Le v Scott as trustee of the property of Chanh Tam Le, a Bankrupt

1. The appeal be allowed on the limited basis that the question referred to in paragraph 2 of these orders be remitted.
2. Whether the appellant is or was at the relevant time the joint proprietor of the property situated at 23 The Avenue, Sunshine West be remitted for hearing and determination by a differently constituted Court, together with any consequential orders arising from the determination, including the allocation of costs of the sale of the property if applicable.
3. There be no order as to costs of this appeal.

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

THE COURT: 1 This is an appeal from the judgment in Scott, in the matter of Le [2019] FCA 1661. 2 The Court has concluded that the appeal should be upheld on the limited basis that the question before the primary judge be remitted for hearing and determination by the Court differently constituted. The reasons why this is necessary will be apparent upon a reading of the transcript of what occurred before the Court in this appeal. For convenience, it is appropriate that the Court states briefly why it is necessary to remit the proceeding. 3 The controversy between the appellant and the first respondent (the Trustee) is whether the appellant is, and was at the relevant time, the joint owner of a residential property at 23 The Avenue, Sunshine West, Victoria as the Trustee contends, or whether the now deceased brother of the appellant, Mr Tam Chanh Le was at the relevant time the co-owner of that property. The registered proprietors of the property are Tam Chanh Le and the second respondent Hoa Tran Le. The contention of the Trustee before the primary judge was that the appellant Chanh Tam Le and Tam Chanh Le are one and the same person. 4 Neither the appellant (Chanh Tam Le) nor the second respondent (Hoa Tran Le) appeared at the hearing before the primary judge and accordingly the Trustee's application proceeded undefended. The primary judge found in favour of the Trustee. Following that judgment, the appellant filed an affidavit in support of an application to stay the judgment pending appeal. This affidavit exhibits, among other documents, a document which purports to be a birth certificate of Tam Chanh Le and a death certificate for Tam Chanh Le stating that he died on 9 March 2017. This evidence was not before the primary judge. 5 The affidavit was received as fresh evidence on the appeal without objection from the Trustee. However, the Trustee sought leave to cross examine the appellant and was allowed to do so. As is evident from the transcript, the cross examination of the appellant quite literally raised more questions than it answered concerning the critical question as to whether the appellant is, and was at relevant times, the joint owner of the subject property. 6 It is not necessary or appropriate to say anything more about the appellant's evidence other than to observe that as a result of his evidence, the question of whether he is one and the same person as Tam Chanh Le is a question that remains to be determined. 7 As a result of the appellant's evidence, it became apparent to the Court that the proper course is to remit the proceeding for determination of the essential factual question to which we have referred. 8 We are fortified in this conclusion having been taken to a statutory declaration purportedly made by Tam Chanh Le on 3 May 2016 before a constable at the Sunshine Police Station at 497 Ballarat Road, in which he declares that he is the co-owner of the subject property. This evidence was before the primary judge as an exhibit to an affidavit tendered on behalf of the Trustee. In context, this evidence is contrary to the finding (at [3]) that there was uncontradicted evidence that the registered proprietors of the property are Tam Chanh Le and Hoa Tran Le. While that finding is literally correct, even allowing for the statutory declaration referred to above, in context that statutory declaration, if genuine, is inconsistent with Tam Chanh Le and the appellant being one and the same person. The context was that the statutory declaration was made in answer to a request by the Trustee that the appellant provide evidence that Tam Chanh Le is a different person to the appellant. 9 We note that following the evidence given by the appellant during cross examination, counsel for the Trustee conceded that the proceeding should be remitted for determination of the relevant factual questions. This was a proper concession to make having regard to the evidence given by the appellant. 10 An issue that arose in the course of discussions with counsel for the Trustee concerns the order made by the primary judge relating to costs and expenses in connection with the order for the sale of the property, in particular, whether any of those costs should be borne from the proceeds of sale of the second respondent's interest in the property. Counsel for the Trustee conceded that in accordance with usual principles those costs would be borne from the proceeds of the bankrupt's share. Though this question was not strictly raised in the appeal, it appears that insofar as the order provides for those costs to be borne from the share of the second respondent that was a slip or error. 11 We have concluded that there should be no order as to costs of the appeal. In exercising our discretion as to costs, we have taken into account the failure of the appellant to appear at the trial, the limited basis on which the appeal is allowed and the unlikelihood that the appellant has incurred costs in connection with the appeal having represented himself. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kerr, Anastassiou and Anderson.