Lam v Lam
[2016] VSC 298
•6 June 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2014 0599
| HAU LAM | Plaintiff |
| v | |
| PHUNG THUONG LAM & ORS | Defendants |
S CI 2014 1504
| HAU LAM | Plaintiff |
| v | |
| MAI NGUYEN & ORS | Defendants |
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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 proceeding’).
[3]Formerly Certificate of Title Volume 9649 Folio 079 now Volume 1084 Folio 734.
[4]Certificate of Title Volume 5720 Folio 894.
In the Rockbank proceeding, Hau sues his sister, Phung Thuong Lam (‘Cynthia’), and her company, Pacific Far East Pty Ltd (‘PFE’) as first and second defendants respectively. He alleges that Cynthia and PFE, without his knowledge or consent, transferred the Rockbank land registered in his name, by means of a sham transfer and the production of other documents using his forged signatures.
The third defendant in the Rockbank proceeding, Ms Loan Tran, is a conveyancer who conducts business under the name PT Conveyancing. Hau alleges that Ms Tran breached a duty of care owed to him by acting without his instructions, purporting to act both for himself and the first and second defendants in the transaction, lodging documents to give effect to the sham transfer and generally acting contrary to his interests.
The fourth defendant in the Rockbank proceeding is the Registrar of Titles. Among other things, Hau seeks an order directing the Registrar of Titles to reinstate him as sole registered proprietor of the Rockbank land.
In the Altona proceeding, Hau sues his sister, Mai Nguyen (‘Mai’), for the alleged wrongful transfer of the Altona property following its sale in November 2007. Hau alleges that this sale was also effected by means of a sham transfer and the production of documents using his forged signatures. PFE and Vien Dong Tourist Service (Aust) Pty Ltd (‘VDT’) (entities associated with Cynthia) are joined as second and third defendants. It is claimed that they are knowing recipients of money received by reason of the alleged fraud and breach of fiduciary duties.
Ms Tran, is also a defendant in the Altona proceeding. Hau alleges that Ms Tran breached a duty of care owed to him by acting without his instructions, by lodging documents to give effect to a sham transfer and generally acting contrary to his interests. It is also alleged that Ms Tran breached statutory duties by failing to act honestly, fairly and professionally, not complying with fiduciary obligations arising out of the performance of conveyancing work, not acting in Hau’s best interests or in accordance with his instructions and not communicating with him.
The defences in each proceeding are to the same general effect. Cynthia and Mai concede that Hau was the registered proprietor of the Rockbank land and the joint registered proprietor of the Altona land respectively but allege that at all relevant times while he remained a registered proprietor the beneficial interest was held for Cynthia on a resulting trust. In each case, they deny that the transfer of land was effected without the plaintiff’s knowledge or consent. They deny any wrongdoing. In particular, they deny there was any sham transfer or forgery of the plaintiff’s signatures.
Ms Tran denies breaching any duty owed to Hau. She alleges that she acted on his instructions and that Hau was aware of and consented to each transaction. She denies that there was any sham transfer.
The Registrar of Titles (the fourth defendant in the Rockbank proceeding) relies on the statutory limitations on indemnity in s 110(4) of the Transfer of Land Act 1958 (Vic) and a contribution notice against the other defendants to take effect in the event that the Registrar is held liable to indemnify the plaintiff.
Otherwise, the Registrar takes an appropriately neutral stance.
Applicable principles
Given the nature of the issues raised in these proceedings, it is helpful to restate some basic principles.
Onus of proof
The party who challenges the efficacy of the execution of documents bears the onus of proof.[5]
[5]Hou v Westpac [2014] VSC 606 [46] (Warren CJ); Petelin v Cullen (1975) 132 CLR 355, 360 (Barwick CJ, McTiernan, Gibbs, Stephen and Mason JJ); Re Barned’s Banking Co; Ex parte Contract Corporation (1867) LR 3 Ch App 105, 116; Edwards v Skyways Ltd [1964] 1 WLR 349, 355 (Megaw J).
Standard of proof
Section 140 of the Evidence Act 2008 provides that in a civil proceeding, in deciding whether a party has proved its case, the Court must be satisfied that the case has been proved on the balance of probabilities.[6] In deciding whether it is so satisfied, the Court is to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding; and the gravity of the matters alleged.[7]
[6]Evidence Act 2008 (Vic) s 140(1).
[7]Evidence Act 2008 (Vic) s 140(2).
Section 140 enshrines the principle stated in Briginshaw v Briginshaw, where Dixon J observed:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
…
… [W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. [8]
[8](1938) 60 CLR 336, 361 (Dixon J). See also Helton v Allen (1940) 63 CLR 691, 712 (Dixon, Evatt and McTiernan JJ).
In Morely v Australian Securities and Investments Commission, Spigelman CJ, Beazley and Giles JJA held that ‘‘’actual persuasion” in Briginshaw should be understood as equivalent to the state of “satisfaction”, as the word is used in s 140’.[9]
[9](2010) 274 ALR 205, 343 [750] (Spigelman CJ, Beazley and Giles JJA).
In Neat Holdings Pty Ltd v Harajan Holdings Pty Ltd, the High Court observed that statements to the effect that clear, cogent, or strict proof is necessary where fraud is to be found should:
…be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct, and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to a civil litigation has been guilty of such conduct.’ [10]
[10](1992) 110 ALR 449, 449 [50] (Mason CJ, Brennan, Deane and Gaudron JJ).
Resulting and express trusts
The Lam defendants contend in each proceeding that the plaintiff held his interest in each property on trust for Cynthia; in the case of the Rockbank land on a resulting trust and in the case of the Altona land on an express trust.
The relevant principles underlying resulting trusts are explained by Gibbs CJ in Calverley v Green:
Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person, who provided none of the purchase money, acquires a beneficial interest in the property depends on the intention of the purchaser. [11]
[11] (1984) 155 CLR 242, 246 (Gibbs CJ).
Unless the relationship between the parties is such as to give rise to the presumption of advancement, it is presumed that the purchaser did not intend the other person to take beneficially.[12] It is not suggested that the presumption of advancement arises in these proceedings.
[12]Ibid.
For a resulting trust to arise the purchase money must have been provided by the purchaser with the character of purchase money (i.e. not as a loan).[13] A person’s beneficial interest under a resulting trust is determined by the person’s direct financial contribution to the purchase price at the time the property is purchased and the trust created.[14]
[13]Ibid 246.
[14]Ibid 252 (Gibbs CJ); Sivritas v Sivratas (2008) 23 VR 349, 372 (Kyrou J).
A beneficial interest arising by way of resulting trust will not be established by contributions other than contributions to the purchase price. Money subsequently expended on outgoings or improvements will not alter the beneficial interest of contributors under a resulting trust that is already in existence.[15] The assumption of liability under a loan, such as by way of mortgage, can constitute a direct contribution.[16]
[15]Sivritas v Sivritas (2008) 23 VR 349, 373 (Kyrou J).
[16]Calverley v Green (1984) 155 CLR 242, 252 (Gibbs CJ) and 257 (Mason and Brennan JJ); Sivritas v Sivritas (2008) 23 VR 349, 372 (Kyrou J).
The equitable presumption that contributors to the purchase of property hold the legal estate proportionally to their share can be rebutted or qualified by evidence of a contrary intention common to the contributors to the purchase price.[17] Common intention is inferred from what the parties do or say before or at the time of the purchase or so immediately after it as to constitute part of the transaction.[18]
[17]Calverley v Green (1984) 155 CLR 242, 261 (Mason and Brennan JJ).
[18]Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353, 265 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ); Calverley v Green (1984) 155 CLR 242, 262 (Mason and Brennan JJ).
As observed by Kyrou J in Sivritas v Sivritas, ‘in the context of a “purchase money resulting trust”, a presumption of resulting trust arises in favour of a person where that person purchases property in the name of another, or in their joint names’.[19] The person asserting the existence of a resulting trust bears the onus of establishing the payments which give rise to it.[20]
[19]Sivritas v Sivritas (2008) 23 VR 349, 371 (Kyrou J). See also Calverley v Green (1984) 155 CLR 242, 246 (Gibbs CJ); Muschinski v Dodds (1985) 160 CLR 583, 589 (Gibbs CJ).
[20]Sivritas v Sivritas (2008) 23 VR 349, 371 (Kyrou J).
When a common intention of two or more purchasers is in issue, it is to be inferred from what the parties do or say.[21] In Charles Marshall Pty Ltd v Grimsley, the Court observed that the evidence admissible to establish the intention of the purchaser comprises the ‘acts and declarations of parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction’.[22]
[21]Calverley v Green (1984) 155 CLR 242, 261 (Mason and Brennan JJ).
[22]Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353, 365 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ).
For the creation of an express trust, it is substance not form which is important. In Nguyen v Phan, Elliott J said:
In order to find an express trust was created, it is not necessary for the plaintiffs to prove the parties specifically and formally turned their minds to the fact that a trust was being created; no special or technical language needs to be used; it is sufficient if the intention to create a trust may be ascertained from what the parties actually agreed or said. The intention is imputed when manifest in what is expressly agreed or declared. That intention must be clear from the language used, as objectively understood in the relevant circumstances of the case, including the relationship of the parties.”[23] More than once, Gummow J has observed that the precision that might be expected in arms-length commercial transactions is not to be expected in private family dealings.’[24]
[23] Nguyen v Phan (No 2) [2015] VSC 634 [237] (Elliott J) (citations omitted).
[24]Ibid citing Winterton Constructions Pty Ltd v Hambros Australia Ltd (1991) 101 ALR 363, 370 (Gummow J); Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271, 277 [45] (Gummow J).
These observations are pertinent to these proceedings where no special or technical language is used.
The areas of disagreement between the plaintiff, the Lam defendants[25] and Ms Tran are fundamental and numerous. Broadly, they concern:
A.The circumstances of the purchase of the properties, including the intention of the parties and the source of the funding for the purchases.
B.The circumstances giving rise to the use of the Rockbank land as security for a loan from Bankwest to the plaintiff.
C.The validity of four documents, purportedly executed by the plaintiff in 2005, notably a General Power of Attorney and documents described as a Statement of Commitment (re Rockbank), a Declaration and an Acknowledgment (re Altona), (collectively the ‘Authority documents’).
D.The circumstances of the transfer of the Rockbank land to PFE and the sale of the Altona property to an unrelated third party, and in particular the validity of the documents effecting these transactions (collectively the Transaction documents).
[25]During the trial, Cynthia Lam, Mai Nguyen, PFE and VDT were collectively referred to as the Lam defendants.
Each of these broad categories gives rise to sub-categories of disagreement, which will be addressed as the need arises.
A. The circumstances of the purchase of the properties
A.1 Rockbank land
At the time of its purchase in June 2001 the Rockbank land comprised approximately 15 hectares of vacant land.
Hau Lam – Rockbank land
Hau gave evidence that in 2001 he saw the property advertised in a real estate agent’s window in St Albans; that he spoke to a sales consultant at the real estate agency, a Mr Sam Latif, and expressed interest in the property. After inspecting the property he made an offer of $270,000. This offer was refused. Subsequently he offered $330,000, which was accepted. Upon acceptance of the offer, he gave the real estate agent $1,000 in cash in $50 notes. He said he did so ‘straight away because I loved this farm’.[26]
[26]T 153.11-13.
Hau signed a contract note on about 30 June 2001. The purchaser was described as ‘Hau Lam and Nominee of 16 Jerrold Street, Footscray’. The contract was subject to finance. It was conditional upon the purchaser obtaining approval for a loan of not less than $220,000 from the Commonwealth or National Bank.[27]
[27]Contract of Sale for Rockbank, 30 June 2001, CB 1021-2 together with Section 32 Statement, CB 1023-7.
The plaintiff gave evidence that he obtained approval for a loan from the Commonwealth Bank but did not take up the loan. Instead he paid for the land using US dollars, which he had in his possession. He did this by exchanging the US dollars for Australian dollars with clients who purchased goods from a duty free shop where the plaintiff said he worked. After obtaining the Australian dollars in this way he gave the money to Cynthia to purchase bank cheques. In total, he gave Cynthia A$350,000 with respect to the purchase of the land at Rockbank comprising tranches of A$50,000 on 17 June 2001, A$100,000 on 13 July 2001 and A$200,000 on 25 July 2001. He recorded the amounts given to Cynthia in a notebook.[28]
[28]T 276.27-277.2.
In relation to the source of the US dollars, Hau gave evidence that he inherited US$192,000 from his mother.[29] As to part of this inheritance (US$110,000), his sister Minh Phung Lam (‘Minh’) had told him she had received money from her mother and had US$110,000 in her office in Vietnam[30] that she was to hold for Hau and give it to him after his mother died Hau said he obtained the money from Vietnam in two tranches. The first tranche (US$50,000) was brought to Australia in about 1996. The second tranche (US$60,000) was brought to Australia in 1997 following a second visit to Vietnam. Once in Australia this money was kept in a suitcase under Hau’s bed. Hau gave evidence that on arrival back into Australia he declared the US currency by filling out and signing a form, which he gave to the Australian Customs authorities.
[29]T 224.4-7.
[30]T 138.23-26.
As to the balance of the inheritance ($US82,000), Hau gave evidence that the family home in Vietnam at 624 Dien Bien Phu in Saigon[31] was in the name of his sister, Phung Anh Lam (Anna Nguyen) (‘Anna’). After his mother died, Anna sold the house at 624 Dien Bien Phu. She told him that the property had belonged to their mother and represented property which was to be given to Hau when their mother died. Hau gave evidence that Anna transferred US$82,000 to Australia via a Vietnamese money transfer company. Once in Australia, this money was also kept in the suitcase under Hau’s bed.
[31]Although Saigon was renamed Ho Chi Minh City the former name was used by most of the witnesses.
In addition to the inheritance, Hau testified that he had several sources of income during the relevant period.
One source of income was working for family members. Between January 1997 and June 2000 he worked for his sister Cynthia at a travel agency, Vien Dong Travel, which conducted business at 151 Hopkins Street, Footscray. Sometimes he worked part-time and sometimes six days a week, depending on whether Cynthia needed him. His duties were to sell travel tickets. In early 2000, he also worked at Cynthia’s duty free store, VDT Duty Free, which conducted business in Victoria Street, Abbotsford.
Hau gave evidence that his pay depended on how many hours a week he worked. He received approximately $850 per week in cash. He saved some of his wages, which he placed inside the roof on the first floor at his house at 28 Shepherd Street, Footscray. During the period 2000 to 2004, he worked for his sister Minh at Footscray and at St Albans at different duty free stores. When working for Minh, his wages were approximately $850 for a five-to-six day week. If he worked more than six days a week, he received more than $850. His wages were paid in cash.
A second source of income was a partnership with a person in Vietnam operating a mobile phone shop with a Motorola franchise. From 2000 to 2008, Hau received ‘roughly under A$100,000’[32] from this partnership business.
[32]T 149.12-16.
A third source of income was a bakery business known as Saigon Baker which Hau carried on for a short time in 2003. Saigon Baker was located in Victoria Street opposite Cynthia’s business, VDT Duty Free. According to Hau, the bakery business was not very successful and he did not receive much income from it. The bakery was established in an empty shop. Renovations took three or four months. The bakery business operated for four or five months before Hau gave it up.[33]
[33]T 150.26-151.3, Bank statements for August 2003, CB 2322-3; ABN search of Saigon Baker, CB 2324.
Sadrettin Latif – Rockbank land
Sadrettin (‘Sam’) Latif, real estate agent, gave evidence that in 2001 he worked for JC Optimum Australia Pty Ltd as a real estate salesman in St Albans.
In 2001, the company received instructions to act for the vendors in selling the Rockbank land. Mr Latif described the land as farm land with vegetation on it, but without a dwelling. The land was offered for sale in about May 2001. It was advertised on the window display in the office. Mr Latif said that Hau expressed interest in buying the land. He went with Hau to inspect the property. Mr Latif said that at the time he inspected the property with Hau there were no signs there. After engaging in some negotiations about price, Hau put an offer that he was prepared to put to the vendors. Mr Latif said he told Hau that the offer would have to be in writing as the agency did not take verbal offers, and that he would need to put down an initial deposit of $1,000. He would then take the written offer to the vendors.
Mr Latif said Hau put an offer in writing and gave him $1,000. Mr Latif took the offer to the vendors who accepted the offer and signed a contract note. Mr Latif said he asked Hau which bank he was getting his finance from. Hau said he was not sure – either the Commonwealth or the National Bank – and that he was borrowing $220,000, which resulted in Mr Latif specifying an approval date for the finance on the contract note. Hau said he would be using Low Cost Conveyancing of Ashley Street, West Footscray, provided the telephone number and a contact person, ‘Ms An’. These details were recorded by Mr Latif on the contract note. Mr Latif said he did not deal with any person other than Hau in relation to the sale of the property.
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.[34]
[34]T 545.21-24.
Mr Latif said he met Hau a few years afterwards on an occasion where he bought some items from a duty free shop in Barkly Street in Footscray.
Boon Seam Bouakeo – Rockbank land
Boon Seam Bouakeo, Manager, Personal Lending, at the Commonwealth Bank of Australia, gave evidence that he met Hau in around 2001 at the West Footscray branch of the Commonwealth Bank when he attended the bank and applied for a loan to purchase vacant land at Rockbank.
He gave evidence that when an applicant for a loan comes to the bank he will ask for a payslip and that he asked Hau for a payslip on this occasion; that Hau had said because he was working for his family business, a duty free shop at St Albans, he did not have a payslip. Mr Bouakeo said he then asked for an employment letter and Hau produced a letter of employment. Other than the letter of employment and matters to do with his employment Mr Bouakeo could not remember considering anything else in the application for the loan. Mr Bouakeo said that the ‘normal lending margin would be 80% but we go up to 95%’.[35] He said he remembered assessing Hau’s capacity to service the loan and was satisfied that he had the ability to do so.[36] Hau’s application for a loan was approved, but Mr Bouakeo did not know whether the loan proceeded or not.
[35]T 549.18-19.
[36]T 549.20-22.
Mr Bouakeo said he subsequently saw Hau at a duty free shop in St Albans on a couple of occasions when he purchased duty free alcohol. Mr Bouakeo said Hau was working there as an accountant.[37]
[37]T 551.12.
Cynthia Lam – Rockbank land
Cynthia said that she first saw the Rockbank land in 2000 or 2001. She remembers it was on a Sunday on a day off from work. She was searching for land to buy in the area and drove past the land with her sister, Mai.[38]
[38]T 680.8-16.
Cynthia said that she wanted to buy something in order to keep her savings away from her ex-husband because he had been using a lot of money and she did not want him to touch her savings. She said she really wanted to buy land in Caroline Springs, but at that time she could not find any land in Caroline Springs, so she went to the area next to Caroline Springs. She saw the Rockbank land advertised for sale and thought the land would be a good long-term investment.[39]
[39]T 837.4-14, 838.9-14.
There was a big board displayed on the land. She called the number displayed on the board and a Vietnamese-speaking male answered the phone. She asked him questions about the land and he asked her to come back the following day on the Monday to see the land. The next day they went back and Cynthia saw a Vietnamese person working on the land. This caused Cynthia to think she was dealing directly with the land owner until a Vietnamese man, the agent, came over and met Cynthia and Mai. Cynthia asked him about the land, how much the vendor was looking for and the agent said ‘not more than $350,000’. Cynthia said she was happy because it was within her budget and she then asked the agent what she should do if she wanted to make an offer. The agent informed her that if she wanted to make an offer then she had to come to the office to put down $1,000 to show it was a genuine offer. Cynthia did not have a chance to go to the agent’s office, so she asked her brother Hau to go on her behalf. She asked Hau to come to her office and gave him $1,000 to take as a deposit for a genuine offer.[40]
[40]T 681.3-682.2, 841.4-11.
Cynthia could not remember precisely when she did this. In evidence-in-chief, she said she gave Hau $1,000 in cash on the Monday. Under cross-examination, she said she did not remember whether it was on the Monday or in the next few days.[41]
[41]T 688.8-10, 842.1-5.
At first, Cynthia offered $300,000 or $310,000 but ended up offering $330,000. A day or two later, the agent called her and said that the vendor accepted the $330,000 offer. About a week later, Cynthia said she gave three or four bank cheques to Hau to take to the agent to pay the 10 per cent deposit. Cynthia did not remember precisely when she paid the deposit. The balance of the purchase price was paid through the conveyancer, Low Cost Conveyancing, in October 2001. She dealt with Ms An Bui of Low Cost Conveyancing.
Cynthia gave evidence that she and Hau had a conversation about the Rockbank land on the Sunday after she called the agent to make an appointment to inspect the land on the Monday. This conversation took place at 16 Jerrold Street, in the presence of her sister Mai. Hau and most of the family members were there. They talked about the land. Cynthia said that she would really like to buy the land. Hau said, ‘Your husband (now Cynthia’s ex-husband) is using a lot of money and you had better use someone else’s name’.[42] He suggested that Cynthia use his name on the title to hold the land for her. Cynthia said that she thought that would be a good idea. Cynthia was unable to remember the precise date of this conversation. She thought it was some time in May or June 2001, before she paid the deposit. 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.
[42]T 686.29-30.
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.[43]
[43]T 695.26-696.3.
About three or four weeks after settlement, An Bui from Low Cost Conveyancing asked Cynthia to collect the Rockbank land title. She went to see Ms Bui, together with Hau and Mai, to collect the document. Cynthia said that because she had not had to borrow any money from the bank she was able to keep the title herself. This was her first opportunity to hold a title to property. She said she was happy to show it to Hau and Mai and everyone.[44]
[44]T 693.3-9.
Mai Nguyen – Rockbank land
Mai gave evidence that Cynthia liked to look at land and, as she was very busy, she was only able to do so on Sundays. On one Sunday, she and Cynthia went together to look at properties. They saw a For Sale sign on the Rockbank land which had the vendor’s real estate agent’s contact details. Cynthia took the mobile phone number from the For Sale sign. She called the number and asked how much the piece of land would be sold for.
Mai said that on the second occasion they visited the Rockbank land they met a Vietnamese man who asked them to meet there again to inspect the land, which she did with Cynthia and Hau the next day. Mai gave evidence that the Vietnamese man was a real estate agent. They spoke to each other in Vietnamese. At first, the agent said that the price was around $350,000. Cynthia sought to negotiate on price. According to Mai, Cynthia made a few offers but there was no deal finalised on that day. At one point, the real estate agent said that $310,000 would not be accepted by the vendor and that there would need to be a better offer. He also said that if Cynthia would like to purchase the land she should put down a deposit of $1,000 so that he could go back to the vendor and say that she actually intended to buy the property.[45]
[45]T 1097.1-24.
After seeing the land, they went to 16 Jerrold Street in Footscray and had a meeting. Mai could not remember whether the meeting took place on the Sunday or the Monday after she and Cynthia first visited the Rockbank land. There were lots of people there, including siblings Anna and Thu Thuy Lam (‘Thuy’). Mai said the real estate agent said the sale price would not exceed $350,000. Cynthia said she could afford to buy the land, that it was a very affordable price, but she wanted to negotiate a lower figure if possible. Hau said it was very a good price and that she should ‘go for it’, but that she should not have her name on the title because of matrimonial issues with her husband.[46] Hau said ‘Let me stand on the title name for you, you shouldn’t stand on the title yourself…’.[47] Cynthia then asked Hau whether he would ‘stand on the title’ for her and they agreed that it was okay and that he would do so.
