Trang v Le
[2005] VSC 209
•15 June 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6228 of 2002
| VINH VAN TRANG | Plaintiff |
| v | |
| THU HA THI LE | Defendant |
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JUDGE: | Williams J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20, 21, 22, 26, 27, 28, 29 April 2005, 11 May 2005 | |
DATE OF JUDGMENT: | 15 June 2005 | |
CASE MAY BE CITED AS: | Vinh Van Trang v Thu Ha Thi Le | |
MEDIUM NEUTRAL CITATION: | [2020] VSC 209 | |
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De Facto Relationships - Adjustment of property interests under Part IX Property Law Act 1958 - Whether parties were de facto partners living together in a de facto relationship - Contributions to acquisition of property of de facto relationship - Section 285 Property Law Act 1958.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Spicer | Nguyen Tan Hai |
| For the Defendant | Mr R. B. Phillips | Lewenberg & Lewenberg |
HER HONOUR:
The plaintiff (“Mr Trang”) has applied for orders under Part IX of the Property Law Act 1985 (“the Act”), adjusting the interests of the parties in a property at 99 The Avenue, Ardeer, Victoria (“the Ardeer property”) of which the defendant (“Ms Le”) is the sole registered proprietor. Alternatively, he seeks a declaration that he is entitled to an interest in the Ardeer property by way of constructive trust. Essentially, Mr Trang seeks a one half interest in the Ardeer property, as well as consequential orders for its sale, or the purchase of his interest by Ms Le. He does not persist with a claim for orders relating to personal property sought in the statement of claim annexed to the writ filed on 3 July 2002.
Mr Trang claims that the parties lived as “de facto partners” in a “de facto relationship,” as defined by s 275 of the Act, from 10 February 1978 to 17 July 2000, spending the time between 10 February 1982 and 17 July 2000 in Victoria. Ms Le denies both the relationship and Mr Trang’s claimed entitlement to relief.
The Act
The Act was substantially amended by the Statute Law Amendment (Relationships) Act 2001, with effect from 8 November 2001. However, it is common ground between the parties that the amendments do not apply to any relationship between the parties. At relevant times, the Act provided :
“PART IX—PROPERTY OF DE FACTO PARTNERS
Division 1—Preliminary
275. Definitions
In this Part—
"de facto partner" means—
(a)in relation to a man, a woman who is living or has lived with the man as if she were his wife although not married to him; and
(b)in relation to a woman, a man who is living or has lived with the woman as if he were her husband although not married to her;
"de facto relationship" means the relationship between de facto partners of living or having lived together as if they were husband and wife although not married to each other; …
Division 2—Orders for Adjustment of Property Interests
279. Application for orders under this Division
(1)A de facto partner may apply to a court for an order for the adjustment of interests with respect to the property of one or both of the de facto partners.
(2)An application may be made whether or not any other application for any remedy or relief has been or may be made under this Act or any other Act or any other law.
280. Conditions for making of order—living within State etc.
A court may make an order under this Division only if it is satisfied—
(a)that one or both of the de facto partners lived in Victoria on the day on which the application was made; and
(b)that—
(i)both partners have lived together in Victoria for at least one third of the period of their relationship; or
(ii)substantial contributions of the kind referred to in section 285(1)(a) or (b) have been made in Victoria by the partner making the application.
281. Conditions for making of order—length of relationship etc.
(1)A court may only make an order under this Division if it is satisfied that the de facto partners have lived together in a de facto relationship for a period of at least 2 years, except as provided by sub-section (2).
(2)A court may make an order if it is satisfied—
(a)that there is a child of the de facto partners; or
(b) that failure to make the order would result in serious injustice to the de facto partner who applied for the order and that partner—
(i)has made substantial contributions of the kind referred to in section 285(1)(a) or (b) for which the partner would otherwise not be adequately compensated if the order were not made; or
(ii)has the care and control of a child of the other de facto partner.
282. Time limit for making applications
(1)If de facto partners have ended their de facto relationship, an application to a court for an order under this Division must be made within 2 years after the day on which the relationship ended.
(2)A court may grant leave to a de facto partner to apply for an order at any time after the end of the period referred to in sub-section (1) if the court is satisfied that greater hardship would be caused to the partner applying if that leave were not granted than would be caused to the other partner if that leave were granted.
283. Relevant facts and circumstances
If a court is satisfied about the matters specified in section 280(a) and (b), it may make or refuse to make an order because of facts and circumstances even if those facts and circumstances, or some of them, occurred before the commencement of the Property Law (Amendment) Act 1987 or outside Victoria.
285. Order for adjustment
(1)A court may make an order adjusting the interests of the de facto partners in the property of one or both of them that seems just and equitable to it having regard to—
(a)the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to the acquisition, conservation or improvement of any of the property or to the financial resources of one or both of the partners; and
(b)the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the de facto partners to the welfare of the other de facto partner or to the welfare of the family constituted by the partners and one or more of the following—
(i)a child of the partners;
(ii)a child accepted by one or both of the partners into their household, whether or not the child is a child of either of the partners; and
(c)any written agreement entered into by the de facto partners.
