this document. The handwriting expert engaged on behalf of Hau, Mr Neil Holland, and the handwriting expert engaged on behalf of Cynthia, Mr Trevor Joyce, each gave expert evidence to the effect that it was highly probable that Hau had signed it. The judge accepted that expert evidence[6] and found that Hau had deliberately lied about his execution of that document.[7] The second document was a document headed ‘Statement of Commitment’. It is in Vietnamese. It bears the date 5 June 2005. In substance, the document acknowledges Cynthia’s ownership of the Rockbank land and Hau’s responsibility for repayment of the BankWest loan of $50,000. Mr Joyce, the handwriting expert engaged on behalf of Cynthia, gave evidence that in his opinion it was probable that Hau had signed this document. Mr Holland, the handwriting expert engaged on behalf of Hau, was not briefed to give an opinion on this document. The judge accepted the evidence of Mr Joyce and found that Hau had deliberately been untruthful in denying that it was his signature on the document.[8]
[6]Reasons [187]–[188].
[7]Ibid [191].
[8]Ibid [212].

There were two documents which concerned the Altona property, each dated 5 June 2005. Hau also denied having signed these documents. Mr Joyce, the handwriting expert engaged on behalf of Cynthia, gave evidence that in his opinion it was probable that Hau had signed them. Mr Holland, Hau’s handwriting expert, was not briefed on these documents. The trial judge found that Hau had signed them and had been deliberately untruthful in denying his signature.[9] The first document is signed by both Hau and Mai. It is headed ‘Acknowledgment’. In that document Hau and Mai confirmed that the Altona property ‘belongs’ to Cynthia. The second document is headed ‘Declaration’. It is in Vietnamese. It is again signed by both Hau and Mai. In that document Hau and Mai ‘certify’ that the Altona property is Cynthia’s ‘own property’ and authorise her to deal with it.
[9]Ibid [212].

Proceedings in relation to the Rockbank land

On 12 February 2014 Hau commenced a proceeding by writ against Cynthia, Pacific Far East, Loan Tran and the Registrar of Titles in relation to the Rockbank land. He claimed that Cynthia had no equitable interest in the Rockbank land, that he had had no knowledge of the second caveat, and that in March 2013 he had discovered for the first time the existence of the 2007 transfer of the Rockbank land. Against Cynthia and Pacific Far East he claimed that the documents preliminary to and evidencing the Rockbank transfer in 2007 were sham documents and that that transfer had been procured by fraud. He sought orders that the Rockbank transfer was void and for his reinstatement as the sole registered proprietor of the property.

Hau claimed that Loan Tran, in breach of her duties to him, had, without his consent, facilitated the Rockbank transfer by lodging documents to give effect to the sham transactions and generally acted contrary to his interests.

In their defence and counterclaim, Cynthia and Pacific Far East said that Cynthia had paid for the Rockbank land. She had paid both the deposit and the balance at settlement using bank cheques. As a result, she claimed that the Rockbank land was held on a resulting trust for her and that, despite his being the registered proprietor of the Rockbank land, Hau had held no beneficial interest in it. His interest in the Rockbank land was that of a bare trustee. Cynthia admitted lodging the first caveat, removing it and then lodging the second caveat. She particularised her denial of an allegation by Hau that the second caveat had been lodged without his knowledge by alleging that she had informed him she would lodge the second caveat as soon as the BankWest mortgage had been registered. They alleged that in 2007 Hau was in default on the BankWest mortgage. Cynthia agreed to repay BankWest provided that Hau transferred the Rockbank land to her. The discharge of the BankWest mortgage and the transfer to Cynthia were all executed by Hau. In the alternative, Cynthia alleged that Hau had executed the power of attorney in 2005 in which he had appointed her to be his attorney with power to sell the Rockbank land. Cynthia brought a counterclaim seeking recovery of an alleged loan of $50,000.

In her amended defence Loan Tran said that she had been retained by Cynthia to prepare the first caveat on the basis described in it. She said that in May 2005 Cynthia had referred Hau to her to do the conveyancing work for the BankWest mortgage. She had been retained by Hau to perform that task. She told Hau that it would be necessary to remove the first caveat and that, after giving advice to Hau, he showed her the ‘Statement of Commitment’ and consented to her lodging the second caveat. She said that in about August 2006 Hau told her that he was in default under the BankWest mortgage and that Cynthia was going to assist him by paying out the mortgage and that the Rockbank land was to be transferred to her. Loan Tran said that she prepared all the documentation necessary to discharge the BankWest mortgage and to sell and transfer the Rockbank land to Pacific Far East. She pleaded the circumstances in which the relevant 2007 documents came to be executed by Hau. At all times, she had acted on the instructions of Hau and Cynthia.

Proceedings in relation to the Altona property

On 1 April 2014 Hau commenced a proceeding by writ, against Mai, Pacific Far East, Vien Dong and Loan Tran in relation to the Altona property. In that proceeding he claimed that he and Mai had contributed equally to the deposit and stamp duty and had, thereafter, contributed equally to the payments under the mortgage to GE. He said that, in 2002, the GE mortgage had been replaced by a mortgage to the NAB and that he and Mai had contributed equally to the repayments under the NAB mortgage. He claimed that, without his knowledge, the Altona property had been transferred to a third party purchaser in 2007 and the NAB mortgage had been discharged. He claimed to have discovered this in 2013. He said that his signature on the documentation necessary to discharge the NAB mortgage and to effect the transfer had been forged. He claimed that the net proceeds had been disbursed, on the instructions of Mai, to Pacific Far East and to Vien Dong and that nothing had been paid to him. He said that the conduct of Mai was fraudulent and a breach of fiduciary duties owed to him. He said each of Pacific Far East and Vien Dong held the proceeds of the sale as a constructive trustee as a knowing recipient of money received by reason of the alleged fraud and breach of fiduciary duties.

His claim against Loan Tran in relation to the Altona property was similar to his claim in the Rockbank proceeding, namely, that in preparing the documentation necessary to effect the Altona sale in 2007 she had breached duties of care and statutory duties owed to him.

In their amended defence Mai, Pacific Far East and Vien Dong denied Hau’s allegation about the payments of the deposit on the Altona property and the payments under both the GE and the NAB mortgages. They said that Cynthia had made all those payments. They alleged that the decision to purchase and place the Altona property in the joint names of Mai and Hau had arisen out of an agreement within the Lam family that Cynthia would make the necessary payments but that, because of an impending divorce from her then husband, the property would be registered in the names of two of her siblings. They claimed that Hau had knowingly signed the documents to effect the Altona transfer in 2007, and that Hau had signed the ‘Acknowledgment’ document acknowledging that Cynthia was the owner of the Altona property. Finally, they contended that, at all material times, Hau and Mai had held their interest in the Altona property as bare trustees for Cynthia.

In her amended defence Loan Tran said that Cynthia had instructed her to lodge a caveat to protect her interest in the Altona property as she had provided part of the money needed to purchase it. She also said that Hau was a knowing participant in the transfer of the Altona property in 2007, that she had been present when Hau had executed the transfer, and that she had witnessed his signature. She denied the alleged breaches of duty.

Principal findings of the trial judge

The Rockbank proceeding was heard together with the Altona proceeding. On 6 June 2016, in a single judgment, the judge dismissed Hau’s claim in each proceeding. The central issue in each case was whether the documents transferring title in each property in 2007 were fraudulent forgeries. But the conflicting accounts given by Hau, on the one hand; and by Cynthia, Mai, Loan Tran and others, on the other; as to:

·the circumstances of the initial purchases;
·the source of the funds for those purchases;
·the events prior to 2007, particularly the execution of the four documents confirming or supporting Cynthia’s case, and the circumstances surrounding the BankWest mortgage; and,
·the events in late 2006 and 2007, particularly Loan Tran’s role;

were also areas of controversy. On these issues, the judge preferred the evidence of the witnesses supporting Cynthia’s case to that of Hau. The proposed grounds of appeal focus on that aspect of the judge’s reasons and, in particular, on issues relevant to Cynthia’s credit.

