Miller v Martin

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0005
S EAPCI 2021 0009

JAMES EDWARD MILLER	Applicant
v
IAN DONALD MARTIN and others according to the attached schedule	Respondents

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JUDGES:	TATE, NIALL and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2021
DATE OF JUDGMENT:	30 April 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 108
JUDGMENTS APPEALED FROM:	[2020] VCAT 29, [2020] VCAT 1218 (Senior Member Walker)

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REAL PROPERTY – Co-ownership of land – Sale and distribution of proceeds reflected registered interests on title – No credible evidence of source of funds – No adjustment of interests – Just and fair division – Breskvar v Wall (1971) 126 CLR 376, Perpetual Trustees Victoria Ltd v Gheorghui [2007] VSC 412, applied – Property Law Act1958 ss 228 and 233.

PRACTICE AND PROCEDURE – Principle of finality – Res judicata – Issue estoppel – Jackson v Goldsmith (1950) 81 CLR 446, Blair v Curran (1939) 62 CLR 464, applied.

COSTS – No difference in relative strengths of parties’ claims – Equal responsibility for time wasted – Each party to bear their own costs.

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person
For the First to Fourth Respondents	Mr R G Squirrell	GE Law Services Pty Ltd

TATE JA
NIALL JA
KENNEDY JA:

TABLE OF CONTENTS

Introduction and summary......................................................................................

3

The purchase of the beach house.............................................................................

6

The proceedings.........................................................................................................

8

(1) The original VCAT decision.................................................................................

8

(2) The substantive Mukhtar AsJ decision.................................................................

17

(3) The remitter — the sale and distribution decision................................................

18

(4) The restraint decision............................................................................................

25

(5) Appeals from Mukhtar AsJ...................................................................................

28

(6) Current appeals — First appeal from VCAT: the sale and distribution decision (2020/ 0005).................................................................................................................

31

(7) The costs decision..................................................................................................

31

(8) Current appeals — Second appeal from VCAT: the costs decision and others (2021/ 0009).................................................................................................................

39

Appeals restricted to questions of law..................................................................

42

The key issues cannot be re-agitated — res judicata..........................................

44

The fundamental issue..............................................................................................

47

(1) The evidence of 21 March 2016.............................................................................

47

(2) Reliance on objective evidence...............................................................................

53

(3) Torrens system — title by registration.................................................................

55

(4) Registered interests on title — sale and distribution decision reflects registered interests..................................................................................................................

57

(5) No party receives their costs.................................................................................

59

Conclusion on the applications for leave to appeal............................................

61

Introduction and summary

The applicant, James Miller (‘Miller’), seeks leave to appeal from decisions of the Victorian Civil and Administrative Tribunal (‘VCAT’) in relation to the sale of a beach house located in Moggs Creek in Victoria (‘the beach house’) and the distribution of the sale proceeds. There are two separate applications for leave to appeal, which this Court heard together.[1] The matters have a complex and protracted procedural history.
[1]Proceedings S EAPCI 2020 0005 (the first appeal’) and S EAPCI 2021 0009 (‘the second appeal’). For convenience, in what follows we refer simply to ‘the appeal’, ‘the appeals’, ‘the current appeals’, ‘the first appeal’, or ‘the second appeal’, unless the context indicates otherwise.

Miller, who appeared as a self-represented litigant, has consistently claimed that he is the sole beneficial owner of the beach house and the other registered proprietors on the title hold their interests on trust for him. On that basis, he claims he should receive all the proceeds of sale. The first to fourth respondents, Ian Martin (‘Martin’) and Teresa Martin (‘the Martins’) and Ross Brabham (‘Brabham’) and Margaret Brabham (‘the Brabhams’) (collectively ‘the respondents’),[2] have for their part consistently maintained that the beach house was purchased with partnership funds as an investment under a partnership Martin and Brabham had with Miller. They claim that they hold their registered interests on title by reason of that partnership and are entitled to their respective share of the sale proceeds. They assert that the partnership grew out of a close friendship that lasted many years and involved the purchase of many ‘lifestyle’ investments, but which, regrettably, has been irreversibly damaged.
[2]Miller names eight respondents to both Notices of Appeal, but while the first to fourth respondents contest the appeals, the remaining respondents have taken no active part.

There are two current appeals. In the first appeal, Miller seeks leave to appeal from a decision made by Senior Member Walker at VCAT in respect of the sale and distribution of the proceeds of sale of the beach house. On 30 September 2019 Senior Member Walker made final orders and he published written reasons on 8 January 2020 (‘the sale and distribution decision’).[3] The final orders provide for the sale of the beach house under the direction of an independent solicitor, with the net balance of the sale proceeds to be distributed in accordance with the registered interests on title, with Miller having the opportunity to satisfy the independent solicitor that the interests of the co-owners other than the respondents have in fact been transferred to him.
[3]Miller v Martin [2020] VCAT 29.

In the second appeal, Miller seeks leave to appeal from a decision made on 4 November 2020 (‘the costs decision’)[4] by Senior Member Walker at VCAT in respect of the costs of the original hearing (‘the original VCAT decision’).[5] In the original VCAT decision Senior Member Walker rejected Miller’s application for a declaration that the respondents held their interests on a resulting or constructive trust for him (‘the trust claims’). In the costs decision he also dealt with the costs of the hearing that had been remitted to him by Mukhtar AsJ to deal with the outstanding claims Miller had made pursuant to ss 228 and 233 of the Property Law Act 1958 (‘the PLA’) (‘the statutory claims’).[6] Mukhtar AsJ had otherwise upheld the original VCAT decision and the rejection of the trust claims (‘the substantive Mukhtar AsJ decision’).[7]
[4]Miller v Martin [2020] VCAT 1218.
[5]Miller v Martin [2016] VCAT 854.
[6]On 10 August 2018 Mukhtar AsJ ordered that the matter be remitted to Senior Member Walker for determination of the statutory claims.
[7]Miller v Martin [2018] VSC 444.

In the costs decision, Senior Member Walker dismissed the respondents’ application for costs after declining to depart from the prima facie position under s 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’) that in proceedings before VCAT, each party is to bear their own costs in the proceeding. In doing so, he concluded that both Martin and Brabham gave untruthful evidence.[8] He also ‘did not believe much of Mr Miller’s evidence either’,[9] and found that Miller’s case failed because of the weaknesses in his own evidence and not because of any evidence presented by Martin or Brabham.[10] He held that none of the three men gave credible evidence about the original source of the funds used to purchase the beach house.[11]
[8]Miller v Martin [2020] VCAT 1218, [48] and [56] respectively.
[9]Ibid [60].
[10]Ibid [58]–[59].
[11]Ibid [61].

In the second appeal, Miller also seeks leave to appeal from the original VCAT decision, the sale and distribution decision, and a decision by VCAT, conveyed by email, dated 27 November 2020, refusing Miller’s request to list a further directions hearing (‘the refusal decision’).[12]
[12]See [60] below.

In our view, for the reasons set out below, leave to appeal should be refused in the first appeal.

In Victoria the Torrens system of registered title is a system of title by registration.[13] Title by registration creates an indefeasible interest.[14] The sale and distribution decision faithfully reflects the proportionate interests of those parties registered on title to the beach house. Miller has been unable to demonstrate that VCAT committed any error of law in making orders directing that the net balance of the sale proceeds be distributed in accordance with the registered interests on title. In circumstances in which VCAT made adverse credit findings about Miller, Martin, and Brabham, it is unsurprising that Senior Member Walker exercised the power under the PLA in a manner that reflected their respective interests on title, a matter that could be objectively ascertained.
[13]Breskvar v Wall (1971) 126 CLR 376, 385–6; [1971] HCA 70.
[14]Mathieson Nominees Pty Ltd v Aero Developments Pty Ltd [2016] VSC 131, [123].

Miller was unsuccessful in appealing from the original VCAT decision to Mukhtar AsJ, except in respect of the statutory claims, and unsuccessful in appealing from the decision of Mukhtar AsJ to the Court of Appeal.[15] The Court of Appeal also disposed of an appeal from the decision by Mukhtar AsJ[16] dismissing a summons filed by Miller seeking the respondents’ solicitors’ files in relation to the proceeding.[17] Miller also unsuccessfully sought an order from the Court of Appeal restraining the respondents’ legal practitioners from acting in those appeals (‘the restraint decision’).[18] The High Court refused Miller special leave to appeal from the restraint decision.[19] All of these matters have been finally determined and are no longer live. They cannot be lawfully re-agitated by Miller.
[15]Miller v Martin [2020] VSCA 4 (Niall, Hargrave and Ashley JJA).
[16]Miller v Martin (Supreme Court of Victoria, Mukhtar AsJ, 13 August 2018).
[17]The application for leave to appeal from the substantive Mukhtar AsJ decision and the application for leave to appeal from the decision dismissing the summons had both been taken to be abandoned under r 64.45(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015. The Court of Appeal refused to reinstate the application for leave to appeal from the decision dismissing the summons because it was so devoid of merit that it was bound to fail: Miller v Martin [2020] VSCA 4, [24]. The Court granted reinstatement of the application for leave to appeal from the substantive Mukhtar AsJ decision, granted leave to appeal but dismissed the appeal.
[18]Miller v Martin [2019] VSCA 86 (Kyrou, Niall and Ashley JJA).
[19]Miller v Martin [2019] HCASL 341.

With respect to the second appeal, the respondents concede that VCAT was in error in failing to deal with Miller’s application for costs. For the reasons below, and for the limited purpose of disposing of Miller’s application for costs, we would grant leave to appeal, allow the appeal, set aside the orders made by VCAT on 4 November 2020 and in their place order that each party is to bear their own costs. There is no merit in the balance of the second appeal.

The purchase of the beach house

The factual basis of this dispute traces back to the early 1980s. Around that time, Miller, Martin and Brabham worked together as senior employees in the finance planning department of GJ Coles Ltd (later Coles Myer Ltd) (‘Coles’). Miller was a qualified accountant and an alternate director on the Coles Myer Board representing an American shareholder, K-Mart Corporation. He arrived in Australia in 1977. He later left K-Mart and joined Coles as Assistant Finance Director and then became General Manager for Finance. Martin was a money market manager. Brabham was a senior accountant. The three men, and their wives, enjoyed a close friendship together.

The beach house was purchased in late 1986 for $150,502.53. Settlement took place in February the following year.[20] Upon completion, the names of each of the three men were registered on the title as tenants-in-common in equal shares.[21]
[20]Miller v Martin [2018] VSC 444, [11].
[21]Miller v Martin [2016] VCAT 854, [54].

The beach house was one of many joint purchases. Others included racehorses, overseas holidays, spa baths, a campervan, and a 48-foot boat.[22]
[22]Miller v Martin [2018] VSC 444, [42].

On 18 June 1990, the (then) wives of the three men — Pamela Miller, Teresa Martin and Margaret Brabham — were added to the title of the beach house. A further four friends of the group — John and Judy Stodgell and Robyn and Craig Lambert[23] — were also registered as owners by the same instrument of transfer. In the result, title to the property came to be divided into 30 separate parts, with the Millers, Martins and Brabrams each holding eight of those parts, and the Stodgells and Lamberts each holding three.[24]
[23]Robyn Lambert was Miller’s personal assistant at Coles, while John Stodgell also worked in the finance planning department: Miller v Martin [2016] VCAT 854, [17]–[18].
[24]Miller v Martin [2016] VCAT 854, [55]–[56]; Miller v Martin [2018] VSC 444, [12].

Several other events occurred that altered the composition of ownership further. In April 1996, Judy Stodgell died leaving her proportion of the Stodgells’ share to John Stodgell. In September 1999, Miller and Pamela Miller divorced. Pamela Miller subsequently died, with her share passing to Miller as surviving joint tenant.[25] Later, during the proceedings below, it appears that John Stodgell transferred his three-part share to Miller. Sometime after that, it also appears that the Lamberts came to an agreement with Miller not to make any claim to co-ownership. It appears that there was a reduction in the total number of parts of co-ownership of the beach house from 30 to 27 with Miller acquiring 11 of those parts, and the Martins and Brabrams each holding eight.[26]
[25]Miller v Martin [2016] VCAT 854, [62].
[26]Miller v Martin [2018] VSC 444, [14].