(2)A court may make the order whether or not it has declared the title or rights of a de facto partner in respect of the property.”
If Mr Trang’s evidence is accepted, his claim was brought within time, under s 282 of the Act. The conditions for the making of an order, in s 280 and s 281, have been satisfied as the relationship spanned a period well in excess of the necessary two years and the parties lived together in Victoria for at least one third of the period of the relationship.
The issues
This case is an unusual one, in the sense that the parties are in dispute not only as to whether any relationship between them should be characterised as a “de facto relationship,” but also as to whether they had a relationship at all, or for any more than a very short period. There is a stark contrast between their respective descriptions of the nature of their association, both before and after their arrival in Australia, on 10 February, 1982.
The witnesses
Mr Trang and Ms Le each gave oral evidence. I say, at the outset, that I accepted Mr Trang’s evidence and preferred it wherever his account differed from that provided by Ms Le. I found Ms Le’s version of events to be highly improbable and her evidence unconvincing throughout. Her evidence seemed, on occasion, to be internally inconsistent and to differ from the allegations made in her amended defence filed on 11 April 2003. Mr Trang’s allegations were, by and large, supported by the documentary evidence, whereas, in my opinion, Ms Le’s were not.
I am persuaded to adopt Mr Trang’s evidence as to the relevant facts, except in so far as his recollection failed to accord with the documentary evidence. I note that I do not consider that any differences between his account of the details of a relationship spanning some 22 years and anyobjectively ascertainable information reflected adversely on his credibility. He impressed me as a witness trying to be truthful and ever ready to acknowledge Ms Le’s hard work and her contributions to the welfare of the family and its acquisition of property.
Mr Trang called his sister in law, Mrs Ngo Thi Bach Hoa (“Mrs Ngo”), his nephew, Mr Thanh Hung Trang (“Mr Thanh Trang”), his cousin, Ms Thu Hong Thi, and his friends, Mr Tony Luu and Mr Thanh Khai Le. Counsel for Ms Le makes a number of criticisms of the evidence of these witnesses. He submits that Ms Ngo should be regarded by the Court as a partial witness, because of her relationship with Mr Trang. He argues that little weight should be accorded to the testimony of the remaining witnesses, for reasons such as the generality of their observations and their vagueness in relation to their recollections. Although I have taken these criticisms into account, I have not been persuaded to reject the evidence in question. I conclude that the evidence of the witnesses called by Mr Trang generally supported his account and militated against the accuracy of that given by Ms Le and the witnesses she called.
Ms Le called her daughter, Ms Hoang Anh Trang (“Ms Hoang Trang”), her sister, Mrs Tran Thi Tot (“Mrs Tot”), and her friends, Mrs Vo Thi Ngoc Hanh (“Mrs Hanh”), Mr Thii Hong Danh (“Mr Danh”) and Mrs Luu Thi Tim (“Mrs Tim”).
Ms Hoang Trang was a young woman placed in the very difficult position of being involved in litigation between her parents and of being obliged to support one against the other. She lived with her mother and appeared to have had a close relationship with both her parents. I took these factors into account when assessing the weight to be given to her testimony. I did not accept her evidence in so far as it conflicted with that of her father.
Ms Le’s sister, Mrs Tot, had lived with the family since her arrival in Australia in 1997, notwithstanding her subsequent marriage. Mrs Tot lived with Ms Le at the date of giving her evidence. Her only work in Australia had been for businesses carried on by her sister and Mr Trang. She had otherwise relied upon social security payments. In my view, both her close relationship with and apparent dependence upon Ms Le prevented her from being impartial. I did not find her evidence as to her life with her husband to be convincing and concluded that she generally lacked credibility. I did not accept her evidence when it conflicted with that of Mr Trang.
I did not find Ms Hanh’s evidence persuasive. She appeared to be trying to assist Ms Le by saying whatever she thought might help, notwithstanding any inconsistency with her own previous testimony. Mr Danh and Mrs Tim had each visited Ms Le and claimed not to have heard of Mr Trang. I am sceptical about the truth of the their claims in relation to Mr Trang and am not persuaded by their testimony to reject Mr Trang’s version of events.
Findings of fact
On the basis of Mr Trang’s evidence, I make the findings of fact set out in the following paragraphs. I will make some reference to Ms Le’s evidence and the submissions made on her behalf, in the course of stating my conclusions as to the facts.
Mr Trang was born on 30 January 1956. He was educated in Soc Trang, Hau Giang Province, Vietnam, before moving to Saigon to study law. He had completed two years of his law studies at a university in Saigon before 1975, when the city fell to the communist North Vietnamese. He was not permitted to continue his studies, because of his family’s support for the previous regime and his racial background, as an ethnic Chinese man. He returned to his home town, Soc Trang, where he renewed his friendship with Ms Le, a former schoolmate and the daughter of a local farmer.