As to the allegedly fraudulent transfers in 2007, the trial judge described Hau’s evidence as follows:

[Hau] was shown 17 documents relating to the Rockbank land transfer, including a Contract of Sale, a Transfer of Land, a Particulars of Sale, Vendor’s Statement, a Bankwest request to release security, a declaration as to the total market value of real property and goods transferred and an acknowledgement that Cynthia would retain the settlement monies. [Hau] denied signing or initialling any of these documents.
In the case of the declaration as to the total market value, which purports to have been made before a Dr Le, a medical practitioner, [Hau] denied going to Dr Le’s surgery for any purpose and said that he had never seen Dr Le.
[Hau] was shown 14 documents relating to the Altona property transfer, including the Transfer of Land, REIV contract note, Customer Authorisation and Privacy Declaration, Section 27 deposit statement, Answers to Requisitions, Special conditions and a Section 32 statement signature page. [Hau] denied signing any of these documents.
[Hau] was also shown three letters from the Registrar of Titles notifying [him] of the first and second caveats lodged on the title of the Rockbank land and the caveat lodged on the title of the Altona property. [Hau] denied receiving any of these notifications. Two of the letters were addressed to [Hau] at 16 Jerrold Street, Footscray (Rockbank caveat notifications). One letter was addressed to [Hau] at 4 Spinifex Street, Deer Park (Altona caveat notification). [Hau] gave evidence that he did not reside at either of these addresses but lived at 11 Silvester Street, St Albans during this time.[10]

[10]Ibid [222]-[225] (citations omitted).

In analysing the question whether Hau had seen and, where relevant, executed the documents referred to (‘the 2007 transfer documents’), the trial judge gave particular consideration to the evidence of Loan Tran who had handled the conveyancing on both the Rockbank land and the Altona property. In his reasons, he detailed Loan Tran’s evidence of her communications with Hau regarding the discharge of the BankWest mortgage and the transfer of the two properties. Loan Tran’s evidence was that she had been in regular communication with Hau from June 2006 until the settlement of the sale of the Rockbank land and the discharge of the BankWest mortgage on 3 July 2007 and the settlement of the sale of the Altona property on 2 November 2007. Her evidence included an account of personally observing Hau initialling and signing documents he denied having ever signed, or having any knowledge of before 2013.

The judge made the following findings in respect of Ms Tran’s evidence concerning the 2007 transfers:

[Hau] contends that he did not have any contact with Ms Tran or PT Conveyancing after 2005 and that he did not know about the sale of the Rockbank land and the Altona property until 2013. [Hau]’s evidence is unable to be rationalised or reconciled with the evidence of Ms Tran.
The resolution of this aspect of the proceedings largely involves deciding which of these two witnesses is to be believed. There is no middle ground. If Ms Tran’s evidence is accepted, [Hau]’s claims with respect to the transactions cannot succeed.
Ms Tran’s evidence is to the effect that during the period from mid-2006 to November 2007, she had 17 direct communications with [Hau], consisting of nine telephone contacts and eight personal attendances on [him] at the offices of PT Conveyancing in relation to one or other of these property transactions. If accepted, this evidence is devastating to [Hau]’s case. It would show that [Hau] not only knew about the property transactions but helped facilitate them.
I accept Ms Tran’s evidence. Ms Tran had a precise recollection of events as they related to the transactions. Her evidence was detailed and methodical and reflected her training and extensive experience as a conveyancer. There was no evidence to suggest Ms Tran would benefit by fabricating an elaborate story. There was no reason to suggest that she would jeopardise her professional career over these conveyancing transactions.
Ms Tran’s evidence was corroborated by Mai to the extent that Mai had dealings or contact with Ms Tran. There was no evidence or any rationale to suggest that Mai would wish to concoct evidence which would damage her brother’s interests.[11]

[11]Ibid [325]–[329] (citations omitted).

The two handwriting experts prepared detailed reports about the signatures on the 2007 transfer documents. The trial judge preferred the evidence of the expert engaged on behalf of Cynthia, Mr Joyce, for reasons which he set out.[12] The trial judge’s treatment of this evidence was not the subject of complaint before us. The applicant’s written case (as narrowed) relied on the expert evidence only in the context of a complaint in relation to the trial judge’s acceptance of Loan Tran’s evidence. The written case summarised that evidence in these terms:

The expert evidence was the signatures on the transaction documents were not typical signatures of Hau or were forgeries.

The applicant’s written case cited the expert reports of both experts in that respect, and that characterisation of the evidence was consistent with the trial judge’s own analysis of the expert evidence.

[12]Ibid [335]–[343].

Mr Joyce’s evidence, as summarised by the trial judge, was that there were signatures which were purportedly by Hau on the 2007 transfer documents which were not typical and he expressed the opinion that this divergence could be accounted for by what he described as the variation hypothesis, the disguise hypothesis or the different writer hypothesis. His opinion was that a determination of which hypothesis ought to be accepted should be made by the court after consideration of other supporting evidence. That is what the judge did. He found that the variation hypothesis accounted for what the judge described as the ‘subtle differences’ in the signatures identified by the experts.[13]
[13]Ibid [343].

The judge did rely on Hau’s expert, Mr Holland, in one respect. Having concluded that Hau had signed the transfers for Altona and Rockbank and the contracts of sale for those two properties, the judge then relied upon the evidence of Mr Holland who had said that the 22 questioned documents which he examined had been signed by the same person. As the transfers and the contracts of sale were amongst those 22 documents, the judge concluded that Hau was likely to have signed all of them.[14]
[14]Ibid [342]–[343].

The trial judge rejected Hau’s fraud and forgery claims. He also found that Hau had always held his interest in the Rockbank land, and that he and Mai had always held their interests in the Altona property, on trust for Cynthia. The trial judge dismissed Cynthia’s counterclaim on the basis that he was not prepared to accept her evidence on that issue.

As is apparent from this brief overview, the case turned on issues of credit. In substance, the critical credit issues were between Hau on the one hand and Cynthia and Mai on the other in relation to the general circumstances, and between Hau on the one hand and Loan Tran on the other in relation to the 2007 transfers.

Proposed grounds of appeal

As indicated earlier, in correspondence forwarded to the registry prior to the hearing of the application for leave to appeal, the solicitors for Hau narrowed the proposed grounds of appeal and the matters relied upon in relation to them.

The first proposed ground of appeal is that the trial judge ignored relevant evidence in reaching his conclusions. Two matters are relied upon. They are as follows:

·The trial judge erred in finding that Cynthia discharged the burden of proving Rockbank and Altona were held on trust for her by reason of her paying the purchase price from the 2002 income of Vien Dong when there were incontrovertible facts in the form of the 2002 tax return for Vien Dong that she could not have done so.
·The trial judge erred in accepting Cynthia’s evidence that she negotiated the purchase of Rockbank with a Vietnamese agent when there was uncontested testimony of Latif, the real estate agent who conducted the sale.

The second proposed ground of appeal is that the trial judge ignored the applicant’s case and submissions. In this respect the following matters are relied upon in the written case:

·The trial judge had no proper regard to the applicant’s case that Cynthia’s evidence regarding her giving Hau permission to place a mortgage over the Rockbank land was recent invention.
·The trial judge ignored the applicant’s case that Cynthia’s evidence regarding the discharge of the BankWest mortgage because Hau was in default and wanted to transfer the land back to Cynthia as she had paid for it was recent invention.
·In accepting Loan Tran’s evidence concerning execution of the relevant transaction documents in 2007 the trial judge ignored the following aspects of the applicant’s case:
The probability of Hau having signed the documents had to be considered in the light of the conclusion, which the trial judge ought to have drawn, that Cynthia had not paid for the properties.
Loan Tran had been responsible for preparing and lodging the caveat over the Rockbank land.
Loan Tran prepared the contract of sale and transfer of land in relation to Rockbank when she knew that no actual sale would take place.
Loan Tran prepared the protection document she knew to be false.
The assertion in the protection document that Cynthia had lent money to Hau was inconsistent with the assertion that the Rockbank land had been held on trust for Cynthia by reason of her payment of the purchase price.
The sale price of the Rockbank land ($361,000) was well below market price.
Loan Tran prepared a false statutory declaration seeking land tax exemptions in relation to the Altona property.
The expert evidence was that the signatures on the 2007 transaction documents were not typical signatures of Hau or were forgeries.

Given all these factors, it is contended that the trial judge ought to have concluded that Loan Tran was an unreliable witness and should not have accepted her evidence in relation to the 2007 transfers.

The third proposed ground of appeal is that the trial judge failed to provide adequate or sufficient reasons for his conclusions. The following matters are relied upon in the written case:

·The trial judge failed to provide adequate reasons to support his conclusion that Cynthia paid for the Rockbank and Altona purchases from the revenue recorded in the 2002 tax return for Vien Dong.
·The trial judge failed to provide adequate reasons to support his conclusion that Cynthia negotiated the purchase of Rockbank with a Vietnamese agent.
·The trial judge failed to provide adequate reasons to support his conclusion that mail addressed to Hau at Jerrold Street was passed on to Hau.
·The trial judge failed to provide adequate reasons to support his conclusion that Hau instructed Loan Tran that the BankWest mortgage was in default and to seek discharge of that mortgage.
·The trial judge failed to provide adequate reasons to support his conclusion that Hau signed the 2007 transfer documents with signatures that were not typical of his normal signature or appeared to be forgeries.

Submissions of the applicant

The applicant relied upon two matters in relation to proposed ground 1, the financial statements for Vien Dong for the financial year ended 30 June 2002, and the evidence of Mr Latif concerning the sale of the Rockbank land.

It was submitted on behalf of the applicant that Cynthia’s account of the purchase of both the Rockbank land and the Altona property was that she had paid the entire purchase for the Rockbank land, and the portion of the purchase price which was not financed in relation to the Altona property, using cash which she accumulated over time from her travel agency business conducted by Vien Dong. It was submitted that in order to finance the purchases in the way she described she would have needed $524,000 in cash and it was submitted that the trial judge had found that she had accumulated this cash during the year ended 30 June 2002 and had used it for the purchases.[15] The applicant then turned to the financial statements for Vien Dong for the year ended 30 June 2002 and observed that there is no entry in the profit and loss or the balance sheet which could possibly be seen to reflect the withdrawal of $524,000 in cash. It was submitted that the trial judge’s conclusion that Cynthia had accumulated this cash in that financial year and had used it for the purchases ignored the incontrovertible evidence of the 2001/02 financial statements.
[15]Ibid [66]–[68].

Senior counsel for the applicant accepted that the trial judge’s statement that ‘the travel business produced sufficient cash flow from which Cynthia would have been able to accumulate cash in the terms claimed’[16] was itself correct,[17] but, it was submitted, the financial statements revealed, incontrovertibly it was said, that she had not in fact done so.
[16]Ibid [68].
[17]During oral argument on the appeal, senior counsel for the applicant said that he did not seek to impeach the trial judge’s finding that ‘the travel business [of Cynthia] produced sufficient cash flow from which Cynthia would have been able to accumulate cash in the terms claimed’.

Reference was made to the High Court decision in Fox v Percy[18] and, by reference to the particular facts of that case, to which we will turn in due course, it was submitted that the financial statements were inconsistent with the trial judge’s acceptance of Cynthia’s account in the same way as relevant incontrovertible evidence had been found to have been inconsistent with the trial judge’s conclusion in Fox v Percy.
[18](2003) 214 CLR 118.

Before moving on it is necessary to note that the manner in which this matter was put to us differed from the way in which it had been put to the trial judge. Before us the contention was that if $524,000 had been withdrawn in cash some record of that occurrence would have had to have appeared in the financial statements for the 2001/02 year. The submission made to the trial judge was also based upon the financial statements for that year but it differed from that submission. The submission made to the trial judge was that the net profit revealed in the profit and loss statement was insufficient to have financed the purchases in the way Cynthia claimed. The profit for the year ended 30 June 2002 was $159,783.71. It was submitted that that was the only possible source of the cash.[19] Before us, it was accepted that the revenue was such that Cynthia could have taken sufficient cash out of the business to finance the purchases, as the judge had found. The submission before us was that the financial statements revealed that she had not done so because there was no entry recording a loan to her of such a sum, or anything like it, and there was no other entry which could possibly have constituted a record of the removal of cash of that amount.
[19]In his final written submissions at trial, the applicant said ‘[t]he only source of funds that Cynthia could identify were those coming from her business. However the business records do not support the availability of funds that she would have required. The fact that her businesses might have had significant turnover is not to the point. The only source of funds available to the proprietors of the business was net profit after tax. The business’s [sic] annual returns for 2001 and 2002 do not show any capacity to generate the amount of profit required to finance the purchase of this land.’

When asked whether these matters had been put to Cynthia in cross-examination at the trial, senior counsel said that as soon as Cynthia was challenged in relation to the financial statements for the year ended 30 June 2002, she had ‘retreated’ from the position that the cash had been accumulated from cash flow entirely in that year and had referred to earlier income years and to other sources of funds which she said she had.

In relation to the Vietnamese agent, counsel for the applicant relied upon what was said to have been a transparent recent invention by Cynthia in the course of her own evidence. When asked in evidence in chief about the circumstances in which she negotiated the purchase of the Rockbank land in 2000 or 2001, she said the following:

When I first saw the land advertised — the sale advertised on the land, then I call the number display on the land and then there was a Vietnamese man pick up the phone and then I didn’t realise that the agent — at first I thought I bought directly with the landowner, but when Mr Sam Latif turned up, it remind me I remember I call that gentleman and then it was real estate agent. He is Vietnamese. I never met Mr Sam Latif before and then I didn’t come to his office before.[20]

[20]Transcript of Proceedings (10 February 2016) 680.

She went on to say that she and Mai had seen a board displayed on the land and that she had rung a number on that board and had spoken to the Vietnamese gentleman. She said that she and her sister Mai had then met this Vietnamese gentleman on the land and that she had seen the owner, who was also Vietnamese, working on the land at the time.[21]
[21]Ibid 681.

It was submitted that Cynthia’s account in evidence in chief of dealing with a Vietnamese man had been an obvious recent invention designed to deal with the evidence of Mr Latif who powerfully supported Hau’s account of the purchase of the Rockbank land.

The applicant submitted that the trial judge had failed to deal with the incontrovertible fact Mr Latif had given evidence of, namely, that he had dealt with Hau in relation to the purchase of the land and with no-one else.

Turning to proposed grounds 2 and 3, which substantially overlap, in oral submissions senior counsel on behalf of the applicant particularly relied upon two broad areas of controversy where, it was contended, the trial judge had simply ignored and failed to deal with the applicant’s case. The first area concerned the BankWest mortgage, and the second concerned Loan Tran.

The first matter said to have been ignored by the trial judge concerning the BankWest mortgage is the Lanham letter, to which we referred earlier, which asserted, amongst other things, that Cynthia had had no knowledge of the BankWest mortgage. The lawyer who wrote that letter was not called. It was submitted that the letter was ‘blatantly inconsistent’ with Cynthia’s account of events, and the trial judge had failed to address it.

The second aspect of the case concerning the BankWest mortgage which the trial judge had ignored, it was submitted, was the fact that evidence given by Cynthia that she had been prompted to act in 2006 because she believed the BankWest mortgage was in default could not possibly have been true. It was submitted that the terms of the mortgage were such that it was not in default at any relevant time. Further, it was submitted, Cynthia had embellished this aspect of her case with an account in her evidence of receiving a visit from a ‘debt collector’. This, it was submitted, had been an obvious recent invention that had never been put to Hau in his evidence in chief. Senior counsel referred to this aspect of Cynthia’s evidence by reference to ‘the debt collector story’. It was submitted that the so called ‘sale’ of the Altona property in response to a ‘fictitious default’ was, in effect, a ‘scam’ on the bank; circumstances which the judge had ignored.

The second broad area where it was said the judge had ignored the applicant’s case concerned the evidence of Loan Tran. The judge had accepted Loan Tran’s evidence concerning Hau’s involvement in the 2007 transfers but it was submitted that he had failed to deal with very significant aspects of the applicant’s case which ought to have led him to reject Loan Tran’s evidence. The first matter relied upon was Loan Tran’s protection document which it was contended was inconsistent with the account of events Cynthia had given and with the claims made in the caveats. The second aspect of the matter which it was said that the judge had ignored was the expert evidence that the 2007 transfer documents were either not typical of Hau’s signature or were forgeries. In this context, it was submitted that another example of what was said to be transparent recent invention by Cynthia concerning the witness to the Rockbank transfer, one Chanelle Lam, had been ignored. Chanelle Lam was not called to give evidence. Cynthia gave evidence initially that Chanelle Lam had been a member of her staff who had left in 2008 and that she did not know where she was.[22] Then, in re-examination, she referred to the attempts which she had made to contact her, said that she had happened to run into her during the course of the trial itself, and said that in response to a request that she make a statement Ms Lam had said that she would not do so because she was ‘so scared’ of Hau.[23]
[22]Ibid (17 February 2016) 927.
[23]Ibid 943–4.