[46]T 1039.22.
[47]T 1039.28-30.
After the sale price was finalised, Cynthia again asked Hau whether he was sure he could stand on the title for her and Hau had said ‘…Just buy it and I will stand on the title to help you’.[48]
[48]T 1101.6-7.
It was agreed that Hau would sign the contract. There was also some discussion about a loan being applied for though Mai was not sure of the details. Cynthia asked Hau to try to get finance but if not she could still afford to buy the land. Mai said she thought that Cynthia let Hau take the $1,000 to the real estate agent’s office as Cynthia was busy. The vendors accepted the offer of $330,000 the day after the initial deposit of $1,000 had been paid.[49]
[49]T 1097.25-28.
After the contract was signed, Mai said that Cynthia said that finance would not be needed because she had enough money to purchase the land.[50]
[50]T 1101.27-29.
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 Tien Hung Nguyen (Hung Lam) (‘Hung’), and that Hau had said it was a very cheap price for the land.
Disposition - Rockbank land
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.
Secondly, Cynthia had demonstrated means and ability to pay for the Rockbank land. 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.[51] 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.[52]
[51]Vien Dong Tourist Service Pacific Far East Unit Trust Income Tax Returns for the year ended 30 June 2002, CB 2094-129.
[52]Vien Dong Tourist Service Pacific Far East Unit Trust Income Tax Returns for the year ended 30 June 2002, CB 2094-129.
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.[53] 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.[54] 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.
[53]T 660.22-23.
[54]T 661.17-23.
Further, 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.
On the other hand, the plaintiff’s account is implausible for some fundamental reasons.
The plaintiff claims that he paid for the Rockbank land from an inheritance of US$192,000 received from his mother.
The claim of receiving the inheritance is supported by Anna to the extent of US$82,000 and by Minh to the extent of US$110,000. It is necessary to evaluate this evidence, dealing first with Anna and then with Minh.
Anna Nguyen – inheritance
Anna gave evidence that her mother instructed her that if in the future she (Anna) intended to live in Australia she should sell her house (at 624 Dien Bien Phu) and give the money to Hau.[55] Anna lived at this house from 1990 to 1997, when she migrated to Australia. The house was sold in 1997 for 249 taels of gold. After she received the money, Anna changed it into US dollars and transferred it to Hau using a remittance service.[56] Anna said that her parents ‘used to have a lot of money’ and ‘had rice fields’.[57] There was no independent evidence to corroborate these assertions.
[55]T 465.29-31.
[56]T 473.9-474.1, 499.1-23; Remittance invoice for US$82,000, 10 June 1998, CB 2268-9.
[57]T 480.8-12.
Anna denied that the house at 624 Dien Bien Phu was bought by Minh in about 1989 and put in the name of a relative, Nguyen Thi Le Suong, because Minh could not own property in Vietnam as she was living in Australia at that time.[58] She agreed that she bought the house from Nguyen Thi Le Suong and that it was put into her name, but denied that Minh provided the funds to pay for the house at 624 Dien Bien Phu.[59]
[58]T 497.25-498.3.
[59]T 497.22-498.3.
I am satisfied that the house at 624 Dien Bien Phu was registered in Anna’s name following a transaction evidenced by a Deed of Sale and House Service contract.[60] Despite some reservations, I am also satisfied that funds derived from the subsequent sale of the property in 1997 (of approximately US$82,000) were remitted to Australia in or about June 1998.[61]
[60]Deed of Sale, Exhibit P6, House Service Contract, Exhibit P7.
[61]Remittance Invoice, 10 June 1998, CB 2269.
However, the circumstances of the initial purchase of the house and the source of the funds initially provided for the purchase of the house, the transfer into the name of the relative, Nguyen Thi Le Suong, and the transmission of the proceeds of sale to Hau in Australia and what he did with the funds are unclear.
The Deed of Sale states that the purpose of the sale is transfer of ownership to the vendor’s niece. No sale price is specified.
Anna agreed that after her father had died in the late 1970’s, and her mother had sold the family house in Tra Vinh, she could not remember how much it was sold for as she was too young. She was unable to comment on whether the house was sold for one tael of gold.[62]
[62]T 480.26-28.
Anna accepted that after her father died and the family moved from the house at Tra Vinh they moved to live at a house at 419/47B Cach Mang Thang Tam, District 10, Saigon and that house was owned by her sister Minh and her husband.[63] Anna made passing reference to her mother working from home changing money into gold or dollars but there was no detail of the extent of that work or the income it may have generated.[64]
[63]T 481.12.
[64]T 480.13-17.
Anna said that she lived at 624 Dien Bien Phu, which she owned. The circumstances surrounding her ownership of this property are unclear. First Anna said that her mother gave her the money to buy the property before her mother migrated to Australia.[65] Anna also agreed with the proposition put to her by the plaintiff’s counsel that her mother bought the property at 624 Dien Bien Phu.[66]
[65]T 464.25-26.
[66]T 465.25-31.
Anna claimed that Minh was the only person she told about her mother’s inheritance to Hau.[67] Anna did not explain why she did not tell her other siblings about her mother’s inheritance for Hau.
[67]T 496.20-31.
Minh Phung Lam – inheritance
Minh deposed in an affidavit that she kept US$110,000 for Hau as an inheritance according to the wishes of her mother and that ‘as per family arrangement’ she handed US$110,000 in cash to Hau in Vietnam during the two-year period from 1996 until 1998.[68] Again, with Minh not being present at the trial, she was unable to be cross-examined on the circumstances which led to the asserted instruction by her mother to give money to Hau after her death.
[68]Affidavit of Phung Minh Lam, 11 February 2014, Exhibit P10.
This affidavit was admitted into evidence as an exception to the hearsay rule on the basis that the deponent was not available to give evidence.
Cynthia Lam – inheritance
Cynthia gave evidence that her mother did not receive an inheritance upon her husband’s death and her mother did not work at all,[69] and that in her lifetime her mother only had one house, in Tra Vinh, and she did not own any property in Australia.[70]
[69] T 654.17-29.
[70]T 655.8-10, 29-30.
Hung Lam – inheritance
Hung said that whilst living in a village in Tra Vinh his family lived in poverty, that life was tough and difficult, that his mother did not work and that after his father passed away from illness the family had a very difficult life. His mother had to sell everything in the house in order for the family to survive. Anything available that could be sold was sold, including furniture. Hung said that his family had to pay for their father’s treatment for his sickness and borrowed money from relatives and sold items from the house in order to help pay for his treatment. Hung said that after selling the family home in Tra Vinh they moved to Saigon and lived with Minh at 419/470B Cach Mang Thang Tam Street, Ho Chi Minh City, in a house owned by Minh and her husband. After two or three years, they moved to 330 Cach Mang Thang Tam in a house belonging to Minh’s mother-in-law.[71] There Hung lived with his mother, his sister Minh and her daughter, and his other siblings Cynthia, Mai, Thuy, Hau, Anna and Minh’s mother-in-law.
[71]T 960.5-961.21.
Hung demonstrated a good recall and gave his evidence carefully and thoroughly. He was an impressive witness. Hung said that Minh purchased the house at 624 Dien Bien Phu and that she did so in 1989. He said that he supervised construction work carried out there. In that role, he reported to his sister Minh. After construction was completed, Minh lived at the house and used it as an office. After construction was completed, the house was used by the family, including Anna, and whoever returned to Vietnam lived there. Hung said that the house was not registered in Minh’s name; that Minh asked the family relative to register it in the relative’s name.[72] Hung said that his mother did not own a house in Saigon.[73]
[72]T 969.24-27.
[73]T 962.25.
Hung also gave evidence that Cynthia purchased the Rockbank land from the previous owner.[74]
[74]T 986.6-8.
A collateral attack was made on Hung’s credit based on the contents of a telephone conversation that Hung had with a Mr Tong Vo Tan on about 8 February 2016. Counsel for the plaintiff suggested that Hung had falsely denied that he did not speak to Mr Tan about the case and that, during the conversation, Hung had sought to threaten and intimidate Mr Tan regarding participation in the trial of this proceeding.[75]
[75]T 987.1-19, 1018.26-1019.25.
A transcript of the recorded telephone conversation was tendered.[76] The transcript indicates that the telephone conversation starts abruptly and is likely to be an extract from a longer conversation because there are no transcribed introductory remarks which would ordinarily be expected to occur in a telephone conversation. Nevertheless, the transcript appears to record a discussion between Mr Tan and Hung about the plaintiff. Some remarks are made about prior dealings that Mr Tan had had with Hau. Hung suggested that Mr Tan had innocently helped Hau by signing a document stating that he was a partner in a telephone business with him when he was not in partnership with him, and that he had taken advantage of having that document ‘to do lots of messy things...’. There was a reference to the fact that statements made in court proceedings would be recorded. Hung said Mr Tan should ‘just say what is true if not then don’t say it…tell the truth’.[77] In other parts of the transcript he said that Mr Tan should do as his conscience guides him, to just say what is true and if it is not true not to say it, not to say anything to help because of his friendship with Hau.[78]
[76]Exhibit P9.
[77]Exhibit P9, pp 3.7-8.
[78]Exhibit P9, p 3.12-27.
The tenor of the conversation is essentially advisory; to persuade Mr Tan to tell the truth when he is in court and to warn him that the court proceedings will be recorded and could have personal consequences for him and he should therefore tell the truth.
On one view, this telephone discussion does constitute a discussion ‘about the case’, but only in a peripheral sense. The discussion is focused mainly on advising Mr Tan to tell the truth and does not constitute threatening or intimidating conduct. Nor in my view does it undermine the credibility of Hung.
Cynthia, Hung, Thuy and Mai each gave evidence to the effect that from the early 1980’s until her death their mother depended on her children to provide accommodation and financial support and that she had no assets and (after living in Australia for two years) received the age pension.[79]
[79]Cynthia T 654.31-655.4, Hung T 961.4-963.18, Mai T 1025.1-1026.1, Thuy T 993.16-17.
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. I reject Anna’s evidence of the alleged instruction from her mother to give Hau the proceeds of any sale of 624 Dien Bien Phu.
Though the plaintiff established that Minh was not available to give evidence for the purposes of s 63 of the Evidence Act 2008 (Vic), I do not assume that Minh was necessarily out of contact with all members of the Lam family. In my view, Minh chose to be unresponsive to efforts made to communicate with her and chose not to attend the trial. There was no suggestion that she was unable to return to Australia from Vietnam to attend court for reasons of impecuniosity. Despite making an affidavit on key issues in the case, she was not prepared to submit to cross-examination on its contents or otherwise. Significantly, the defendants had no opportunity to test Hau’s evidence that during the period 2000 to 2004 he worked for Minh at her duty free stores in Footscray and St Albans and was paid wages in cash or Anna’s evidence that she told Minh about the inheritance. I give only minimal weight to Minh’s affidavit. Considered separately, or combined with the evidence of Anna, Minh’s evidence is insufficient to persuade me of the veracity of the plaintiff’s claim to have received an inheritance from his mother.
A perplexing aspect of the plaintiff’s claim of an inheritance is that he was the sole recipient of his mother’s largesse. Under cross-examination, Hau advanced a suggestion that his mother loved him ‘more than the other seven’.[80]
[80]T 222.3.