Ms Le was born on 30 November 1956. She was a member of a large family, having nine brothers and sisters. Mr Trang’s mother and Ms Le’s father decided that the couple should be married and fixed 10 February 1978 as the date for the wedding which followed. Although there were ceremonies, held at each party’s family home, associated with the marriage and wedding celebrations involving numerous family members and friends, the union was never formalised under Vietnamese law by the registration of the marriage. The marriage was not registered because Mr Trang intended to flee from Vietnam and did not wish to draw the attention of the authorities to his whereabouts. I reject Ms Le’s evidence that there was no marriage. I accept the evidence of the witnesses, Mr Trang’s sister in law, Mrs Ngo, and his nephew, Mr Thanh Trang, who both attended the wedding ceremony. I am not persuaded by counsel for Ms Le’s submissions to the effect that Mr Trang had failed to prove that the wedding occurred, because he only called partisan family members to give evidence about the matter. I found Mrs Ngo and Mr Thanh Trang to be convincing witnesses, notwithstanding their respective relationships with Mr Trang. Mr Thanh Trang was born on 20 February 1969 and I found it quite understandable that Mr Thanh Trang’s recollection of events which occurred when he was only some nine years old might be somewhat hazy. By way of contrast, I did not find convincing Mrs Tot’s evidence to the effect that there had been no marriage in Vietnam and that her pregnant younger sister had not revealed to her the identity of the father of her child. I also note that I was not persuaded by the argument that I should conclude that no marriage occurred because Mr Trang could not produce the one photograph of the marriage which I am satisfied was enlarged and framed and had been hanging in the house at the Ardeer property at the date of the breakdown of the relationship between the parties.
The couple lived together in Soc Trang after their marriage. Mr Trang worked as a watch repairer and salesperson and Ms Le was employed as a cashier in an electrical goods shop. A pattern commenced of Mr Trang giving his wages to Ms Le, for use for the family’s needs.
In 1979, Mr Trang’s mother died and Ms Thu Hong Thi, Mr Trang’s cousin, met Ms Le, as her cousin’s wife, at the funeral. The couple’s desire to leave Vietnam increased with the birth of their daughter, Ms Hoang Trang, on 30 November of the same year. Mr Trang and Ms Le planned to escape by boat with the assistance of relatives who did not charge for their help.
In February 1982, Mr Trang and Ms Le came to Australia, as refugees, accompanied by their infant daughter and Mr Thanh Trang who was then aged 12. Initially, after a three day boat trip, they had arrived in Malaysia. They had spent some months in refugee camps in Malaysia. Mr Trang had applied to the United Nations High Commission for Refugees and was granted a visa for travel to Australia on or about 2 February 1982. Ms Le, Ms Hoang Trang and Mr Thanh Trang were shown as persons included on the visa. I note at this point that I find singularly unpersuasive and far-fetched Ms Le’s evidence to the effect that it was simply co-incidental that she and Mr Trang came to Australia at the same time and that she had intended to leave Vietnam, with his daughter, without notifying him. I reject her testimony that she did not know that he would be on the boat before she arrived to board it and her evidence that Mr Trang introduced her to his nephew, when the boat reached Malaysia.
After arriving in Australia, on 10 February 1982, Mr Trang, Ms Le and Ms Hoang Trang lived as a family in Melbourne, at various addresses, until late 1999 or early 2000, when they took possession of the Ardeer property.
The family lived together at a hostel, a flat in Balaclava and at several housing commission flats in Richmond from February 1982 to 1987. Meanwhile, at the end of 1982, Mr Thanh Trang left them and went to Adelaide to live with other family members.
In September 1983, Ms Le gave birth to a second child of the union. Unfortunately, the baby did not survive. Ms Le at one point admitted that she and Mr Trang were “romantically involved” and lived and slept together at Baker Street, Richmond for some months. I was not persuaded by her evidence that, at the time, she supported herself and paid for Mr Trang’s food as well, using social security payments. I am satisfied that throughout, the family pooled its income and used that pooled money to pay for living and all other expenses. I do not accept Ms Le’s evidence that she and Mr Trang parted after the birth of the stillborn baby, because they fell out. I accept Mr Trang’s evidence that he supported Ms Le during this very sad time for them both.
Mr Trang and Ms Le worked extremely hard to improve their financial situation. Mr Trang gained work with General Motors Holden after meeting Mr Thanh Khai Le, a process worker employed by that company, in 1984. He later worked with a glove manufacturer, described in the evidence as “Ansell International”. He kept some money for cigarettes and petrol, but otherwise gave his wages to Ms Le to be used for the family’s needs. Counsel for Ms Le argues that Mr Trang has failed to prove that he contributed towards the acquisition of various properties by the couple. However, I accept Mr Trang’s evidence that he gave his earnings to Ms Le for the family’s use, as he alleged, and that it was from these funds and any income saved by Ms Le that any purchases were financed. I am so satisfied even though, as counsel points out, Mr Trang has failed to produce any documentary evidence of any joint bank account held in the names of the parties.
