Mr Landlord Pty Ltd v BigJ Enterprises Pty Ltd
[2025] VSCA 146
•27 June 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0135 |
| MR LANDLORD PTY LTD (ACN 116 921 834) AS TRUSTEE FOR THE BRANDI FAMILY TRUST | Applicant |
| v | |
| BIGJ ENTERPRISES PTY LTD (ACN 084 199 084) AS TRUSTEE FOR THE JASON BRANDI FAMILY TRUST & ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
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| JUDGES: | McLEISH and ORR JJA and WALLER AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 May 2025 |
| DATE OF JUDGMENT: | 27 June 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 146 |
| JUDGMENT APPEALED FROM: | Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd [No 10] [2023] VSC 524 (Delany J) |
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EVIDENCE – Onus of proof – Trustee held units in unit trust in 2008 – Onus lay on applicant to prove that trustee still held units in 2019 – Evidence that units transferred from trustee in 2014 – Evidence included memorandum of resolutions approving transfer – Judge determined applicant failed to establish trustee did not transfer units in 2014 – Whether judge imposed incorrect onus – Judge’s analysis reflected application of Corporations Act 2001 (Cth), s 251A(6) – Evidence of transfer stood in way of finding sought by applicant – Judge’s conclusion reflecting that applicant failed to shift obstacle – No impermissible onus in judge’s conclusion.
EVIDENCE – Proof – Onus of proof – Judge found principal witnesses dishonest and unreliable – Parties relied on evidence given by each other in preference to own evidence – Judge made no finding as to particular factual controversy – Whether open to decide issue without resolving factual controversy on basis onus of proof not discharged – Unsatisfactory state of evidence justified judge’s approach – No error shown – Leave to appeal refused.
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; In re B [2009] AC 11; Trustees of the Christian Brothers v DZY (a pseudonym) [2024] VSCA 73; Eumeralla Estate Pty Ltd v Chen [2022] VSCA 78; Rhesa Shipping Co SA v Edmunds [1985] 2 All ER 712; Murray v Murray (1960) 33 ALJR 521, referred to; Ryan v Trustees Executors and Agency Co Ltd (1937) 10 ALJ 461, distinguished.
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| Counsel | |||
| Applicant: | Mr J Graham KC with Mr R Chaile | ||
| Respondents: | No appearance | ||
Solicitors | |||
| Applicant: | Frenkel Partners | ||
| Respondents: | No appearance | ||
inhi
MCLEISH JA
ORR JA
WALLER AJA:
David and Jason Brandi are brothers. They have been in dispute concerning a number of properties in Victoria including a development site and adjacent land in Newsom Street, Ascot Vale of which the registered proprietor was PDJ Crew Pty Ltd (‘PDJ Crew’) and a broadacre property at Tarwin Lower held as to a 60 per cent interest by JAG Group Holdings Pty Ltd (‘JAG Group’) (external investors holding the remainder). In both cases, the interests in the properties are held by unit trusts. The dispute which is the subject of the present application for leave to appeal concerns the ownership of units in those trusts.
The wider dispute has involved multiple proceedings and claims. After a lengthy trial of four proceedings in the Trial Division, the issues that remain live concern two narrow and related controversies, both of which were decided in favour of the Jason Brandi interests.
The judge described the trial as ‘extraordinary’ and unlike any in his experience, either as a judge or as counsel.[1] It was ‘marked by dishonest evidence’ given by both David and Jason Brandi.[2] The level and extent of the dishonesty was such that the judge referred the evidence to the Director of Public Prosecutions, the Australian Securities and Investments Commission and the Australian Taxation Office.[3]
[1]Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd[No 10] [2023] VSC 524 [56] (Delany J) (‘Reasons’).
[2]Ibid [36].
[3]Ibid [1583].
The judge described the trial as having involved ‘many twists and turns’, including the abandonment by the lead plaintiff on behalf of the David Brandi interests, Timeless Sunrise Pty Ltd (‘Timeless Sunrise’), of all claims made by it.[4] After that happened, David Brandi’s claims in respect of the units depended upon a claim which had previously been pressed only in the alternative, by another plaintiff in David Brandi’s interest called Mr Landlord Pty Ltd (‘Mr Landlord’).[5] This gave rise to the issues sought to be raised in the present application for leave to appeal.
[4]Ibid [26].
[5]Ibid [51].
The claim pressed by Mr Landlord had to contend with the unusual circumstance that David Brandi and his wife, Tina, had both filed witness statements in support of the abandoned claim of Timeless Sunrise, and if those statements were to be accepted, the claim brought by Mr Landlord could not succeed.
Factual background
David and Tina Brandi controlled Timeless Sunrise (as trustee of the Davina Family Trust), Davtin Pty Ltd (‘Davtin’, previously the trustee of the Brandi Family Trust), Melbourne Property Group Pty Ltd (‘MPG’, Davtin’s successor as trustee of the Brandi Family Trust), and Mr Landlord (the later trustee of the Brandi Family Trust).
MPG went into liquidation on 25 February 2019 and was deregistered on 6 December 2019. As described further below, Mr Landlord did not become trustee of the Brandi Family Trust until some time later.
Jason Brandi controlled PDJ Crew (as trustee of the PDJ Crew Unit Trust), BigJ Enterprises Pty Ltd (‘BigJ’, as trustee for the Jason Brandi Family Trust) and, together with David and Jason’s mother, Fernanda, as executors of their father’s estate, JAG Group (as trustee of the JAG Group Unit Trust).
David and the companies associated with him alleged, and the trial judge accepted, that the PDJ Crew Unit Trust was created by deed and PDJ Crew was the trustee. The judge also accepted that the property in Newsom Street and adjacent land (or relevant proceeds of sale) were assets of the PDJ Crew Unit Trust. It was not in dispute that 60 of the 120 units in the PDJ Crew Unit Trust were held by BigJ as trustee for the Jason Brandi Family Trust. The judge found that, on and from March 2008, MPG held the remaining 60 units in the PDJ Crew Unit Trust in its capacity as trustee of the Brandi Family Trust, and it is not in dispute that MPG continued to hold those units until at least 1 July 2014. As explained below, a parallel set of issues arises with respect to the JAG Group Unit Trust and the Tarwin Lower land.
Concentrating first on the PDJ Crew Unit Trust, the critical issue was whether MPG held half the units when it went into liquidation and was deregistered in 2019. The pleading on behalf of the David Brandi parties at the commencement of the trial alleged that, on or about 1 July 2014, MPG transferred its 60 units in the PDJ Crew Unit Trust to Timeless Sunrise and that Timeless Sunrise had, since that time, been the holder of those units in its capacity as trustee of the Davina Family Trust. The validity of the transfer of MPG’s units to Timeless Sunrise was disputed by the Jason Brandi parties in their defence. Among other things, they alleged that Jason and Tina Brandi did not attend a meeting of unitholders of the PDJ Crew Unit Trust on 1 July 2014, that Jason did not sign a memorandum of resolutions of PDJ Crew, and that the documents relied upon by the David Brandi parties ‘were created years after 1 July 2014’.
