Pham v ANZ Banking Group Ltd - [2002] VSCA 206

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 2038 of 1998

CHA VAN PHAM & ORS
CHA VAN PHAM & ORS	Appellants
v.
ANZ BANKING GROUP LTD.	Respondent No 2039 of 1998
ANZ BANKING GROUP LTD.	LUU CONG PHAM & ORS	Appellants

ANZ BANKING GROUP LTD. Respondent

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JUDGES:	CHARLES, BATT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	15 and 18 July, 13 and 14 August 2002
DATE OF JUDGMENT:	13 December 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 206

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APPEAL – Practice – Late application to amend Notice of Appeal – Discretionary considerations – Fresh evidence – Costs thrown away – Application refused.

APPEAL – Fresh evidence – Availability at trial and character of evidence – Reasons for non-production at trial – Credibility of fresh evidence.

APPEAL – Findings of fact – When challengeable on appeal – Inferences available from non-calling of witness.

GUARANTEE AND INDEMNITY – Contract of guarantee – Nature of disclosure necessary to surety – Whether non-disclosure.

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APPEARANCES:	Counsel	Solicitors
For the Appellant (15 & 18 July)	Mr K.M. Pham	Assisting the Pham family & Ors
For the Appellant (13 & 14 August)	Mr G.J. Parncutt	John V. Hayes
For the Respondent	Mr D.H. Denton, S.C. Mr C.M. Sievers	Freehills
For the Seventh Respondent	Mr R.W. McGarvie	Ebsworth & Ebsworth

CHARLES, J.A.:

There are before this Court two appeals, each of which arose in respect of moneys lent by the respondent (“the bank”) to interests associated with members of an extended Vietnamese family (which I will refer to collectively as “the Phams”). In both proceedings the bank sought first to recover moneys advanced and secured by various mortgages and guarantees and secondly to obtain possession of properties which were the subject of relevant mortgages.

Appeal No. 2038/98

In this matter the action was commenced by writ issued on 15 May 1998 by the bank as plaintiff originally against six defendants. The third defendant was Cha Van Pham (“Cha”) and the fourth defendant was Ba Thi Ha (“Ba”), his wife. The first defendant was An Ngoc Pham (“An Ngoc”), a son of Cha and Ba, against whom default judgment was entered. The second defendant was Trung Minh Pham (“Trung”), also a son, but who was not served with the writ. The fifth defendant was Hoang Khai Pham (“Khai”), a third son of Cha and Ba, and the sixth defendant was Thi Trang Tran (“Trang”), Khai’s wife.

In this action Lincolns, a firm of solicitors who had acted for the Pham family, was joined as a third party by Cha, Ba, Khai and Trang. After commencement of the trial, the bank sought and was granted leave to join Lincolns as the seventh defendant. Ms Joyce Khoo, a solicitor employed by Lincolns, was also joined in the proceedings, but that third party claim was later struck out by consent.

The action came on before a judge of this Court on 14 April 1999 and after a trial lasting 21 days, on 8 December 1999 her Honour delivered judgment in favour of the bank. Then…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pham v ANZ Banking Group Ltd

Details

AGLC: Pham v ANZ Banking Group Ltd [2002] VSCA 206
Case: [2002] VSCA 206
Decision Date: 13 December 2002

CaseChat Overview and Summary

In the case of Pham v ANZ Banking Group Ltd, the respondent sought to amend their Notice of Appeal after the appeal had been listed for hearing. The primary issue was whether the Court should permit the late amendment, given the appellant's argument that the amendment would cause unfairness and prejudice. The second issue involved whether the fresh evidence presented was truly new and whether the appellant had a valid reason for not producing it at the original trial. Additionally, the appeal questioned the sufficiency of the evidence presented at the original trial to support the findings of fact made by the primary judge.

The Court of Appeal considered the discretionary factors relevant to permitting a late amendment to a Notice of Appeal, including the reasons for the delay, the likelihood of prejudice to the opposing party, and the merits of the proposed amendment. The Court concluded that the application was untimely and would cause significant prejudice to the appellant, thereby refusing the application. Regarding the fresh evidence, the Court determined that the evidence was not truly new, as it was available and potentially could have been produced at the original trial. The Court also assessed the credibility of the fresh evidence and found it insufficient to warrant a different outcome. Lastly, the Court examined whether the findings of fact made by the primary judge could be challenged on appeal, considering the inferences that could be drawn from the non-calling of a particular witness. Ultimately, the Court found that the evidence supported the primary judge's findings.

Given the refusal to amend the Notice of Appeal, the original findings of the primary judge were upheld. The Court found that the fresh evidence did not warrant a different outcome and that the primary judge's findings were supported by the evidence presented. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders