JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATES OF HEARING:	27, 28 January 2016; 1-4, 8-11, 16-18, 22-25, 29 February 2016; 1-3, 9 March 2016
DATE OF JUDGMENT:	6 June 2016
CASE MAY BE CITED AS:	Lam v Lam & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 298

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REAL PROPERTY – Torrens System – Transfer of land – Whether sham transfers of land – Whether wrongful transfers of land – Whether transaction and related documents produced using forged signatures – Valid transfers.

REAL PROPERTY – Torrens System – Indefeasibility of title – Exceptions – Fraud – Indemnity – Transfer of Land Act 1958 (Vic) s 110(1) – No fraud.

CONVEYANCING – Conveyancers – Duty of care to client – Whether conveyancer acted without instructions – Whether conveyancer involved in sham transfers – Whether conveyancer acted contrary to client’s interests – No breach.

TRUSTS – Resulting trust – Siblings – Purchase of two properties – Purchase price and other amounts paid by one sibling from own funds – Matrimonial issues – Other siblings registered as proprietor and joint proprietors (respectively) on Certificates of Title – Subsequent transfer of land to first sibling’s company and sale of other property to third parties with proceeds to first sibling – Beneficial and legal ownership of land – Express trust.

EVIDENCE – Burden of proof – Standard of proof – Briginshaw principle applicable – Statutory standard of proof – Actual persuasion on part of fact finder required – Evidence Act 2008 (Vic) s 140.

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APPEARANCES (S CI 2014 0599):	Counsel	Solicitors
For the Plaintiff	E N Magee QC	Titanium Lawyers
A Tragardh
T Dowling
For the First and Second Defendants	G A Costello	Kabo Lawyers
R V Howe
For the Third Defendant	R D Shepherd	DKP Lawyers
For the Fourth Defendant	C A Connor	Land Victoria Legal

APPEARANCES (S CI 2014 1504):	Counsel	Solicitors
For the Plaintiff	E N Magee QC	Titanium Lawyers
A Tragardh
T Dowling
For the First, Second and Third Defendants	G A Costello	Kabo Lawyers
R V Howe
For the Fourth Defendant	R D Shepherd	DKP Lawyers

HIS HONOUR:

The plaintiff, Hau Lam (‘Hau’),[1] brings two separate legal proceedings,[2] one concerning the alleged wrongful transfer of land at 46-102 Deanside Drive, Rockbank in Victoria (‘Rockbank land’),[3] the other concerning the alleged wrongful transfer of land at 201 The Esplanade, Altona in Victoria (‘Altona property’).[4] The proceedings were heard at the same time with evidence in one proceeding to be evidence in the other.
[1]During the trial of each proceeding the Lam family members referred to each other by their first names. For convenience and without intending any disrespect to any Lam family member, I will do likewise in these reasons where appropriate.
[2]SCI 2014 0599 (‘Rockbank proceeding’), SCI 2014 1504 (‘Altona…

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 [2016] VSC 298
Case: [2016] VSC 298
Decision Date: 6 June 2016

CaseChat Overview and Summary

The case of Lam v Lam involved a dispute over the ownership of two properties in Victoria, with the siblings of the family at odds over the rightful title. The dispute was heard and determined by the Supreme Court of Victoria. The primary issue was whether the transfers of land between the siblings were valid and whether they were conducted in good faith. Further, it was contested whether the conveyancer involved in the transactions acted negligently or fraudulently.

The legal issues before the court included the validity of the transfers of land under the Torrens system, the exceptions to indefeasibility of title, and the role and duty of care of the conveyancer in these transactions. Specifically, the court needed to decide whether the transfers were shams or wrongful, and whether the signatures on the transaction documents were forged. Additionally, the court examined whether the conveyancer breached any duty of care to the clients and whether a resulting trust existed over the properties.

The court found that the transfers of land were valid and not shams, despite the contested nature of the transactions. The signatures on the documents were not forged, and the conveyancer did not act without instructions or contrary to the clients' interests. Regarding the resulting trust, the court held that an express trust existed over the properties, with the first sibling holding the beneficial interest. The court also held that the standard of proof required to establish fraud under the Transfer of Land Act 1958 (Vic) was met by the respondents, but this did not negate the validity of the transfers. The conveyancer was found not to have breached any duty of care to the clients.

The final orders of the court were that the transfers of land were valid, and the first sibling was the rightful beneficial owner of the properties. The court dismissed the claims of fraud and breach of duty by the conveyancer. The siblings were directed to resolve their dispute over the beneficial ownership amicably or through further legal proceedings if necessary.

Orders