There is no evidence given, or any rationale suggested, to explain why Mrs Thi Truyen Nguyen would single out one sibling out of her (seven) surviving children or that she loved Hau more than her other children. The evidence from the other members of the family is to the effect that Mrs Nguyen was a loving mother and had equal affection for her children. There was no suggestion that any of the children conducted themselves in such a way that they would be excluded from any inheritance. There was no evidence that Hau had special needs. There was no evidence of any family discussion or circumstance which would provide a plausible explanation for Hau being the sole child to inherit.
Suitcase under the bed
Another perplexing aspect of the plaintiff’s claim of an inheritance is the plaintiff’s claim that he stored the money in a suitcase under his bed. In opening the case, senior counsel for the plaintiff said that his client would give evidence that it was a custom of people from Vietnam not to trust institutions and that they keep money in American dollars or gold under the bed or somewhere hidden.[81] No evidence of mistrust of institutions or banks, let alone custom, was led at trial. Indeed, the plaintiff agreed that from the time he arrived in Australia he and his mother used the Commonwealth Bank.
[81]T 12.12-19.
The plaintiff attended school in Vietnam to Year 9 level and completed his secondary schooling in Australia. He studied English as a second language from 1991 to 1996. He completed secondary schooling in Australia in 1997 and studied international trade for a year at Victoria University.[82] In my view, the plaintiff was far too astute to leave large sums of money in a suitcase under a bed for an extended period – in this case, for approximately four or five years for the part of the inheritance allegedly received through Minh, and for approximately three years for the part of the inheritance allegedly received through Anna. Hau gave evidence that on occasions when he went to Vietnam in January 1999, August 1999, October 1999, November 2000 and early June 2001[83] he left the money unsecured in the suitcase under his bed in Australia. I consider this to be a very unlikely prospect.
[82]T 135.15-21.
[83]T 269.5-270.30.
There was no corroboration of the evidence that money was kept in a suitcase or that a suitcase was kept under his bed.
Furthermore, the plaintiff gave evidence that during the period he lived at 28 Shepherd Street, Footscray, the house was burgled and a television set and hi-fi were stolen from the ground floor.[84] The plaintiff gave evidence that his room was at the back of the first level and that no one entered his room during the incident. Despite this burglary, there was no evidence that any security precautions were taken with regard to the cash in the suitcase.
[84]T 226.11-17.
There was also some evidence which indirectly undermines the suitcase under the bed evidence. Cynthia and Hung gave evidence to the effect that for a significant period of time, while Hau resided at 28 Shepherd Street, he slept in the lounge room downstairs on a couch, which made room for Thuy and her daughter to sleep upstairs. The bottom of the couch was too close to the floor to store a suitcase. The plaintiff denied ever sleeping on the couch. I am satisfied that the plaintiff slept on the couch for a significant period while he resided at 28 Shepherd Street. Though it is only a minor point in the many points in these proceedings it suggests, in lieu of any other evidence, that the suitcase containing the cash must have been left under his former bed upstairs during the time he slept on the couch. This leads to the improbable notion that Hau would leave a substantial sum of money upstairs in the house (in a room that was no longer his bedroom) with no security precaution taken with regard to its valuable contents.
Work history
Further, I do not accept that the plaintiff was employed at Cynthia’s travel business selling travel tickets and earning approximately $850 per week. There was no record of this reflected in any document or income tax return. Further, the plaintiff displayed little knowledge and great hesitancy when asked about the travel codes used to identify various destinations and airlines. In my view, had he worked in a travel agency selling travel tickets to Vietnam, he would have been very familiar with airline and airport travel codes.
Currency exchange
I do not accept the plaintiff’s evidence that he changed the US dollars from the suitcase into Australian dollars with clients who came into the duty free shop where he worked. These currency exchanges were purportedly made opportunistically without prior arrangement with people who purchased goods from the duty free shop. Hau said that US dollars were good value in Vietnam and popular during that year (2001). The plaintiff said they would simply swap money. The customers would give him Australian dollars in exchange for US dollars. According to the plaintiff, the amounts exchanged were sometimes $3,000 sometimes $10,000, sometimes $20,000 depending on how much the customer had. The plaintiff said that he exchanged currency with 10 or 20 customers.[85]
[85]It is not entirely clear whether the evidence is that the plaintiff exchanged currency with 10 or 20 customers each day or that, in total, 10 or 20 customers exchanged currency in this way.
There was no record kept of any transaction. The plaintiff failed to identify with precision the detail of any of the amounts involved. There was no evidence given by any purported customer to corroborate the plaintiff’s assertions of currency exchange and the plaintiff was unable to recall any of their names.[86]
[86]T 318.3-319.29.
Notebook
I do not accept the integrity of the plaintiff’s ‘notebook’ which purportedly contains a record of payments made by the plaintiff to Cynthia over the relevant period. It consists of four loose pages with dates and amounts handwritten on them. There is no corroboration of its provenance. The plaintiff’s evidence about the ‘notebook’ changed. Initially he said that he recorded the money given to Cynthia when he gave it to her.[87] Under cross-examination, he said that the entries in the notebook were made
[87]T 155.11-12.
WITNESS:…whenever I remember, I put the date on it, but the money I give to her by three time before if settlement for Rockbank…It is not the same day, it could be three, four day difference.
HIS HONOUR: It could be three or four days different than the date you put in here?
WITNESS:Yep, because after I give to her, I keep my record but really that’s a different day.
HIS HONOUR: Could it be three or four days different for each of the entries?
WITNESS:No. It depends. Some time two week, three week.
HIS HONOUR: So which ones are three or four days different?
WITNESS: I think the first amount 50,000.[88]
[88]T 276.6-19.
The first entry relates to a purported payment of $50,000 to Cynthia on 17 June 2001. If the plaintiff’s evidence is accepted, the first amount of $50,000 would have been paid within three or four days of 17 June 2001. Either way, this purported payment was made before the Rockbank land purchase contract was signed, before the obligation to pay the deposit arose and for an amount in excess of the amount of the deposit ($50,000 instead of $33,000).
None of this was satisfactorily explained. This made me even more cautious about accepting the reliability of the ‘notebook’ and the veracity of the plaintiff’s evidence generally.
I found Hau’s brief evidence on the circumstances of the purchase of the Rockbank land to be superficial. He was unconvincing in evidence-in-chief and under cross-examination on this issue.
A.2 Altona property
The Altona property was purchased in November 2001 and consisted of land and improvements comprising a four bedroom house and bungalow at 201 Esplanade, Altona.
Hau Lam – Altona property
Hau gave evidence that the Altona property was initially purchased by Cynthia but she changed her mind and ‘told’ Hau to share the purchase with Mai.[89] Hau said he had only the 10 per cent deposit for the property but he was to have a 50 per cent share.[90] He did not inspect the property before the purchase, only after settlement. He said that Cynthia and Mai organised all the documents.[91]
[89]T 157.26-28.
[90]T 158.3-6.
[91]T 159.15. It was unclear whether Hau was referring to all documents relating to the purchase of the Altona property or just the documents relating to the mortgage.
The Altona property was an investment property and was ‘always rent’.[92] In substance, Hau said that he gave Cynthia $69,000 for the 10 per cent deposit and the stamp duty. He referred to two entries in his ‘notebook’, one dated 8 November 2001 for $70,000, the other dated 4 January 2002 for $20,000 (a total of $90,000).[93] The money used to pay for the Altona property came from cash in the suitcase kept under the bed.[94] According to Hau, he made loan repayments on the Altona property; the property was always leased and the rental payment and some small additional funds covered the finance required to service the Altona loan. According to Hau, the payments comprising the smaller amounts from 14 March 2002 to 21 January 2008, recorded in the ‘notebook’ were paid to Cynthia every time she needed them. She would ask for specific amounts and he paid them.[95]
[92]T 159.17-18.
[93]T 160.10-16.
[94]T 274.9-10; T 274.22-25.
[95]T 456.12-456.28.
In a discussion, which occurred in about 2006, Hau said that Cynthia told him not to worry about the $50,000 Bankwest loan, that she would look after the repayments and that when the property was sold she would deduct payments made on his behalf and pay him the balance.[96] In 2007, Hau had a discussion with Cynthia about the Altona property during which he explained that he was in poor health and could not work to get the money to pay for the finance He made an arrangement with Cynthia (and Cynthia agreed) that she would make payments for him and he would pay her back whenever he could.[97]
[96]T 168.18-23.
[97]T 171.1-10.
Cynthia Lam – Altona property
Cynthia gave evidence that she saw the Altona property at the end of 2001 or in 2002; that she inspected the property before she purchased it; that it was an old double storey house right in front of the beach with a view of the beach. Cynthia said she bought and paid for the property; that she paid an initial deposit of $1,000 and then the 10 per cent deposit. She thought the deposit was $69,000 ‘or something’ and she borrowed 80 per cent or the maximum amount from GE Mortgage.[98]
[98]T 703.8-13.
Before she purchased the land she took her family, her sister Mai, and Hau to Altona to show them. This occurred in 2002 on the day that the vendor accepted the offer. Cynthia thought she paid the deposit by bank cheque, then said she did not remember – that it was either a bank cheque or a business cheque. At first she used her name on the contract because she wanted to have her name on the title. She said she had a conversation with Hau about the purchase of the Altona property. Hau suggested to her (again) not to use her name because of the matrimonial issues with her former husband. Hau suggested his name and Mai’s name should be together on the title. Cynthia said she asked Mai if she was happy to put her name together with Hau’s on the title; that Mai had said that that would be fine and she would be happy to help.[99]
[99]T 704.4-17.
Cynthia said no one gave her any money for the deposit and that she paid the vendor for the deposit[100] and borrowed approximately $500,000 from GE Mortgage to buy the property. Cynthia said she went to GE Mortgage together with Mai and Hau. Subsequently, she changed to National Australia Bank (‘NAB’). She recalls that the monthly loan repayment to the National Bank was approximately $3,400 or $3,500. She paid council, water rates, sometimes an electricity bill and building insurance through RACV home insurance. She organised the insurance herself.
[100]T 704.18-23.
After settlement and, when she got the house key to the house her family, together with her children and Mai, went there to clean it up. She did not remember if Hau was there on that occasion.[101]
[101]T 706.21-24.
Mai Nguyen – Altona property
Mai gave evidence that she and Cynthia went to the Altona area looking at properties. At the time the Altona property was purchased by Cynthia, Hau again offered to help and said that she should not put her name down on the title but to let him put his and Mai’s name ‘to stand’ for Cynthia on the title. Mai’s explanation for her name being on the title was that it was initially intended that Hau’s name be solely on the title but because the finance requested at the bank was 80 per cent of the purchase price, and ‘he could not afford it to have finance approval’, this led to the suggestion from Hau that he and Mai should ‘stand together on the title’ for Cynthia.[102]
[102]T 1045.24-31.
Mai was not sure of the purchase price of the Altona property. She gave evidence that she helped Cynthia buy some bank cheques (approximately seven or eight bank cheques) from the Commonwealth Bank for the Altona property deposit. Mai said the balance of the purchase price was financed. Mai said their income level was not sufficient to get an approval from a mainstream bank so they used GE Money Mortgage. Subsequently, the purchase was refinanced with the NAB.[103] Mai thought the refinancing occurred one or two years after the purchase. Mai said she did not make any repayments of either the GE Mortgage or the NAB mortgage. Mai said this was Cynthia’s property so she (Cynthia) took care of it; that Cynthia made mortgage repayments. Mai said that she did not pay part of the deposit or any mortgage repayments save on one occasion in August 2003 when Cynthia was busy and Cynthia handed money to her, which she paid into the account for her.[104]
[103]T 1046.26-31.
[104]T 1052.26-1053.10.
Disposition – Altona property
I have a clear preference for the Lam defendants’ account of the purchase of the Altona property.
First and foremost, Cynthia’s account of the purchase was cogent and believable. I accept that the property was put into the names of Hau and Mai to assist Cynthia to manage the matrimonial issues she was facing at the time.