In about 1986, Mr Trang set up a business under the name, “Trang Vinh Fashions,” purchasing sewing machines to be used in the couple’s Richmond housing commission flat to make garments on a sub-contracting basis for clothing manufacturers. Mr Trang collected the garments and both he and Ms Le did the sewing work.
By about 1987, Mr Trang and Ms Le had saved the sum of approximately $41,000. They used this sum to pay the deposit on a house purchased, for $86,000, in their joint names, at 5 Empress Avenue, Footscray (“the Empress Avenue property”). Mr Trang and Ms Le borrowed $45,000 from the Commonwealth Bank, secured by a mortgage over the property. I do not accept Ms Le’s evidence that she alone paid the deposit for the Empress Avenue property, using her own savings of $20,000 and the proceeds of some $21,000 from the sale of jewellery given to her by her father before she left Vietnam. Quite apart from the general improbability of her story, I am not persuaded that her father was wealthy enough to have given her diamond jewellery or gold, or that any such assets would not have been realised well before 1987, when Ms Le would have been likely to have needed money to maintain herself and her daughter, over and above what remuneration she would have received as a machinist.
Ms Le made what I consider to be an unconvincing attempt to explain how it happened that she was registered jointly with Mr Trang as the proprietor of the Empress Avenue property: she maintained that she told Mr Trang that the bank would lend money to two people, but did not understand how the bank put both names on the title.
After the family moved to the Empress Avenue property, they continued to run the sewing business in the same way. Mr Trang arranged for Ms Hoang Trang to attend Corpus Christi school in Footscray and took her to and from school. He also had all necessary contact with the school. Ms Le left such matters to him because of her unfamiliarity with the English language. I do not accept her evidence that Mr Trang did not live at the Empress Avenue property and only visited occasionally in order to see his daughter.
The couple was able to repay the ANZ bank loan by 1989 and the mortgage was discharged. I do not find at all credible Ms Le’s evidence that she paid off the loan, using her own monies, acquired as a result of sewing work she performed during the relevant period. She claimed to have been able to repay the sum of $45,000 together with interest, notwithstanding that, according to her, she was, at the same time, fully supporting herself and Ms Hoang Trang, with no assistance from Mr Trang.
On 20 June 1988, Mr Trang and Ms Le signed a “Refugee and Special Humanitarian Program Nomination” form, in the course of their sponsorship of Mr Thanh Trang’s parents, Mr Trang’s brother, Mr Trang Van Kham, and his wife, Mrs Ngo, as refugees to Australia. Ms Le signed the form as Mr Trang’s “spouse” and Mr Trang’s address was shown as “5 Empress Avenue, West Footscray”. Mr Trang Van Kham and Mrs Ngo settled in Adelaide, where their son was living.
In late 1990, Mr Trang and Ms Le decided to start a noodle restaurant under the name “Hiep Loi” at premises in Victoria Street, Richmond. They jointly applied to register the business name on 27 November 1990. The application form showed the address of each applicant as “5 Empress Avenue, West Footscray”.
On 30 January 1991, Mr Trang and Ms Le, as joint mortgagors, mortgaged the Empress Avenue property to the Bank of Melbourne as security for a loan of $50,000, obtained to fund the noodle restaurant business. Ms Le was described as “Thi Thu Ha Trang” on the mortgage document. I note that I am not persuaded by Ms Le’s assertions that she lent the money borrowed, by her alone to Mr Trang, who was both her employer at the noodle restaurant and her friend, being the father of her daughter, Hoang.
Seven days a week, at about seven o’clock each morning, Mr Trang drove the family from Footscray to work at the restaurant. Ms Hoang Trang was driven to school by Mr Trang and collected by him. The family returned home at about ten o’clock each night. Mr Trang made and cooked the noodles and Ms Le greeted the customers and acted as the cashier.
In 1991, Mrs Ngo travelled from Adelaide to Melbourne, to help in the noodle restaurant. She worked there for several months. She stayed with the family at the Empress Avenue property and travelled to and from the restaurant with them each day. Mr Trang’s friend, Mr Thanh Khai Le, also worked at the restaurant in 1991 and 1992, for some 12 hours a day between nine a.m. and nine p.m., five or six days a week. I do not accept Ms Le’s evidence that she herself only worked as a casual employee at the restaurant and travelled there by nine o’clock in the morning by train, after dropping her children off to school and returned home at four in the afternoon, again by train. Mrs Ngo confirmed Mr Trang’s evidence as to the family’s arrangements for getting to and from the restaurant. Mr Thanh Khai Le also gave evidence that Mr Trang and Ms Le were at the restaurant when he arrived each morning and that they left after he did, each night. I consider that the evidence of both Mr Thanh Khai Le and Mrs Ngo supported Mr Trang’s account of the family’s working lives.
A son, Andrew Trang, was born to Mr Trang and Ms Le on 10 February 1992. I do not accept Ms Le’s evidence that the baby was conceived when Mr Trang “sweet-talked” to her on one occasion when he was visiting his daughter, with the result that sexual intercourse occurred between them. I am satisfied that Andrew Trang was the child of an ongoing de facto relationship which had started in February 1978, after the couple had gone through the Vietnamese wedding ceremonies. Andrew Trang’s birth certificate confirms Mr Trang’s account of the relationship between the parties. It describes each of his parents, Mr Trang and Ms Le, as a “restaurant proprietor” and shows their respective addresses as “5 Empress Avenue, West Footscray”.
