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)

---

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.

---

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

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Lam v Lam

Details

AGLC: Lam v Lam [2017] VSCA 173
Case: [2017] VSCA 173
Decision Date: 30 June 2017

CaseChat Overview and Summary

The case of Lam v Lam involved a family dispute over property ownership, with allegations of fraud and forgery. The trial judge had ruled in favour of the respondent, concluding that the appellant had failed to establish his claims. The appellant appealed the decision to the court. The primary legal issues were whether the trial judge’s findings were so improbable that they necessitated a fresh trial and whether the reasons provided were sufficient. The court needed to determine if the reasons were adequate and if they correctly applied the relevant legal principles.

The court began by examining the sufficiency of the reasons provided by the trial judge. It was noted that the trial judge had not referred to the evidence and submissions presented at trial, which was a significant omission. The court emphasised the importance of providing reasons that clearly articulate how the evidence was evaluated and how the legal principles were applied. The court found that the trial judge’s reasons did not meet this standard, as they lacked specificity and failed to adequately address the critical issues presented by the evidence. Consequently, the court held that the trial judge’s findings were not supported by sufficient reasons.

In light of the deficiencies in the reasons provided, the court ordered a fresh trial to allow for a proper evaluation of the evidence and application of the law. The court concluded that the lack of adequate reasons rendered the trial judge’s factual findings unreliable, necessitating a new trial to ensure that all evidence and submissions were properly considered. The court underscored the necessity for trial judges to provide clear, detailed reasons that comprehensively address the issues and evidence in the case.

Orders