I accept Cynthia and Mai’s evidence that whilst Hau and Mai were named as mortgagors, Cynthia made the mortgage repayments from her own resources. I reject Hau’s evidence that he paid $70,000 to Cynthia on account of the deposit and stamp duty.
In this regard, I note that Hau gave specific evidence about payment of the deposit ($70,000) and stamp duty ($20,000) in relation to the Altona property. His evidence in relation to repayments of the loan on the Altona property was vague. In chief, he merely said that the notebook recorded when he gave money to Cynthia.[105]
[105]T 155.10-14. The plaintiff also said he gave money to Cynthia to pay land taxes and outgoings for Rockbank. T 162.26-30.
Under cross-examination, Hau said that each of those amounts were paid following a request from Cynthia for the specific amounts and that the amounts were for council rates for Rockbank and Altona and ‘repayment for Altona and maintain the garden for Altona’.[106] Hau was unresponsive to a question whether the council rates were paid quarterly or annually, stating that he relied on his sister for all the paperwork. The general proposition put by the plaintiff was that Cynthia would receive the council rate notices and documents from the bank, collect the mail, work out all the payments and make them for her brother.[107]
[106]T 457.2-3.
[107]T 455.8-11, 456.31-457.5.
I am not persuaded by this evidence. There is nothing to corroborate these cash payments save for one instance relating to a payment made on 1 August 2003 which was explained by Mai. I accept Mai’s explanation for this payment. I do not accept that there was any ‘family arrangement’ whereby Cynthia would undertake to meet Hau’s obligations in relation to rates, outgoings and loan repayments either on the basis that she would be repaid by Hau whenever he could make the payment, alternatively on the sale of the Altona property.[108]
[108]T 171.1-9, Cf T 168.18-23.
To the extent that Hau’s purported contribution to the Altona property purchase came from the balance of his inheritance, I refer to my finding above that I do not accept that there was an inheritance. To the extent that Hau’s purported contributions were recorded in his ‘notebook’, I refer to my finding above that I do not accept the reliability of this purported record.
In my view, Hau’s explanation to the effect that Cynthia did everything on his behalf was an unconvincing attempt to counter the evidence that he had no real connection with the Altona property. I am satisfied that Hau did suffer poor health from diabetes from at least 2006 and that he travelled to Vietnam in about 2006, but I consider the more plausible explanation for Cynthia paying all rates and outgoings, dealing with the bank in relation to the loan repayments, refinancing the mortgage, dealing with the real estate agent in connection with tenants (including her attendance at the Victorian Civil & Administrative Tribunal in connection with proceedings brought to recover rent) is that she was the beneficial owner of the Altona property at all relevant times.
In regard to Cynthia’s capacity to pay the deposit and stamp duty for the Altona property and to maintain loan repayments to the extent that they were not covered by rental income, I reiterate my earlier findings that she had the means and ability to do so from the revenue generated from her business. I regard Hau’s evidence as to the source of his income as vague and unreliable. Some of it was meaningless such as his evidence that he received ‘roughly under $100,000’[109] from a partnership business from 2000 to 2008.
[109]T 149.12-16.
It is significant that Hau relied on occasional purchases of duty free liquor (in the case of Mr Latif, once, and in the case of Mr Bouakeo, a couple of times) as corroborative of his employment at the duty free store. No regular clients or customers were called to give evidence. No work colleagues who could attest to the plaintiff’s attendance at work were called to give evidence. No one who might have seen the plaintiff go to work each day at the duty free store was called to give evidence. There was no evidence of tax returns to support the plaintiff’s assertion of significant personal income derived from employment at the duty free store or the travel agency. The bank manager’s evidence that the plaintiff worked as an accountant was obviously wrong. The plaintiff did not contend that he worked as an accountant at any relevant time.
Overall, the plaintiff’s evidence as to regular employment during the relevant period was tenuous and not believable.
In the loan application prepared by his broker (Kevin Khuu), the plaintiff’s occupation was described as ‘general manager’. When asked about this by his counsel, ‘What were you the general manager of?’, the plaintiff responded ‘To organise the order, the goods for the store’.[110] No store was identified. The nature of the goods were not identified. The answer was too vague to be reliable.
[110]T 164.13-15.
Hau adduced no corroborative evidence of saving, having the capacity to save or the propensity to save. The evidence about his work record and the fact that he made the contributions to Cynthia for the Altona property partly out of his savings was not independently corroborated. I do not accept his evidence in either respect.
Furthermore, there was evidence to the contrary. Cynthia gave evidence that Hau did not work for her. She said the only member of her family who worked at VDT Travel since she opened it was Mai and no one else.[111] This was corroborated by Mai and Hung. Mai gave evidence that between 2000 and 2007 Hau did no formal work. Occasionally he got a job collecting garden waste, but it was too physically demanding and he gave it up. She said that Hau did basically no work.[112] Between 2000 and 2004, Mai said she opened the bakery, known as Saigon Baker, in Richmond, at Hau’s request, to give Hau a chance to work. According to Mai, he only worked at the bakery for two days then did not turn up.[113]
[111]T 658.23-25.
[112]T 1032.5-10.
[113]T 1031.26-1032.4.
Hung gave evidence that the only family member who worked at Cynthia’s business, Vien Dong Travel, was Mai. Hung said that he had never heard that Hau ever worked at Vien Dong Travel in Footscray; that he’d never seen him work there, though he had seen him turn up at the office.[114] Hung said that Hau had never worked at Minh’s duty free businesses, Paris Duty Free in Footscray, or in St Albans or at Cynthia’s duty free shop in Abbotsford.[115]
B.The circumstances giving rise to the use of the Rockbank land as security for a loan from Bankwest to the plaintiff
[114]T 965.20-27.
[115]T 965.28-966.15.
It is common ground that in 2005 Hau borrowed $50,000 from Bankwest and that Ms Tran assisted Hau to mortgage the Rockbank land as security for the loan and lodged caveats over the land for Cynthia. The circumstances surrounding the Bankwest loan, particularly the circumstances whereby Ms Tran assisted Hau to procure the mortgage and the lodging of the caveats are disputed.
Hau Lam – Caveats and the Bankwest loan
Hau gave evidence that at the end of 2004 he wanted to develop the Rockbank land but did not have much money for that purpose. He went to see a mortgage broker, Mr Kevin Khuu, and applied for a loan of $50,000.[116] In the application form, he described himself as a ‘general manager’. Mr Khuu told him that to get the loan he would need to mortgage the Rockbank land.[117] Mr Khuu was unable to get the loan approved.[118] In order to procure the mortgage, Hau asked Cynthia for the original certificate of title. Cynthia said she could not find it and advised him to go to Low Cost Conveyancing to have a new title issued.[119]
[116]T 163.19-164.9. Customer copy of loan application, CB 1131.
[117]T 164.16-18.
[118]T 164.28-29.
[119]T 164.19-25.
On 14 January 2005, the plaintiff made application for a new certificate of title and a new certificate of title was issued on 1 February 2005.[120] When Hau spoke to Cynthia about getting the original title or a new title she did not say anything (then or at any other time) about putting a caveat on the land or that she owned the land.
[120]T 165.3-10, Application for a new Certificate of Title in place of one lost or destroyed, 14 January 2005, CB 1098-102; 1104.
Initially Mr Khuu was to act for Hau, but Mr Khuu was unable to get the loan approved so Ms Tran of PT Conveyancing took over.[121] The plaintiff said that Ms Tran never said that Cynthia was going to put a caveat on the title or that Cynthia had paid for the land.[122]
[121]T 164.28-31.
[122]T 166.15-19.
The plaintiff was shown a letter from Gadens Lawyers dated 10 May 2005 addressed to him at 16 Jerroll (sic) Street, Footscray notifying him of the approval of his loan and advising that Gadens would be acting for the lender in the documentation and settlement process. That letter enclosed original loan documentation, copies for the borrower, a requirements checklist, settlement procedures and a copy of the caveat (being the first caveat lodged on behalf of Cynthia) and advised that the borrower would need to arrange for withdrawal of the caveat to be provided by the settlement date.[123]
[123]Letter from Gadens Lawyers to Mr H Lam, 10 May 2005, CB 1115.
Hau denied ever seeing the letter. He said that he was living at another address at that time.[124]
[124]T 166.20-167.2.
After he received the money from Bankwest, the plaintiff said he spent more than $15,000 on the Rockbank land, more than $10,000 to remove rocks and develop the soil. At around this time, Hau decided to go back to Vietnam. He found it hard to get a permit to build a chicken shed at Rockbank and returned to Vietnam to continue his hobby business. This occurred in about 2006. The plaintiff planned to live in Vietnam with his wife and asked Cynthia to look after the land in case the council complained or some animals came onto his property. He said ‘she just maintained it’.[125]
[125]T 168.1-11.
Loan Tran – Caveats and the Bankwest loan
Ms Tran gave evidence that she is a licensed property conveyancer. She had worked as a conveyancing clerk since approximately 1995, initially for others and, from about May 2004, had conducted a conveyancing business under the name PT Conveyancing.[126] She had performed conveyancing work for numerous members of the plaintiff’s family, including Minh, Cynthia, Mai and Anna. Ms Tran said she regarded the relationship with the plaintiff’s family as a business relationship not a social relationship. She characterised them as good clients.[127]
[126]T 1208.1-11.
[127]T 1207.
In early 2005, Cynthia asked Ms Tran to lodge caveats over three properties, including the Rockbank land.
In substance, Cynthia advised Ms Tran that she had provided the whole of the purchase monies for the Rockbank land to enable Hau to purchase the land and had paid outgoings, taxes and maintenances, including running costs, since settlement of the purchase. She told Ms Tran that she was worried that her brother, Hau, was gambling and could seek loans from people and mortgage the land.[128]
[128]T 1209.1-5.
Ms Tran asked her if she had the certificate of title for the Rockbank land. Cynthia said she was holding the certificate of title.
In relation to the Altona property, Cynthia told Ms Tran that she had provided part of the settlement money to Mai and Hau to buy the property, made the mortgage repayments, and paid for outgoings, taxes and maintenance of the property since settlement.[129] Ms Tran asked her who had the certificates of title for the Altona property and the Jerrold Street property and Cynthia said that the NAB held the certificates of title for these properties.[130] Cynthia provided Ms Tran with the addresses of the properties and the details of the certificates of title. Ms Tran said she would prepare caveats for lodging with respect to the three properties. She arranged title searches. One of the title searches (the title search of the Rockbank land) showed that the certificate of title had been cancelled and a new certificate of title had issued. Ms Tran then organised a title search of the new certificate of title. The results of the search of the Rockbank land puzzled Ms Tran because it looked like there had been an application for a new title to issue on the basis that there was a lost title. She telephoned Cynthia and advised her that the title that Cynthia was holding was cancelled but she was not sure why but another title had been issued by the Land Titles Office on 1 February 2005. Ms Tran said that Cynthia responded:
[129]There was a conversation to the same effect in relation to 16 Jerrold Street, Footscray.
[130]T 1209.17-1210.10.
Oh, God, what has this little devil done to the title? What he’s up to now?
I said:
I don’t know, but apparently this title has been cancelled.
And she asking me:
Can you lodge the caveat urgently for me?[131]
[131]T 1212.11-15.
After this conversation, Ms Tran prepared three caveats. She attended Cynthia’s shop at 151 Hopkins Street, Footscray, showed her the caveats and explained the contents to her. She asked Cynthia if she was happy and indicated where they needed to be signed.[132]
[132]T 1212.19-1213.19; Rockbank caveat, CB 1107; Jerrold Street caveat, CB 2133; Altona caveat, CB 1686.