Mr Thanh Khai Le left the restaurant one month after Andrew Trang’s birth. Ms Le remained at home to care for the baby for approximately three months, before bringing him there with her. I do not accept her evidence that she stopped work at the restaurant after Andrew’s birth.
Ms Hoang Trang gained a place at MacRobertson Girls’ High School in 1992 or 1993 and the family travelled to Vietnam for a two week holiday, in December 1993, to show their son to their respective families and to celebrate Ms Hoang Trang’s success.
In 1994, the noodle business was closed, when Mr Trang decided to open up another “better” business. It would appear that, from late 1994, there was some connection between Mr Trang and Ms Le and a clothing manufacturing business carried on at factory premises at 86B Charles Street, Footscray (“the Charles Street property”). A Notice of Assessment under the Income Tax Assessment Act 1936 (Cth) issued on 3 November 1994, directed to “Mrs Thi Tu Ha Trang”, shows Ms Le’s address as 86B Charles Street, Footscray.
The couple proposed to acquire the business carried on at the Charles Street property. They consulted Mr Paul Tja, an accountant. In March 1995, during a conference attended by them both, Mr Tja advised Mr Trang to transfer his interest in the jointly owned Empress Avenue property into Ms Le’s name, if he trusted her, so as to ensure that if the business should fail, she and his children would have somewhere to live. The transfer of Mr Trang’s interest to Ms Le was eventually made, by a transfer dated 21 April, 1999, which for unexplained reasons, showed the consideration for the transfer as “Family Property Settlement”. I note that I am not persuaded by the submissions by counsel for Ms Le to the effect that the fact that the transfer was dated 1999 militated against the accuracy of Mr Trang’s evidence concerning Mr Tja’s advice. In my view, the delay is explicable on the basis that it took time for the parties to order their affairs in accordance with that advice.
On 28 July 1995, Mr Trang registered a company, Uphills Pty Ltd (“Uphills”) to carry on the clothing manufacturing business. Mr Trang held nine of the ten issued Uphills shares and Ms Le held one. Both were directors of the company from its incorporation : Ms Le to 1 July 1997 and Mr Trang up to 18 February 2002, the date of the company’s voluntary deregistration, after the parties had stopped living and working together. In about mid 1995, Uphills was used by Mr Trang and Ms Le to purchase the business carried on at the Charles Street property, for the sum of $6,000.
By at least July 1995, the parties had saved $72,000. They used that money to purchase a property at 6 Garfield Street, St Albans (“the Garfield Street property”) for the sum of $142,000. The Garfield Street property was registered in Ms Le’s name on 19 July 1995 and mortgaged to the ANZ Bank, as security for a loan of approximately $71,000. I do not accept Ms Le’s evidence that she used the sum of approximately $70,000, being her own earnings from work between 1992 and 1995, to purchase the Garfield Street property. The evidence by the 1994 assessment notice as to her total taxable income, being $0 for the financial years 1991/2 and 1992/3, and $9800 to 30 June 1994 strongly militates against the likelihood of her having accumulated savings of the alleged amount, whilst also supporting herself and her two children.
Notwithstanding the purchase of the Garfield Street property, in about mid 1995, the family moved into the Charles Street property to live. The Empress Avenue property was leased and Ms Le banked the rental received. Mr Trang drove Ms Hoang Trang to the railway station each day, so that she could travel by train to school at MacRoberston Girls’ High School. They remained at the Charles Street property for some two years between 1995 and 1997. I do not accept Ms Le’s evidence that she did not live at the Charles Street property. According to Ms Hoang Trang, tutors engaged by Mr Trang came regularly to the Charles Street property to assist her with her mathematics and physics studies. Further, Ms Le’s “mailing address” for her ANZ account, held in the name of “Le-Thi Thu-Ha,” was shown as that of the Charles Street property in a bank statement for the period from 8 November 1995 to 8 December 1995. The same mailing address was also recorded by the Commonwealth Bank in relation to her Savings Investment Account, held in the name “Thu-Ha Le–Thi” between 6 December 1994 and 29 May 2001.
Ms Le claims that she lived for a year to eighteen months, in about 1994, with her friend, Mrs Hanh, and Mrs Hanh’s son, at a two bedroom unit in Austin Street, Footscray. I do not accept Ms Le’s evidence in this regard. Nor do I accept the evidence to like effect from Mrs Hanh or Ms Hoang Trang. I did not find Mrs Hanh a convincing witness. She gave evidence that Ms Le lived with her and her son at her unit in Austin Street, Footscray for about a year in 1994. She said nothing about Ms Le’s children being with her at Austin Street, whereas, according to Ms Hoang Trang, she and her mother and her brother lived with Mrs Hanh and her two sons (rather than one) for about a year. Ms Le herself was vague as to the time allegedly spent at Austin Street.