With the change in the case brought by the David Brandi parties, the pleading was amended on 27 September 2022.[6] As mentioned, the claim by Timeless Sunrise was abandoned. Instead, Mr Landlord’s case was that it succeeded to the units previously held by MPG, on the following reasoning:
(a)First, when MPG was wound up in February 2019, cl 8.8 of the Brandi Family Trust Deed had the effect of rendering the office of trustee immediately vacant.[7] It was submitted that, at that point, MPG became a bare trustee of the assets of the Brandi Family Trust (which, it was now not in dispute, included half the units in the PDJ Crew Unit Trust).
(b)Next, when MPG was deregistered on 6 December 2019, the property held by it as trustee vested in the Commonwealth pursuant to ss 601AD–601AH of the Corporations Act 2001 (Cth). By virtue of s 601AD(3), the Commonwealth ‘takes only the same property rights that the company itself held’, and so the 60 units in the PDJ Crew Unit Trust were still impressed by the bare trust when held in the hands of the Commonwealth.
(c)Then, when Mr Landlord was appointed by deed as trustee of the Brandi Family Trust with immediate effect on 16 November 2020, the trust fund vested in it as the new trustee. Clause 7.1 of the Brandi Family Trust Deed provided that the ‘power to appoint a new Trustee in the place of an existing Trustee … and the power to remove a Trustee shall subject to the following provisions of this clause be vested in … David Brandi during his lifetime’. Clause 7.4 provided for the vesting of the trust fund in the new trustee without the necessity for any vesting, declaration, transfer, conveyance or other assurance.
(d)It followed, according to the argument on behalf of Mr Landlord, that on and from 16 November 2020, the assets of the Brandi Family Trust, including the 60 units in the PDJ Crew Unit Trust, immediately vested in Mr Landlord as Trustee.[8]
[6]It seems that proposed amendments were circulated on 2 September before the pleadings were formally amended on 27 September: Reasons [30], [87]–[89].
[7]Clause 8.8 provided that the ‘office of Trustee shall ipso facto be determined and vacated if … the Trustee being a company shall enter into liquidation’.
[8]Reasons [769].
The judge accepted that, if MPG held the units in the PDJ Crew Unit Trust when it was deregistered on 6 December 2019, the above reasoning would apply. But unless MPG still held the units at that time, the Commonwealth could not have succeeded to an interest in such units and the trust property to which Mr Landlord succeeded upon its appointment as trustee in place of the Commonwealth would not have included the units. In light of evidence that MPG had disposed of the units on 1 July 2014, the judge was not satisfied that MPG continued to hold the units after that time. Mr Landlord’s case in respect of the PDJ Crew Unit Trust therefore failed.
It will be necessary to refer further below to the judge’s reasons and to the evidence that was before the Court in relation to the alleged transfer of units by MPG on or about 1 July 2014.
The trial took a similar course in relation to the JAG Group Unit Trust. That trust was established on 9 July 2002 with 50 issued units. At some point, MPG, which had held all the units, transferred half of them to BigJ. Mr Landlord alleged, based on the same reasoning as in the case of the PDJ Crew Unit Trust, that it was vested with the trust’s property (being the units in the JAG Group Unit Trust formerly held by MPG) upon its appointment as trustee of the Brandi Family Trust. Again, at the commencement of the trial, the pleading on behalf of the David Brandi parties had alleged that, on or about 1 July 2014, MPG transferred to Timeless Sunrise as trustee for the Davina Family Trust 25 units in the JAG Group Unit Trust, such that the unitholders after that time were BigJ and Timeless Sunrise, with 25 units each. That pleading was deleted also on 27 September 2022.
The judge held that, for the reasons that applied to the PDJ Crew Unit Trust, the units in the JAG Group Unit Trust had not been shown to be held by Mr Landlord after 1 July 2014, and in particular when MPG was deregistered on 6 December 2019. Mr Landlord’s claim in respect of the JAG Group Unit Trust therefore also failed.
Evidence at trial
The evidence in chief at trial was substantially in the form of witness statements and affidavits. After the pleadings were amended on 27 September 2022, most of the parts of those documents which addressed the alleged events of 1 July 2014 were struck out. For example, in David Brandi’s first witness statement, dated 20 August 2021, a line was struck through the statement ‘With effect from 1 July 2014, MPG transferred its 60 units in the PDJ Crew Unit Trust’ to Timeless Sunrise. A statement that the transfer ‘occurred as part of a wider process’ involving the ‘transfer of assets of MPG (as trustee for the Brandi Family Trust) to Timeless Sunrise (as trustee for the Davina Family Trust)’ was also struck out, together with a list of documents recording the transfer.[9]
[9]The list comprises a unit/option transfer journal for the PDJ Crew Unit Trust, memoranda of sole director’s resolutions of PDJ Crew, MPG and Timeless Sunrise, minutes of a meeting of unitholders of the PDJ Crew Unit Trust, a standard transfer form, notices of beneficial ownership and a declaration of trust.
Anomalously, however, an affidavit of David Brandi sworn 26 September 2019 records the same evidence. The relevant passages are not struck out and this affidavit formed part of the evidence at the trial. As explained below, in the end this does not affect the issues we need to decide.
In Jason Brandi’s first witness statement, dated 28 October 2021, he had stated that he was not aware of any meeting of PDJ Crew in July 2014 in relation to the transfer of units from MPG to Timeless Sunrise. He denied receiving documents in relation to the alleged transfer and said that he did not sign a declaration of trust or a memorandum of resolutions of PDJ Crew. These statements were all struck out.
In Tina Brandi’s first witness statement, dated 20 August 2021, there were struck-out references to Tina having signed documents to give effect to the transfer of assets from MPG to Timeless Sunrise. Among other things, Tina Brandi had said, until it was struck out, that her signature appeared on a memorandum of resolutions of the sole director of MPG dated 1 July 2014, but that she believed she had signed it in mid-July 2014. Tina Brandi also described the transfer of units in the PDJ Crew Unit Trust on 1 July 2014, in an affidavit sworn 4 October 2019. She confirmed her signature on a memorandum of resolutions of the sole director of MPG, and exhibited a standard transfer form, notices of beneficial ownership, a memorandum of resolutions of David as the sole director of Timeless Sunrise and minutes of a meeting of unitholders of the PDJ Crew Unit Trust. None of this material was struck out, and it remained part of the evidence.
The Court Book at trial included documents referred to in the struck-out evidence. These documents all remained part of the evidence at trial. The documents in question, all dated 1 July 2014, are: a unit option transfer journal for the PDJ Crew Unit Trust; a memorandum of resolutions of Jason as the sole director of PDJ Crew; minutes of a meeting of unitholders of the PDJ Crew Unit Trust; resolutions of the sole directors of MPG and Timeless Sunrise; notices of beneficial ownership signed on behalf of MPG and Timeless Sunrise; and a register of unitholders of the PDJ Crew Unit Trust.