The Jerrold Street caveat was lodged for registration on 2 February 2005. The Rockbank land and Altona property caveats were lodged for registration on 4 February 2005.[133]
[133]T 1214.21-1215.3.
On about 20 May 2005, Ms Tran received another telephone call from Cynthia who said that she had referred her brother, Hau, to Ms Tran to do some conveyancing work regarding a mortgage of the Rockbank land through Bankwest.
On the same day, without an appointment, the plaintiff attended at Ms Tran’s office. He introduced himself as Hau Lam, Cynthia’s brother, the youngest one, and Ms Tran mentioned that his sister Cynthia had telephoned her. The plaintiff advised Ms Tran that he had obtained approval from Bankwest regarding a mortgage over the Rockbank land and that Bankwest lawyers had sent him documents and he wanted Ms Tran to assist him in the transaction. The plaintiff had brought an envelope from Gadens with him. Ms Tran asked him to show her the documents in the envelope. He produced the documents. Ms Tran took from the envelope a letter from Gadens sent on 10 May 2005 which had attached guidelines and a copy of a caveat over the Rockbank land, the original of a warranty, mortgage of land, authority for disbursement and certificate of witness, a certificate for legal and financial advice and a copy of the loan contract.[134]
[134]T 1216.25-1220.4.
Ms Tran spoke to Hau in Vietnamese. She explained the contents of the letter. Among other things, she showed him the caveat and said there was a caveat that Bankwest required to be removed in order for the funds to be advanced.[135]
[135]T 1220.5-1221.1.
The plaintiff said that the caveat had been lodged by his sister; that he had spoken to Cynthia and discussed that ‘Cynthia would remove the caveat for him and then in return he will be responsible to pay off the repayment of this mortgage’.[136] Ms Tran mentioned that she had lodged the caveat on behalf of Cynthia. The plaintiff said he knew that, and that was the reason he had come to see her; that he understood that Cynthia had lodged the caveat because the property belonged to her and she had paid for the land.[137]
[136]T 1221.6-8.
[137]T 1224.3-20.
The plaintiff agreed to do so and also asked Ms Tran to make sure she contacted Bankwest to let Bankwest know that settlement would occur soon.[256]
[256]T 1301.18-21.
At some point after this occurred Ms Tran realised that there would be a contract between the purchaser and vendor but at settlement there would not be any funds provided to the vendor (the plaintiff). Ms Tran thought she would have to have some document which would protect herself in the circumstances. She telephoned a friend who was a lawyer and explained the circumstances. She gave some details to the lawyer, as a result of which a document was prepared to the effect that the plaintiff agreed and acknowledged that monies previously advanced to him by Cynthia for his purchase of the property would be retained by Cynthia after payment of stamp duty and all other fees and charges at settlement of the transaction. This acknowledgement document was dated 25 May 2007.[257]
[257]T 1302.18-21, CB 699.
It was suggested in cross-examination that the simplest way for Ms Tran to protect herself would be to have the plaintiff or Cynthia or both of them say that the land was held on trust for Cynthia and that the proceeds of sale had been paid to the beneficial owner. Ms Tran did not disagree, but she said she took advice from a lawyer and, based on Ms Tran’s explanation to her about the contract for the sale of the Rockbank land, that was the way it was approached and she was not thinking of another way of protecting herself.[258]
[258]T 1361.4-1362.14.
Ms Tran also accepted that it was not necessary to have a contract to transfer the land from the plaintiff to Cynthia. Ms Tran was responsive to the proposition: ‘I know what you mean’, but Ms Tran said that because Cynthia did not have the money to pay Bankwest and the NAB needed the contract because it was going to lend money to Cynthia based on the security of the property, they needed a contract so that they could obtain the loan.[259] Ms Tran explained that she was worried about the contract price and the payout figure to Bankwest being only a portion of the contract price, and that she was concerned that the plaintiff might come back and ask her for the difference.[260]
[259]T 1362.17-28.
[260]T 1363.28-31, 1365.6-23.
Ms Tran then telephoned Cynthia and arranged to have her initial the amendments to the Transfer of Land and contract and sign the acknowledgement document dated 25 May 2007. She attended Cynthia’s shop and asked her to initial the Transfer of Land and contract and gave her the acknowledgment document dated 25 May 2007.
She asked Cynthia to sign the document and to get her brother to sign it as well and that once it had been signed, to give it to her brother because Mai and the plaintiff were coming to see her the following week with all the documents.[261]
[261]T 1302.24-1303.17, 1305.2-15, 1306.2-5, 1354.15-1355.12.
On 31 May 2007, Mai and Hau attended at the offices of PT Conveyancing. Hau produced the Goods statutory declaration and Real property value statutory declaration, with the Contract of Sale that Ms Tran had asked him to return and the acknowledgement document dated 25 May 2007. These documents were all signed at the time they were handed to Ms Tran. Ms Tran gave detailed evidence in which she identified each of the documents returned to her on the day.[262]
[262]T 1306.16-1308.16.
Ms Tran then told Hau and Mai that she would need to take the relevant documents to the State Revenue Office to have stamp duty assessed and that she would contact them again once she managed to organise settlement with Bankwest and when the National Bank was ready to settle.[263]
[263]T 1308.28-1309.12.
Ms Tran made a copy of the acknowledgement dated 25 May 2007 and gave the original back to either Mai or Hau asking them to give it to Cynthia for her to keep.
On this day, the plaintiff also asked her to contact Bankwest again to tell them that settlement would occur soon.[264]
[264]T 1309.31-1310.1.
On about 7 June 2007, after a conversation with the real estate agent on that day, and after providing to the real estate agent a council rate notice and title search, Ms Tran received an appraisal letter from the agents in which the view was expressed that the realisable value of the Rockbank land was in the vicinity of $360,000 if marketed at that time.[265]
[265]T 1310.1-8, 1313.15-1314.5; Letter from Barlow McEwan Tribe First National to Cynthia Phung Thoung, 7 June 2007, CB 1274.
During June 2007, Ms Tran made arrangements for the settlement and for a duty assessment on the amended Transfer of Land with the State Revenue Office. Duty was assessed and settlement of the transaction was booked in.
On 27 June 2007, Ms Tran telephoned Cynthia and asked her for a cheque to pay stamp duty. On the same day, she telephoned the plaintiff and advised him that settlement had been booked for 3 July 2007 and that once she had the payout details she would ask him to come and see her.
On 2 July 2007, Ms Tran received a facsimile from Russell Kennedy for Bankwest confirming that settlement would take place at 2.00 pm on 3 July 2007 specifying their requirement for bank cheques including a cheque for $66,495.51 payable to Bankwest and a cheque payable to Russell Kennedy for fees.[266] On the same day, Ms Tran telephoned the plaintiff and advised him that she had received the facsimile from Russell Kennedy confirming the payout details. She asked him to come to her office so that she could take him through the details.
[266]T 1317.12-22.
On or about 3 July 2007, the plaintiff attended Ms Tran’s offices with Mai. She showed him the payout details and the letter from Russell Kennedy. She explained in Vietnamese the amount payable to Bankwest, the amount payable to PT Conveyancing and informed the plaintiff that there was nothing payable to the plaintiff. Settlement of the Rockbank land transfer was completed as arranged on 3 July 2007 with the Bankwest mortgage being paid out at that time.
At this time, the sale of the Altona property was in progress but had not been completed.[267] Prior to completion, Ms Tran attended at Mai’s business premises at 177 Barkly Street, Footscray, and collected a signed Section 27 deposit statement,[268] a letter of instruction – surrendering deeds[269] and customer authorisation and privacy declaration.[270] All of these documents had apparently been signed by the plaintiff.
[267]T 1321.31.
[268]Deposit Statement to the Purchaser of Real Estate, 7 May 2007, CB 807.
[269]NAB Letter of Instruction Surrendering Deeds, CB 806.
[270]Customer Authorisation and Privacy Declaration, 7 May 2007, CB 805.
On 12 July 2007, Ms Tran forwarded a copy of the Contract of Sale of the Altona property between Hau Lam and Mai Nguyen to Karen Margaret Banks and/or nominee together with the copy of the letter of instruction – surrendering deeds in anticipation of settlement of the transaction. On 27 July, the NAB confirmed a settlement date of 27 July 2007. The settlement date had to be re-booked as the Contract of Sale provided that the balance of the purchase price was payable on 2 November 2007 or earlier by agreement. Ultimately, settlement was arranged for 2 November 2007.[271]
[271]T 1323.4-20, 1329.1-2.
On 7 September 2007, Ms Tran received a letter from the purchaser’s solicitor enclosing a Transfer of Land in readiness for settlement of the Altona property.[272]
[272]T 1324.24-31; Transfer of Land, CB 1816.
By letter dated 25 October 2007, the solicitors for the purchasers wrote to PT Conveyancing confirming settlement of the transaction on 2 November 2007 and enclosing an adjustment and settlement statement seeking confirmation of the figures and advice as to the proposed break up of cheques.[273]
[273]T 1329.1-4; Letter from John Anile Pty to PT Conveyancing, 25 October 2007, CB 1780.
On 31 October, Ms Tran contacted Mai and asked her to fax the utilities bills so that she could check the statement of adjustments and she asked her if she and the plaintiff would come to her office to sign the paperwork. An appointment was made for the next day.
On 1 November 2007, the plaintiff and Mai attended at the offices of PT Conveyancing. Ms Tran showed them the Transfer of Land which had been signed by the purchaser.[274] The Goods Statement for Residential Land[275] was unsigned. She explained to the plaintiff that when she had prepared the Goods Statement for Residential Land she had used the address of the vendor stated on the contract, which coincided with the address for utilities. This address was 1 Princes Street, Port Melbourne, which is Cynthia’s address. Ms Tran told them that if they were not happy with this address she could amend it on her system. Mai and Hau responded to the effect that they were content with the address because all of the utility bills were going to 1 Princes Street, Port Melbourne anyway and Cynthia was the one who paid for these outgoings.[276]
[274]Transfer of Land, CB 1816.
[275]Goods Statement for Residential Land, CB 1795.
[276]T 1332.1-1333.8.
Ms Tran then asked the plaintiff and Mai to sign the Transfer of Land, which they did in her presence. Ms Tran signed as a witness to their signatures.[277]
[277]T 1333.11-13; Transfer of Land, CB 1816; Transfer of Land, CB 1817.
Ms Tran then asked the plaintiff to sign the Goods Statement for Residential Land where she had indicated with a cross on the document. The plaintiff signed the document in Ms Tran’s presence. Ms Tran then dated the document 1 November 2007.[278]
[278]T 1333.25-1334.12.
Ms Tran advised the plaintiff and Mai that settlement had been booked for the next day, 2 November 2007, and asked them to attend her offices before 5.00 pm to pick up the cheques and finalise the matter.
Settlement occurred on 2 November 2007. As arranged, Mai and the plaintiff attended at the office of PT Conveyancing. Ms Tran advised them that settlement had occurred and gave them a final letter together with a bank cheque payable to M Nguyen and H Lam for $281,715.58.[279] Ms Tran said that she would need to speak to the plaintiff and Mai later because there was still an issue with the condition of the property resulting in some money payable to them being withheld.[280]
[279]T 1335.10-25; NAB Bank Cheque payable to M Nguyen and H Lam for the sum of $281,715.58, 2 November 2011, CB 1801.
[280]T 1335.23-30.
The plaintiff and Mai said something about land tax. Ms Tran said that the plaintiff knew more about tax than Mai. One or other of them raised the question whether they could claim land tax back because they had never owned any property and, as first home buyers, they thought they could make a claim to recover land tax. Ms Tran said her knowledge about land tax was limited, but said that ‘with land tax if you occupy the house, that is when you can make a claim tax on the property’.[281]
[281]T 1336.13-31.