On 15 September 2011, Miller lodged a caveat over the beach house, by which he claimed to have an interest in it in the form of a constructive and/or resulting trust. In October 2011, Miller wrote to the respondents, explaining his position and requesting that they each transfer their respective interests to him. These requests were refused. By this point, the relationship between Miller, Martin and Brabham had irretrievably broken down.

The proceedings

It is important to have an overview of the history of the proceedings involving Miller, Martin and Brabham. This is critical to the process of identifying what issues remain live before this Court and which matters have been finally determined and cannot be re-agitated.

(1) The original VCAT decision

Miller first commenced proceedings in VCAT on 26 February 2015.

By his original Points of Claim filed in VCAT, Miller maintained that he had paid, with his own personal funds, the full purchase price of the beach house. He also claimed that he paid for the insurance, rates, outgoings and other ongoing expenses related to the property. This amount, he said, including the purchase price, totalled $309,564.37.

As primary relief, Miller sought a declaration in respect of the trust claims; namely, that the respondents’ respective interests in the house be held for him on trust. In the alternative he relied on the statutory claims; he sought for the beach house to be sold and for 100 per cent of the net proceeds of the sale to be distributed to him pursuant to ss 228 and 233 of the PLA.

Section 228 of the PLA confers power on VCAT to make orders for the sale or division of property owned by co-owners in a manner that is just and fair, including the division of the proceeds of that sale. It provides as follows:

228 What can VCAT order?
(1)In any proceeding under this Division, VCAT may make any order it thinks fit to ensure that a just and fair sale or division of land or goods occurs.

(2) Without limiting VCAT’s powers, it may order—
(a)the sale of the land or goods and the division of the proceeds of sale among the co-owners; or
(b)the physical division of the land or goods among the co-owners; or
(c)that a combination of the matters specified in paragraphs (a) and (b) occurs.

Section 233 of the PLA provides VCAT with the power to order compensation or reimbursement by co-owners, or an accounting between co-owners, or an adjustment of the interests of co-owners’ interests in the land, to take account of amounts payable to each other during the period of co-ownership. Section 233 provides:

233 Orders as to compensation and accounting
(1) In any proceeding under this Division, VCAT may order—
(a)that compensation or reimbursement be paid or made by a co-owner to another co-owner or other co-owners;
(b)that one or more co-owners account to the other co-owners in accordance with section 28A;^[[27]]
[27]Section 28A provides: ‘28A Liability of co-owner to account (1) A co-owner is liable, in respect of the receipt by him or her of more than his or her just or proportionate share according to his or her interest in the property, to account to any other co-owner of the property. (2) In this section, co-owner means a joint tenant, whether at law or in equity, or a tenant in common, whether at law or in equity, of any property.’
(c)that an adjustment be made to a co-owner’s interest in the land or goods to take account of amounts payable by co-owners to each other during the period of the co-ownership.

(2) In determining whether to make an order under subsection (1), VCAT must take into account the following—
(a) any amount that a co-owner has reasonably spent in improving the land or goods;
(b) any costs reasonably incurred by a co-owner in the maintenance or insurance of the land or goods;
(c) the payment by a co-owner of more than that co-owner's proportionate share of rates (in the case of land), mortgage repayments, purchase money, instalments or other outgoings in respect of that land or goods for which all the co-owners are liable;
(d) damage caused by the unreasonable use of the land or goods by a co-owner;
(e) in the case of land, whether or not a co-owner who has occupied the land should pay an amount equivalent to rent to a co-owner who did not occupy the land; …

The respondents opposed Miller’s claims. They maintained that the purchase price of the beach house had been paid for with funds belonging to a partnership that existed between Martin, Brabham and Miller.[28] They acknowledged that Miller had paid for the ongoing costs of the beach house but claimed that he had done so out of partnership funds. The ‘partnership funds’ included funds held in a bank account jointly owned by Miller, Martin and Brabham, or funds which were otherwise derived from the sale of partnership assets.[29] The respondents argued that there was no legal basis for a resulting or constructive trust in Miller’s favour.
[28]Miller v Martin [2016] VCAT 854, [4].
[29]Ibid.

The respondents accepted that orders should be made for the sale of the beach house and the proceeds divided pursuant to ss 228 and 233 of the PLA. However, they sought that the distribution should be made according to each party’s respective interest in the beach house, as recorded on the title.

Miller responded by denying that he had ever executed or maintained a partnership deed. He denied that an entity known as the ‘Brabham, Martin, Miller partnership’ ever existed.[30] He claimed that he had entered into an oral agreement in 1986 with Martin and Brabham, by which they recognised that the beach house was purchased from Miller’s own funds from the sale of his Coles Myer shares and that the property was to be used for recreational purposes rather than as a commercial investment.[31] They were also said to have agreed that Miller had the sole right to sell the property and that any proceeds from the sale were to be distributed according to any respective financial contributions made by each party over the years of ownership.[32]
[30]Miller claimed that if he had previously spoken of a partnership, it was only in relation to an entitlement to use certain assets for recreational purposes: Miller v Martin [2016] VCAT 854, [22].
[31]Miller v Martin [2016] VCAT 854, [57]–[58]
[32]Ibid [57].

The hearing before Senior Member Walker commenced on 22 February 2016. Miller was represented by Mr Schlicht of counsel. Evidence was given by Miller, Brabham, Martin, Teresa Martin, and one of their business associates, Robert Parker. The hearing continued over five days until the matter was adjourned, part-heard, on 26 February 2016. The remaining evidence was given on the sixth day of the hearing, 21 March 2016, during which evidence was given by Martin adverse to Martin’s interests. As we note below, one of Miller’s submissions is that VCAT’s amended order of 3 June 2016, dismissing Miller’s application, fails to make reference to the hearing of 21 March 2016 although the reasons themselves do make brief reference to that resumed hearing. Miller submits that the omission on the order demonstrates that VCAT failed to take into account the evidence of Martin given on that day.[33] Oral submissions were heard on 15 April 2016.
[33]See [82] below. We deal with this at [88] below.

On 26 May 2016, Senior Member Walker made orders dismissing Miller’s application and reserving costs. An amended order was subsequently issued on 3 June 2016 along with the written reasons.[34]
[34]Miller v Martin [2016] VCAT 854.

Senior Member Walker was somewhat dismissive of the evidence given by the witnesses and had difficulty in reconciling the oral evidence with the documentary evidence. He said:

None of the witnesses was particularly impressive although Mrs Martin gave clear evidence about one matter that had not been agitated by the other parties in the material that was filed. I have had some difficulty reconciling much of the oral evidence with the documentary evidence.[35]

[35]Ibid [12].

The clear evidence given by Mrs Martin concerned the original source of the funds to purchase the beach house.[36]
[36]See [30(5)] below.

Senior Member Walker made the following relevant findings:

(1) He found that on or about 31 October 1980 Miller, Martin and Brabham entered into a partnership with a view to buying and selling shares at a profit.[37] He described the evidence of the partnership to be ‘overwhelming’.[38] This evidence included a joint bank account opened in the names of the three men at the time the partnership was said to have commenced (‘the Partnership Account’);[39] a cheque stub for that account bearing the words ‘Partnership deed’;[40] the acknowledgement by Miller of the existence of the partnership several times and evidence from Mrs Martin that the partnership was often discussed;[41] and the purchase of a number of assets registered in the names of the three men using funds drawn from the joint bank account, including the purchase of bank bills and the beach house.[42] The Partnership Account closed on 29 April 2004.[43]
[37]Miller v Martin [2016] VCAT 854, [28].
[38]Ibid [27].
[39]Ibid [23].
[40]The words on the cheque stub had been blacked out by Miller. Senior Member Walker found that a partnership deed had been executed by the parties, though its current whereabouts was unknown: Miller v Martin [2016] VCAT 854, [24], [28].
[41]Miller v Martin [2016] VCAT 854, [27].
[42]Ibid [31].
[43]Ibid [25].

(2) He found that the partnership commenced with ‘initial shares purchased … in a company called Buddha Gold Mines NL (“Buddha Gold”) which were later sold at a profit.’[44] To foreshadow Miller’s submissions on the current appeals, Miller argues that there was no evidence that there was a joint purchase of Buddha Gold shares and that the reliance upon that purchase, and its profitability, as evidence of a partnership with substantial assets, has been misconstrued throughout the course of the proceedings. The issue of the Buddha Gold shares looms large on the appeals. Senior Member Walker noted that there was a contest about who purchased the Buddha Gold shares and the amount of profit obtained from their sale. He said:
[44]Ibid [32].

According to Mr Miller it was only a very small profit but Mr Martin and Mr Brabham said that it was very large.[45]
[45]Ibid [32].
…
Mr Miller claims that the shares in Buddha Gold were purchased by him from his own funds. He said that he bought 6,000 shares and 2,000 options at a cost of $3,100 on 22 October 1980. He said that he sold the shares in two stages, realising $4,857.25 for the first stage and $519.70 for the second. He said that the total proceeds of sale $5,376.95 were deposited into the Partnership Account. If these shares were his as he claims, I do not understand why he deposited the money in the Partnership Account.[46]
[46]Ibid [111].

(3) He did not accept that there was an oral agreement between Miller, Martin and Brabham, at the time the beach house was purchased in late 1986,[47] to the effect that the beach house was purchased by the proceeds from the sale by Miller of his own shares in Coles Myer.[48] Miller’s explanation for why he put the property into all three names notwithstanding the alleged agreement he found ‘difficult to understand’.[49] Miller’s explanation was that he wanted assistance to maintain the house and if the other men later earned their interest by contributing, ‘it would not be necessary to transfer a share to them at that time if they were already registered owners’.[50] He went on to say:
[47]See [12] above.
[48]Miller v Martin [2016] VCAT 854, [57]–[61], [73], [74]. See [25] above.
[49]Miller v Martin [2016] VCAT 854, [59]–[60].
[50]Ibid [59].

Both Mr Martin and Mr Brabham denied having been asked to make any contribution towards the rates or outgoings on the Beach House and said that the costs of acquisition and subsequent maintenance were paid from partnership funds. In all the years that followed there is nothing in writing and no evidence of any conversation to the effect that the shares of Mr Martin and Mr Brabham were not held beneficially because they had contributed nothing to the purchase price, outgoings or upkeep of the Beach House.[51]
[51]Ibid [60].

(4) He found that the sum of $282,820, from Miller’s sale of his Coles shares, had been paid into the Partnership Account by Miller with ‘the intention that it would belong to the three partners’, and that these funds were used by the partnership to purchase a number of investments, including, ultimately, the beach house.[52] He rejected as ‘unlikely’[53] Miller’s explanation for using the Partnership Account, namely, that it ‘appeared ideal to manage payments and contributions relating to the Beach House, thereby providing a single record for determining distributions when it was sold’.[54]
[52]Ibid [64], [205].
[53]Ibid [66].
[54]Ibid [65].

(5) He accepted that Teresa Martin had a conversation with Miller about the source of the partnership money and he told her that he had invested some Coles funds without approval, which realised a very large profit, but when he later sought approval for that investment it was categorically denied, so he kept the profits.[55] She believed that Miller put the money into the partnership and as a result the partnership was able to buy all the assets. This evidence emerged during cross examination of Teresa Martin and no challenge was made to it. Mrs Martin said that this evidence was contained in her original witness statement but was removed by her solicitors. No application was made on behalf of Miller to recall him. Senior Member Walker accepted that Mrs Martin’s evidence was correct since ‘there was no reason to disbelieve what she said’.[56] He considered that this would explain the poor state of the evidence of where the money came from. However, he observed that the evidence was of a conversation that the investment was unauthorised, not that it was unlawful. He was not prepared to make any finding of unlawful conduct without firm evidence and there was no such evidence. The evidence of Mrs Martin about what she was told by Miller ‘amounts to an admission by him that the money came from an unknown source and not from his own resources’.[57]
[55]Ibid [175]. See [175]–[180].
[56]Ibid [180].
[57]Ibid [184].