In the course of oral submissions senior counsel for the applicant sought to raise other issues not relied upon in the written case (as narrowed), including two issues which had never been raised before. One of the entirely new issues concerned the practicality of using a large number of bank cheques at a settlement, and the other concerned the identification of the initials on the Rockbank transfer.

Submissions of the respondents other than Loan Tran and the Registrar of Titles

On behalf of the respondents, other than Loan Tran and the Registrar of Titles, the following matters were emphasised:

(1)Hau’s claims were claims of fraud. The onus cast upon him to produce clear, cogent and strict proof was important.
(2)Hau first made his claims in 2013, approximately six years after the transfers in 2007 and 12 years after the acquisitions in 2001. It was unsurprising that witnesses would have difficulty in recalling the precise circumstances.
(3)The judge had been confronted with two incompatible accounts of the circumstances of the purchases, and of the transfers in 2007. The accounts could not be reconciled. The trial judge had to choose between Cynthia, Mai and Loan Tran on the one hand and Hau on the other. In such a case the judge’s advantages are very great and an appellate court ought to be very loathe to interfere. This is particularly so in relation to issues concerning the way in which the trial evolved. The applicant’s contentions concerning the judge’s failure to deal with what the applicant contended to be ‘recent inventions’ in the course of Cynthia’s evidence need to be assessed in that light.
(4)The trial judge’s negative findings in relation to Hau’s credit are not challenged by the applicant.
(5)The trial judge had little choice but to accept the uncontradicted expert evidence that Hau had signed the four documents which support Cynthia’s case prior to 2007. Those documents alone were fatal to Hau’s case.
(6)In order to accept Hau’s account of events the trial judge had to reject not just Cynthia’s evidence but also the evidence of Mai, Loan Tran, and another witness, Cynthia and Hau’s brother, Hung.
(7)Significant moments in the trial cannot be adequately captured by the transcript. Examples in this case include Hung’s evidence of feeling sorry for his brother as he watched him sign three of the four documents which effectively acknowledge Cynthia as owner, to which the trial judge specifically referred;[24] and Loan Tran’s evidence about Cynthia’s reaction upon being told of Hau’s application for a new duplicate certificate of title (‘little devil … What he’s up to now?’), to which the judge also specifically referred.[25]
[24]Reasons [211].
[25]Ibid [144].

Submissions of Loan Tran

Counsel on behalf of Loan Tran emphasised the following matters:

(1)If the transfers in 2007 were not forged, Hau’s claims had to fail no matter what the judge accepted about what had happened in earlier years.
(2)No case had been pleaded or put that Loan Tran had been guilty of any fraud herself.
(3)Hau’s account of his dealings with Loan Tran was extraordinary, and could not be accepted. Hau contended he had never seen Loan Tran again after the completion of the BankWest transaction in 2005. Loan Tran gave detailed evidence of 17 interactions which she had had with Hau between mid-2006 and the end of 2007. For Hau to be accepted the judge had to reject Loan Tran’s evidence, not just in relation to seeing Hau initial and sign relevant documents, but also in relation to the entire course of dealing with Hau which Loan Tran had described in detail.
(4)Loan Tran had a conveyancing file. While she had not taken file notes, the file was ordered and structured and gave her a basis upon which she could give a reliable account of what had occurred. Loan Tran had impressed the judge as a witness. Save for the fact that she was herself the subject of a negligence claim, she was independent of the contending family members. No motive for her involvement in what was said to be Cynthia’s frauds was put to her. No motive for her involvement in these frauds had ever been suggested.
(5)Loan Tran’s evidence was that she had witnessed the Altona transfer herself. As soon as that aspect of her evidence was accepted Hau’s credibility was lost.
(6)Loan Tran may have produced documents which were not of a form and content which a lawyer might have produced but she is not a lawyer, she is a conveyancer.
(7)The judge’s reasons clearly set out the process by which he came to the conclusions which he did. The judge does not have to deal with every submission made on behalf of the parties.

Submissions of the Registrar of Titles

The registrar did not wish to make submissions on the substantive issues but wished to be heard if leave were granted and the appeal allowed.

Proposed ground 1 — the ‘incontrovertible facts’ — analysis

In Fox v Percy,[26] the High Court described the circumstances in which an intermediate court of appeal could set aside the findings of a trial judge that had been based upon the credibility of a witness. In their joint judgment, Gleeson CJ, Gummow and Kirby JJ said that such findings could be set aside where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous or where the court of appeal concluded that the decision at trial was glaringly improbable or contrary to compelling inferences in the case.[27] In his judgment, McHugh J held that an appellate court is entitled to set aside a finding below that had been based expressly or inferentially on demeanour if there was something that pointed decisively, and not merely persuasively, to error on the part of the judge in acting on his or her impressions of a witness or witnesses.[28]
[26](2003) 214 CLR 118.
[27]Ibid 128 [28]–[29].
[28]Ibid 146–7 [90].

In that case, the plaintiff had sued the defendant for damages for negligence for injuries incurred as the result of a collision, on a narrow, unsealed country road, between a Kombi van driven by the defendant and a horse ridden by the plaintiff. There was evidence in the form of skid marks that indicated that the defendant’s van was on the correct side of the road immediately prior to the collision. The defendant also gave evidence that, at the moment of impact, she had been driving on the correct side of the road. Nevertheless, the trial judge found that the van was on the wrong side of the road. In doing so, he chose to rely upon the evidence of three witnesses: the plaintiff, who said that she was on the correct side of the road; her companion, who was riding another horse immediately behind that of the plaintiff; and a traffic engineer, who had provided two expert reports on behalf of the plaintiff. In the event, the trial judge found that the collision had occurred because of the defendant’s negligence in being on the incorrect side of the road. The defendant appealed.

In allowing the appeal, the New South Wales Court of Appeal (Handley and Beazley JJA, Fitzgerald JA dissenting) held that, while the trial judge had accepted the evidence of the plaintiff and her companion, their evidence was inconsistent with the presence of the skid marks, a fact incontrovertibly established by the evidence and the finding of the trial judge. The Court also found that the reports prepared by the traffic engineer that supported the plaintiff’s evidence were based on assumptions not proved in evidence. The Court entered a verdict for the defendant.

The High Court dismissed an appeal to it. Gleeson CJ, Gummow and Kirby JJ said:

the majority in the Court of Appeal did not err in giving effect to the conclusion that they reached. The skid marks on the [defendant’s] correct side of the road were incontrovertibly established. Their position, length, direction and terminus are inconsistent with the [plaintiff’s] version of events. Having come to that decision, the majority in the Court of Appeal were correct to give effect to their conclusion and to set aside the judgment in the [defendant’s] favour.[29]

[29]Ibid 132 [42].

McHugh J said:

Standing against the evidence of [the plaintiff] and [her companion], however, were the following facts, accepted by the trial judge:
.The 10 m skid marks being on [the defendant’s] correct side of the road.

.         The Kombi van ending up on the correct side of the road.
.         The Kombi van being parallel to the roadway.
.         [The plaintiff] coming to rest in front of the Kombi van.
No matter how unimpressive a witness [the defendant] appeared to be, these incontrovertible facts powerfully confirmed her testimony that she was on her correct side of the road. Conversely, no matter how impressive as witnesses [the plaintiff] and [her companion] appeared to be, their testimony could not be accepted unless there was a rational explanation of these incontrovertible facts that was consistent with their testimony. The presence of the skid marks and the resting place of the van, in particular, pointed irresistibly to [the plaintiff] being on her incorrect side of the road.[30]

[30]Ibid 148 [95]–[96].

In the present case, the applicant characterised the 2001/2002 financial statements and the evidence of Mr Latif, metaphorically, as ‘skid marks’. We will deal first with the 2001/02 financial statements.

The submission put to the trial judge was that the 2001/02 financial statements revealed that Cynthia’s account of how she paid for the properties could not be true because there was insufficient net profit after tax, as the financial statements showed. This submission was not repeated before us. The submission relying on an insufficiency in net profit had no bearing upon available cash flow, which was the matter upon which the trial judge relied. It was accepted before us that the trial judge’s conclusion on cash flow was correct. What was put to us was that while the financial statements might show the cash flow was sufficient, they also showed it had not been utilised as Cynthia had claimed.

It is necessary to briefly review how the trial judge dealt with the relevant evidence.