Ms Tran said she would need to prepare statutory declarations for them to sign and produce to the Land Tax Office to make an assessment. Shen then prepared forms for statutory declarations for signing by each of them.[282]
[282]T 1337.1-7; Statutory Declaration of Hau Lam, CB 1834; Statutory Declaration of Mai Nguyen, CB 1835.
On about 13 November 2007, the solicitors for the purchaser sent trust account cheques payable to the plaintiff and Mai for $1,775.00 and $103.14 respectively.[283] On receipt of these cheques, Ms Tran made arrangements with Mai for the plaintiff and Mai to attend her office to pick up these cheques. Later that week, they attended at the offices of PT Conveyancing and Ms Tran gave them the two cheques.[284]
[283]Letter from John Anile Pty to PT Conveyancing, 13 November 2007, CB 1825; ANZ Bank Cheque payable to Hau Lam and Mai Nguyen for the sum of $1,775.00, 13 November 2007, CB 1826; Letter from John Anile Pty to PT Conveyancing, 14 November 2007; ANZ Bank Cheque payable to Hau Lam and Mai Nguyen for the sum of $103.14, 14 November 2007, CB 1828.
[284]T 1337.27-1338.15.
In February 2008, Ms Tran received a telephone call from Mai asking her to collect the two statutory declarations. These documents had apparently been declared before a medical practitioner, Dr Le. Mai asked her lodge both of them with the State Revenue Office to see if the State Revenue Office would refund the land tax. Ms Tran lodged the statutory declarations as requested.
Ms Tran was challenged heavily in cross-examination in relation to the statutory declarations which state that the Altona property was the principal place of residence of the plaintiff and Mai. She agreed that she knew that the plaintiff had never lived there, said they did go there as a holiday property and that Mai had said that they went to the beach with the whole family and that everyone went there sometimes. Ms Tran agreed that she knew at the time she prepared the statutory declaration that the Altona property had not been the plaintiff’s or Mai’s principal place of residence since March 2002. It was then suggested that if the statutory declaration which she had prepared was declared it would be a false declaration. Ms Tran replied ‘It is not false declaration because I tried to explain the word ‘principal’ which mean they only own one property only’.[285] Ms Tran agreed that in 2007 she knew of the obligation to pay land tax on properties that were not the principal place of residence of the owner.[286]
[285]T 1368.19-21.
[286]T 1368.5-28.
After some further communications with the State Revenue Office, which requested further details and a response to the effect that her clients were unable to provide all the documents as requested, the State Revenue Office rejected the application and confirmed that the land tax was correct.[287]
[287]T 1339.29-1340.20; Letter from State Revenue Office to Hau Lam, 27 March 2008, CB 1840 and Letter from PT Conveyancing to State Revenue Office, 28 April 2008, CB 1842.
Several years later, in September and October 2013, Ms Tran received letters of demand, apparently from Hau Lam. The letters were unsigned and Ms Tran did not respond to them. She said that at that time she had already spoken to the police about the matter and she thought it was better for her to deal directly with the two policemen she had showed the first letter that Hau Lam had sent to her at the time the police had interviewed her.[288]
[288]T 1341.4-27; Letter from Hau Lam to PT Conveyancing, 27 September 2013, CB 2371-2.
Mai Nguyen – Transaction documents
Altona property
Mai’s evidence in relation to the Altona property transaction is to the following effect.
Mai saw Hau sign the original contract note dated 2 May 2007 for the sale of the Altona property, including Special Conditions annexed to the Contract Note and a Section 32 Vendor’s Statement. She also signed these documents. She was unsure whether she was at the real estate agent’s office or at Cynthia’s office when she saw Hau sign them.[289]
[289]T 1058.14-1059.7; Contract Note CB 1680A; The Vendor’s Statement 1681A; Special Conditions, 1682A; Vendor’s Statement to the Purchaser of Real Estate 1683A-1702.
She saw Hau sign a Section 27 Deposit Statement to the Purchaser. She was unsure whether it was signed at Ms Tran’s office or at the travel agent’s office where she worked.[290]
[290]T 1066.26-31.
She had a telephone conversation with Ms Tran in relation to answers to requisitions from the purchaser of the Altona property. She was with Hau at the time. During the conversation Ms Tran explained each requisition and the appropriate answers. Mai asked Ms Tran whether she could fax the document back after signing it. Ms Tran said that would be okay. Mai said that Hau read the answers to the requisitions document, said okay, and she saw him sign it.[291] She used Cynthia’s fax machine to fax the signed answers to requisitions back to Ms Tran.[292]
[291]T 1067.14-1068.8.
[292]T 1068.11-14.
Mai saw Hau sign a letter of instruction to NAB regarding the surrendering of documents held by NAB to PT Conveyancing.[293] She also signed this document.
[293]T 1068.15-25; Item 13, NAB Letter of Instruction Surrendering Deeds, CB 880.
She attended the office of PT Conveyancing with Hau. She signed the Transfer of Land. She saw Hau sign the Transfer of Land. Ms Tran witnessed their signatures.[294]
[294]T 1073.26-1074.9; Transfer of Land, 2 November 2007 CB 882.
She attended Dr Le’s medical surgery with Hau to make a statutory declaration to try to ‘get the tax back’. She signed the statutory declaration form applicable to her in the presence of Hau and Dr Le. Hau signed the statutory declaration form applicable to him in her presence and in Dr Le’s presence. Both Mai and Hau showed some identification to Dr Le at the time the documents were signed. This took place at the reception area at the surgery.[295]
[295]T 1079.31-1080.4; Statutory Declaration of Hau Lam, CB 1834; Statutory Declaration of Mai Nguyen, CB 1835.
After settlement of the Altona property the cheques payable at settlement were sent to Ms Tran, who called Mai and asked her whether they (Mai and Hau) could come and collect the cheques. Mai and Hau went to Ms Tran’s office together. Ms Tran showed them the cheques and asked Hau and Mai to sign off to collect the cheques. She gave a cheque to Hau. When they were outside Ms Tran’s office, Hau asked Mai to take the cheque and give it to Cynthia and handed the cheque to Mai.
At settlement there were a few cheques and there were one or two that she and Hau had to sign on the back so that Cynthia could bank them. She identified cheques for $281,715.58 and $2,181.78 with her and Hau’s signatures on the back.[296]
[296]T 1084.27-1086.1; NAB Bank Cheques, 2 November 2007, CB 1871; NAB Vouchers, 8 November 2007, CB 965-6..
She also saw Hau sign a NAB Discharge Authority, Letter of Instruction – Surrendering Deeds document dated 2 November 2007 and a NAB Customer Authorisation and Privacy Declaration dated 7 May 2007.[297]
[297]T 1089.11-24; Discharge Authority Letter of Instruction Surrendering Deeds, 2 November 2007, CB 883; T 1089.29-1090.15, Item 2, Customer Authorisation, 7 May 2007, CB 878.
She recognised Hau’s signature on the Goods statement for residential land, but she did not see him sign this document.[298]
[298]T 1090.19-31, CB 1795.
Rockbank land
Mai had less involvement in relation to the transaction documents relevant to the transfer of the Rockbank land. Her evidence is to the following effect.
On 25 May 2007, she drove Hau to the offices of PT Conveyancing and was present when Hau told Ms Tran that he had signed the contract and Transfer of Land. He had asked her to check to see whether anything was missing. She agreed that Ms Tran had noted there was only one contract, not the four she had left.[299]
[299]T 1115.24-1116.28.
She attended Ms Tran’s office later in the day on 25 May 2007 after Hau asked her to drive him there. Hau told her that Ms Tran had said the name of the purchaser on the contract was incorrect. She was present when Ms Tran explained that the reason she had asked him to come back was so the contract and transfer could be amended to insert the correct name of the purchaser, PFE as trustee for the Pacific Far East Unit Trust instead of Cynthia personally. She recalled Ms Tran saying that where there was a change, he would need to initial the change. She recalled Hau initialling the changes.[300]
[300]T 1118.28-1120.13, CB 1223, CB 1256.
Mai attended a medical surgery in Footscray, which she described as Dr Le’s clinic, and she saw Hau sign a Goods statutory declaration and a Real property value statutory declaration. The documents were signed standing up in the reception area, with Mai standing, next to Hau and Dr Le, who asked Hau to produce identification. She said that Hau presented his driver’s licence.[301]
[301]T 1077.2-1078.17, Exhibit LD5, CB 851, CB 852.
Dr Le – Transaction documents
Dr Le, a medical practitioner with a medical practice at Byron Street, Footscray, gave evidence as to his usual practice when ‘witnessing’ a statutory declaration, which was that the person signs, and he dates, stamps and signs the document.[302] He was shown the Goods statutory declaration and Real property value statutory declaration and a statutory declaration of Hau Lam dated 8 October 2007. In each case he identified his handwriting and his stamp on the document. Under cross-examination, it became apparent to Dr Le that there appeared to be a mistake in the date on the Real property statutory declaration (dated 2006 not 2007). He then expressed doubts about his handwriting. When it was pointed out to him that only his stamp and not his signature appeared on the Goods statutory declaration and the Real property value statutory declaration he said it was very unusual for him not to sign, though he did accept the possibility of error.[303]
[302]T 633.10-16.
[303]T 629.25-30, 639.19-25.
Dr Le was then shown his own statutory declaration dated 19 November 2014 to the effect that he witnessed each of the statutory declarations for Hau Lam.[304] He was unable to confirm whether the signature on his statutory declaration was his signature and said that the content of the document did ‘not belong to’ him.[305] He denied signing the statutory declaration in 2014 and expressed surprise at seeing the document in court.[306]
[304]Statutory Declaration, 19 November 2014, CB 2199.
[305]T 646.7-8.
[306]T 645.1-647.23.
Chau Minh Duong – Transaction documents
Chau Minh Duong is a conveyancer employed by Lanham Lawyers. She recalled that she emailed Dr Le a letter, his unsigned statutory declaration and the declarations previously made before him. She had a conversation with Dr Le prior to sending him the documents, asking him to confirm by signing his statutory declaration that he had witnessed the declarations of Hau Lam. Ms Duong gave evidence that she received from Dr Le a copy of his signed declaration. Subsequently, Ms Duong attended Dr Le’s surgery in Footscray and collected Dr Le’s original signed statutory declaration.[307]
[307]Exhibits LD9 and LD11.
Disposition – Transaction documents
The plaintiff contends that he did not have any contact with Ms Tran or PT Conveyancing after 2005[308] and that he did not know about the sale of the Rockbank land and the Altona property until 2013. The plaintiff’s evidence is unable to be rationalised or reconciled with the evidence of Ms Tran.
[308]T 416.21-22.
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, the plaintiff’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 the plaintiff, consisting of nine telephone contacts and eight personal attendances on the plaintiff at the offices of PT Conveyancing in relation to one or other of these property transactions. If accepted, this evidence is devastating to the plaintiff’s case. [309] It would show that the plaintiff not only knew about the property transactions but helped facilitate them.
[309]Telephone contacts, T 1240, 1244, 1245, 1250, 1254, 1256, 1269, 1317 and 1318; Attendances in person, T 1246, 1291, 1298-1299, 1306, 1320, 1331, 1335 and 1338.
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.
Dr Le’s statutory declaration, if accepted, also demonstrates that the plaintiff knew about the property transactions and helped facilitate them. The declaration is consistent with Ms Tran’s evidence.
In my view, the statutory declaration of Dr Le that he witnessed the plaintiff signing the Real property value statutory declaration (incorrectly) dated 30 May 2006 (relating to the Rockbank land transfer), the Goods statutory declaration dated 30 May 2007 (relating to the Altona land transfer) and the statutory declaration dated 8 November 2007 (relating to the Altona property) ought to be accepted.