Turning to the JAG Group Unit Trust, in David Brandi’s second witness statement, dated 24 December 2021, there are similar struck-out references to MPG having transferred 25 units in the JAG Group Unit Trust to Timeless Sunrise with effect from 1 July 2014, listing a number of documents recording the transfer.[10] Similar evidence is struck out in Tina Brandi’s second witness statement, dated 23 December 2021.
[10]The list includes a unit/option transfer journal for the JAG Group Unit Trust, memoranda of director’s resolutions of JAG Group, MPG and Timeless Sunrise, minutes of a meeting of unitholders of the JAG Group Unit Trust, a standard transfer form and notices of beneficial ownership.
In a section of his second witness statement, dated 16 March 2022, and not struck out, Jason Brandi denied having attended a meeting of unitholders of the JAG Group Unit Trust on 1 July 2014 to transfer units from Timeless Sunrise to MPG.[11] The minutes to which both David and Tina Brandi referred, as contained in the Court Book, refer to BigJ as having been present.
[11]This appears to be an error and should refer to a transfer from MPG to Timeless Sunrise.
Again, the Court Book included documents referred to in the struck-out evidence, all dated 1 July 2014, namely: a transfer journal for the JAG Group Unit Trust; a memorandum of resolutions of Erminio Brandi (Jason and David’s father) as the sole director of JAG Group; minutes of a meeting of unitholders of the JAG Group Unit Trust; resolutions of the sole directors of MPG and Timeless Sunrise; and notices of beneficial ownership signed on behalf of MPG and Timeless Sunrise. These documents formed part of the evidence in the trial.
Despite the striking out of most of the evidence relevant to the issue of the alleged transfers of 1 July 2014, that material was, in effect, introduced back into evidence by cross-examination. Senior counsel for the applicant before us accepted that the struck-out passages, at least in respect of the PDJ Crew Unit Trust, had all been ‘cross-examined back in’ to the evidence. It is convenient, however, to outline the relevant oral evidence at this point.
In short, both David and Tina Brandi stated unequivocally that the transfers occurred. David Brandi was asked in cross-examination, ‘So do I take it that your understanding is that prior to MPG’s liquidation it owned the units in the PDJ Crew Unit Trust?’. He answered, ‘No, no, the units were transferred to Timeless’. A short time later, counsel took David Brandi to his affidavit, and the following exchange ensued:
You say there, ‘On about 1 July 2014, Melbourne Property Group Pty Ltd transferred its 60 units in the PDJ Crew Unit Trust to the plaintiff Timeless Sunrise’. Do you see that?---I do.
And that’s sworn evidence. It’s an affidavit, isn’t it?---Yes. It is.
It’s also not true, is it - isn’t it? It’s false evidence?---No. It’s accurate. It’s true.
And in fact, you’re not telling this court anymore as part of your case that this transfer occurred because that transfer never occurred?---No, no. That’s not the case.
And you know it never occurred, don’t you?---No. It definitely occurred.
Later in his cross-examination, the judge asked David Brandi how, if the transfer of half the units in the PDJ Crew Unit Trust to Timeless Sunrise occurred, Mr Landlord could succeed in its claim to hold those same units. David Brandi confirmed in response that there was no subsequent transfer of units from Timeless Sunrise to Mr Landlord.
Similarly, Tina Brandi confirmed the truth of the statement in her first witness statement that she had signed the memorandum of resolutions of the sole director of MPG recording the transfer of 60 units in the PDJ Crew Unit Trust to Timeless Sunrise.
In relation to the JAG Group Unit Trust, the oral evidence was briefer and less specific. When giving evidence about the PDJ Crew Unit Trust transfer, David Brandi stated that there was a wider process involving the transfer of assets of MPG as trustee for the Brandi Family Trust to Timeless Sunrise as trustee of the Davina Family Trust. Tina Brandi said much the same thing, and confirmed that the reason for the transfer of assets concerned litigation and ‘asset protection’.
In particular, Tina Brandi confirmed that, in her second witness statement, she referred to her signature on a memorandum of resolutions of the sole director of MPG in respect of the transfer by MPG to Timeless Sunrise of 25 units in the JAG Group Unit Trust. In a somewhat inconclusive passage of transcript, Tina Brandi at first stated that she was ‘not sure’ whether she signed documents transferring units in the JAG Group Unit Trust. She then affirmed that she would have checked that her statement as to signing the memorandum to that effect was true before she signed her witness statement.
Judge’s reasons
The judge first addressed the position regarding the units in the PDJ Crew Unit Trust. He framed the relevant question for present purposes as whether Mr Landlord had established on the balance of probabilities that, upon its appointment as trustee of the Brandi Family Trust in November 2020, it became the holder of the 60 units previously held by MPG. To do this, Mr Landlord needed to establish that, when it was appointed trustee, the units in the PDJ Crew Unit Trust were an asset of the Brandi Family Trust.[12]
[12]Reasons [780]–[781].
As the judge explained, there were two significant complications involved. First, up to 27 September 2022, the primary case for the David Brandi parties, and the evidence filed on behalf of those parties, was to the contrary. Secondly, when they gave evidence, which the judge stated that he ‘must not ignore’, both David and Tina Brandi verified the truth of the evidence filed in support of the abandoned case as set out above.[13]
[13]Ibid [782].
The judge referred to some of the evidence already mentioned in which David and Tina Brandi stated that the units in the PDJ Crew Unit Trust had been transferred to Timeless Sunrise as a result of the documents dated 1 July 2014. He also noted the existence of ‘metadata’ indicating that copies of documents recording the transfer of those units to Timeless Sunrise had been created on 31 July 2014, which he found to be consistent with the oral evidence.[14]
[14]Ibid [784], [786].
The judge started from the proposition that, on and from March 2008, MPG held 60 units in the PDJ Crew Unit Trust in its capacity as trustee of the Brandi Family Trust.[15] He then turned to the alleged events of July 2014.
[15]Ibid [787].
The judge referred to Jason’s evidence that he was neither aware of, nor invited to attend, any meeting of PDJ Crew in July 2014 in relation to the transfer of units from MPG to Timeless Sunrise, and that he did not sign the declaration of trust or memorandum of resolutions that related to the transfer.[16] The judge accepted that Jason did not attend a meeting on 1 July 2014, but did not find that his signature on either document was forged.[17]
[16]As mentioned, that evidence was deleted after the pleadings were amended in September 2022. The evidence was, however, put to Jason in cross-examination where he confirmed its accuracy.
[17]Reasons [790]–[797].
Next, the judge set out s 251A of the Corporations Act. In particular, s 251A(6) relevantly provides that a minute of a resolution or declaration of a director of a proprietary company with only one director ‘is evidence of the proceeding, resolution or declaration to which it relates, unless the contrary is proved’. The judge then set out an extract from the judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Australian Securities and Investments Commission v Hellicar,[18] to the effect that the minutes in that case were not simply evidence from which an inference could be drawn, but they were evidence of what they represented, sufficient to prove the case in the absence of evidence to the contrary.[19]
[18](2012) 247 CLR 345, 403 [138] (‘Hellicar’).