(6) He found that the beach house probably ceased to be partnership property in 1990 with the introduction of the other registered proprietors. Nor was there any suggestion that those new proprietors were members of the partnership.[58]
[58]Ibid [75]. See [14] above.

(7) With respect to the evidence in relation to the outgoings, maintenance and upkeep of the beach house, he noted that:

(i) Miller said he had paid a total of $75,960.17 for renovation, maintenance and rates and other expenses for the property.[59]
[59]Miller v Martin [2016] VCAT 854, [139].

(ii) Many of these payments were by cheque, drawn on either the Partnership Account or Miller’s personal account, while others were made by credit card, ‘but most appear to have been made in cash’.[60]
[60]Ibid [140].

(iii) Despite Miller’s assertion that he used the Partnership Account in order to keep contributions in relation to the beach house in one account, that was not what happened with many of the payments he relied upon.[61]
[61]Ibid.

(iv) The evidence of Mrs Martin was that she was told by both Miller and her husband that all outgoings of the beach house were paid by the partnership.[62]
[62]Ibid [142].

(v) Most of the invoices produced were addressed to Miller, although some were addressed to one or other of the respondents and another to ‘J Miller syndicate’.[63]
[63]Ibid [143].

(vi) There were four unusual payments by cheque,[64] three to John Stodgell[65] and one to Judy Stodgell,[66] which were all said to be for work done on the beach house by Judy’s brother. Senior Member Walker noted the payments were in large round figures made not to the person who performed the work and with no invoice provided. He also noted that it was strange there were two consecutive payments on 14 May 1995 said to be for the same work.[67]
[64]Ibid [144].
[65]For $5,000 on 14 May 1995 for ‘painting/balcony/swing’, $7,000 on 15 May 1996 again for ‘painting/balcony/swing’ and $3,000 on 15 May 1996 for ‘painting’.
[66]For $3,000 on 14 May 1995 for ‘painting/balcony/swing’.
[67]Miller v Martin [2016] VCAT 854, [144].

(vii) On 21 January 2009, Miller paid $1,500 to Craig Lambert said to be for work repairing the guttering at the beach house. Again, no invoice was produced. The Senior Member queried why the Lamberts were being paid for this work if the rationale for registering them on the title was to share in the maintenance and upkeep of the property.[68]
[68]Ibid [147].

(viii) Miller was not questioned about any of these payments.[69] The Senior Member observed that all the payments were made by Miller even though all the parties seem to have been sharing the beach house. Further, Miller ‘does not suggest that he sought contribution towards any of them from any of the other parties. In some instances the funds came from the Partnership Account but he says nonetheless that it was all his money’.[70] He said this ‘seems odd’.[71] For example, on one occasion on 10 January 2001, Mrs Brabham sought reimbursement from Miller for $90 for parts for the washing machine. The Senior Member concluded that ‘[t]his would suggest either that Mr Miller was particularly generous or that payments were being made from a fund upon which they all felt entitled to draw’.[72] He discounted the explanation based on extraordinary generosity.[73]
[69]Ibid [148].
[70]Ibid [149].
[71]Ibid [150].
[72]Ibid. See also [194(i)].
[73]Ibid [195].

(8) He ultimately found that there was a common pool of funds derived from an unknown source. He said:

I think on the balance of probabilities that there was a pool of partnership funds derived partly from investments but principally from an unknown source that involved Mr Miller and possibly the other members of his very small team as well. I am satisfied that this pool was regarded by Mr Miller and the other two partners as belonging to the three of them.[74]

(9) He was not satisfied that the money used to purchase the beach house belonged solely to Miller. Therefore, no resulting trust arose. The application was dismissed. [75]

[74]Ibid [202].

[75]Ibid [206].

Senior Member Walker did not deal with the statutory claims.

(2) The substantive Mukhtar AsJ decision

On 23 June 2016, Miller applied to the Trial Division of the Supreme Court for leave to appeal against the original VCAT decision pursuant to s 148(1) of the VCAT Act. On 10 August 2018, in the substantive Mukhtar AsJ decision, Mukhtar AsJ upheld the Senior Member’s dismissal of the trust claims.[76] In particular, he concluded that VCAT’s finding of a partnership was ‘unassailable’.[77] He said:

In my view, despite the unsatisfactory evidentiary conditions in which the Tribunal had to operate, the findings which informed the outcome of the case were soundly based on the available evidence and the conclusion that there was no resulting trust was soundly based on the applicable legal principles. The Tribunal’s salient conclusion that the parties were in partnership is unassailable. Miller’s credibility in denying a partnership was damaged in the Tribunal, and I do not understand Miller’s appeal materials to be challenging that conclusion. His case at the Tribunal for a resulting trust devoted itself to the contention that the sole question for determination was ‘Who paid the money?’ It was not. Although Miller denied being in partnership with Brabham and Martin, the evidence of a partnership was, as the Tribunal described it: ‘overwhelming’. The money used to pay for the beach house was paid by Miller into the partnership account. The Tribunal’s finding that the money was partnership money was not only open, but it was more aligned with the objective evidence which showed Miller as acknowledging that the beach house was purchased with the apparent and executed common intention that it would belong to all three partners beneficially. That rebutted equity’s presumption that when a person purchases a property in the name of himself and another it is presumed that the purchaser did not intend the other person to take beneficially.[78]

[76]Miller v Martin [2018] VSC 444.

[77]Ibid [30].

[78]Ibid (emphasis in original).

He concluded that the statutory claims had not been determined, as was conceded by the respondents. He therefore granted leave to appeal, allowed the appeal in part and remitted the matter to VCAT for the determination of the statutory claims on the basis of the evidence already heard. Mukhtar AsJ made the following orders:

3.Paragraph 1 of the Tribunal’s order is set aside but only to the extent that it dismissed or had the effect of dismissing the claims (‘the statutory claims’) —
(a)under s 228 of the Property Law Act 1958 (Vic) as made in paragraph C of the plaintiff's Points of Claim dated 26 February 2015; and
(b)under s 233 of the Property Law Act 1958 (Vic) as made in paragraph D of the Points of Claim.

4. The proceeding is remitted to the Tribunal to be constituted by the same Senior Member who made the order, to enable the Tribunal to determine the statutory claims according to the evidence already heard and the findings already made by the Tribunal as published in Miller v Martin (Building and Property) [2016] VCAT 854 (3 June 2016), and after hearing or rehearing any further submissions on the determination of the statutory claims according to the evidence already heard and the findings already made by the Tribunal.
5.For the purposes of the conduct of the remittal, the Tribunal may make such procedural directions or procedural orders as it thinks fit in aid of determining the matter on remittal.[79]
[79]Emphasis added. Paragraph 1 of VCAT’s orders, referred to in the orders of Mukhtar AsJ, was the dismissal of Miller’s application for relief.

(3) The remitter — the sale and distribution decision

Following the remittal of the proceeding to VCAT, Senior Member Walker conducted a directions hearing on 10 September 2018 at which counsel for the first to fourth respondents appeared, while Miller did not attend. The Senior Member directed that the parties file and serve submissions concerning the final disposition of the proceeding, excluding any submissions as to costs, and indicated that final orders would be made on the papers after he had considered the submissions. Written submissions were filed by the respondents by the due date. Miller did not file any material by the due date, but on 29 October 2018 he emailed VCAT to advise he had appealed against the orders of Mukhtar AsJ. On 27 November 2018, Senior Member Walker provided another opportunity for submissions or an affidavit to be filed, which was not taken up by Miller. On 14 January 2019 he ordered that the proceeding be stayed pending the outcome of the appeal from Mukhtar AsJ.

On 23 May 2019, Senior Member Walker lifted the stay following a directions hearing held on that day at which Miller appeared in person and the respondents appeared by counsel, and he directed that the time for Miller to file and serve his submissions be extended to 21 June 2019 and fixed 5 July 2019 for any submissions in reply.[80] He later observed:

No submissions were received from the Applicant and, when contacted by the registry on 5 August 2019, the Respondents’ solicitors stated that they were not proposing to file any submissions in reply because they had not received any submissions from the Applicant.[81]

[80]Miller v Martin [2020] VCAT 29, [6]–[15].

[81]Ibid [16].

On 30 September 2019, Senior Member Walker made his final orders in the remitter proceedings for the sale and distribution of the proceeds of the beach house (‘the sale and distribution orders’). The orders directed the sale of the beach house under the direction of an independent solicitor, with the net balance of the sale proceeds to be distributed in accordance with the registered interests on title. Miller was to have the opportunity to satisfy the independent solicitor that the interests of co-owners other than the respondents have in fact been transferred to him.

The orders were lengthy and detailed. They are as follows:

This proceeding having been remitted to the Tribunal by order of the Supreme Court of Victoria made 10 August 2018 to determine the statutory claims according to the evidence already heard and the findings already made by the Tribunal as published in Miller v Martin (Building and Property) [2016] VCAT 854 (3 June 2016), and having heard further submissions from Mr [Squirrell] of counsel for the First, Second, Third and Fourth Respondents and the Applicant not having made any submissions within the time directed, notwithstanding the extension of time granted, it is ordered as follows:
1.Order that the land and buildings situated at 3 Robyn Road, Moggs Creek Victoria, 3231, being the land comprised in Certificate of Title Volume 7528 Folio 135 (‘the Property’), be sold, by public action or, if it is not sold by public auction, by private sale in accordance with the terms of this order.
2.Direct the Principal Registrar to appoint a solicitor (‘the Solicitor’) to act on behalf of the vendors in the sale, prepare all necessary documents and conduct the conveyancing required for the sale as Solicitor for the vendors. Within 14 days of the date of this order, each party may submit the name or names of a solicitor to the Principal Registrar who shall consider each submission but will not be bound by them.
3.Direct the Principal Registrar to appoint a licensed real estate agent to sell the Property on behalf of the parties (‘the Agent’). Within 14 days of the date of this order, each party may submit the name or names of a real estate agent to the Principal Registrar who shall consider each submission but will not be bound by them.
4.The Agent must conduct the sale using all proper and lawful methods, including advertising as appropriate (whether by board, internet or otherwise) and arranging open for inspection times but not so as to be at an excessive or unreasonable cost.

5. After consultation with the Agent, the Solicitor shall determine:
(a)a date upon which the Property shall be offered for sale by public auction;
(b)whether any and what cleaning, repair, painting, renovation or other work should be done in order to prepare the Property for sale and how much should be expended in that regard;

(c) the reserve price for the auction;
(d)the sale price for the Property, if the sale is to be affected otherwise than by public auction;
(e)the terms of the Contract of Sale, including whether the balance of the purchase price is to be paid by the purchaser within 30, 60 or 90 days following the date of sale.

6.The Solicitor may authorise or direct any cleaning, repair, painting, renovation or other work in order to prepare the Property for sale and engage any contractor for that purpose. The cost of any such work should not exceed $12,000.00 without leave of the Tribunal.
7.Within 21 days of the date of this order, each of the parties must remove any personal chattels, belongings or possessions from the Property belonging to that party.
8.If any personal chattels, belongings or possessions remain on the Property at the expiration of the said period of 21 days they shall be deemed to have been abandoned and the Solicitor may engage a firm of removalists to remove, sell or otherwise dispose of them on such terms as the Solicitor thinks fit.
9.Within 21 days of the date of this order, the Applicant must withdraw caveat number AJ2009655 at the Land Titles Office and deliver up to the Solicitor at his or her place of business:
(a) duplicate Certificate of Title Volume 7528 Folio 135;
(b)the transmission, transfer of land and survivorship application executed by John Stodgell to the Applicant and all other attendance documents to allow the Solicitor to be satisfied as to the bona fides of the transaction and attend to register the same at the Land Titles Office; and
(c)such other document or documents in his possession relating to the survivorship application of the registered interest of Pamela Miller to the Applicant, including a certified copy of her death certificate and any other document required to satisfy the Solicitor as to the transaction and enable the Solicitor to register the same at the Land Titles office.