Under cross examination, it was clear that Dr Le had not noticed that he had stamped but not signed two out of three of the plaintiff’s statutory declarations and that this meant that he had not complied in these instances with his usual practice of signing the document at the time he took the declaration. This evidence showed that Dr Le’s practice was not invariable. Whatever the reasons for this oversight, in my view there is nothing sinister about the fact that two of the statutory declarations were not signed by him. The declarations do bear his stamp which includes his name and address. Mai’s evidence that she was present when Hau made the declarations corroborates Dr Le’s evidence.
I am satisfied that the plaintiff signed and made the three statutory declarations at Dr Le’s surgery, two in May 2007 and one in October 2007. In all the circumstances, I am satisfied that Dr Le’s statutory declaration to the effect that he witnessed the plaintiff signing the three declarations is reliable. It follows that I do not accept Dr Le’s disavowal of his statutory declaration. In this regard, I accept the evidence of Ms Duong, who spoke to Dr Le about making the statutory declaration, communicated with him by email, received a copy of the statutory declaration and collected the original from his surgery.
In my view, Dr Le had forgotten that he had made the statutory declaration.[310] There is overwhelming evidence that he did make his statutory declaration. There was evidence before the Court that he had significant medical issues in 2015. It is possible that these issues affected his memory.
[310]The reference in the Real Property statutory declaration to 2006 is clearly an error and should be 2007.
Expert evidence – Transaction documents
In this case, given my findings with respect to the eyewitness accounts of Hau signing some of the transaction documents, it is not productive to address every transaction document.
As a general observation, I prefer the evidence of the handwriting expert called by the Lam defendants, Mr Joyce. Mr Joyce’s approach to the task of giving expert evidence on the transaction documents was to inform the Court of the salient features of questioned signatures in comparison to known specimen signatures of the plaintiff.
Where questioned signatures departed subtly in construction to known specimens, Mr Joyce suggested that there were three hypotheses which could account for the observed differences:
(a) the variation hypothesis, where the relevant signature is a genuine signature variant of the plaintiff;
(b) the disguise hypothesis, where the signatures are disguised or distorted signatures by the plaintiff with a view to denying authorship at a later date; or
(c) the different writer hypothesis, being the result of a writer other than the plaintiff.
Mr Joyce described his approach in the following terms:
To identify a writer is immeasurably easier than it is to exclude a writer, so to exclude a writer you’re basically putting yourself in the position of saying at no stage did the writer or could the writer have physically ever written that signature…it is a bit of an old school of thought to say a difference means as (sic) different writer. A difference sometimes means there is an explanation for it but it is still a genuine signature… In an exclusionary sense, it is an old school of thought to think difference means different writer. The literature, research papers, studies on the expertise of handwriting examiners, has all shown that exclusion is a difficult area for examiners. It is an area where we sometimes trip up and make mistakes. The research studies then make the recommendation effectively that we offer a two-stage conclusion process, we offer what the evidence is saying, that there is some variation or differences, however you put that comment, and then to offer the hypotheses for explaining that evidence. The next step to prefer one of those is basically up to the court, and that is a recommendation.[311]
[311]T 1614-1615.
Mr Joyce relied on published literature in support of this approach.[312]
[312]Kelly/Lindblom, “Scientific Examination of Questioned Documents”; Huber/Headrick “Handwriting Identification and Studies from SITA”; Found, Alewijnse and Bird. Trevor Joyce, Further Forensic Report, 23 December 2015 [8.8], CB 677.
In the case of 22 signatures, which Mr Joyce styled Type B Hau Lam signatures, Mr Joyce concluded that these signatures were not signatures typical and representative of normal habits of the writer and that determination of whether the differences were accounted for by the variation hypothesis, the disguise hypothesis or the different writer hypothesis should be made by the Court after consideration of other supporting evidence.[313]
[313]Ibid [1.3], [1.5] and [8.6[, CB 662-3 and 667.
The plaintiff’s handwriting expert, Mr Holland, had examined fewer documents but was more emphatic in his opinion. He was less responsive to questions and tended to add unsolicited comments supportive of the plaintiff’s case which slightly affected my view on his impartiality as an expert. Mr Holland did not take issue with the published literature referred to by Mr Joyce.[314]
[314]T 1557-1558.
In Mr Holland’s opinion, 12 of the questioned documents, identified in his report relating to the Altona property, were signed by the same person and 10 of the questioned signatures identified in his report relating to the Rockbank land were signed by the same person. Mr Holland was of the view that the person who signed the questioned Altona property documents is the same person who signed the questioned Rockbank land documents. It follows that Mr Holland was of the opinion that one person signed 22 documents that were specifically identified. Mr Holland agreed that if the Court were to find that any of the 22 documents were signed by the plaintiff then it would follow that the plaintiff signed all 22 documents.[315]
[315]T 1582.1-31-1583.1-28, Neil Holland, A Report on the Examination of Documents Pertaining to ‘Altona Property Matter – Hau Lam’, 13 August 2014, CB 298-9; Neil Holland, A Report on the Examination of Documents Pertaining to ‘Rockbank Property Matter – Hau Lam’, 14 August 2014, CB 403.
Included in the 22 documents identified by Mr Holland as being signed by the same writer are the Transfer of Land for the Altona property (transfer to Banks),[316] the Transfer of Land for the Rockbank land (transfer to PFE),[317] the contract of sale for the Altona property and the Particulars of Sale for the Rockbank land[318] I am satisfied that these transfers and these contracts were signed by the plaintiff. Based on the evidence of Mr Holland, I find that the plaintiff is likely to have signed the rest of the 22 documents identified by Mr Holland. I reject the suggestion that there were any forgeries amongst these signatures. In my view, the variation hypothesis accounts for the subtle differences in these signatures from the known specimens and the signature on the Power of Attorney.
[316]Item 4, Transfer of Land, CB 351; Item 7, Contract Note, CB 354; Item 8, The Vendor’s Statement, CB 355; Item 9, Special Conditions, CB 356.
[317]Item 16, Transfer of Land, 14 June 2007, CB 470.
[318]Item 19, Particulars of Sale, 25 May 2007, CB 473; item 20, Contract of Sale of Real Estate, CB 474.
E. Trusts
The relevance of the claimed trusts has been overtaken by events so I will deal with the subject briefly.
I am satisfied that both the Rockbank land and the Altona property were held on express trusts. The trusts were informally but sufficiently expressed in the conversations between Cynthia and Hau and reflected in the contemporaneous conduct of the parties. At the time of their purchase, both properties were to be held in names other than Cynthia’s. Hau’s agreement in each case (‘to stand on the title’) for Cynthia was an unequivocal though informal expression of a trust which was manifested by consistent conduct at the time. In the case of the Rockbank land Cynthia paid the whole purchase price. In the case of the Altona property Cynthia paid the deposit and all other expenses. I am satisfied that Cynthia held the beneficial interest in both properties at all relevant times and was entitled to dispose of the properties as she saw fit.
F. Counterclaim in the Rockbank proceeding
In the Rockbank proceeding, the first defendant, Phung Thuong Lam (Cynthia) counterclaims against the plaintiff for $50,000 advanced to the plaintiff on about 2 December 2002.
Cynthia gave evidence that in 2002 Hau borrowed $50,000 from her. This loan was separate from his later borrowing of $50,000 from Bankwest on the security of the Rockbank land. The $50,000 loan from Cynthia took the form of a $50,000 bank cheque. Cynthia gave evidence that she handed the cheque to Hau in person. Cynthia’s evidence was that the loan was made in December 2002 on the basis that it would be for six months and that Hau would repay the money in June 2003. Despite his promise to repay the money, he failed to do so.[319]
[319]T 710.21-31-711.1-20.
Under cross-examination, it became evident that though Cynthia did purchase a bank cheque for $50,000 payable to the plaintiff in December 2002,[320] the proceeds of the cheque were paid into the Vien Dong Tourist Services National Bank account on 6 January 2003.
[320]NAB Bank Cheque payable to Lam Hau for the sum of $50,000, 13 December 2002, CB 2186.
Cynthia conceded that the bank cheque had been returned to her account. She said she totally forgot about the cheque, that one of her staff mentioned that Hau needed cash urgently and that the cheque would take three working days to clear. She said she clearly remembered that she gave him $50,000 in cash in 2002 and that she did not remember the cheque because the travel business was very busy at that time and 14 years had passed.
I found Cynthia’s evidence on this issue unsatisfactory and unreliable. In my view, she reconstructed the evidence of having paid Hau $50,000 cash in 2002. Her evidence that Hau mentioned that he needed cash urgently was based on hearsay from a member of her staff. In any event, without admissible evidence, I am not satisfied that it would require three working days to clear a bank cheque or why the bank cheque could not have been specially cleared.
Further, there was no corroborative evidence in bank statements or other documents to indicate that $50,000 was redrawn from an account associated with Cynthia and paid in cash to the plaintiff. There was no evidence of terms as to the payment of interest or evidence that the loan would be interest-free.
The whole arrangement giving rise to the alleged loan and the obligation to repay the alleged loan was extremely vague. In my view, the passage of time has made the uncorroborated evidence of Cynthia too unreliable to be accepted with any confidence. Cynthia has failed to discharge the onus of proof on the balance of probabilities with respect to this counterclaim.
For completeness, I note that the second defendant, PFE, did not pursue its counterclaim seeking recovery of $66,495.51 to PFE from the plaintiff. The PFE counterclaim was pleaded but was not mentioned in opening or closing submissions and must be taken to be abandoned.
G. Conclusion
The plaintiff’s causes of action to the effect that the properties were wrongfully transferred by means of sham transfers and the production of documents using the plaintiff’s forged signatures raise matters of the utmost gravity. As indicated above clear, cogent or strict proof is necessary if fraud is to be found on the part of others. For the Court to be satisfied of fraud on the balance of probabilities there must be actual persuasion of its occurrence. The plaintiff failed to prove his case to the requisite standard. His case (in each proceeding) was bereft of clear, cogent or strict proofs.
Indeed I have found that the plaintiff did not have sufficient funds and did not provide funds with respect to the purchase, maintenance and upkeep of either the Rockbank land or the Altona property save that he may have made some minor expenditure with respect to earthworks and construction of sheds on the Rockbank land. In the scheme of things, these expenditures are immaterial.
I have found there was no inheritance and that Hau did not otherwise have the means and ability to pay for the properties or make payments with respect to the properties. I have rejected the plaintiff’s claims with respect to caveats being placed on the Rockbank land and the properties being transferred without his knowledge. The plaintiff well knew of the caveats on the Rockbank land and consented to and facilitated the transfer of both properties.
In relation to the Bankwest loan, I have found that Hau obtained a replacement Certificate of Title for the Rockbank land in order to borrow on the security of the land without Cynthia’s knowledge but was thwarted by the first caveat. I have also found that this resulted in a request to Cynthia for help, discussions within the Lam family, and Cynthia ultimately removing the first caveat subject to obtaining a Power of Attorney document and lodging the second caveat.
I have found that the plaintiff signed the Authority documents and the Transaction documents. The plaintiff failed to establish there were any forgeries. There were one or two documents in respect of which suspicions were raised. Such suspicions were insignificant against the weight of corroborated evidence adduced by the defendants.
It follows from my findings with respect to each of the issues for determination that I am not satisfied that Ms Tran breached any duty owed to the plaintiff arising out of the services she provided to him. In fact, Ms Tran went out of her way to protect the plaintiff’s interests.
In respect of the counterclaims, I have found that Cynthia failed to establish her counterclaim on the balance of probabilities and that PFE abandoned its counterclaim.
It follows that the plaintiff’s claim and the counterclaims must be dismissed.
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