Such limited documentary evidence as there was tended to support Mr Trang’s evidence that the family lived together at the Empress Avenue property until some time in 1995. Notices from the Australian Taxation Office, issued on 22 January 1993 and 18 February 1994, respectively, were addressed to Ms Le as “Mrs Thi Tu Ha Trang” at the Empress Avenue property. Mrs Ngo said that she visited the family, who were together in Footscray, when she returned to Melbourne in 1995. Further, according to Mr Trang’s uncontradicted evidence, a photograph taken on Andrew Trang’s birthday showed the family, together, with Mr Trang’s father, at a small celebration which took place at the Empress Avenue property and to which some neighbours had been invited. Although Mr Trang said that he thought that the photo was taken when Andrew was “around four years old”, there are three lighted candles visible on the cake in the picture. If the occasion was Andrew’s third birthday, it would have been on or about 10 February 1995.
In 1997, the family moved into the Garfield Street property. Ms Le’s sister, Mrs Tot, arrived in Australia and was met at the airport by Mr Trang and Ms Le. She first stayed with the family at the Garfield Street property and was married whilst there. She did not leave the family to live elsewhere with her husband. I do not accept her evidence or that of Ms Le to the effect that Mr Trang never lived at the Garfield Street property.
In the same year, 1997, the Uphills business moved to factory premises it leased in Hyde Street Yarraville (“the Hyde Street property”). Both Mr Trang and Ms Le worked in the Uphills business and work was also subcontracted to what were known as “outdoor workers,” who were paid by Ms Le. Mrs Tot also worked in the business. Mr Trang and Ms Le were each paid wages by the business. Mr Trang collected the monies paid to the business and allowed Ms Le to make decisions about incurring expenses. Mr Trang took a small sum from his weekly drawings of $700 to meet his personal expenses and continued his practice of giving his money to Ms Le to manage. Ms Le drew $400 a week. She banked monies into an account held in her name at the ANZ bank in Footscray. Uphills insured the lives of Mr Trang and Ms Le under a proposal dated 14 February 1997.
Once again, the documentary evidence supports Mr Trang’s account of the relationship between the parties. On 24 December 1997, a loan services officer of the Bank of Melbourne wrote to Mr Trang and Ms Le as “Mr and Mrs V V Trang” at the Garfield Street property address, “Regarding: Business Overdraft Account 65161598-$10,000”, asking them to attend for their annual review in relation to the facility.
Mr Trang arranged for Ms Le’s taxation returns to be prepared and rental income in relation to the Empress Avenue property was declared in her returns to 30 June 1998 and 1999, respectively. Mr Trang signed Ms Le’s returns, with her permission, having been advised by his accountant that it was appropriate for him to do so. Taxation returns tendered in evidence for the financial years between 1 July 1996 and 30 June 1999 showed Mr Trang named as Ms Le’s “spouse” during the full years in question. The returns stated that each of them had received approximately $36,000 by way of income in the 1996/7 and 1997/8 financial years. Ms Le’s occupation was described as that of a machinist employed by Uphills Pty Ltd.
On 6 April 1998, a receipt was issued to Ms Le in relation to the payment of the balance of the deposit of $7,700 for the purchase of the Ardeer property. In the same month, Mr Trang, Ms Le and Andrew Trang attended Mr Thanh Trang’s brother’s wedding in Adelaide and stayed with the groom’s parents, Mr Trang’s brother and his wife, Ms Ngo. On 25 October 1998, Mr Trang, Ms Le and Ms Hoang Trang all became Australian citizens. Ms Hoang Trang was included as a child in the certificate of citizenship issued to Mr Trang.
Although there was some dispute about the matter, it would appear that, on 8 December 1998, Ms Le became registered as the proprietor of the Ardeer property which was purchased for the sum of $77,000. I accept Mr Trang’s evidence that they intended to build their “dream home” on the property and, indeed, went on to do so. Mr Trang and Ms Le inspected a number of display homes before selecting a builder for their proposed dwelling. They then borrowed approximately $230,000 from the Bank of Melbourne, secured by a mortgage over the Ardeer property, to fund the building project.
I do not accept Ms Le’s claim that she paid for the Ardeer property and met mortgage repayments of some $1100 per month, using money she had earned from her sewing work for the previous four or five years. It was during that period that she also claimed to have paid some $72,000 from her own savings towards the purchase of the Garfield Street property. Ms Le claimed to have earned $125 per day between 1995 and 1998. She also claimed to have made all mortgage repayments on the Garfield Street and the Empress Avenue properties as well as fully supporting herself and her two children. Her taxation returns showed her taxable income as $36,110, $38,111 and $36,498 for the financial years 1996/7, 1997/8 and 1998/9 respectively. After it was pointed out to Mr Trang that both he and Ms Le had thought that the net proceeds from the 1999 sale of the Garfield Street property had been used to purchase the Ardeer property in 1998, he frankly admitted that he could not identify the source of the purchase monies provided by the couple in 1998. I am satisfied that the purchase monies came from pooled joint funds.