[19]Reasons [798]–[799].
On this reasoning, the judge stated that it was ‘for Mr Landlord to establish that, despite the evidence constituted by the documents dated 1 July 2014, the units were units of the Brandi Family Trust in November 2020’.[20]
[20]Ibid [800].
The judge was not satisfied that ‘the contrary [was] proved’ in respect of the memorandum of resolutions bearing Jason’s signature.[21] As mentioned, he was not prepared to conclude that Jason’s signature was forged. While accepting Jason’s evidence that he did not attend a meeting on 1 July 2014, it was not put to David that the signature was forged, and the handwriting expert who gave evidence on the defendants’ account was not able to say whether it was forged. Indeed, no party contended, at the end of the day, that the signature was forged.[22]
[21]Ibid [801].
[22]Ibid [793]–[797].
Although the judge noted that he had been sceptical of the evidence of David and Tina that the documents dated 1 July 2014 came into existence in July 2014, their evidence was consistent with the ‘metadata’ on an 11-page PDF copy of the 1 July 2014 documents, which indicated that the copy was created on 31 July 2014.[23] By inference, therefore, the copied documents were created on or before that date.
[23]Ibid [676]–[677], [802], [808].
The judge addressed the consequences that would follow if Jason’s signature was forged, noting that no issue was now taken in that regard. He said:
In all the circumstances, no issue now being taken by the Jason Brandi parties … with the consequences of the fact, assuming it to be the case, that Jason did not sign the PDJ Crew Declaration of Trust or Memorandum of Resolutions, I am not satisfied that the effective transfer of units documented as between the David Brandi controlled parties, MPG and Timeless Sunrise, did not take place in July 2014.[24]
[24]Ibid [810].
The judge continued:
Mr Landlord has not satisfied me that, after July 2014, MPG continued to hold the units in its capacity as trustee of the Brandi Family Trust. I am not satisfied on the evidence given at the trial, that on or around 1 July 2014 there was not an effective transfer of MPG’s units in the PDJ Crew Unit Trust to Timeless Sunrise.
That is the case noting that the financial records relied on by the Jason Brandi parties in their submissions noted above, each of which are business records admissible as truth of the representations within them pursuant to s 69 of the Evidence Act, are consistent with there having been a transfer of the units to Timeless Sunrise.[25]
[25]Ibid [811]–[812] (emphasis in original).
The judge then turned to the liquidation of MPG on 25 February 2019. A liquidator’s report dated 24 May 2019 did not mention any assets in the form of units in the PDJ Crew Unit Trust. Accounts of MPG in its capacity as trustee of the Brandi Family Trust as at 30 June 2018 and 31 January 2019, both provided to the liquidator, did not include units in the PDJ Crew Unit Trust as assets. The judge noted that the documentary evidence may reflect an intentional, however illegitimate, decision to conceal unit holdings of MPG to avoid them being made available to creditors. But he said that the fact was that the units were not disclosed as an asset, and he could ‘only proceed on the basis of the evidence that [he had]’.[26]
[26]Ibid [815]–[816].
Based on that evidence, the judge found that Mr Landlord had ‘failed to satisfy’ him that, as of 25 February 2019, MPG continued to hold the units in the PDJ Crew Unit Trust. It followed from not having been so ‘persuaded’, there being no intervening transfer of units to the Brandi Family Trust, that he was not persuaded that the units were assets of that trust in November 2020 when Mr Landlord was appointed trustee.[27]
[27]Ibid [816]–[817].
Next, the judge made it clear that he was deciding the case on the basis of burden of proof, explaining:
I have expressed my findings … on the basis that I am not satisfied that Mr Landlord has proved on the balance of probabilities that the Brandi Family Trust owned the units in the PDJ Crew Unit Trust as at 25 February 2019. The twists and turns in the pleaded issues and in the evidence, first sought to be relied upon by Timeless Sunrise, then abandoned in favour of the Mr Landlord preferred case, only to be reinstated via cross-examination, are indicative of the unsatisfactory state of the evidence in relation to the events alleged to have occurred in July 2014. I am conscious of the caution expressed by the Court of Appeal in Eumeralla Estate in deciding [this] issue … by reference to the burden of proof. However, in this case Mr Landlord has fallen well short of establishing on the balance of probabilities that the units in the PDJ Crew Unit Trust remained the units of the Brandi Family Trust in February 2019. Without that being established, the claim by Mr Landlord to the units … must be dismissed. In light of my findings, there is no basis to make a vesting order … in favour of Mr Landlord.[28]
[28]Ibid [819].
By way of conclusion, the judge said:
To be clear, I am not persuaded that Timeless Sunrise holds the units. I am simply not persuaded that Mr Landlord does. Even if I was persuaded that Timeless Sunrise held the units, it would be totally inappropriate to make any declaration in its favour. Timeless Sunrise was the lead plaintiff in the Timeless Sunrise proceeding until it entirely abandoned its claim to be entitled to the units. It is bound by the manner in which it conducted its case.
The question of who is now properly entitled to the 60 units held by MPG in its capacity as trustee of the Brandi Family Trust in 2008 is a matter that may need to be determined in the future by the trustee of the PDJ Crew Unit Trust.[29]
[29]Ibid [821]–[822].
When it came to the JAG Group Unit Trust, the judge was comparatively brief. He said:
The David Brandi parties seek a declaration that Mr Landlord and BigJ are the current unitholders of the JAG Group Unit Trust, each holding 25 units out of a total of 50 issued units. The Jason Brandi parties do not agree to such an order and I do not propose to make it. The David Brandi parties have failed to discharge their burden of proving on the balance of probabilities that Mr Landlord has an entitlement to those units. The David Brandi parties’ case concerning the units in the JAG Group Unit Trust relies on the same evidence and the same arguments relied on in support of an order that 50% of units in the PDJ Crew Unit Trust vested in Mr Landlord as trustee of the Brandi Family Trust on 16 November 2020. For the reasons that the claim concerning the units in the PDJ Crew Unit Trust fails, the David Brandi parties’ claim in respect of the units in the JAG Group Unit Trust fails.[30]
[30]Ibid [1468].
Proposed grounds of appeal
The applicant seeks leave to appeal on two proposed grounds (omitting cross-references):
Ground One: PDJ Crew Unit Trust
(a)The primary judge erred in holding that he was not satisfied that [MPG] in its capacity as the trustee of the Brandi Family Trust held 60 units out of the 120 issued units in the PDJ Crew Unit Trust as at 25 February 2019 and 6 December 2019, because:
(i)in making that finding, the primary judge erroneously required the [applicant] to prove that there was not an effective transfer of the units in 2014; and
(ii)in any event, the primary judge ought to have been so satisfied, having found that MPG held those units in its capacity as the trustee of the Brandi Family Trust on and from March 2008 and that he was not persuaded that there was a transfer of the units in 2014.
(b)The primary judge ought to have held that MPG in its capacity as the trustee of the Brandi Family Trust held 60 units out of the 120 issued units in the PDJ Crew Unit Trust as at 25 February 2019 and 6 December 2019, such that those units vested in the [applicant] in its capacity as the trustee of the Brandi Family Trust on and from 20 November 2020.
Ground Two: JAG Group Unit Trust
(a)The primary judge erred in holding that he was not satisfied that MPG in its capacity as the trustee of the Brandi Family Trust held 25 units out of the 50 issued units in the JAG Group Unit Trust as at 25 February 2019 and 6 December 2019, because:
(i)in making that finding, the primary judge erroneously:
(A)proceeded on the basis that the [applicant’s] claim concerning those units involved the same evidence as the claim concerning the 60 units in the PDJ Crew Unit Trust;
(B)required the [applicant] to prove that there was not an effective transfer of the units in 2014; and
(ii)in any event, the primary judge ought to have been so satisfied, having found that MPG held those units in its capacity as the trustee of the Brandi Family Trust on and from November 2003 and that he was not persuaded that there was a transfer of the units in 2014.
(b)The primary judge ought to have held that MPG in its capacity as the trustee of the Brandi Family Trust held 25 units out of the 50 issued units in the JAG Group Unit Trust as at 25 February 2019 and 6 December 2019, such that those units vested in the [applicant] in its capacity as the trustee of the Brandi Family Trust on and from 20 November 2020.
Submissions
The applicant submitted that the judge erred in not being satisfied that MPG in its capacity as trustee of the Brandi Family Trust held 60 units in the PDJ Crew Unit Trust as at 25 February 2019 and 6 December 2019. It will be recalled that those were the dates on which MPG went into liquidation and was deregistered, respectively, which were critical points in the argument advanced on behalf of Mr Landlord. The applicant submitted that the judge ought to have made a finding that MPG held those units on the relevant dates.
The applicant contended that there were two errors in the judge’s approach. First, it was said that the judge wrongly imposed an onus of proof that required Mr Landlord to prove that the transfer of units to Timeless Sunrise had not occurred. This approach was said to be evident in the statement by the judge that he was not satisfied on the evidence that there was not an effective transfer of MPG’s units to Timeless Sunrise.[31] Similarly, the judge had said that the ‘scenario’ in which MPG held the units in 2019 would only apply if he ‘was persuaded that there was no effective transfer in 2014’.[32] In short, the applicant submitted that the judge had erroneously cast a burden on Mr Landlord to disprove the transfer to Timeless Sunrise.
[31]Ibid [811]; see [40] above.
[32]Ibid [823].
The applicant submitted that, once the question of the transfer to Timeless Sunrise had ceased to form part of any party’s pleaded case, there was no occasion for that issue to be determined. It was submitted that, when a particular issue is not pursued, the court will not determine it on its merits. To do so would make the conduct of litigation unmanageable.[33] The applicant submitted that a trial should be determined by reference to the issues which remain in contest.
[33]Commonwealth v Verwayen (1990) 170 CLR 394, 482 (Gaudron J) (‘Verwayen’).
The second error asserted by the applicant is that the judge, having found that he was not persuaded that there had been a transfer of units in July 2014, should have reached the only available conclusion, namely that the 60 units continued to be held by MPG. It was submitted that there was only one hypothesis competing with the case advanced by Mr Landlord, namely that the units were transferred to Timeless Sunrise. Unless that alternative hypothesis was accepted, the established fact of ownership by MPG was not displaced. Since the judge did not accept the alternative hypothesis, the burden of proof on Mr Landlord on the issue whether MPG held the units in 2019 was discharged.[34]
[34]Eumeralla Estate Pty Ltd v Chen [2022] VSCA 78 [52]–[53] (Maxwell P, Kennedy and Walker JJA) (‘Eumeralla Estate’).
The applicant submitted that, not having made any finding as to whether MPG disposed of the units on 1 July 2014, the judge should not have had regard to the possibility that there had been such a disposal. It was submitted that, in order to take account of the evidence about the alleged transfer on 1 July 2014, the judge would need to have found that the transfer either did or did not occur.[35]
[35]The applicant relied on Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 642–3 (Deane, Gaudron and McHugh JJ), 639–40 (Brennan and Dawson JJ); Trustees of the Christian Brothers v DZY (a pseudonym) [2024] VSCA 73 [127]–[134] (Beach and Macaulay JJA); DZY v Trustees of the Christian Brothers [2025] HCA 16 [32]–[35] (Gageler CJ, Gordon, Edelman and Gleeson JJ); Rhesa Shipping Co SA v Edmunds [1985] 2 All ER 712, 718 (Lord Brandon of Oakbrook, Lord Fraser of Tullybelton agreeing at 714, Lord Diplock agreeing at 714, Lord Roskill agreeing at 714, Lord Templeman agreeing at 719) (‘Rhesa Shipping’); and Guest v Nominal Defendant [2006] NSWCA 77 [3]–[5], [8] (Mason P), [133] (Ipp JA, Handley JA agreeing at [15]).
The second proposed ground of appeal concerns the JAG Group Unit Trust. On this aspect of the case, the applicant advanced three arguments. The first two reflected the arguments set out above in respect of the PDJ Crew Unit Trust. The third alleged error is that the judge wrongly decided the question as to the ownership of the 25 units in the JAG Group Unit Trust on the incorrect premise that it involved the ‘same evidence’ as the claim in respect of the PDJ Crew Unit Trust.
The applicant drew attention to the fact that the claim in respect of the JAG Group Unit Trust involved different transfer documents, and different oral evidence on the part of David and Tina Brandi. There was also no ‘metadata’ evidence in respect of the documents that were said to have effected the transfer to Timeless Sunrise of units in the JAG Group Unit Trust.
At the hearing in this Court, senior counsel for the applicant accepted that the applicant had conducted the trial on the basis that, apart from the identity of the relevant units, there was no relevant difference in the reasoning or factual matters involved in determining the issues in respect of each unit trust, which ought to be resolved in the same manner. It would be wrong in the circumstances to grant leave to appeal on the basis of the third alleged error set out above, which would permit the applicant to resile from the concession at trial that there was no relevant difference between the two cases. It would be equally wrong to grant leave to appeal in respect of the first two errors, to the extent that they involve looking at the issues relating to the JAG Group Unit Trust independently of the PDJ Crew Unit Trust. Instead, the cases in respect of the two unit trusts must stand or fall together.
No submissions were made by the respondents. The two trustees, PDJ Crew and JAG Group, filed notice that they did not intend to respond to or contest the application for leave to appeal or any appeal. The first respondent, BigJ, did not file any submissions or appear at the hearing.
Consideration — PDJ Crew Unit Trust
Onus
The judge stated at several points in his reasons that the onus of proof lay on the applicant. The relevant section of the reasons is headed ‘Mr Landlord has not proved that it is a unitholder in the PDJ Crew Unit Trust’.[36] The judge commenced his analysis by noting that he was required ‘to determine whether Mr Landlord has established on the balance of probabilities that upon its appointment as trustee of the Brandi Family Trust in November 2020 it became the holder of the 60 units held by MPG’ upon execution of the trust deed in 2008.[37] This meant that Mr Landlord had to establish that when it was appointed as trustee in November 2020 the units in the PDJ Crew Unit Trust were an asset of the Brandi Family Trust.[38]
[36]Reasons [769].
[37]Ibid [780].
[38]Ibid [781].
The judge went on to say that it was ‘for Mr Landlord to establish that, despite the evidence constituted by the documents dated 1 July 2014, the units were units of the Brandi Family Trust in November 2020.[39] Ultimately, the judge found that Mr Landlord had not satisfied him that, after July 2014, MPG continued to hold the units.[40] The judge made other references to not having been ‘persuaded’ or ‘satisfied’ by Mr Landlord that the Brandi Family Trust owned the units in the PDJ Crew Unit Trust as at 25 February 2019.[41]
[39]Ibid [800].
[40]Ibid [811].
[41]Ibid [816], [817], [819]; see also [821].
The applicant submits that, despite these clear indications that the judge recognised that the onus lay on Mr Landlord to establish that MPG owned the units as at 25 February 2019 (when MPG went into liquidation), the judge also incorrectly required Mr Landlord to prove that there was not an effective transfer of units on 1 July 2014. In particular, the judge said that he was ‘not satisfied that the effective transfer of units documented as between the David Brandi controlled parties, MPG and Timeless Sunrise, did not take place’.[42] He concluded:
Mr Landlord has not satisfied me that, after July 2014, MPG continued to hold the units in its capacity as trustee of the Brandi Family Trust. I am not satisfied on the evidence given at the trial, that on or around 1 July 2014 there was not an effective transfer of MPG’s units in the PDJ Crew Unit Trust to Timeless Sunrise.[43]
[42]Ibid [810].
[43]Ibid [811] (emphasis in original); see also [823].
The applicant contended that, once the pleadings were amended and the claim by Timeless Sunrise was not pursued, the trial was to be conducted according to the issues between the parties, and that other matters were not ‘in issue’. Otherwise, the court would not be resolving a controversy between contesting parties.[44]
[44]Mulqueen v Minister for Labour and Industry (1938) 38 SR (NSW) 583, 591–2 (Jordan CJ, Bavin J agreeing at 596, Owen J agreeing at 596); GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635, 643–4 [19]–[20], 654–5 [58]–[60] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32 (‘GLJ’).
The premise for this argument is not made out. It is true that there was no longer a pleaded case as to whether Timeless Sunrise acquired the units. But that issue was live between the parties as an aspect of Mr Landlord’s case that it held the units. On that case, the Jason Brandi interests relied on the evidence of David and Tina Brandi about the transfer in July 2014 to establish that MPG did not hold the units when it went into liquidation,[45] and so Mr Landlord could not have succeeded to them when it became trustee of the Brandi Family Trust. The judge was, as he held, not entitled to ignore the evidence of the July 2014 transfer.[46]
[45]Reasons [773].
[46]Ibid [289], [782]; Roberts-Smith v Fairfax Media Publications Pty Ltd [2025] FCAFC 67 [39] (Perram, Katzmann and Kennett JJ).
On that issue, the judge relied on s 251A(6) of the Corporations Act. That provision raised the question whether the David Brandi interests could prove the contrary of the resolution in the 1 July 2014 memorandum of resolutions. The judge said that he was ‘not satisfied’ that this had been done.[47] He cited a passage in the reasons of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hellicar to the effect that the minutes in that case were evidence of what they represented, and that ‘[a]bsent evidence to the contrary, ASIC proved its case by tendering the minutes’.[48] The judge did not refer to the observation of Heydon J in the same case to similar effect, namely that s 251A(6) creates a ‘presumption that any resolution recorded in the minutes had been passed, rebuttable only if the contrary had been “proved”’.[49]
[47]Reasons [801].
[48]Reasons [799], citing Hellicar (2012) 247 CLR 345, 403 [138].
[49]Hellicar (2012) 247 CLR 345, 420 [194].
The memorandum of resolutions of PDJ Crew recorded a resolution by Jason Brandi as sole director on 1 July 2014 to approve the transfer of 60 units from MPG to Timeless Sunrise, a request that the secretary complete the documents required to reflect the change of ownership, and a resolution to complete a new unit certificate.
Against that background, it fell to the David Brandi interests to disprove the transaction evidenced by the memorandum of resolutions. Having considered the evidence, and in particular the metadata on the 11-page PDF copy of the 1 July 2014 documents, and noting that it was no longer contended that Jason Brandi did not sign the memorandum or declaration of trust, the judge stated that he was ‘not satisfied that the effective transfer of units documented as between the David Brandi controlled parties, MPG and Timeless Sunrise, did not take place in July 2014’.[50] He summarised his conclusion as set out above. The conclusion that the judge was ‘not satisfied on the evidence given at the trial, that on or around 1 July 2014 there was not an effective transfer of MPG’s units in the PDJ Crew Unit Trust to Timeless Sunrise’ reflects the application of s 251A(6) in his analysis.
[50]Reasons [810].
Even without reference to s 251A(6), however, it was pertinent for the judge to decide whether, notwithstanding the evidence of a transfer on 1 July 2014, MPG still held the units when it went into liquidation. The evidence of such a transfer, adduced and relied on by the Jason Brandi interests, which included the oral testimony of David and Tina in cross-examination, stood squarely in the way of the finding Mr Landlord sought. No impermissible onus was involved in the judge’s conclusion that Mr Landlord had failed in the endeavour to shift that obstacle.
Effect of no finding as to transfer of units
The second error which the applicant asserts arises as a result of the judge not having made any finding as to whether or not the transfer of units took place on or around 1 July 2014. The applicant submits that, because the judge did not find that the units were transferred to Timeless Sunrise, the established fact of MPG’s ownership of the units since 2008 was not displaced and the burden of proof on Mr Landlord to show that MPG held the units in 2019 was discharged.[51]
[51]Eumeralla Estate [2022] VSCA 78 [52]–[53] (Maxwell P, Kennedy and Walker JJA).
The applicant invoked a number of broad principles said to lead to this conclusion, relying on cases in which courts have addressed the difference between making a finding of fact and acting on the possibility of a fact existing without making any determinative finding.
First, as mentioned earlier, the applicant submitted that the consequence of abandoning a claim or defence is that the point is not in issue in the trial, and the trial proceeds on that basis.[52] Accepting that to be so as a general proposition, it is clear that the question whether the transfer of units took place on or around 1 July 2014 was in issue in the trial. As already noted, the Jason Brandi interests adduced evidence by cross-examination (and also through financial records they tendered), and made submissions, to the effect that the transfer had taken place. This was the real controversy in this aspect of the case. It was decided on the basis that the matter was in issue, irrespective of the fact that it was not pleaded.[53]
[52]Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] (2021) 57 WAR 468, 527 [193] (Buss P, Murphy and Beech JJA), citing Verwayen (1990) 170 CLR 394, 482 (Gaudron J).
[53]See Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490, 517 (Isaacs and Rich JJ); Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, 286–7 (Mason CJ and Gaudron J), 288 (Brennan J), 296–7 (Dawson J), 302–3 (Toohey J).
The applicant also relied on authorities to the effect that, in the adversarial system, the judge hears and determines the issues raised by the parties and does not conduct any wider investigation or examination.[54] Again accepting that to be the case, this was, for the reasons already set out, not an instance of a judge introducing a new issue into the case. The issues decided by the judge were raised by the parties for his determination, albeit that the trial proceeded in an unusual way. The judge was not responsible for the parties’ manoeuvrings about the issue of the July 2014 transfer during the trial.
[54]GLJ (2023) 414 ALR 635, 643 [20] (Kiefel CJ, Gageler and Jagot JJ).
Next, the applicant referred to authorities to the effect that the finder of fact in a trial is required to decide the points in issue one way or the other, and not to decide the case simply by weighing the probabilities attaching to competing possibilities. The principal case the applicant relied on was Malec v JC Hutton Pty Ltd.[55] The case concerned the assessment of future damages for personal injury. Deane, Gaudron and McHugh JJ said the following in the course of considering that issue:
When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different.[56]
[55](1990) 169 CLR 638.
[56]Ibid 642–3.
As the applicant submitted, the former approach treats the matter as a binary issue. The relevant event either did or did not occur. The reasoning was said not to be confined to the assessment of damages. The applicant sought to apply it to the question of the July 2014 transfer, contending that the judge had to decide that it took place if he was to take the matter into account as part of the determination whether MPG held the units as at February 2019.
The applicant referred also to In re B,[57] where Lord Hoffmann described the judge’s task in this way:
If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.[58]
[57][2009] AC 11.
[58]Ibid 17 [2] (Lord Hoffmann, Lord Rodger of Earlsferry agreeing at 21 [18], Lord Walker of Gestingthorpe agreeing at 21 [19]). See also Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, 231 [35] (Sackville J); Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 [128]–[130] (Handley AJA).
Reliance was also placed on extra-judicial observations of Gageler CJ, to the following effect:
Within an adversary system, the party who asserts the existence of a fact which another party disputes ordinarily bears the burden of its proof. The question for the tribunal of fact is not the abstract question of whether the fact exists but the more concrete question of whether the tribunal is satisfied at the conclusion of the contest that the fact has been proved to the requisite standard. The requisite standard of proof in a civil proceeding is traditionally expressed as being ‘on the balance of probabilities’.[59]
[59]Justice Gageler, ‘Evidence and Truth’ (2017) 13(3) Judicial Review 249, 4–5.
The Chief Justice explained:
The approach we have taken … is all or nothing. We treat past events, the occurrence of which is uncertain, as having either happened or not happened. We force ourselves to decide one way or the other and we impose or decline to impose liability according to the outcome of that binary decision.[60]
[60]Ibid 6.
The applicant therefore submitted that, even if it fell to Mr Landlord to prove that the alleged transfer of units in July 2014 did not take place, the judge was required to decide whether or not the transfer happened. Not having done so, it was said to be wrong for the judge to have taken into account the possibility that the transfer took place when addressing the ultimate question about the ownership of the units when MPG went into liquidation.
In this context, the applicant referred to Trustees of the Christian Brothers v DZY (a pseudonym),[61] a judicial review application in respect of an application to set aside a settlement agreement. The trial judge in that matter had to decide whether it was just and reasonable to set the agreement aside. He declined to do so, including because it was not possible to find that the existence of certain legal defences had no material influence on the plaintiff’s decision not to pursue his full claim. This Court held that the judge had only decided that he could not exclude the possibility that the defences might have materially influenced the plaintiff’s decision not to pursue an economic loss claim. Beach and Macaulay JJA said:
The House error was to take into account an irrelevant consideration. The associate judge took into account, as a factor in favour of finding that it was just and reasonable to set aside the settlements in their entirety, the mere possibility that DZY was influenced by the … defences in making his decisions in 2012 and in 2015 not to pursue a claim for economic loss.[62]
[61][2024] VSCA 73.
[62]Ibid [126] (Beach and Macaulay JJA).
Beach and Macaulay JJA also said:
If, contrary to our view, the associate judge did purport to infer as a positive fact that the limitations and … defences materially influenced DZY’s decision not to pursue an economic loss claim, the associate judge did so by a process of speculation, rather than by drawing ‘the more probable inference’. There was no evidence to make that conclusion more probable than not. We therefore accept the submission that to do so was to make a legal error in the process of drawing an inference.[63]
[63]Ibid [133] (citation omitted).
An appeal to the High Court was dismissed.[64] Gageler CJ, Gordon, Edelman and Gleeson JJ held that a finding that the defences could not be excluded as factors material to the decision to enter the settlement agreement was not the same thing as a finding that they were indeed a material factor.[65]
[64]DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16.
[65]Ibid [34].
The applicant acknowledged that there were situations where a ‘third alternative’ applied, namely that the judge could not decide between competing findings and was simply not satisfied of the matter sought to be established.[66] It was said that this case was different, because there was an established fact, namely that MPG held the units after March 2008. The applicant submitted that the reasoning of the High Court in Ryan v Trustees Executors and Agency Co Ltd (‘Ryan’) applied.[67]
[66]The applicant referred to Eumeralla Estate [2022] VSCA 78 [52]–[54] (Maxwell P, Kennedy and Walker JJA); Rhesa Shipping [1985] 2 All ER 712, 718 (Lord Brandon of Oakbrook, Lord Fraser of Tullybelton agreeing at 714, Lord Diplock agreeing at 714, Lord Roskill agreeing at 714, Lord Templeman agreeing at 719); Guest v Nominal Defendant [2006] NSWCA 77 [3]–[5], [8] (Mason P), [133] (Ipp JA, Handley JA agreeing at [15]); and Ryan v Trustees Executors and Agency Co Ltd (1937) 109 ALJ 461.
[67](1937) 10 ALJ 461. There appears to be no medium neutral citation for this decision, of which only a summary is reported, with the citation indicated. The full judgment can be found at
Ryan concerned an alleged gift of securities by a person, who was since deceased, to his wife. The trial judge rejected the evidence of the wife to the effect that the alleged gift had been made, but was also not prepared to say that no gift had been made. He determined the case upon the basis that, as it had been proved that the deceased was the owner of the securities, it was to be presumed that ownership continued until something happened which terminated it. The judge gave judgment for the plaintiff executor because he was unable to find any fact showing that ownership had terminated.
The defendant appealed on the basis that she was entitled to success because she was in actual possession of the securities, which stood as prima facie proof of ownership.
The High Court dismissed the appeal, holding that the defendant had only proved possession in fact. Latham CJ held that the plaintiff was entitled to rely on the fact that there was no evidence of any change of ownership. In the absence of evidence of change of ownership, the ownership of the deceased was deemed to continue.
Ryan is distinguishable from the present case because here there is evidence of an intervening change of ownership, in July 2014. For that reason, Mr Landlord cannot invoke Ryan to support a finding that MPG’s ownership of the units from March 2008 established its ownership as at February 2019.