Cynthia had given evidence that she paid for the deposit on the Rockbank land by using bank cheques. The trial judge recorded her evidence as follows:

Cynthia said that the deposit was paid with three or four bank cheques, which she obtained from the Commonwealth Bank. Whilst not being able to remember the precise amounts of each bank cheque, Cynthia said that each cheque was for less than $10,000 because she did not want to use too much cash from her business and the teller from the bank had also advised her that if the bank cheques were of amounts of more than $10,000 she would have to declare the cheque. In order to avoid too much paperwork, she preferred to buy bank cheques for amounts of less than $10,000. Bank cheques for the deposit were acquired over a period of about a week, but not on the same day. Cynthia said she went to the bank whenever she was free. The bank was very close to her office. On each occasion, she dealt with a Vietnamese teller, Ms Annie Thao Nguyen. Cynthia said she had surplus cash left over in her business, which she accumulated and kept in the office safe until she had enough to buy a bank cheque.[31]

[31]Reasons [53] (citation omitted).

In relation to the Rockbank settlement, the judge said:

On the day of settlement, Cynthia took more than 30 bank cheques to the settlement. The cheques were all for less than $10,000 and were acquired using cash from Cynthia’s business. They were kept in the safe until settlement day. Prior to the settlement, Cynthia and Mai went to Ms Bui’s office (Low Cost Conveyancing) in Footscray West and gave the cheques to her. After settlement, Cynthia brought Hau and Mai and others to show the new land to them. This occurred either on the date of settlement or a few days later.[32]

[32]Ibid [54] (citation omitted).

The evidence of Cynthia was corroborated by her sister, Mai. The judge said:

Mai said Cynthia provided all of the purchase money for the Rockbank land, which she did by buying bank cheques. Mai said that both she and Cynthia bought bank cheques for this purpose. Cynthia asked her to go and buy the bank cheques at the local CBA bank branch, which was located between the Vien Dong Travel office and the Holiday Travel office. Mai said she was not sure how many bank cheques she purchased for the Rockbank land purchase, but estimated between 15 to 20 bank cheques. Usually she purchased them when Cynthia had finished her accounts or banking. Cynthia would give her a call to take the money, generally around $9,000 in cash. Mai would then buy the bank cheques, with the vendor’s name as payee. Mai could not remember the exact name or spelling of the vendor(s), but said she knew that it was a Vietnamese name. She said the cheques were purchased from a female Vietnamese bank teller. She was not sure of her name, but said it sounded like Annie Thao Nguyen. On each trip to the bank, Mai would purchase one bank cheque. When she went to Cynthia’s office, Cynthia had the money counted and ready. The cash was in a cloth bag, which Mai would put in her handbag to take to the CBA branch. On her return, Mai would give the bank cheque to Cynthia. Mai was not sure over what period of time she obtained bank cheques in this way for the Rockbank land purchase, but thought it was approximately three months. After settlement, Mai said that she camped at the Rockbank land with Cynthia, Hau, and their sibling [Hung], and that Hau had said it was a very cheap price for the land.[33]

[33]Ibid [62].

In reaching his conclusion that Cynthia had demonstrated the means and ability to pay for the Rockbank land, the trial judge said:

On her account, she accumulated enough cash from daily turnover in her business to purchase multiple bank cheques. For the deposit ($33,000 less $1,000 initially paid), this accumulation took approximately a week or two. Accumulation of the balance of the purchase price took several months.
At the time of the purchase in 2001, Cynthia operated a very successful travel agency and a duty free business. Vien Dong Tourist Service operated through PFE as corporate trustee for the Vien Dong Trust. The revenue of this business for the year ended 30 June 2001 was in excess of $9.9 million, an average of approximately $190,000 per week. For the year ended 30 June 2002, the revenue of the business was approximately $9.2 million, or an average of $177,000 per week.
According to Cynthia, the majority of customers booked tickets to Vietnam or other Asian destinations. At the relevant time the travel agency represented all airlines, but mainly Vietnam Airlines. Depending on the season, customers would typically pay between $1,000 and $1,700 per ticket. Customers paid variously by cash, direct credit, bank cheque or credit card. Given the very substantial turnover, in my view it is reasonable to infer, and I do infer (even allowing for seasonal fluctuations) that the travel business produced sufficient cash flow from which Cynthia would have been able to accumulate cash in the terms claimed.[34]

[34]Ibid [66]-[68] (citations omitted).

In reaching his later conclusion that Cynthia had also had the means and ability to pay the deposit and stamp duty and meet the mortgage payments on the Altona property, the judge reiterated his ‘earlier findings that she had the means and ability to do so from the revenue generated from her business’.[35]
[35]Ibid [126].

We reiterate that the finding that Cynthia had sufficient cash flow to do what she said she did was not contested before us.

Before turning to the specific submission now made on behalf of the applicant, a number of more general matters are significant.

First, the trial judge based his findings on the revenue generated by the business over two financial years and not just the 2001/02 year. He found that the business generated revenue of approximately $190,000 per week in the year ended 30 June 2001 and approximately $177,000 per week in the year ended 30 June 2002.[36]
[36]Ibid [67].

Second, Cynthia’s evidence of the buying of bank cheques was corroborated by Mai.

Third, the trial judge had to decide between Hau’s evidence of how he had financed the purchase of the Rockbank land and Cynthia’s evidence of how she had done so. He concluded that Hau’s account was ‘implausible’.[37]
[37]Ibid [70].

Shortly stated, Hau said that he had inherited money from his mother and that he had had three other sources of income. He said that the inheritance from his mother had been brought into Australia in two ways: he had personally brought in two tranches of US dollars, and the balance had been transmitted to him by his sister, Anna. He said that he had kept the money in US dollars in cash in a suitcase under his bed. Eventually, he had exchanged the US dollars into Australian dollars ‘by exchanging the US dollars for Australian dollars with clients who purchased goods from a duty free shop where [he] said he worked’.[38] The three further sources of money were: working for family members, ‘a partnership with a person in Vietnam operating a mobile phone shop with a Motorola franchise’,[39] and a bakery business that took three or four months to renovate and which operated for ‘four or five months before Hau gave it up’.[40]
[38]Ibid [32].
[39]Ibid [38].
[40]Ibid [39].

The trial judge disbelieved Hau’s evidence about the inheritance. Four members of the Lam family said that their mother had depended financially on her children and was not capable of leaving the inheritance Hau described. The judge said:

The overwhelming weight of evidence corroborated by four siblings in the Lam family is to the effect that their mother had no assets and could not have been in a position to confer an inheritance of the kind alleged on any of her children.[41]

[41]Ibid [92].

In reaching this conclusion, the judge took into account the evidence of two other siblings whose evidence was relied upon to corroborate the evidence of Hau as to the inheritance. He said that the evidence of one sister, Anna, was ‘insufficient to persuade me of the veracity of the plaintiff’s claim to have received an inheritance from his mother’.[42] He said that the affidavit evidence of another sister, Minh, should be given ‘minimal weight’[43] as she had not attended to be cross examined. Apart from anything else, no explanation had been provided for the mother to single out Hau for her largesse.
[42]Ibid [93].
[43]Ibid.

The trial judge also disbelieved Hau’s evidence that he had kept so much cash in a suitcase under his bed, he doubted his evidence about his work history, and he rejected his evidence of changing US dollars into Australian dollars with clients who came into the duty free shop in which he claimed to have worked.[44]
[44]Ibid [100]–[102].

Before us the applicant did not seek to impeach any of the findings made by the trial judge in respect of Hau’s evidence. The judge rejected Hau’s evidence that he had had the means to pay for the properties.

The judge’s reasons are devastating with respect to Hau’s credit. By contrast, as to Cynthia, the trial judge said:

despite the effluxion of time, Cynthia gave a believable and cogent account of the circumstances of the purchase of the Rockbank land. Generally, she had a good recall of events, was willing to concede when her memory failed her and withstood cross-examination.[45]

[45]Ibid [69].

Turning then to the specific submission now made, what is contended is that if $524,000 had been taken from the business’ revenue in cash to fund these purchases, that would have to have been evident somewhere in the 2001/02 financial statements. It was submitted that the judge had found that the cash used had been accumulated in the 2001/02 year. It was submitted that, if that had been so, that cash extraction would have to have been recorded somewhere, as a loan to Cynthia, or reflected in outstanding liabilities, or in some other way, yet no such record appeared.

We do not accept that the 2001/02 financial statements constitute incontrovertible facts rendering the judge’s relevant conclusions clearly erroneous or glaringly improbable in the relevant sense.