In 1999, after the Hyde Street property lease had expired, Mr Trang and Ms Le also acquired the Hyde Street property for the sum of $132,000. Some of the purchase money was provided by Uphills and a mortgage loan of $132,000 was obtained from the Bank of Melbourne. On 20 September 1999, they were registered as joint proprietors of the Hyde Street property. I do not accept Ms Le’s explanation for the fact that they were the joint registered proprietors: she said that she bought the property with the intention of leasing it to Mr Trang, that he was entrusted with the organisation of the necessary documentation and that she did not know how the joint registration occurred.
In 1999, the Garfield Street property was sold for $141,000. The balance of the deposit was released to Ms Le on 18 August 1999 and deposited into an account with the Bank of Melbourne, held in her name, on 20 August 1999. The transfer to the purchaser, Trang Thi Thuy Tran, was registered on 4 October 1999. The Trang family and Mrs Tot all moved back to the Empress Avenue property after the sale of the Garfield Street property.
The house on the Ardeer property was completed by the end of 1999 and the family and Mrs Tot moved in late in that year or early in 2000. I do not accept Ms Le’s evidence or that of her sister, Mrs Tot, that Mr Trang did not live with the family at the Ardeer property. In 2000, whilst in Melbourne with a cousin, Mrs Ngo visited the family at their new house on the Ardeer property. She stayed one night at the house and her evidence was that Mr Trang and Ms Le slept in a bedroom on the ground floor of the house. Although Ms Le’s friends, Mr Danh and Mrs Tim visited the Ardeer property and claim not to have heard of Mr Trang, I was not persuaded by their evidence to conclude that he was never living there, as Ms Le contends. Further, Mr Trang’s address is shown as that of the Ardeer property on the contract of sale signed by him, on 3 July 2000, in relation to the purchase of a new Toyota Celica motor car purchased, for the sum of $42,826, for Ms Hoang Trang, as a gift for her 21st birthday.
The relationship between Mr Trang and Ms Le ended after an incident on 17 July 2000. The Uphills business ceased to operate in the middle of 2000 and Mr Trang left the Ardeer property. The Uphills stock of fabric and clothing was sold for $27,500 to a business known as “Kym-Lee Fashion” on 12 July 2000 and the money was retained by Ms Le. The sewing equipment and machinery remained at the Ardeer property.
Mr Trang went from the Ardeer property to live at the Hyde Street factory premises and later lived in a shared house in Deer Park, from March 2001. After the separation and unsuccessful attempts at reconciliation, the parties agreed that the Empress Avenue property and the Hyde Street property should be sold. Mr Trang borrowed some $5000 to use to prepare the Empress Avenue property for sale.
On 7 February 2001, Mr Trang and Ms Le lodged a term deposit with the Bank of Melbourne in the sum of $10,000. Mr Trang explained only that the deposit was requested by the bank as security in relation to the Hyde Street property. It matured on 7 June 2001 and he was not sure what had happened to the money thereafter, but thought that it might have been used to pay for a car the couple had purchased for Ms Hoang Trang. The Empress Avenue property was sold in about July 2001 for $234,000 and the proceeds were used to satisfy the mortgage debt in relation to the Ardeer property. The Hyde Street property was also sold for $140,000 and the net proceeds of the sale used to repay the mortgage loan in relation to that property. After the Hyde Street property was sold, the parties owed no monies to any financial institution secured by any mortgage.
Ms Le’s taxation return for the financial year to 30 June 2001 shows her gross income as a process worker to be $23,750 and that she received $1,752, by way of Commonwealth Government pension or allowance. Nevertheless, she made a trip back to Vietnam in 2002. She claims that she paid for her ticket in cash, explaining the source of the money, under cross-examination, by stating that she had only ever been unemployed for a short period after Andrew Trang was born.
Ms Le’s evidence
I have referred to Ms Le’s evidence, in passing, when stating my findings of fact. Her version of events is fundamentally different from that of Mr Trang. She denies that the marriage had ever occurred. She claims to have become pregnant to Mr Trang the first time after spending one night together as a result of him having “sweet talked” her. She denies that she and Mr Trang lived together in Vietnam or left that country, as a couple, with their young daughter. She denies that she was a “de facto partner” of Mr Trang within the meaning of s 285 of the Act and denies that they lived together in a “de facto relationship”. She denies that Mr Trang had contributed towards the purchase of any of the properties which had been held in her name, or their joint names, between February 1982 and July 2000. She alleges that she provided all purchase monies and made all mortgage payments from her own funds, accumulated from income received by way of social security benefits or her earnings as a machinist, during a period in which she was solely responsible for her own maintenance and that of her two children and notwithstanding that her taxation records show that she earned no income or only minimal or modest amounts. Her evidence is not supported by such of the documentary record of the relationship which was before the Court.