10.If the Solicitor is unable or unwilling to determine any of the matters set out in this order for the Solicitor to determine or if the Solicitor seeks any direction in regard to the power conferred by paragraph 8 or in regard to any other aspect of this order or seeks any further leave of the Tribunal, he or she may apply for the matter to be determined in Chambers by the Tribunal in the following manner:
(a)any such application should be made by an affidavit by the Solicitor stating what is required as well as any opinions of the Agent and the Solicitor in regard to the matter;
(b)a copy of the said affidavit should be served upon the Applicant at his address for service and upon the solicitors for the First, Second, Third and Fourth Respondents, Messrs GE Law Services, PO Box 276 all Glen Waverley, 3150;
(c)the Tribunal will consider the application and the affidavit and any material filed by the other party within seven days of service of the affidavit upon that party as aforesaid and make a determination.

11.The terms of the contract of sale shall provide for a deposit of not less than 10% of the purchase price upon the signing of the contract.
12.Each of the parties may bid at any auction, provided he or she holds a written pre-approval from a financial institution for finance for at least the reserve selling price or otherwise provides evidence that the Solicitor considers satisfactory of an ability to pay an amount equalling the reserve price less the amount that would otherwise be payable to that party under these Orders.

13. The Agent shall appoint the auctioneer for the sale.
14.The Solicitor may request any party to execute a copy of a draft contract of sale at any time before the auction so as to enable signed contracts to be exchanged with the purchaser if the auction is successful.
15.Each of the parties must sign all necessary documents in order to give effect to any sale of the Property within 72 hours of receiving written notice to do so from the Solicitor. If any of the parties refuses or neglects to sign a necessary document, or if in the opinion of the Solicitor, it is not practicable to make the necessary request of that party, the Principal Registrar may sign the necessary document which shall in all respects be treated as an execution by the party who has failed or neglected to do so. For the purpose of this clause, ‘document’ includes any document required pursuant to the Pexa conveyancing procedure, including identification material and a client authorisation form as drafted by the Solicitor.
16.If the Property is not sold at public auction it shall be offered for sale by private treaty at a price to be determined in accordance with paragraph 5 or 9 of this order.
17.The proceeds of sale will be applied as follows and in the following priority:
(a)Payments of the expenses incurred by the Solicitor in preparing the Property for sale, including cleaning and removing and disposing of any chattels, belonging, possessions or rubbish on the Property;
(b)Payment of the Agent’s commission, including the auctioneer’s fee, advertising and other expenses of the sale;

(c) The discharge of any registered encumbrance on the Property;
(d)Payment of any outstanding rates, charges, taxes and imposts which have not already been paid;
(e)Payment of the Solicitor’s reasonable legal costs and expenses associated with the sale and conveyance of the Property and with the exercise of the powers conferred upon the Solicitor by this order; and
(f)The net balance to be paid to the parties in the following proportions:

(i) 8/30ths to the Applicant;

(ii) 16/30ths jointly to the First, Second, Third and Fourth Respondents;

(iii) 3/30s to the Fifth and Sixth Respondents or, if the Solicitor is satisfied that their interests have been transferred to the Applicant, to the Applicant; and

(iv) 3/30s to the Seventh and Eighth Respondents or, if the Solicitor is satisfied that their interests have been transferred to the Applicant, to the Applicant.

18.The shares payable to the Fifth and Sixth Respondents and the Seventh and Eighth Respondents shall not be disbursed to the Applicant without the written consent of those Respondents or alternatively, an order of the Tribunal.
19.The Principal Registrar is empowered to give such directions and execute such documents as may in his opinion be necessary or desirable to give effect to these orders.
20.Where any contract for the sale of the Property by public auction has not been signed by a party prior to the day of the auction, such contract may be executed on behalf of that party by the Agent if the Property is sold for not less than the price fixed in accordance with this order.
21.Under s 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998, no person other than a party to the proceeding or their legal representatives may inspect the Tribunal’s file of this proceeding unless the Tribunal orders otherwise.
22.Liberty to the Solicitor to apply for any further orders or directions in regard to the foregoing matters, including satisfying the requirements of PEXA as to the identity of the registered proprietors.

On 8 January 2020, Senior Member Walker delivered his written reasons for the sale and distribution orders he had made.[82]
[82]Miller v Martin [2020] VCAT 29.

In the sale and distribution decision, Senior Member Walker observed that the discretion he exercised was on the basis of the findings already made in the original VCAT decision:

Under the terms of the remittal, the proceeding was to be finally determined accorded to the findings already made, which are set out in a very lengthy decision. For the lengthy and detailed reasons accompanying that decision, I determined that none of the First to Sixth Respondents held their interest in the Property on a resulting or constructive trust for the Applicant. That finding effectively determines the orders that were sought in paragraphs A and B of the prayer for relief [a declaration that the respondents held their respective interests in the beach house on a resulting and/or constructive trust for Miller and an order that all their interests be transferred to Miller].[83]

[83]Miller v Martin [2020] VCAT 29, [22].

He noted that the order sought by Miller for the sale of the beach house, pursuant to s 228 of the PLA, was not contentious since all parties wanted the beach house sold. However, Miller only sought a sale on the basis that he was to receive the whole of the proceeds. Senior Member Walker observed that ‘since I had determined that he was not the sole beneficial owner of the Property [the beach house], that was inappropriate’.[84] He considered that a just and fair order was for the division of the proceeds of sale between the parties according to their registered interests on title. He stated:

The effect of the findings already made was that the parties owned their respective registered interests beneficially and, in view of the complete breakdown of the former relationship between the parties and the expressed wish of the First to Sixth Respondents that the Property be sold and the proceeds divided, I thought that a sale was appropriate and that it would be just and fair to divide the net proceeds of sale between the parties according to their registered interests.
In this regard, I was told from the bar table that the shares of the Fifth, Sixth, Seventh and Eighth Respondents have either been transferred or are to be transferred to the Applicant. What had actually occurred in that regard at the time that I made a final order was unclear. Therefore, I directed that the solicitor was to enquire as to the ownership of those shares and, either with the agreement of the remaining Respondents or an order of the Tribunal, the proportion of the net proceeds applicable to those shares be paid to the Applicant.[85]

[84]Ibid [23].

[85]Ibid [24]–[25] (emphasis added).

Miller’s application under s 233 of the PLA was for an order ‘that the proceeds of sale after the deduction of selling costs, security costs and legal costs of the sale be distributed to [Miller] in its entirety (100%) alternatively, in such proportions as the Tribunal shall determine’. Senior Member Walker noted that most of the evidence led by Miller at the original VCAT hearing related to his allegation that all the money for the purchase of the beach house and for the outgoings was provided from Miller’s own funds, and that he had rejected that allegation and concluded that it was more probable than not that the money came from a common fund. The common fund became something from which all the parties with registered interests had an entitlement to draw;[86] that is, in effect, it became a source of funds for all the parties after the other registered proprietors were introduced.
[86]See [30(7)(viii)] above.

This finding from the original VCAT decision was ‘fatal’ to Miller’s claim under s 233 for an adjustment of interests. He said:

After exhaustively examining all of the evidence produced, I concluded that it was more probable than not that the money referred to came from a common fund of unknown origin which was controlled by the Applicant but which belonged beneficially to a partnership comprising the Applicant, the First and Fourth Respondents and, at different times, the other parties.
Consequently, I found that the money spent and the costs incurred were spent or incurred by all parties and not just the Applicant. This finding was fatal to any claim by the Applicant under section 233. The claim for an adjustment of interests under paragraph D of the prayer for relief therefore fails.
…
By section 228 of the Act, in any application for sale or division of land, the Tribunal is to make an order that it thinks fit to ensure that a just and fair sale or division of the land occurs.
In the absence of an order under section 233, it is just and fair that the parties should share the proceeds of sale according to their beneficial interests in the Property and that is what was ordered.[87]

[87]Miller v Martin [2020] VCAT 29, [28]–[31] (emphasis added).

The first appeal challenges the reasons of the sale and distribution decision.

(4) The restraint decision

In September 2018, Miller applied to the Court of Appeal for leave to appeal against the substantive Mukhtar AsJ decision and the dismissal by Mukhtar AsJ of the summons seeking production of the respondents’ solicitors’ files.[88]
[88]Miller v Martin (Supreme Court of Victoria, Mukhtar AsJ, 13 August 2018).

As mentioned, while both appeals were pending, Miller applied for a further order restraining the respondents’ lawyers from acting in the proceedings. The respondents’ lawyers in the VCAT proceeding and before Mukhtar AsJ was the law firm Goddard Elliott & Co. It changed its name to GE Law Services Pty Ltd (‘GE’) and, under this name, continues to represent the respondents. The restraint application was refused on 16 April 2019 by Kyrou, Niall and Ashley JJA in the restraint decision.[89] The High Court refused special leave to appeal from this decision on 17 October 2019.[90]
[89]Miller v Martin [2019] VSCA 86.
[90]Miller v Martin [2019] HCASL 341.

The restraint decision expressed a core of reasoning that was later relied on by the Court of Appeal in dismissing the appeals from Mukhtar AsJ. This core of reasoning relates, in particular, to the purchase price of the Buddha Gold shares and the resulting profits made on sale. The Court of Appeal set out the argument that had been made by Miller to the effect that GE, and Martin and Brabham, had wilfully mislead VCAT. The Court noted that, at the time Martin and Brabham prepared their witness statements, they were not in possession of the Buddha Gold prospectus which showed that their recollection of the purchase price was erroneous. The Court also held that Martin and Brabham should have corrected their evidence, by making supplementary witness statements or disclosed the error in evidence in chief, and should have been advised by GE to do these things. For Martin and Brabham to rely on being questioned about the Buddha Gold shares, including their purchase price, in cross-examination, and thereby knowing that there was no real risk of VCAT being misled, was not prudent. However, ultimately VCAT was not misled because the error was disclosed during cross-examination. VCAT’s decision was therefore not tainted by having been based on a false evidentiary foundation.

It is worthwhile reproducing this core reasoning in full:

The applicant’s allegation that GE misled VCAT on factual matters arises out of statements made in the witness statements of Mr Martin and Mr Brabham that they and the applicant collectively had invested $15,000 to purchase shares at 5 cents in BGM [Buddha Gold Mines] pursuant to a prospectus issued in 1980. At the heart of the allegation, as developed in oral argument, was the contention that GE engaged in misleading and deceptive conduct, or aided and abetted, counselled or procured such conduct, by permitting the witnesses to make statements which did not accord with material discovered by the applicant; and further, by not ensuring that the inaccuracies were corrected by the witnesses in their oral evidence.
The background to the allegation is as follows.
As part of Mr Martin and Mr Brabham’s case before VCAT that the beach house was not the subject of a resulting or constructive trust because it was purchased with partnership funds, they said in their first and undated witness statements that the initial partnership funds included the proceeds of sale of shares in BGM. Each of them said, in substance, that he had contributed about $5,000 to purchase the shares, as also had the applicant. Mr Martin said nothing about the issue price of the shares. Mr Brabham said that, to the best of his recollection, the issue price was 5 cents.
Then, in statements in reply dated 27 and 28 January 2016 respectively, Mr Martin said that he believed that the issue price was either 1 or 5 cents partly paid (he thought 5 cents), whilst Mr Brabham said nothing about the issue price. Mr Martin also rejected the applicant’s assertion, made in a witness statement, that the only shares in BGM that had been purchased by Mr Martin, Mr Brabham or him were the 6,000 shares that he [Miller] had purchased.
It is convenient to address the applicant’s contention that GE engaged in misconduct because, in the face of contemporaneous records, including a list of share purchases that he had discovered in mid-2015, it permitted its clients to state that they had each contributed about $5,000 to purchase shares in BGM, as had the applicant. It is apparent from VCAT’s reasons that, at trial, the witnesses did not resile from that account. VCAT did not accept the applicant’s evidence that the documents upon which he relied showed the whole story of share-trading. Though recognising that Mr Martin and Mr Brabham had produced no documentation to support alleged purchases of shares in BGM, VCAT nonetheless accepted their evidence that substantial profits had been made from share-trading, but it was unable to assess their magnitude. In the event, it cannot be concluded that the statements of the witnesses were relevantly erroneous, and this aspect of the applicant’s contention must be rejected.