The judge did not have to make a finding on the integrity of the financial records of the business, and he did not do so. The business run by Cynthia involved her receiving very large amounts of cash, amounts clearly sufficient to fund the acquisition of bank cheques in the way she claimed she had done. That was the relevant fact. The omission of any entry in the financial statements recording or reflecting the cash extractions may point to an inadequacy in the financial records, or cash may have been taken out and then restored, or cash may have been accumulated in Cynthia’s safe over a longer period. None of these issues were addressed in evidence or in submissions before the trial judge. The trial judge’s finding that Cynthia had the resources to buy the properties and had used the revenue of her business to obtain cash to purchase bank cheques was neither clearly erroneous nor glaringly improbable.

We do not accept the proposition put by the applicant that the judge found that the cash used was all accumulated during the 2001/02 year. This submission was based upon a passage in the judgment concerning the Rockbank land where the judge said, referring to the accumulation of cash:

For the deposit … this accumulation took approximately a week or two. Accumulation of the balance of the purchase price took several months.[46]

[46]Ibid [66].

The applicant’s submission reads too much into this passage. Immediately after that passage, when assessing the capacity of the business to produce sufficient cash, the judge referred to the annual revenue and the approximate weekly averages for the year ended 30 June 2001 as well as the 2001/02 year,[47] then he concluded that the business ‘produced sufficient cash flow’ from which cash could have been accumulated in the terms claimed by Cynthia.[48] Cynthia in her evidence had not confined herself to the cash accumulated over any defined period.[49] As indicated, on this issue the judge found her to be a credible witness and he accepted her evidence.
[47]Ibid [67].
[48]Ibid [68].
[49]Transcript of Proceedings (10 February 2016) 673, (16 February 2016) 851, 860-1, (17 February 2016) 945.

We turn then to the second matter said to be incontrovertible and to render relevant findings clearly erroneous or glaringly improbable, being the evidence of Mr Latif.

The applicant gave evidence at trial that he had found the Rockbank land himself and that he negotiated the sale with Mr Latif from the real estate firm, JC Optimum Australia Pty Ltd. Mr Latif gave evidence that he had dealt with the applicant, and with the applicant alone. The contract note signed by Hau was produced, and Mr Latif identified his handwriting on it.

Cynthia had a different version of how the Rockbank land came to be purchased. She said that she drove past the land and saw it was for sale. We have earlier set out her evidence that seeing Mr Latif at court had prompted her to recall that she had dealt with a Vietnamese man after phoning a number on a board, rather than dealing with the owner direct. She said that she, Mai and Hau had attended the offices of a conveyancer where the applicant signed the contract note as Cynthia did not want the land to be in her name by reason of her marital difficulties at that time. She said that she provided the cheques for both the deposit and the settlement and took possession of the certificate of title which remained in her possession.

Mai also gave evidence about the circumstances in which the opportunity to purchase the Rockbank land arose. Her evidence corroborated that of Cynthia.[50] In her evidence, she said that, at an inspection of the land, they had met a Vietnamese man who was a real estate agent and that they had spoken to him in Vietnamese.[51]
[50]Reasons [56]-[61].
[51]Ibid [57].

The trial judge believed Cynthia. He said:

Considering the different versions side by side it is evident that there are inconsistencies, some of which are irreconcilable. Notably, Mai said that Hau was present at the inspection when Cynthia met the Vietnamese man at the Rockbank land. Cynthia said nothing about Hau being present at that time. Another notable difference is that on the plaintiff’s case Hau saw the land and inspected it before Cynthia. On the Lam defendants’ case, Cynthia and Mai saw the land before Hau. Considering the effluxion of time, inconsistencies are not unexpected. The events occurred approximately 15 years ago. Until the allegations were made by the plaintiff in 2013, the individuals concerned would probably have had no cause to recall the specific events, much less the nuances associated with them.
Allowance must therefore be made for inconsistency and imperfection in the accounts of all of the relevant witnesses. After making such allowance, I have a clear preference for the Lam defendants’ account of the purchase of the Rockbank land.
First, there is a believable context for Cynthia’s discovery of the land. I am satisfied that Cynthia was in the habit of driving around on Sundays looking for real estate opportunities. She was looking for land in Caroline Springs and, due to the unavailability of opportunities there, had to look further afield. This took her to the Rockbank area. There, she chanced across the land coming off a freeway exit. In my view, this is likely on the balance of probabilities, given the close proximity of the land to the relevant freeway off ramp.[52]

[52]Ibid [63]-[65].

The trial judge then went on to set out the other reasons why he preferred the Lam defendants’ account, being Cynthia’s demonstrated means and capacity to pay for the land,[53] a favourable assessment of Cynthia as a credible witness,[54] an unfavourable assessment of the plausibility of Hau’s account of how he had financed the purchase,[55] and a generally unfavourable assessment of Hau as a witness.[56]
[53]Ibid [66]-[68].
[54]Ibid [69].
[55]Ibid [70]–[106].
[56]Ibid [107].

The trial judge was right to be mindful of the fact that the events in question took place in 2001, some 15 years before the parties gave evidence about them. There could be no expectation that the relevant events would be remembered with precision.

The judge did not ignore Mr Latif’s evidence. In his judgment he set out Hau’s evidence of his dealings with Mr Latif,[57] and he set out a full account of Mr Latif’s own evidence.[58] One aspect of Mr Latif’s evidence which the judge set out is significant in this context. The trial judge said:

Mr Latif said that the vendors of the Rockbank land were Vietnamese and that he did not speak Vietnamese. He said there was ‘one guy’ at the JC Optimum Real Estate office in 2001 who spoke Vietnamese; Mr Latif did not know whether that person had spoken with anyone else regarding the purchase of the Rockbank land.[59]

The judge’s description of that aspect of Mr Latif’s evidence was accurate.[60]

[57]Ibid [30].

[58]Ibid [40]–[44].

[59]Ibid [43].

[60]Transcript of Proceedings (8 February 2016) 545.

In the circumstances, the evidence of Mr Latif that he had dealt only with the applicant in the sale and purchase of the Rockbank land was not evidence of an incontrovertible fact that made the trial judge’s acceptance of the account given by Cynthia (and Mai) as to the circumstances in which the land was acquired clearly erroneous or glaringly improbable. The judge did not have to reject Mr Latif’s evidence in order to accept Cynthia and Mai’s account, and he did not do so. Cynthia and Mai’s account was not necessarily inconsistent with Mr Latif’s evidence.

Mr Latif’s evidence was relevant evidence which was taken into account by the judge. Accepting that evidence did not require him to reject Cynthia and Mai’s account, in the way the skid marks in Fox v Percy required rejection of the horse riders’ account.

Proposed grounds 2 and 3 — ignoring the applicant’s case and failing to give adequate reasons — analysis

These proposed grounds were addressed together before us and substantially overlap.

The parties before us did not make detailed submissions in relation to the legal principles which apply concerning a judge’s obligation to deal with evidence led and submissions made in his or her judgment.[61] It is important to be clear on the principles which apply.
[61]The applicant’s written case did not contain any submissions on the legal principles. The written case on behalf of Cynthia and associated respondents included one paragraph [54] where reference was made to the decisions in Hunter v Transport Accident Commission [2005] VSCA 1 (‘Hunter’), Nichols v Robinson [2001] VSCA 11 (‘Nichols’) and Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 (‘Whisprun’). Loan Tran’s written case included one paragraph [42] which also referred to Hunter and Nichols.

Reasons are a necessary incident of the judicial process and are important not simply as a means of enabling appeals to be properly conducted and determined, but also so as to enable parties to perceive that justice has been done in their case, to enable the public generally to perceive that justice is being done in cases before the Courts, as a means of providing for judicial accountability, and because judgments perform an important educative function.[62]
[62]Massoud [1989] VR 8, 18-19 and the cases cited, especially Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279-280 (‘Soulemezis‘); Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1, 30–1 [99]-[100] (‘Fletcher’); Sherlock v Lloyd (2010) 27 VR 434, 437 [14]. The fundamental importance of reasons in the undertaking of the judicial function has been emphatically emphasised by the High Court recently in Wainohu v State of New South Wales (2011) 243 CLR 181.

The extent and detail of the reasons required in a particular case will vary depending upon the nature of the case, the complexity of the issues, and the evidence and the submissions made.[63]
[63]Massoud [1989] VR 8; Fletcher (2002) 6 VR 1; Bloomfield v Haralabakos [2007] VSC 279; Shire of Wakool v Walters [2005] VSCA 216 [35].

As to what is usually required, Meagher JA’s observations in Beale v Government Insurance Office (NSW)[64] to the effect that a judge should refer to the relevant evidence, make material findings, and explain the reasons for the findings and the application of the law to the facts as found, is often quoted.[65]
[64](1997) 48 NSWLR 430, 443-4.
[65]See, for example, Fletcher (2002) 6 VR 1, 31–2 [101].

Where factual matters are concerned, the reasons ought not leave the reader to wonder which of a number of possible routes have been taken to the conclusion expressed.[66]
[66]Hunter [2005] VSCA 1 [21].

In Soulemezis, McHugh JA (as he then was) observed:

Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary ‘for him to go further and say, for example, that the reason was based on demeanour’: Connell v Ackland City Council [1977] 1 NZLR 630 at 632-633 per Chilwell J.[67]

[67]Soulemezis (1987) 10 NSWLR 247, 280 (emphasis in original).

If there is evidence which is uncontradicted, reasonable and inherently probable, and which goes to the core of the case, a failure to refer to the evidence has been held to constitute appellable error on the basis that the evidence had either been rejected without any reason being given, or had not been considered as it should have been.[68]
[68]Read v Nerey Nominees Pty Ltd [1979] VR 47, 51-2 (‘Read’); Massoud [1989] VR 8.

A judge’s obligation was summarised by Nettle JA (as he then was) in Hunter in these terms:

while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion.[69] It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case[70], where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue.[71] Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.[72]^{, [73]}

[69]Cropp v TAC [1998] 3 VR 357, 376 (Charles JA); Giannakopoulos v Melwire Pty Ltd and MMI Workers’ Compensation (Victoria) Ltd [2000] VSCA 153 [23] et seq (Tadgell JA); Dodoro v Knighting [2004] VSCA 217 [39] (Buchanan JA), [45], [58] (Eames JA in diss).

[70]Whisprun (2003) 200 ALR 447, 463 [62].

[71]Massoud [1989] VR 8, 18.

[72]Soulemezis (1987) 10 NSWLR 247, 279-80, 282 (McHugh J); Fletcher (2001) 4 VR 28, 35 [18] (Chernov JA).

[73]Hunter [2005] VSCA 1 [21].

In relation to the statement that a judge is not required to deal with every argument and issue, Nettle JA cited the following passage from the judgment of Gleeson CJ, McHugh and Gummow JJ in Whispun:

A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.[74]

[74]Whisprun (2003) 200 ALR 447, 464 [62].

Before turning to the specific matters raised and relied upon in the written case (as narrowed), giving particular attention to the matters emphasised in oral submissions, there are three general matters which are important.

First, it could not be contended, and it was not contended, that the judge’s reasons were not intelligible or that they left the reader to wonder which of a number of possible routes had been taken to the conclusion expressed. Hau was alleging fraud. It was incumbent upon him to prove his allegations on the balance of probability. Given the gravity of the matters he alleged, clear and cogent proof was required.[75] The judge set these requirements out early in his judgment.[76] Hau’s case relied substantially on his own credit. There were irreconcilable differences between Hau on the one hand, and Cynthia, Mai and Loan Tran on the other. Hau failed because the judge preferred the account given by Cynthia, Mai and Loan Tran to that given by Hau. He set out his reasons in detail. They are clear and coherent. The complaints now made are not that one is unable to see and understand the reasoning process, but rather that the judge has neglected to deal with matters that ought to have been dealt with.
[75]Briginshaw v Briginshaw (1938) 60 CLR 336.
[76]Reasons [13]–[16].

The second general matter arises out of the nature of the proceeding. The trial occupied 21 hearing days. The Court Book was in 12 volumes. The issues raised concerned dealings between family members, who are not native English speakers, over a period in excess of a decade. The range of matters addressed in the evidence which were contended to be relevant by one party or another could properly be described as vast. The judgment is long, detailed and methodical.[77] The High Court’s concern as to the consequence of requiring trial judges to mention every fact or argument relied upon by a losing party is apt to be borne in mind when assessing the submissions made in this context.
[77]The judgment is 361 paragraphs over 89 typed pages.

The third matter of importance concerns findings made by the trial judge which have not been challenged, or which have only been challenged in a most indirect way, before us. First and foremost, is the judge’s finding, based upon uncontested expert evidence, that Hau signed the four documents inconsistent with his case prior to 2007. Added to that, is the judge’s conclusion, which was clearly open to him given the first finding, that Hau had been untruthful in denying that he had signed those documents. It seems to us that these findings, without more, were potentially fatal to Hau’s case. But the judge’s findings as to Hau’s credit did not end there. The judge was unable to accept Hau’s evidence of how he had financed the purchases. The judge’s analysis of that evidence was not the subject of challenge before us and, in our view, his analysis was clear and cogent. Likewise, the judge preferred Loan Tran’s account of her dealings with Hau from mid-2006 until the end of 2007 in preference to Hau’s contention, which, it must be said, is difficult to see as credible, that he had had no dealings with Loan Tran at all during that period. In this context, the complaints made as to aspects of the matter which the judge failed to address, or address adequately, are in our view inconsequential. Hau was alleging fraud. It was incumbent upon him to produce clear and cogent proof. His proof relied upon his own credit. The judge did not find him to be credible. None of the complaints now made relevantly bear on that aspect of the judge’s analysis.

Turning to the applicant’s contentions, we deal firstly with the matters particularly emphasised in oral submissions.

The first matter which it was suggested the judge had wrongfully failed to address was the Lanham letter which had asserted that Cynthia had had no knowledge of the BankWest mortgage. It is true that the judge did not refer to this letter in the judgment, but what was its true significance? When asked about the letter in cross-examination Cynthia’s evidence was that she had explained what had happened about the BankWest mortgage to the lawyer. She said she had explained that Hau had initially tried to arrange a loan without her knowledge by applying for a new certificate of title, but that when he had begged her to allow him to borrow against the land she had agreed. She said that she had explained that to the lawyer and explained that that was why she had removed the first caveat. She suggested that the lawyer may have misunderstood the whole story.[78] Cynthia also maintained that her knowledge of the BankWest transaction was limited. She said all she knew was that there was a loan of $50,000 from a bank ‘on my land’.[79] It is clear from the transcript that Cynthia’s English is less than perfect.
[78]Transcript of Proceedings (16 February 2016) 827–8.
[79]Ibid 876.

The evidence of Loan Tran is also significant in this context. Loan Tran’s evidence was that when Cynthia found out about Hau’s application for a new certificate of title she responded expressing surprise and concern about what her brother was ‘up to’.

In her defence Cynthia had admitted placing the first caveat on the Rockbank land, removing it, and then placing a second caveat on the land. In her defence she had positively asserted that she discussed with Hau placing the second caveat on the land once the BankWest mortgage was registered.

As senior counsel for the applicant conceded in reply, there could never have been any doubt, given what happened with the two caveats, that Cynthia was aware of the BankWest loan and consented to registration of the BankWest mortgage.

Given the entire context, in our view, the applicant has not established an error of the requisite kind in relation to the judge’s failure to refer to the Lanham letter. It simply does not have the significance the applicant seeks to give it.

The second matter emphasised orally was the fact that the judge had proceeded on the basis that the BankWest loan was in default when that could never have been the case, and had ignored an obvious recent invention by Cynthia in the course of her evidence concerning the ‘debt collector story’.

It is true that the ‘debt collector story’ was not put to Hau when he gave evidence initially. It was put to him when he was recalled after Cynthia had given evidence.[80]
[80]Ibid (29 February 2016) 1280.

Cynthia did not suggest that the ‘debt collector’ she said came to her door in 2006 was necessarily from BankWest, although her evidence was that her concern was that the bank would or could take action in relation to the Rockbank land and she said she confronted Hau about the mortgage as a result.[81]
[81]Ibid (10 February 2016) 734–5.

The judge dealt with the issue of ‘default’ on the BankWest mortgage in the context of Loan Tran’s evidence.[82] Loan Tran’s evidence, as set out by the trial judge, was to the effect that both Hau and Cynthia had told her the BankWest mortgage was ‘in default’. BankWest in response to a request by Loan Tran for information had stated that the mortgage was ‘in default’. We have set out the relevant part of BankWest’s letter earlier.
[82]Reasons [231]–[234], [243]–[247].

