Le v Scott

Case [2022] FCAFC 31

FEDERAL COURT OF AUSTRALIA

Le v Scott [2022] FCAFC 31

Appeal from: Scott (Trustee) v Le [2021] FCA 1364
File number: VID 688 of 2021
Judgment of: MORTIMER, SNADEN AND MCELWAINE JJ
Date of judgment: 11 March 2022
Catchwords: BANKRUPTCY – appeal from judgment by which the appellant and his wife were found to be joint registered proprietors of a property – appellant contended that ownership in the property rested with his wife and his now-deceased brother – appellant and brother alleged to share similar names – existence of brother disputed – whether primary judge erred by concluding that the appellant had an interest in the property – whether primary judge’s finding contrary to incontrovertible facts, glaringly improbable, or contrary to compelling inferences – appeal dismissed
Cases cited:

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472

Fox v Percy (2003) 214 CLR 118

Italiano v Barbaro (1993) 40 FCR 303

Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; 278 FCR 1

Lee v Lee [2019] HCA 28; 266 CLR 129

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 35
Date of hearing: 28 February 2022
Counsel for the Appellant: The appellant appeared in person with the assistance of an Interpreter
Counsel for the Respondent: Ms CF Gobbo
Solicitor for the Respondent: Piper Alderman

ORDERS

VID 688 of 2021
BETWEEN:

CHANH TAM LE

Appellant
AND:

ANDREW JOHN SCOTT THE TRUSTEE OF THE PROPERTY OF CHANH TAM LE, A BANKRUPT

Respondent

ORDER MADE BY:

MORTIMER, SNADEN AND MCELWAINE JJ

DATE OF ORDER:

11 MARCH 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The respondent’s costs of the appeal are the proper costs of the bankruptcy of the appellant.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MORTIMER J:

  1. I have had the advantage of reading the reasons of Snaden and McElwaine JJ in draft. I am grateful for their Honours’ summary of the background, the reasons of the primary judge and the parties’ arguments, which I respectfully adopt. I agree with their Honours’ conclusion that the appeal must be dismissed, and with the costs order proposed by their Honours.

  2. In Lee v Lee [2019] HCA 28; 266 CLR 129 at [55], the plurality re-stated the approach from RobinsonHelicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 at [43] that a court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the primary judge’s reasons for judgment, in order to determine whether the primary judge has erred in fact or law. The plurality…

Continue reading Le v Scott

Sign in free to access the full text

Details
AGLC
Le v Scott [2022] FCAFC 31
Case
[2022] FCAFC 31
Decision Date

CaseChat Overview and Summary

The case of Le v Scott involved the appellant and his wife who were found to be joint registered proprietors of a property by the primary judge. The appellant challenged this decision, contending that ownership in the property was held by his wife and his deceased brother. The appellant and his brother shared similar names, and the existence of the brother was disputed. The appeal court was required to determine whether the primary judge erred in concluding that the appellant had an interest in the property, and whether the primary judge’s findings were contrary to incontrovertible facts, glaringly improbable, or contrary to compelling inferences.

The court of appeal held that the primary judge's conclusion was open to be drawn and was not erroneous. The court considered the evidence presented before the primary judge, including records that consistently recorded the appellant’s name as Chanh Tam Le, and noted that the circumstances of the case pointed strongly in favour of the primary judge's finding. The court also observed that the appellant’s narrative was inherently implausible, and that there were no compelling reasons to doubt the primary judge’s findings of fact.

The appeal was dismissed, and the respondent’s costs of the appeal were ordered to be the proper costs of the appellant’s bankruptcy. The court found that the primary judge’s decision was based on a reasonable assessment of the evidence and did not constitute an error of fact or law.

Orders

Orders of the court

1. The appeal be dismissed.

2. The respondent’s costs of the appeal are the proper costs of the bankruptcy of the appellant.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the reasons that follow, the appeal must be dismissed.THE PRIMARY JUDGMENT It is convenient to trace the reasoning that led the primary judge to the conclusion that the appellant challenges. Before laying out his consideration of the evidence that had been tendered before him, the primary judge made some observations about the appellant and his evidence (Primary Judgment, [19]):19 I consider that great care (and sensitivity) needs to be taken in assessing the first respondent’s affidavit and oral evidence. There were several parts of his evidence that were simply not credible and that cannot be accepted. For example, the first respondent denied signing some documents that the context makes clear were signed by him. However, I do not consider that the first respondent was lying (as was put to him on occasion during cross-examination). Rather, I consider that the first respondent honestly believed what he said during cross-examination. Further, parts of his evidence were not coherent. Generally, I consider that the first respondent’s evidence lacked credibility and very little weight can be placed on his evidence… His Honour then proceeded to summarise facts that emerged without controversy from the evidence. They included the fact that the appellant was born in Vietnam on 10 November 1954, that he came to Australia in 1984, that he became an Australian citizen in 1986 and that such written records that exist of those events all record with consistency his name, Chanh Tam Le. His Honour then noted that “Tam Chanh Le” and the appellant’s wife, Mrs Le, were registered on 18 March 1996 as “joint proprietors” of the Property. The certificate of title placed before his Honour records that both were, at that time, living at another address in Sunshine, Victoria. His Honour went on to consider an array of records—including the appellant’s driver’s licence, Medicare card and passport—noting that all of them recorded the appellant’s name as “Chanh Tam Le” and his date of birth as 10 November 1954. As to the circumstances leading to the purchase of the Property in 1996, his Honour noted the appellant’s evidence that it was his parents who funded a deposit for the purchase; and that his father insisted, at the time, that title in the property should not vest in him, apparently because he (the appellant) was a gambler. Next, his Honour noted evidence led by the appellant to establish the existence of his brother. To that end, his Honour referred to:(1)a Vietnamese birth certificate pertaining to “Tam-Chanh-Le”, born 10 November 1962 (eight years to the day after the appellant’s birth);(2)a Vietnamese death certificate also pertaining to “tam chanh le”, which indicated a date of death of 9 March 2017;(3)a statutory declaration apparently made by “Tam Chanh Le” on 3 May 2016, attesting to his being a co-owner of the Property; and(4)a photograph of an urn that the appellant said contained the ashes of his deceased brother and that bore a label noting his date of death as 10 March 2017.

Ratio Decidendi

Legal Principle Established

The Trustee submitted that the bulk of the evidence before the primary judge tended to establish that the appellant and Tam Chanh Le were, in fact, one and the same person. He contended that the primary judge was correct so to conclude; and that nothing advanced by the appellant in his oral appeal submissions should suffice to warrant the opposite conclusion.CONSIDERATION: DID HIS HONOUR ERR? The task of the court on appeal is well-established. The court will only interfere with a primary judgment if it is the product of error: Allesch v Maunz (2000) 203 CLR 172, 180 [23] (Gaudron, Gummow, McHugh and Hayne JJ). Here, the error alleged is one of fact: the appellant maintains that he is not Tam Chanh Le and did not acquire any interest in the Property under that name (or at all). He submits that the primary judge was wrong to draw those conclusions. In Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 (French CJ, Bell, Keane, Nettle and Gordon JJ), the High Court described the task of an appeal court as follows (at 686-687 [43]):A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. Findings of fact that are based, in part, upon a trial judge’s impression of a witness or the credibility of his or her evidence are not beyond the reach of correction on appeal: Fox v Percy (2003) 214 CLR 118, 128 [29] (Gleeson CJ, Gummow and Kirby JJ). Furthermore, factual conclusions reached by inference do not command the same level of appellate deference: Lee v Lee (2019) 266 CLR 129, 148-149 [55] (Bell, Gageler, Nettle and Edelman JJ). Nonetheless, if a trial judge’s finding “…depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’”: Devries v Australian National Railways Commission (1993) 177 CLR 472, 479 (Brennan, Gaudron and McHugh JJ). In this court, it has been said that such findings are “nearly invulnerable”: Italiano v Barbaro (1993) 40 FCR 303, 326 (Neaves, Burchett and Whitlam JJ, Black and Beazley JJ agreeing in the result). Having considered the evidence for ourselves, it is apparent that the conclusion to which the primary judge was drawn was very much open to be drawn. Indeed, even leaving to one side the caution with which his Honour was moved to regard the appellant’s oral evidence, the circumstances of the present case point very strongly in favour of the finding that his Honour made. Although not beyond explanation, there is (and was) an inherent implausibility to the appellant’s narrative. Why, it might rhetorically be asked, for example, would the appellant’s brother be installed as the joint owner of a house that the appellant lived in with his wife? Why was there no photographic evidence of the appellant’s brother? Why would the appellant sign documents in a style bearing his brother’s name? Why didn’t the appellant’s wife give evidence at the trial to corroborate his account?