At first blush, Ryan might be thought to support Mr Landlord in a different way. Latham CJ held that it did not matter that the plaintiff was unable to prove the negative proposition that there was no intervening change of ownership. McTiernan J held that the onus of proving title was on the plaintiff, and remained on it throughout. It was not necessary, however, for the plaintiff to prove that a gift had not been made to the defendant.[68] It could be said, therefore, that Mr Landlord was also not required to prove that a transfer to Timeless Sunrise had not taken place. However, the observations in Ryan were made in the context of a case in which the only evidence of an intervening change of ownership, being that of the defendant, was not accepted by the trial judge. The defendant was then left with nothing but evidence of possession. In the present case, however, there was evidence of a change of ownership.
[68]Rich J reached the same result but applied a different approach, referring to ‘shifting presumptions of fact arising from the progress of the proof’.
That being so, the judge was obliged to consider that evidence.[69] In Eumeralla Estate, this Court cited with approval the observation of Santamaria JA in Melbourne Orthopaedic Group Pty Ltd v Stamford Aus-Trade & Press Pty Ltd,[70] to the effect that it ‘is proper for a judge to assess which of several competing hypotheses is to be preferred provided the court always keeps in mind upon whom the onus lies’.[71] The Court continued:
In considering whether a party has discharged its onus, it will often be appropriate, or even necessary, for the judge to determine whether the alternative version of events put forward by the opposing party is to be accepted; for if that alternative version of events were to be positively accepted, then plainly the party that bore the onus would not have discharged it.[72]
[69]EumerallaEstate [2022] VSCA 78 [53] (Maxwell P, Kennedy and Walker JJA).
[70][2015] VSCA 150 [109] (Ashley JA agreeing at [1], Digby AJA agreeing at [144]).
[71]Eumeralla Estate [2022] VSCA 78 [54] (Maxwell P, Kennedy and Walker JJA).
[72]Ibid.
The critical issue, then, is whether the judge, when considering the alternative version of events put forward by the Jason Brandi interests in the present case, namely the alleged transfer in July 2014, was required to make a finding as to whether or not the transfer took place.
In our opinion, he was not. The issue for resolution was whether MPG held the units as at February 2019. There was evidence that it held the units in March 2008 and evidence that they were transferred to Timeless Sunrise on 1 July 2014. The onus lay on Mr Landlord. Unless Mr Landlord persuaded the judge that the transfer did not take place, the judge could not be satisfied that MPG held the units in February 2019.
It was not for the Jason Brandi interests to prove that the transfer took place. They were the defendants, seeking to persuade the judge only that Mr Landlord had not discharged its onus. If the evidence of the transfer was sufficiently compelling to prevent the judge being satisfied as to MPG’s ownership in February 2019, that was enough for Jason’s purposes. In effect, this was an application of the ‘third alternative’ identified in Rhesa Shipping, namely the judge concluding that he was left in doubt and that, in the circumstances, the case should be dismissed simply on the ground that Mr Landlord had not discharged the burden of proof that lay on it.[73] As Lord Brandon of Oakbrook put it in that case:
[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.[74]
[73][1985] 2 All ER 712, 717–18 (Lord Brandon of Oakbrook, Lord Fraser of Tullybelton agreeing at 714, Lord Diplock agreeing at 714, Lord Roskill agreeing at 714, Lord Templeman agreeing at 719).
[74]Ibid.
To similar effect, Dixon CJ observed in Murray v Murray,[75] elaborating on what he had said in Briginshaw v Briginshaw[76] as to proof of any fact requiring an ‘actual persuasion of its occurrence or existence’ rather than a ‘mere mechanical comparison of probabilities’:
What the civil standard of proof requires is that the tribunal of fact, in this case the judge, shall be ‘satisfied’ or ‘reasonably satisfied’. The two expressions do not mean different things … But the point is that the tribunal must be satisfied of the affirmative of the issue. The law goes on to say that he is at liberty to be satisfied upon a balance of probabilities. It does not say that he is to balance probabilities and say which way they incline. If in the end he has no opinion as to what happened, well it is unfortunate but he is not ‘satisfied’ and his speculative reactions to the imaginary behaviour of the metaphorical scales will not enable him to find the issue mechanically.[77]
[75](1960) 33 ALJR 521.
[76](1938) 60 CLR 336, 361.
[77](1960) 33 ALJR 521, 524 (Taylor J agreeing at 526). See also Justice Gageler, ‘Truth and Justice, and Sheep’ (2018) 46 Australian Bar Review 205, 208.
If ever there was a case in which, paraphrasing Lord Brandon of Oakbrook, ‘owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course’, it was this one. The judge expressly referred to Eumeralla Estate, and was aware of the caution expressed in that case about deciding a factual dispute upon the burden of proof.[78] The conflict in the evidence with which the judge was confronted involved the principal parties relying on evidence given by each other in preference to their own, being witnesses whom the judge had found to be dishonest and unreliable.
[78]Reasons [819].
Mr Landlord simply failed to prove its case, and no error has been identified in the judge’s conclusion to that effect. Leave to appeal should be refused.
Consideration — JAG Group Unit Trust
The same result follows in respect of the JAG Group Unit Trust. As described above,[79] the evidence of the relevant witnesses in that context was different. In addition, there was no metadata evidence in respect of the PDF versions of the documents dated 1 July 2014 that were said to evidence the transfer of units in the JAG Group Unit Trust. But these differences are not important. The judge applied the same onus, correctly, as in relation to the PDJ Crew Unit Trust, and was similarly unsatisfied that it had been discharged. While there was no metadata specific to the JAG Group Unit Trust documents, the fact that the metadata as to the PDJ Crew Unit Trust documents buttressed the credibility of David and Tina’s evidence on that subject logically had the same consequence in respect of their allied evidence regarding the JAG Group Unit Trust. Their evidence was that both transfers took place at the same time and for a common purpose, being the preservation of the assets of the trusts.
[79]See [21]–[24], [28]–[29] above.
The final aspect of the second proposed ground of appeal takes issue with the judge having proceeded on the basis that the evidence in respect of the two unit trusts was the same. That argument is rejected for the reasons just stated. It must also be rejected because, as counsel for the applicant properly accepted, the judge had been invited at trial by Mr Landlord to proceed on that very basis. As noted earlier,[80] even if there was substance in the other aspects of this ground, we would not grant leave to appeal in those circumstances.
[80]See [54] above.
Conclusion
Leave to appeal is refused.
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SCHEDULE OF PARTIES
MR LANDLORD PTY LTD (ACN 116 921 834) as trustee for the BRANDI FAMILY TRUST First applicant and BIGJ ENTERPRISES PTY LTD (ACN 084 199 084) as trustee for the JASON BRANDI FAMILY TRUST First respondent MICHAEL CARRAFA as trustee for PDJ CREW UNIT TRUST and the JAG GROUP UNIT TRUST Second respondent FABIAN KANE MICHELETTO as trustee for PDJ CREW UNIT TRUST and the JAG GROUP UNIT TRUST Third respondent
0
17
0