The law
There was common ground as to the relevant law in relation to the exercise of the Court’s powers to adjust the interests of the parties in the Ardeer property. In Conn v Martusevicius[1] Vincent, J. described the manner in which the discretion should be exercised in a passage subsequently adopted by the Court in Robertson v Austin[2] and Steinbarth v Peters.[3] His Honour said that :
"...the court is vested with a wide discretion and must attempt to arrive at a result which is just and equitable in the circumstances. Accordingly, it must have regard to the whole of the relevant context within which an application is made.
Any assessment of the significance and value of the assistance and support provided by de facto partners which did not place them within a framework provided by all of the circumstances of the relationship, would introduce a measure of unreality into the process and a degree of tension would arise between the adoption of a restrictive approach to the factors to be taken into account, and the duty of the Court to attempt to achieve equity between the partners.
Whilst s 285 imposes an obligation upon the court to have regard to a number of particular kinds of contributions which may have been made, the legislature has not attempted to confine narrowly the concept of 'contribution' and there is, in my opinion, no good reason for the courts to do so. The fundamental limitations to the scope of the section in this context, are contained in the expression 'de facto partner' which makes it clear that any such contribution to be relevant must have been made by a person who fell within that description at the time of its making and possesses a sufficient nexus with the relationship.
Whilst the rights conferred upon an applicant by the Victorian provisions are by no means as extensive as those which can arise under the De Facto Relationships Act 1989 (NSW) upon which it appears to be based, it is, in my opinion, reasonable within its ambit of operation to adopt a similar approach to that followed by the courts with respect to the New South Wales legislation according to which a judge:
'...should proceed, first, to identify, and value the assets of the parties; second, to determine whether any, and , if so, what contributions of the type contemplated by [ the legislation] have been made by each partner; third, to determine whether, in the circumstances, the contributions of the applicant has already been sufficiently recognised and compensated for; and, finally, to determine what order is called for in order that the applicant's contributions be sufficiently recognised and compensated for...'."
[1](1991) 14 Fam LR 751 at 754.
[2][2003] VSC 80 at [36] per Nettle, J.; see also Lesiak v Foggenberger BC9503944 (Unreported, Supreme Court of Victoria, 23 August 1995) at 4-5 per Hedigan, J.
[3][2005] VSC 87 at [7] per Balmford, J.
Mr Trang seeks an order in this case in relation to only one asset of the parties : the Ardeer property. Counsel for Ms Le submits that if I were to accept that Mr Trang’s account of the relationship and as to his financial contributions towards the acquisition of the Ardeer property and the family’s general expenses, then I might take her contribution as a homemaker, wife and parent into account and might conclude that Mr Trang’s contribution under s 285(1)(a) or (b) did not at least equal that of Ms Le.
Counsel for Mr Trang urges the Court not to adjust his client’s interest in the property on the basis of any contributions made by Ms Le to the welfare of the family, or otherwise. He argues that, because of Ms Le’s denial of the existence of the relationship, there has been no evidence from her as to the nature of her contributions as a wife or mother or homemaker, in the context of the relationship which I have found existed between them from February 1978.
Counsel for Mr Trang further points out that Ms Le has had possession of the Ardeer property for what is now almost five years and has also retained, since 12 July 2000, the sum of $27,000 from the sale of stock after the cessation of the Uphills business.
Conclusions
I am satisfied that the parties lived in a de facto relationship from 10 February 1978 until 17 July 2000. They pooled their resources to acquire the property of the relationship, whether it was held in joint names or that of Ms Le alone.
This is an unusual case, as the only evidence as to any contributions made by Ms Le, in the context of the relationship, came from Mr Trang, who acknowledged that she was a good mother and looked after the children.
As far as the present financial position of the parties is concerned, the evidence was to the effect that Ms Le is a process worker, but Mr Trang is unemployed. There was no evidence as to the financial resources of either party. Ms Le’s evidence was to the effect that she has been able to support herself and her children and, at the same time, to find the significant sums required to purchase a number of properties. There is no evidence as to her having any need of funds from Mr Trang.
The elder surviving child of the relationship, Ms Hoang Trang, is employed as an analyst with the ANZ bank and is 24 years old. There was no evidence to suggest that she was not able to support herself, financially. The younger child, Andrew Trang lives with his mother and is presumably maintained by her, but there was no evidence as to the costs associated with his support or in relation to how his living expenses, such as his educational expenses, are being met.
Further, I am not persuaded that Mr Trang’s financial contributions or his contributions as a father and husband in the context of the relationship have already been sufficiently recognised or compensated for, with the result that no adjustment of the property interests in the Ardeer property should be made.
In, my view, in all the circumstances, the Court should exercise its discretion to grant the relief sought by Mr Trang and adjust the interests of the parties in the Ardeer property so as to provide that the legal and beneficial interests are held by them in equal shares. I also consider that it is appropriate to order that the Ardeer property be sold, rather than to make any order that Ms Le purchase Mr Trang’s interest.
It is therefore not necessary for me to go on to consider Mr Trang’s alternative claim to an interest in the Ardeer property as the beneficiary of a constructive trust.
I will hear the parties as to the form of orders and costs.
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