We turn to the share issue price. On 15 February 2016, seven days before the VCAT hearing commenced, the applicant provided to Mr Martin and Mr Brabham a copy of the prospectus for the public offer of shares in BGM, which showed that the shares were issued at 50 cents each. Thus, the recollection of Mr Brabham, set out in his initial statement, and of Mr Martin, as set out in his statement in reply, in which each of them identified, in a qualified way, an issue price of 5 cents, was shown by the prospectus to be wrong. Despite the qualified way in which they respectively identified the share purchase price, based upon recollection some 30 years after the event, we will characterise it as an error on their part. That error was of some significance because, at a given sale price, greater profit would have been made if the purchase price had been 5 cents instead of 50 cents.
After Mr Martin and Mr Brabham became aware of the prospectus, they did not amend their witness statements to address the share issue price. When they were in the witness box — although the matter was not made clear in the transcript to which we were referred — it seems that they adopted their witness statements without identifying the error. Further, if any reference was made to the error by their counsel in opening address, it was apparently indirect. For its part, GE did nothing to draw attention to the error. We add that, according to evidence given by Mr Martin, GE had advised him not to amend his witness statement in order to avoid being seen as altering his evidence in response to discovery.
It is clear from the above outline of events that, at the time when the initial witness statements and the statements in reply were prepared on behalf of Mr Martin and Mr Brabham, the BGM prospectus had not been produced by the applicant. Accordingly, insofar as those witnesses and GE were under the mistaken belief that the contents of the witness statements were correct at the time that they were prepared, neither the witnesses nor GE acted improperly in relation to the preparation of the witness statements.
Once the witnesses and GE became aware of the true position, GE and counsel for Mr Martin and Mr Brabham had an obligation to ensure that VCAT was not misled by the error. It could have been corrected by the preparation of supplementary witness statements or by Mr Martin and Mr Brabham identifying it in evidence in chief. It is not unusual for witnesses who honestly believed in the existence of a particular state of affairs when they prepared their witness statements to acknowledge at the commencement of their evidence that, in the light of further information of which they subsequently have become aware, the belief was mistaken.
GE and counsel for Mr Martin and Mr Brabham should have taken the initiative to correct the error. They should have done so even though it was a certainty that the witnesses would be cross-examined about it, and even though, in those circumstances, there was no risk of VCAT being misled. That is precisely what occurred: the applicant’s counsel extensively cross-examined Mr Martin about the error and VCAT was able to make findings regarding the purchase of the shares in BGM on the correct evidentiary basis.
Not to correct the error was an error of judgment on the part of GE and counsel for Mr Martin and Mr Brabham. Moreover, by not ensuring that the error was corrected, the witnesses were needlessly exposed to cross-examination which sought to magnify the significance of the error, and which might have weakened their defence.
It is significant that VCAT, which read the witness statements of Mr Martin and Mr Brabham and heard their evidence, did not make a finding that they knowingly gave inaccurate evidence or that they or GE had misled VCAT. VCAT merely found that Mr Martin and Mr Brabham ‘produced no documentation to substantiate their allegations and the figures stated by each of them in their respective witness statements turned out to be incorrect’. So much is entirely understandable when regard is had to the qualified recollection of the two witnesses.
It follows from the above that the applicant has not established that GE engaged in any wrongdoing with respect to the share purchase price error. The most that can be said is that GE made an error of judgment that proved to be of no consequence.[91]

(5) Appeals from Mukhtar AsJ

[91]Miller v Martin [2019] VSCA 86, [29]–[41] (emphasis added) (citations omitted).

The appeals against the decisions of Mukhtar AsJ were ultimately heard by Kyrou, Niall and Ashley JJA on 4 December 2019. On 30 January 2020, they granted leave to appeal but dismissed both appeals.[92] The Court arrived at the following conclusions:
[92]Miller v Martin [2020] VSCA 4. See n 17 above.

(1) The transfers of land in 1990 to include the wives of Miller, Martin and Brabham and to include the Stodgells and the Lamberts ‘had the effect that the beach house ceased to be partnership property’.[93] Any understanding by Miller and the respondents that an 80 per cent interest in the beach house was thereafter owned by members of the partnership was ‘clearly wrong as a matter of law’.[94] The 1990 transfer ‘had the effect of a distribution of partnership property by the three men to themselves and others’.[95] Moreover, the co-ownership of the beach house after the 1990 transfers would only constitute a partnership between the new co-owners if they were carrying on business in common with a view to a profit, rather than, as was the case, simply enjoying a lifestyle asset.[96]
[93]Miller v Martin [2020] VSCA 4 , [6].
[94]Ibid [102].
[95]Ibid.
[96]Ibid [103].

(2) There was no challenge to VCAT’s rejection of Miller’s evidence about the making of the 1986 oral agreement.[97]
[97]Ibid [53]. See [25] above.

(3) Senior counsel for the respondents did not contest that $130,710 was paid in respect of expenses for the beach house. The dispute was whether Miller made those payments from his own money given the evidence that the payments were made from a variety of sources, including some from the Partnership Account.[98]
[98]Miller v Martin [2020] VSCA 4, [60].

(4) There was no question raised on the appeal to the Court of Appeal[99] on the issue of Mrs Martin’s evidence in cross-examination about the profits from Miller’s unauthorised investment being placed in the Partnership Account to be treated as a common fund to be spent on ‘lifestyle’.[100]
[99]Ibid [65].
[100]See [30(5)] above.

(5) With respect to the significant issue of the Buddha Gold shares, one of the bases for Miller’s contention that the partnership finding was not open, or resulted from legal error, was because he asserted that ‘the respondents’ evidence concerning their investments in Buddha Gold Mines was wilfully false, as was their evidence that the profits made by them and Miller from Buddha Gold Mines shares were used to establish a partnership bank account governed by a written partnership deed’.[101] The Court noted that Miller argued that Martin and Brabham had purchased no shares at all in Buddha Gold Mines, thus making no profits, which meant they could not have contributed towards the purchase of the shares or to the funds used to establish the Partnership Account.[102] Miller seeks to raise this issue again in the current appeals. The Court of Appeal, relying upon the core reasoning in the restraint decision,[103] held that, although Miller asserted that Martin and Brabham gave misleading and false information of a $15,000 investment in Buddha Gold Mines,[104] there was no error in relation to this evidence because VCAT was not misled by the mistaken evidence,[105] nor was there any substance to Miller’s assertion that Martin and Brabham, who were giving evidence to the best of their recollections after more than three decades, willingly gave false evidence.[106] The Court concluded that there was more than enough evidence to make the partnership finding.[107]
[101]Miller v Martin [2020] VSCA 4, [84(1)(c)].
[102]Ibid [91].
[103]Ibid [95], referring to Miller v Martin [2019] VSCA 86, [29]–[41]. See [47] above.
[104]Miller v Martin [2020] VSCA 4, [92].
[105]Ibid [95].
[106]Ibid [95], [111].
[107]Ibid [96].

(6) The Court recognised that the question of whether there was a partnership was squarely raised before it. The Court observed that: ‘Reading the appeal grounds as [a] whole, it is clear that Miller continues to deny the existence of any partnership, and wishes to re-agitate that issue, notwithstanding that he did not do so in the Trial Division’.[108]
[108]Ibid [85].

(7) It was no longer open to Miller to re-agitate the remitter order made by Mukhtar AsJ as the remitter had already taken place and VCAT had made the sale and distribution orders.[109] The Court of Appeal noted that it had been informed by counsel for the respondents that the reason that the sale and distribution orders were made on the basis of written submissions from the respondents only was because Miller had not filed any written submissions within the time directed. However, Miller said that he had filed an affidavit on 20 June 2019 and that affidavit had not been taken into account by VCAT. Given that Miller had filed a separate application for leave to appeal from the sale and distribution orders,[110] it was ‘not appropriate to say anything further on the remitter of the statutory claims in these reasons’.[111]

(6)Current appeals — First appeal from VCAT: the sale and distribution decision (2020/ 0005)

[109]Ibid [89].

[110]This is proceeding S EAPCI 2020 0005 that has now come before this Court.

[111]Miller v Martin [2020] VSCA 4, [90]

On 3 December 2019, Miller filed a Notice of Appeal from VCAT in the Trial Division, seeking leave to appeal against the sale and distribution orders. An Amended Notice of Appeal was subsequently filed on 29 January 2020.[112]
[112]The Amended Notice of Appeal in S ECI 2019 05551, which was dated 16 January 2020, was filed on 29 January 2020 following leave granted by Hargrave JA.

On 29 January 2020, an order was made by Hargrave JA reserving the matter for consideration by the Court of Appeal pursuant to s 17B(2) of the Supreme Court Act 1986.[113] A hearing was initially listed for 31 July 2020 but was later vacated on 10 July 2020 to await the determination by VCAT on costs and thus avoid a multiplicity of proceedings.
[113]Miller v Martin (Ruling No 1) (Supreme Court of Victoria, Hargrave JA, 29 January 2020). A new Court of Appeal proceeding number was allocated: S EAPCI 2020 0005.

The first appeal was relisted for hearing, and was heard by this Court, on 12 February 2021 together with the second appeal.

(7) The costs decision

On 4 November 2020 Senior Member Walker handed down the costs decision.[114] He noted that the prima facie rule in VCAT proceedings is that each party should bear their own costs of the proceeding.[115] As he observed, this applies, pursuant to s 109 of the VCAT Act, ‘unless the Tribunal finds that it is fair to order that another party pay all or a specified part of those costs.’[116] Section 109 of the VCAT Act provides:

[114]Miller v Martin [2020] VCAT 1218.

[115]Ibid [8], citing Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117, [20] (Gillard J).

[116]Ibid [10].

109 Power to award costs

(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to—

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as—
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;
(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;
(iii) asking for an adjournment as a result of (i) or (ii);
(iv) causing an adjournment;
(v) attempting to deceive another party or the Tribunal;
(vi) vexatiously conducting the proceeding;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
(d) the nature and complexity of the proceeding;
(e) any other matter the Tribunal considers relevant.

(4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in subsection (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.
(5) Before making an order under subsection (4), the Tribunal must give the representative a reasonable opportunity to be heard.
(6) If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding.
(7) A power of the Tribunal under this section is exercisable by any member.

The Senior Member elaborated:

‘Fairness’ is to be judged, having regard to the considerations specified in subsection (3), which include ‘any other matter the Tribunal considers relevant’.
The factors identified in subsection (3)(a) and (b) appear to be mainly concerned with the manner in which a party has conducted the proceeding and whether that has caused the party seeking costs to incur unnecessary expense, while subsection (3)(d) requires that the nature and complexity of the case be considered as well. Although subsection (3)(e) appears to open the door to any other consideration, it would have to be one relevant to determining the underlying question of fairness. The outcome of the case is [not identified] as a factor but any findings that had been made would be relevant when comparing the relative strengths of the parties’ cases for the purpose of subsection 3(c), which must also be considered.
If the Tribunal is satisfied that it would be fair to make an order for costs, it ‘may’ do so. That would suggest that there is a second step to the process, that is, to consider whether as a matter of discretion an order for costs ought to be made. Any discretion must be exercised having regard to relevant considerations only. They seem to be those identified in subsection (3).
In the end, to obtain an order for the payment of costs, the party seeking it must satisfy the Tribunal that it would be fair to make the order sought. It is only if the Tribunal is so satisfied that an order for costs can be made. The Tribunal then has a discretion to make the order. In the absence of such an order, s 109(1) prevails and the parties must each pay their own costs.[117]

[117]Ibid [10]–[13].

In considering the nature and complexity of the proceeding and the relative strengths of the respective parties’ claims, Senior Member Walker embarked upon a further detailed review of the evidence and was scathing in his assessment of the evidence given by all three men. In particular, he made it clear that he did not consider that he could rely on the evidence of any of Miller, Martin, or Brabham as providing a truthful or accurate account of the source of the funds for the partnership, the issue of the purchase of the Buddha Gold shares, or the profits made on sale. He did not go so far as to conclude that either Martin or Brabham intended to deceive him or wilfully gave false evidence. But he made it clear that he could not accept their evidence as being truthful.[118] He also ‘did not believe much of Mr Miller’s evidence either’.[119]
[118]Ibid [48], [56] respectively.
[119]Ibid [60].

In the original VCAT decision Senior Member Walker made the observation, repeatedly, that his conclusions were derived from the objective material. This was so especially as there were clear gaps in the evidence, with respect to record keeping (which was curious for experienced accountants) and other financial transactions which may have been relevant.

It is worthwhile to consider his reasoning on this aspect of the costs decision in full as follows:

The relative strengths of the respective parties’ claims
For the purpose of weighing this factor, it is important to bear in mind just what the real claims of the parties were. There was, and could be, no dispute that all of the parties were registered as proprietors of their respective interests in the beach house. The issue was whether the respondents held their interests beneficially.
The real dispute, which took virtually all of the hearing time, was where the money to purchase the beach house came from. Insofar as I was able to make any findings in that regard, those findings were based on the voluminous material produced by Mr Miller and they contradicted the evidence of the respondents and much of the oral evidence of Mr Miller.
The parties cases were as follows.
Mr Miller’s case
Mr Miller’s account was that it was all his own money. There is no doubt that the money that was paid into the partnership account which was subsequently invested and reinvested in bank bills in the names of all three partners represented the proceeds of the sale of shares that he owned. As the investments were redeemed the money was paid back into the account in the name of all three partners and was eventually used to buy the beach house.
Because the money was paid into the partnership account and then invested and reinvested in the names of three partners and the proceeds returned to the partnership account, I found that, if it had originally belonged solely to Mr Miller when it was paid into the account, it was paid in with the intention that it would become partnership property.
Further, it was quite clear from other evidence that Mr Miller handled very substantial sums of money that were considered by the three men to be partnership property and there was an admixture of this money with Mr Miller’s own money.
The scale of the expenditure disclosed by the documentation suggested a very substantial source or sources of money. Large amounts were spent on such things as:
(a) the beach house;
(b) an apartment on the Gold Coast;
(c) racehorses;
(d) a yacht;
(e) a campervan;
(f) land at Mansfield;
(g) spa baths;
(h) overseas holidays.
In addition, all of the expenses and maintenance for the beach house were paid by Mr Miller and it was clear, from reimbursements that were sought and paid, that the other parties expected that he would do so. Various sums of money were also transferred between the parties and people connected to them. It appears that much of this money was not repaid, as a loan would have been. Mr Miller and Mr Martin were involved in other financial dealings that were not gone into during the hearing. There were transfers of money between Australia, America and Hong Kong with conflicting evidence from Mr Miller and Mr Martin concerning the purpose of the transaction and whose money it was.
On any view, these payments and the expenditure on luxury items were not what one would have expected to see if the source of the funds used had been earnings or personal savings.
Despite the very large sums involved, there were no proper accounts recording the receipt and disbursement of the various amounts or, except in a few cases, the ultimate source of the money. This is extraordinary, considering that the three men were senior accountants employed by a large public company. This would suggest, either that they did not wish to record these transactions, or that they did record them and have not produced the accounts.

[126][2016] VSCA 109.

[127]Ibid [43]–[44] (citations omitted), referring to Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320, 331–3 [18]–[21]; [2010] HCA 24.

The law on this matter was also summarised recently by Beach, Osborn JJA and Stynes AJA in Tanah Merah Vic Pty Ltd v Owners’ Corporation No 1 of PS631436T[128] who explained:

Section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 allows appeals on a question of law, including whether or not there is any evidence to support a finding of fact. It does not however extend to a mere error of fact unless the Tribunal made a finding that was ‘simply not open to it’. For the most part, this requires ‘that there was no evidence on the basis of which the Tribunal could reach that finding, not that there was some evidence tending to a different conclusion’.[129]

[128][2021] VSCA 72.

[129]Ibid [198] (citations omitted).

Miller relies upon multiple grounds of appeal, many of which raise only contested issues of fact (including questions about the dates on which the parties filed their affidavits or submissions) and do not properly fall within the scope of s 148 of the VCAT Act. Many of them impermissibly seek to re-agitate the question of the existence of the partnership, the issue of whether the respondents’ solicitors should be restrained from appearing for them, and the question of whether Martin and Brabham wilfully gave false evidence before VCAT on the advice of their solicitors.[130] These are matters that have been finally determined and cannot be revisited.
[130]For example, in one ground Miller maintains that the Senior Member erred by not addressing the cases of Australian Competition and Consumer Commission v Sampson [2011] FCA 1165 and Legal Services Commissioner v Pippa Samson [2013] VCAT 1177, both of which were said to have been raised by Miller on 20 June 2019. Those cases concern findings of misleading and deceptive conduct, and professional misconduct, respectively, that were made against the respondents’ lawyer in unrelated proceedings. The respondents maintain that this is not a proper ground of appeal. In particular, they submit that Miller’s contention does not relate to the issues that the Senior Member was required to consider. It is said to be, at best, an attempt to relitigate Miller’s previous application to restrain the respondents’ solicitors from acting. They note that that application has already been heard and dismissed by this Court.

The key issues cannot be re-agitated — res judicata

It is fundamental to the finality of judicial decision-making that issues once determined cannot be re-agitated.

The doctrine of res judicata is well established. In Jackson v Goldsmith,[131] Fullagar J said:

The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims 'interest reipublicae ut sit finis litium' [the public interest of a matter is so that litigation should end] and 'nemo debet bis vexari pro eadem causa' [no one should be tried twice in respect to the same matter].[132]

[131](1950) 81 CLR 446; [1950] HCA 22.

[132]Ibid 466 (emphasis added).

The distinction between the concepts of ‘res judicata’ and ‘issue estoppel’ was authoritatively explained by Dixon J in Blair v Curran[133] as follows:

[I]n the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
… [I]n neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter where it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.[134]

[133](1939) 62 CLR 464; [1939] HCA 23.

[134]Ibid 532 (emphasis added).

These comments were subsequently cited with approval by Gibbs CJ, Mason and Aitken JJ in Port of Melbourne Authority v Anshun Pty Ltd[135] where they commented that the prohibition on re-agitating a matter that has already been determined comes into operation,

whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.[136]

[135](1981) 147 CLR 589; [1981] HCA 45.

[136]Ibid 597 (emphasis added).

The effect of the Court of Appeal’s restraint decision and the appeal from the original VCAT decision, which we have described in detail above, is that a number of issues have been determined, at an appellate level, adversely to Miller. These include the following key issues (‘the key issues’):

(1) The existence of the partnership;

(2) The proposition that the beach house was purchased from partnership funds;

(3) The proposition that all three members of the partnership, Miller, Martin, and Brabham, held a beneficial interest in the beach house;

(4) The proposition that Martin and Brabham held their interests in the beach house on trust for Miller;

(5) The allegation that Martin and Brabham willingly gave false evidence with an intention to deceive VCAT about the investment in the Buddha Gold shares or the execution of the partnership deed that followed that investment;

(6) The allegation that Martin and Brabham willingly gave false evidence that the profits from the sale of the Buddha Gold shares were used to open the Partnership Account following the execution of the partnership deed.

This Court is not sitting on appeal from the earlier determinations of these key issues. The key issues are not ones that it can permissibly revisit. This Court must treat these issues as having been finally determined in accordance with the doctrine of res judicata. It is not open for Miller in this Court to re-agitate the bulk of the questions he wishes to raise. This includes the question of whether Martin and Brabham intended to mislead VCAT about the source of the funds used to purchase the beach house. Nor can Miller assert once more, directly or indirectly, that Martin and Brabham held their interests in the beach house on trust for him. In so far as the current appeals seek to challenge the correctness of the earlier determinations on the key issues, they are not maintainable.

On the hearing of the current appeals, Miller identified the fundamental issue as being the failure of VCAT to take into account the evidence that was given on 21 March 2016 by Martin in arriving at its conclusion that a partnership existed. It is this fundamental issue that lies at the heart of Miller’s grievance. As discussed above, by reference to the doctrine of res judicata and issue estoppel, this issue cannot be relitigated in this Court. However, in the hearing, Miller directed almost the whole of his oral submissions to the fundamental issue. In those circumstances, there may be some utility in seeking to examine Miller’s contentions and to explain the way in which VCAT has throughout the proceeding, in the original VCAT decision, the sale and distribution decision, and the costs decision, sought to rely upon objective evidence. It has done so because it has been unwilling to accept the case presented by any of Miller, Martin or Brabham. In respect of all three men it has made adverse credit findings. Miller’s case has been unsuccessful because of the objective evidence that contradicts it, not because VCAT has accepted the case presented by Martin or Brabham.

The fundamental issue

Miller submits that VCAT failed to take into account the evidence given on 21 March 2016 and this led to the Court of Appeal also overlooking that evidence. The evidence given on 21 March 2016 was the evidence of Martin that Miller submits was damning of Martin’s credibility.

(1) The evidence of 21 March 2016

Miller emphasises, first, that the amended order made on 3 June 2016 by VCAT, in recording the original VCAT decision, describes the dates of hearing as: ’22—26 February 2016’ and ‘Submissions 15 April 2016’. The order makes no mention of the hearing of 21 March 2016. Miller submits that this shows that the order was made on the basis of part-heard evidence because it omits 21 March 2016. He accepts that [7] of the original VCAT decision acknowledged that evidence was given on 21 March 2016 as follows:

The hearing proceeded from 22 until 26 February 2016 and was then adjourned part heard until 21 March 2016 when the rest of the evidence was given. The matter was then adjourned until 15 April 2016 for the making of oral submissions, with written submissions to be filed and served in the meantime.

He contends that this recognition of the additional evidence given on 21 March 2016 reveals that the order of 3 June 2016, dismissing his application, is flawed. He relies on the orders made by Mukhtar AsJ when he remitted the matter, namely, that the statutory claims were to be heard and determined ‘according to the evidence already heard’. As mentioned,[137] the orders made by Mukhtar AsJ read as follows:

The proceeding is remitted to the Tribunal to be constituted by the same Senior Member who made the order, to enable the Tribunal to determine the statutory claims according to the evidence already heard and the findings already made by the Tribunal as published in Miller v Martin (Building and Property) [2016] VCAT 854 (3 June 2016), and after hearing or rehearing any further submissions on the determination of the statutory claims according to the evidence already heard and the findings already made by the Tribunal.[138]

[137]See [33] above.

[138]Emphasis added.

He submits that the orders of Mukhtar AsJ have never been complied with because Senior Member Walker overlooked the evidence of 21 March 2016 in the original VCAT decision and, on the remitter, in making the sale and distribution decision, he continued to overlook that evidence. He also impugns the refusal decision because, he submits, the proceeding cannot have been finalised if it excluded the evidence of 21 March 2016. Furthermore, in the costs decision, Senior Member Walker records, in respect of the original hearing, that:

I heard the matter over five days in February 2016 and, on 26 May 2016, dismissed Mr Miller’s application.[139]

[139]Miller v Martin [2020] VCAT 1218, [2].

There is again no mention of the evidence given on 21 March 2016.

The same omission is repeated in the restraint decision when the Court of Appeal describes the original hearing at VCAT in the following way: ‘The applicant [for the restraining order, Miller] was represented by counsel in the VCAT proceeding, which took place in the period 22–26 February and 15 April 2016’.[140]
[140]Miller v Martin [2019] VSCA 86, [4].

Miller submits that the evidence that was given on 21 March 2016 is of considerable significance. It reveals, he submits, that the case put by Martin and Brabham, namely, that the partnership commenced by means of an investment in Buddha Gold shares that made substantial profits, was wrong. In the original VCAT decision, Senior Member Walker described the witness statements of Martin and Brabham in these terms:

In contrast [to Miller], Mr Martin and Mr Brabham said in their witness statements that very substantial profits were made from an investment that they all made in Buddha Gold. They said that they and Mr Miller each invested $5,000 to acquire shares and options in that company and that the shares and options were subsequently sold at a substantially higher price.[141]

[141]Miller v Martin [2016] VCAT 854, [112].

By contrast, the evidence of Martin on 21 March 2016, under cross-examination, included the following evidence about the purchase of the Buddha Gold shares and the commencement of the partnership that, Miller submits, shows that Martin was uncertain in his recollection, that he conceded that at the time of the purchase of the Buddha Gold shares there was no partnership, and that in general his evidence was implausible:

MARTIN: My recollection is that there was two — two lots of Buddha Gold shares acquired under two prospectuses at the same time, one to Mr Miller, how — how we contributed to that I have no recollection … and the other 15 — well whether it was 15,000 shares, the other $5000 that we each put in I believe was given to myself because there was no [Brabham] and Martin in the Miller partnership at that stage.
…
MARTIN: My recollection is that the prospectus was given to me and there was no partnership and I certainly couldn’t afford $15,000 to take it up and we took it up as a ... a group and that was the origins of the partnership.
…
SCHLICHT: This prospectus is October 1980 correct? …
MARTIN: Um, I thought it was 79 or 1980.
…
SCHLICHT: And you say that you were able to get an allocation, an allotment of these shares because you were in the money market, is that right?
MARTIN: Ah, well, yes, I was in — I was in that money market, yes.
SCHLICHT: Yes but you didn’t go into the money market until 82 or 83, some two years after this prospectus?
MARTIN: Well then I must’ve got the dates wrong.
…
SCHLICHT: What I’m saying to you is that … if you got this entitlement by reason of the fact that you’re being in the money market, that couldn’t be so because you don’t start at the money market until at least two or three years later, what do you say to that?
MARTIN: … I that — that’s incorrect.
…
SCHLICHT: Well what did you do with — look if the — if you — if these $15,000 shares are purchased in your name?
MARTIN: Yes.
SCHLICHT: And you’ve sold them?
MARTIN: Yes.
SCHLICHT: Then the cheque would’ve been made out to you personally, correct?
MARTIN: I believe so, yes sir.
SCHLICHT: And what did you do with that money?
MATIN: I believe as I said last time, I believe I put it into a term deposit which was normal practice for us.
SCHLICHT: Right and what then happened?
MARTIN: We would’ve invested it in other shares but I don’t — as I’ve said I have no direct recall for that but I — I don’t believe the things that Mr Brabham said we invested in were true, well, I certainly didn’t recall them.
SCHLICHT: Did you — have you got this — is there any explanation as to why there is not one record of the proceeds of this $15,000 worth of shares?
MARTIN: I haven’t got any records of any of the transactions, only what Mr Miller’s provided today, well not today but during this.
SCHLICHT: At the same time of this $15,000, Mr Miller also purchased $3,000 worth of Buddha Gold shares, that’s correct isn’t it?
MARTIN: I — yes — I believe that’s …
SCHLICHT: Those moneys got deposited into the BBM account [the Brabham, Miller, Martin account], didn’t it?
MARTIN: I believe the cheque was to him and then he … into his account when he sold them and then he wrote the personal cheque and put it into Brabham, Martin account, it ultimately ended up there, yes.
SCHLICHT: Yes and the same could’ve applied to the $15,000 worth of shares too, couldn’t it?
MARTIN: We I would’ve — well it could’ve but it would’ve — because of the quantum difference, we would’ve put it into a term deposit.
…
SCHLICHT: Why didn’t you record the $15,000 into the BMM account?
MARTIN: Because they said it had already been sold the …
SCHLICHT: When did they get sold?
MARTIN: Almost immediately, the same time as Mr Miller sold the original ones …
…
SCHLICHT: … these 15,000 worth of Buddha Gold shares, was it just rolling over into a term deposit all the time was it?
MARTIN: No, it wasn’t sir, no that’s incorrect, it was invested in other shares, it would’ve been in term deposits for holding for very short periods of time.
SCHLICHT: Well?
MARTIN: When I say that, 30, 60 days but not — not years.
…[142]

[142]Emphasis added.

In Martin’s witness statement in reply he states, at [51]:

Miller says … that he purchased 6,000 Buddha Gold Mine Shares. He omits to mention that the BMM partnership Invested $15,000 ($5,000 contributed each) in shares in the same company. I believe the shares were either 1 cent or 5 cent partly paid $1 shares. I think that they were 5 cent paid, which equals 300,000 shares. The sale of the shares at near $2 [yielded] a healthy profit for the partnership and my belief is that the proceeds went into the BMM CBA partnership account. The way I see the math is: $15,000 at $0.05 per share giving 300,000 shares. If sold at $1.90 per share (which for some reason is what I recall) that would provide proceeds of $285,000 being ($1.90 less $0.95).

Miller submits that the evidence of the value of the shares that Martin gives in his witness statement in reply is demonstrably false because there is evidence in the Buddha Gold prospectus, which he produced in discovery, that shows that Miller obtained 6,000 shares for the $3000 he invested personally (an investment Martin acknowledged) meaning that the value of the shares on purchase must have been 50c and not 0.05c.[143] He also emphasises that it was accepted by Martin, as mentioned above, that Miller had acquired Buddha Gold shares in his own name. This was also accepted by Brabham in a letter dated 6 September 2012, to Miller’s then solicitors, to the effect that:

I recall Mr Miller acquired some shares in his own name so it is quite possible the share sale you refer to was his own and not part of the partnership of Brabham, Martin & Miller that I have referred to previously.

[143]The prospectus discovered shows 6,000 shares for $3,000, 2,000 options for $100, total $3,100.

Miller submits that the only purchase of Buddha Gold shares was his personal purchase in the sum of $3000 and there was never any purchase of a $15,000 parcel of Buddha Gold shares by him, together with Martin and Brabham, nor any significant profits that could provide the basis of wealth for a variety of investments. Miller emphasises that his discovery was accepted by Martin and Brabham as adequate and that there was no request for documents supporting a purchase of $15,000 worth of Buddha Gold shares. He highlights that there was no documentary evidence of that purchase and no documentary evidence of the term deposit to which Martin referred. He submits that there was, in any event, an upper cap on the parcels of shares that could be bought, namely, 18,000 shares for $9,000. He submits that it is curious for Martin to speak of investing in a term deposit account as ‘our normal practice’ when Martin had conceded that this was at a time when no partnership was in existence and, on Martin’s evidence, the transaction led to, or was associated with, the creation of the partnership.

Miller also relies on the recognition by Senior Member Walker that there was no satisfactory documentation supporting Martin and Brabham’s evidence of the purchase of Buddha Gold shares. Senior Member Walker said:

They [Martin and Brabham] produced no documentation to substantiate their allegations and the figures stated by each of them in their respective witness statements turned out to be incorrect. The shares subscribed for were not five cent shares but rather, $0.20 shares issued at a premium of $0.30 each. For each three shares subscribed for they were entitled to acquire one option for a further five cents. That would have meant that, for an investment of $15,000 the parties would have received 30,000 ordinary shares and 10,000 options. That is, assuming that the numbers of shares and options purchased were as alleged.[144]

[144]Miller v Martin [2016] VCAT 854, [112].

Miller submits that this passage of VCAT’s reasons amounts to a finding that what Martin and Brabham said in their witness statements was false. Accordingly, when Mukhtar AsJ remitted the matter back to VCAT for the hearing and determination of the statutory claims ‘on the findings made’ it ought to have been on the basis that Martin and Brabham had given false evidence.

Miller also highlights that Martin and Brabham now accept facts that are inconsistent with the evidence they gave at VCAT about the initial purchase of $15,000 worth of Buddha Gold shares as the commencement of the partnership. Instead, they assert that there was a small investment leading to a small profit. In their ‘Summary of facts’, prepared for the Court of Appeal, Martin and Brabham say that:

Miller Martin and Brabham made a small investment in the float of Buddha Gold Mines NL in the early 1980s. The sale of the shares resulted in a profit of $4,857, which was deposited into a joint bank account in the names of Martin Miller and Brabham.

Miller submits that this has implications for the purchase of the beach house. Martin and Brabham accept that Miller sold his Coles Myer shares for $282,720 in December 1986 and that this was used in part for the purchase of the beach house. Their ‘Summary of facts’ states:

On 3 December 1986 Miller sold Coles Myer shares for $282,720. On 5 December 1986 the proceeds of sale were paid into the joint bank account.

Miller submits that the finding of VCAT that he had put those proceeds into a partnership account depended on Senior Member Walker first finding that a partnership existed between the three men and that conclusion was based on the purchase and sale of the Buddha Gold shares in 1980. He argues that if VCAT’s conclusions about the Buddha Gold shares can be demonstrated to be erroneous, it follows that the inferences drawn about the beach house are similarly mistaken.

Miller also emphasises that, with respect to the ongoing maintenance costs for the beach house over the years, it is not in contest that neither Martin nor Brabham made any contribution. The respondents ‘Summary of Facts’ records the following:

Miller expended approximately $130,710 on rates, renovations and insurance for Moggs Creek. Apart from working bees and the like no other party contributed to the upkeep of the property. Neither Martin or Brabham paid anything for rates, renovations and insurance.

(2) Reliance on objective evidence

The difficulty for Miller is that Senior Member Walker did understand that the evidence of Martin and Brabham was unreliable. In the original VCAT decision, he identified the conflict in the evidence between Miller, and Martin and Brabham.[145] In the passage quoted above,[146] he accepts that Martin did not acquire the Buddha Gold shares as he had said; he concludes that Martin’s evidence should not be accepted as an accurate record of what had happened.
[145]Ibid [111]–[112]. See [86] above.
[146]Ibid [112]. See [92] above.

Moreover, as the respondents submit, the inferences drawn about the joint proprietorship of the beach house was not based upon the evidence about the purchase of the Buddha Gold shares but on acknowledgements Miller had made in writing that the beach house was held jointly. This included an email sent by Miller to Brabham;[147] the statements made by Miller in proceedings in the Family Court where he acknowledged that the beach house was held beneficially in accordance with the interests registered on title;[148] and Miller’s land tax declaration dated 2 July 2014 where he admitted that ‘no joint owner has greater than 13.33% of the Property [the beach house], and therefore less than the threshold of $250,000 for individual assessment’.[149]
[147]Ibid [36]. Miller included in the list, amongst other things, ‘Mogg’s Street [sic] beach house (80% owned by members of partnership’).
[148]Ibid [42].
[149]Ibid [46].

As mentioned, there was evidence from Mrs Martin about where the money came from that went into the common fund. While Senior Member Walker was not prepared to draw an inference about unlawful conduct he was prepared to say that the statement made by Miller to Mrs Martin ‘amounts to an admission by him that the money came from an unknown source and not from his own resources’.[150] He also observed that ‘[i]f the source of the funds was questionable that might explain the poor state of the evidence concerning where the money came from’.[151]
[150]Ibid [184]. See [30(5)] above.
[151]Ibid [182].

Ultimately, Senior Member Walker was persuaded that there was a common fund between Miller, Martin, and Brabham which facilitated trading in shares and the purchase of joint ‘lifestyle’ investments for the three men even if the evidence did not allow for precise identification of the original source of the funds. This finding of the existence of a common fund also provided the basis for his reasoning on the sale and distribution decision.[152]
[152]Miller v Martin [2020] VCAT 29, [28].