The trial judge did not reject the proposition that there was ‘default’ on the BankWest mortgage. He did not address the ‘debt collector story’. The trial judge addressed the contentious issues as to the 2007 transfers as issues of credit, very substantially between Hau on the one hand and Loan Tran on the other.[83] He also relied upon the evidence of Mai[84] in this context and evidence concerning a Dr Le, before whom relevant documents had purportedly been signed by Hau.[85] The judge did not rely on Cynthia’s evidence at all.
[83]Ibid [325]–[326].
[84]Ibid [307]–[321].
[85]Ibid [322]–[323].

On these issues Hau failed because the judge accepted the evidence of Loan Tran,[86] supported by the evidence of Mai,[87] and the evidence concerning Dr Le.[88]
[86]Ibid [328].
[87]Ibid [329].
[88]Ibid [330]–[334].

Again, this matter simply does not have the significance that the applicant seeks to place on it. Cynthia’s evidence was not significant. BankWest itself said the mortgage was in default. The applicant has failed to demonstrate any error of the requisite kind by the trial judge in failing to address this issue in the terms in which the applicant contends he should have.

Next, the applicant complains that the trial judge did not place the significance which he ought to have on Loan Tran’s protection document.

The trial judge did not ignore this document. He set out its relevant contents, and Loan Tran’s evidence in relation to it, both in her evidence in chief and in cross-examination, in his judgment.[89] The judge was aware that in characterising Cynthia’s interest as a lender the document was inconsistent with the proposition that the land was held on trust. As the judge recorded, Ms Tran herself did not disagree with that proposition, but she gave an explanation. She said that she took advice from a lawyer and that based on the explanation she had given the lawyer that was the way the issue was approached. Loan Tran is not a lawyer. The trial judge accepted Loan Tran as a witness of truth.
[89]Ibid [276]–[277].

Finally, in oral submissions the applicant emphasised the trial judge’s failure to address what was said to be the further recent invention by Cynthia in her evidence concerning Chanelle Lam. We have previously set that evidence out. It is true that the judge did not address the question of whether Cynthia had attempted to contact Chanelle Lam, and whether she did meet her by chance during the trial, but in our view this issue, like the others, does not have the significance which the applicant would seek to give it. The judge dealt with the lay evidence and the expert evidence concerning the 2007 transfers at great length and clearly explained his reasons for accepting Loan Tran’s account and rejecting Hau’s.

The two entirely new matters

Two entirely new factual matters were sought to be raised during the hearing of the application for leave to appeal. These matters had not been the subject of evidence or submission before the trial judge, save to the extent that documents upon the basis of which the submissions were sought to be made had been in evidence. The matters sought to be raised could have been the subject of relevant evidence from witnesses if they had been raised at the trial. We were not prepared to entertain the submissions in those circumstances.

Other matters

Counsel for the applicant in the course of submissions referred to other matters which need to be addressed. Two were raised in the written case. They were that in assessing Loan Tran’s credit the judge had failed to address the fact that Loan Tran had been a party to the preparation of false statutory declarations by Hau and Mai (which Hau denied signing) concerning land tax in relation to the Altona property, and that the judge had been wrong to conclude as he did that mail sent to Hau at 16 Jerrold Street ‘was passed on to Hau’.[90]
[90]Ibid [179].

In relation to the statutory declarations concerning land tax, the judge did not ignore this issue. He dealt with it in the judgment.[91] The statutory declarations in question had apparently been declared before Dr Le. The judge found as a fact, after considering all the relevant evidence, that Hau had signed the statutory declarations before Dr Le.[92] The statutory declarations claimed the Altona property had been Hau and Mai’s principal place of residence. Loan Tran’s involvement in preparing these statutory declarations could have affected the judge’s assessment of her credit, but it did not. This was an assessment the judge was best placed to make.
[91]Ibid [300]–[305].
[92]Reasons [333].

The judge’s conclusion that mail was passed on to Hau was a finding made in relation to a letter from Gadens Lawyers to Hau dated 10 May 2005. The letter congratulated Hau on the approval of his loan, enclosed documentation to be executed by him, and enclosed a copy of Cynthia’s caveat with an instruction that he would need to arrange for a withdrawal. Loan Tran’s evidence was that Hau brought this letter to her when she acted for him in relation to the BankWest mortgage. Hau denied ever having seen the letter and said he was living at another address at that time.

There is no doubt that the BankWest loan was sought and obtained by Hau himself. Somebody gave Gadens that address. Loan Tran’s evidence was that Hau brought the letter to her. In this context it is also noteworthy that Hau’s earlier application for a new duplicate certificate of title dated 14 January 2005 gave his address as 16 Jerrold Street, Footscray. No error to the requisite kind has been shown to have been made.

Other issues raised in the course of oral submissions concerned the judge’s rejection of Cynthia’s counterclaim and the effect that should have had on the judge’s assessment of Cynthia’s credit; and a contention that Hung, another brother of Cynthia and Mai, who gave evidence supporting Cynthia, had been shown (according to the applicant) to be a ‘perjurer’ and the effect that that should have had on his credit.

In relation to Cynthia’s counterclaim the judge found that Cynthia had ‘failed to establish her counterclaim on the balance of probabilities’.[93] The judge found that an arrangement Cynthia had described about a $50,000 loan to Hau in 2002 was ‘extremely vague’. He concluded:

In my view, the passage of time has made the uncorroborated evidence of Cynthia too unreliable to be accepted with any confidence.[94]

[93]Reasons [360].

[94]Ibid [352].

Cynthia had been unable to produce evidence by way of bank statements or other documents to prove that she had lent her brother $50,000 in 2002 as she claimed. The initial account she had given as to how this loan had been made, being by bank cheque, had been shown to be incorrect.

The judge could not accept Cynthia’s evidence on the counterclaim. He did not find she had deliberately lied about it. He found that her uncorroborated evidence was too unreliable to be accepted with confidence given the passage of time. The judge was not required to reject all of Cynthia’s evidence because of these shortcomings. He was best placed to assess Cynthia’s credit in all the circumstances, including his rejection of her counterclaim.

As to Hung’s alleged perjury the trial judge addressed the matter relied upon in detail.[95] He was best placed to assess Hung’s credit.
[95]Ibid [87]–[90].

Matters considered as a whole

We have addressed the individual matters relied upon by the applicant but we have also considered the effect of all of the matters relied upon as a whole in order to determine whether the trial judge’s factual findings are clearly erroneous or glaringly improbable, or whether he has failed to address matters which he was required to address in the judgment.

The matters relied upon considered in combination do not reveal any relevant error by the trial judge, in our view. Indeed, we consider that the trial judge’s reasons are clear and cogent, and, given the nature of the case, comprehensive.

The respondents (other than the Registrar of Titles) submitted that, in assessing the application as a whole, the applicant’s submissions had failed to adequately address the fact that the judge had comprehensively rejected Hau’s credibility; and had found, on the basis of uncontested expert evidence, that he had signed the four documents prior to 2007 which powerfully supported Cynthia’s case and that he had been deliberately untruthful in his denials of signing those documents. We agree.

Conclusion

With some hesitation we conclude that the three proposed grounds are sufficiently arguable to grant leave to appeal. The appeal must be dismissed.

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SCHEDULE OF PARTIES

S APCI 2016 0125
BETWEEN:
HAU LAM	First Applicant
- and -
PHUONG THUONG LAM	First Respondent
PACIFIC FAR EAST PTY LTD ACN 071 762 420	Second Respondent
LOAN TRAN	Third Respondent
REGISTRAR OF TITLES	Fourth Respondent

S APCI 2016 0126
BETWEEN:
HAU LAM	First Applicant
- and -
MAI NGUYEN	First Respondent
PACIFIC FAR EAST PTY LTD ACN 071 762 420	Second Respondent
VIEN DONG TOURIST SERVICE (AUST) PTY LTD ACN 107 549 502	Third Respondent
LOAN TRAN	Fourth Respondent

1.	The amount secured by the Mortgage	$51,539.00
2.	The amount required to discharge the Mortgage	$61,916.02
3.	Does the mortgage provide for further advances?	No
4.	What is the interest rate?	7.85%
5.	What is the default interest rate?	17.10%
6.	Date by which the Mortgage is to be repaid	N/A – Equity
7.	Is the Mortgagor in default? If so, please provide details	Customer is in default – total amount of $9,658.49
8.	Name and Address of Mortgagee	Bank of Western Australia Ltd 108 St Georges Terrace PERTH WA 6000
9.	Has the Mortgagee consented to the purchaser assuming the Vendor’s obligations?	No

[2017] VSCA 173

30 June 2017