Senior Member Walker emphasised how difficult it was to reconcile the documentary and oral evidence.[153] He deliberately avoided placing any reliance on the evidence of Martin, Brabham or Miller and chose instead to rely on the objective evidence, namely, the documentation. This included the most significant documentation, namely, that the interests of Martin and Brabham were registered on the title of the beach house.
[153]Miller v Martin [2016] VCAT 854, [12]. See [28] above.

With respect to the ongoing costs, VCAT found that the maintenance costs came from the common fund ‘upon which they [that is, all eight respondents] all felt entitled to draw’.[154] If the maintenance costs came from a common fund, this meant that payments made by Miller from that fund could not be treated as payments to the credit of Miller in the sale and distribution decision.

(3) Torrens system — title by registration

[154]Ibid [150]. See [30] above.

It is a principal doctrine of the law of real property in Victoria, in accordance with the Torrens system, that registration confers title. As Barwick CJ said in Breskvar v Wall:[155]

The Torrens system of registered title … is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor.[156]

[155](1971) 126 CLR 376; [1971] HCA 70.

[156]Ibid 385–6 (emphasis added).

These observations have been accepted as an accurate description of the Torrens title system created under ss 40–43 of the Victorian Transfer of Land Act 1958.[157]In Perpetual Trustees Victoria Ltd v Gheorghui,[158] Harper J observed:

The effect of s 40 is that no instrument until registered shall be effectual to create, vary, extinguish or pass any estate or interest in or over any land under the operation of the Act; but upon registration, the estate or interest shall be created, varied, extinguished or pass in the manner and subject to the conditions specified in the relevant instrument or in the Act.
Section 41 then proceeds to give effect to the proposition that a certificate issued by the Registrar of Titles pursuant to the Act shall be conclusive evidence of the title to which that certificate refers.
The section provides amongst other things, in effect, that the register shall be received in all courts as evidence of the particulars recorded in it and shall be conclusive evidence that the person named in the relevant folio as the proprietor or as having any estate or interest in the land is possessed of that estate or interest as described in the register.
Consistently with the scheme of the Act s 42 then provides, in effect, that — notwithstanding the existence in any other person of any estate or interest which but for the Act might be held to be paramount or have priority — the registered proprietor of land shall, except in the case of fraud and other specified instances, hold such land subject only to such encumbrances as are recorded on the relevant folio of the register and absolutely free from all other encumbrances.[159]

[157]Mathieson Nominees Pty Ltd v Aero Developments Pty Ltd [2016] VSC 131, [115]–[120].

[158][2007] VSC 412.

[159]Ibid [8]–[11].

Proprietorship of land, gained by registration, is indefeasible. This was explained by Vickery J in Mathieson Nominees Pty Ltd v Aero Developments Pty Ltd[160] in this way:

[E]xcept in cases of fraud or other instances provided for in s 42, ‘there is immediate indefeasibility of title by the registration of the proprietor named in the register’ with the result that a registered interest prevails over an encumbrance not recorded on the Register and prevails unaffected by notice of the unregistered interest.[161]

(4) Registered interests on title — sale and distribution decision reflects registered interests

[160][2016] VSC 131.

[161]Ibid [123].

Senior Member Walker was faced with the objective evidence that Martin and Brabham’s names were on the title deeds to the beach house. The explanation that Miller gave to defeat their interests on title was strained. It was repeated in this Court, on the appeals, namely, that :

The sale contract … that’s the sale of $282,720 of 50,000 Coles Myer shares I sold … but in the name of New Kapital Investments [Pty Ltd], care of Mr James Miller of Coles Myer Limited. … I deposited that into the joint account because I told the guys [Martin and Brabham] I’d like to buy a beach house, I’ll put them on title and they can pay me later, or upon sale distribution to be based on contributions.

Senior Member Walker regarded this explanation as unconvincing. He said:

However much money he had, he did not adequately explain, and I do not understand, why he would spend such substantial sums on other people and buy substantial assets and put them into other people’s names. Certainly the parties were friends but the scale of the spending seems to me to have gone well beyond what one would have expected. Further, the sorts of things the money was spent on also seem odd. All parties have described them as Lifestyle assets. They appear to have been luxuries and although one might understand Mr Miller being concerned to assist friends in need one might also wonder why he would want to assist them in the purchase of luxuries.[162]

[162]Miller v Martin [2016] VCAT 854, [173].

In our view, it was open for Senior Member Walker to treat the explanation proffered by Miller for placing the names of his friends on title as unconvincing. Moreover, he had the unimpeachable documentary evidence that there was a joint Commonwealth Bank Account for the three men and that $282,820 was paid into that account on 5 December 1986. This was common ground. Miller also accepted that ‘we pulled … money out [of the joint bank account] and put it into term deposits in 1986 and 87’.

It was also common ground that, as the respondents put it in their ‘Summary of facts’, Miller attended the settlement of the beach house with funds from the joint account:

On or around 30 January 1987, Martin provided Miller with a statement listing the required bank cheques totalling $132,832.53 for settlement of the Moggs Creek property. Miller attended settlement after drawing from the joint bank account the required bank cheques.

The registered title provided the objective basis upon which Senior Member Walker decided in the original VCAT decision that the trust claims ought be rejected. This was in conjunction with his rejection of any factual basis that would give rise to a displacement of those registered interests in equity.

Ultimately, as described above, the sale and distribution decision also reflected the registered interests on title.

In the circumstances in which, as described in detail above, Senior Member Walker could not rely on the truthfulness of the accounts given by any of the three men, including not only as to the original source of the funds but also as to the source of the funds used for payment for ongoing maintenance, his only recourse was again to turn to the evidence that could be objectively proved. By basing the sale and distribution decision on the respective interests on title enjoyed by each of the parties, the Senior Member opted for an objective and fair method for arriving at an apportionment consistent with the law of real property. There was no error in this approach.

The findings on credit made by Senior Member Walker in the original VCAT decision (as further explained in the costs decision) meant that the statutory considerations identified in s 233(2) of the PLA could have no real force in arriving at a just and fair division of the proceeds of the sale of the beach house. Those considerations include, as mentioned above,[163] relevantly, ‘any amount that a co-owner has reasonably spent in improving the land or goods’; ‘any costs reasonably incurred by a co-owner in the maintenance or insurance of the land or goods’; and ‘the payment by a co-owner of more than that co-owner’s proportionate share of rates …, mortgage repayments, purchase money, instalments or other outgoings in respect of that land or goods for which all the co-owners are liable’. The finding that these types of costs and payments were made from a common fund, from which all parties were entitled to draw, effectively neutralised each of these considerations in respect of Miller. As the Senior Member said, this finding was ‘fatal’ to Miller’s application for an order for adjustment of interests under s 233 and, in the absence of an order under s 233, it was appropriate for the division of the sale proceeds to reflect, proportionately, the respective registered interests on title.[164]

(5) No party receives their costs

[163]See [21]–[22] above.

[164]See [41] above.

As described in detail above, Senior Member Walker refused to make an order for costs in favour of the respondents largely on the basis that they had been given an opportunity to provide a full and frank explanation to the Tribunal and had failed to do so.

The conclusion that the prima facie position at VCAT for dealing with costs should apply (that is, that no party should be awarded their costs) was based, in part, on Senior Member Walker’s determination ‘that the costs incurred were to present cases on both sides that were not accepted’.[165]
[165]Miller v Martin [2020] VCAT 1218, [62].

The respondents acknowledge that, in the costs decision, Senior Member Walker dealt only with their application for costs. The order made solely related to the respondents’ application for costs and this was dismissed. The transcript of the hearing on costs of 31 August 2020 shows that at the commencement of the hearing Senior Member Walker stated that Miller and the respondents had each made applications for costs. He said: ‘Now, both the respondents and the applicant have applied for orders for costs’.

He went on to say that the respondents’ applications had been made first in time and, therefore, he heard submissions on their application first.

However, he never returned to consider Miller’s application for costs and his order does not carry any disposition with respect to that application.

The respondents accept that by not referencing Miller’s application for costs, made at least orally, Senior Member Walker committed an error. They further accept that the error ought to be corrected by this Court granting leave to appeal in the second appeal, allowing the appeal, setting aside the order that solely dismissed the respondents’ application for costs and in its place making an order that each party is to bear their own costs.

We agree.

It is indisputable that in the costs decision Senior Member Walker refuses to accept that the evidence of any of Martin, Brabham, or Miller was reliable. In particular, as noted, he held that none of the three men gave credible evidence in respect of the source of the funds that paid for their lifestyle. The evidence of each of the three men on the critical issues was dismissed. In those circumstances, Senior Member Walker could not differentiate amongst the relative strengths of the parties’ cases.

In a scathing observation, Senior Member Walker said, as mentioned, that while the hearing would have taken one day if the men had been truthful, it was prolonged and took five days. He held that the three men were ‘equally responsible for the time that was wasted’.[166] This factor particularly supports an order from this Court that each party bear their own costs, as does the fact that Miller was wholly unsuccessful.
[166]See [57] above.

The respondents accept, and we agree, that, in effect, Senior Member Walker took the view that no party came before him in a position of merit and that, therefore, it would be unjust to award costs to any party.

With respect to the refusal decision, VCAT was entirely correct in expressing the view that, as the proceeding had come to an end, there was no live matter before it, in respect of which a further directions hearing could be called. In any event, the refusal decision does not amount to an order of the Tribunal from which leave to appeal can be sought pursuant to s 148 of the VCAT Act.

Conclusion on the applications for leave to appeal

We consider that, on the first appeal, leave to appeal should be refused.

On the second appeal we would grant leave and allow the appeal solely for the limited purpose described above.[167]

---

[167]See [120] above.

SCHEDULE OF PARTIES

JAMES EDWARD MILLER Applicant

and

IAN DONALD MARTIN First respondent

TERESA MARTIN Second respondent

ROSS HAROLD BRABHAM Third respondent

MARGARET BRABHAM Fourth respondent

JOHN DAVID STODGELL Fifth respondent

ESTATE OF JUDY LORRAINE STODGELL Sixth respondent

ROBYN GAYE LAMBERT Seventh respondent

CRAIG WILLIAM LAMBERT Eighth respondent

*Introduction and summary*......................................................................................	3
*The purchase of the beach house*.............................................................................	6
*The proceedings*.........................................................................................................	8
(1) The original VCAT decision.................................................................................	8
(2) The substantive Mukhtar AsJ decision.................................................................	17
(3) The remitter — the sale and distribution decision................................................	18
(4) The restraint decision............................................................................................	25
(5) Appeals from Mukhtar AsJ...................................................................................	28
(6) Current appeals — First appeal from VCAT: the sale and distribution decision (2020/ 0005).................................................................................................................	31
(7) The costs decision..................................................................................................	31
(8) Current appeals — Second appeal from VCAT: the costs decision and others (2021/ 0009).................................................................................................................	39
*Appeals restricted to questions of law*..................................................................	42
*The key issues cannot be re-agitated — res judicata*..........................................	44
*The fundamental issue*..............................................................................................	47
(1) The evidence of 21 March 2016.............................................................................	47
(2) Reliance on objective evidence...............................................................................	53
(3) Torrens system — title by registration.................................................................	55
(4) Registered interests on title — sale and distribution decision reflects registered interests..................................................................................................................	57
(5) No party receives their costs.................................................................................	59
*Conclusion on the applications for leave to appeal*............................................	61

JAMES EDWARD MILLER	Applicant
and
IAN DONALD MARTIN	First respondent
TERESA MARTIN	Second respondent
ROSS HAROLD BRABHAM	Third respondent
MARGARET BRABHAM	Fourth respondent
JOHN DAVID STODGELL	Fifth respondent
ESTATE OF JUDY LORRAINE STODGELL	Sixth respondent
ROBYN GAYE LAMBERT	Seventh respondent
CRAIG WILLIAM LAMBERT	Eighth respondent

[2021] VSCA 108

30 April 2021