//
[2020] VSCA 4
General information, not legal advice.
Court of Appeal (Vic)
2020-01-30
Niall JA, Hargrave JA, Ashley JA
Original judgment source is linked above.
[2018] VSC 444; Miller v Martin (Unreported, Supreme Court of Victoria, Mukhtar AsJ, 13 August 2018)
REAL PROPERTY - Co-ownership of land - Whether co-owned property held on resulting or constructive trust or as partnership property - Whether power of sale under Property Law Act 1958 required consideration of entitlements upon dissolution of partnership - Property had ceased to be partnership property - and .
PRACTICE AND PROCEDURE - Application for reinstatement of appeal - Supreme Court (General Civil Procedure) Rules 2015 r 64.45 - Summons seeking production of respondents' solicitors' files devoid of merit and bound to fail - Reinstatement refused.
PRACTICE AND PROCEDURE - Jurisdiction of Victorian Civil and Administrative Tribunal under Property Law Act 1958 s 234C - Whether 'the matter which is the subject of the application relates to a proceeding under the Partnership Act 1958' - 'Proceeding under' an Act where authorised by, provided for, or in respect of a cause of action created by the Act - 'Proceeding' where jurisdiction invoked by an initiating process - No 'proceeding under' Partnership Act 1958 - Property Law Act 1958 pt IV considered - Re Struthers (liq of Project Management, Architecture and Construction Interior Pty Ltd) (No 3) (2005) 56 ACSR 238; [2005] NSWSC 1113 applied.
1 About 40 years ago, James Miller, Ian Martin and Ross Brabham were working together in the Finance Department of GJ Coles & Co Limited and then Coles Myer Limited. As General Manager, Miller was the senior employee. The three men and their wives became good friends. Martin and Brabham say that they formed a partnership with Miller in the early 1980s, for the purpose of trading in shares for profit and using the profits to purchase 'quality of life investments' or 'lifestyle assets' for their collective benefit in equal shares. Although Miller acknowledged the existence of the partnership at various times over the years, he now firmly denies there was ever a partnership. Following a seven day hearing in the Victorian Civil and Administrative Tribunal ('VCAT' or 'the Tribunal'), the Tribunal found that there had been a partnership ('partnership finding') and that it had acquired various lifestyle assets in the names of the three men including a beach house at Moggs Creek, Victoria.[1]
2 The beach house was purchased in late 1986 and the purchase was settled in early 1987. It was registered in the names of the three men as tenants-in-common in equal shares.[2]
3 In June 1990, the ownership of the beach house was altered, when the three men transferred the whole of their respective interests in it. By instrument of transfer dated 18 June 1990 (the '1990 transfer'), Miller, Martin and Brabham, as transferors, transferred the beach house to the following transferees in the following proportions as tenants in common:
(1) Miller and his then wife, Pamela, as joint tenants as to 8 equal undivided 30th parts or shares;
(2) Martin and his then wife, Teresa, as joint tenants as to 8 equal undivided 30th parts or shares;
(3) Brabham and his then wife, Margaret, as joint tenants as to 8 equal undivided 30th part or shares;
(4) John and Judy Stodgell ('the Stodgells') as joint tenants as to 3 equal undivided 30th parts or shares; and
(4) Robyn and Craig Lambert ('the Lamberts') as joint tenants as to 3 equal undivided 30th parts or shares.
4 John Stodgell also worked for Coles, and he and his wife, Judy, were friends of the three men and their wives.
5 Robyn Lambert was Miller's personal assistant. She and her husband, Craig, were also friends of the three men and their wives.
6 As appears below, this transfer of land had the effect that the beach house ceased to be partnership property.
7 There then followed further changes to the proportionate shares held by the parties. By the time an application by Miller was decided by VCAT, the shares owned by Stodgell, Mrs Lambert and their spouses were transferred to or came under the control of Miller, with the result that the present ownership position is effectively a tenancy in common in the following parts:
(1) Miller (his wife Pamela having died and he having obtained her joint interest by survivorship) holds 14/30th shares;
(2) Martin and his ex-wife Teresa hold 8/30th shares;
(3) Brabham and his ex-wife Margaret hold 8/30th shares.
Martin, Brabham and their ex-wives, Teresa and Margaret, will from here be referred to as 'the respondents'.
8 Miller's case at VCAT was straight-forward. He alleged that he had paid all of the purchase price for the beach house, and had since paid all outgoings, maintenance and other expenses in respect of it. On this basis, he made a primary claim for a declaration that the other co-owners held their interests in the property on a resulting or constructive trust for him (the 'trust claims'). Alternatively, he made claims under ss 228 and 233 of the Property Law Act 1958, seeking an order that the beach house be sold and that all net sale proceeds be paid to him (the 'statutory claims').
9 The respondents denied Miller's trust claims. They contended that the purchase price for the purchase of the beach house was 'derived from partnership funds' of the partnership between the three men, and alleged that partnership funds were also used to pay outgoings, maintenance and other expenses in respect of the property. On this basis, they admitted that the property should be sold and the net proceeds of sale divided in accordance with ss 228 and 233 of the Property Law Act; but contended that the net sale proceeds should be split in accordance with the registered interests on title.
10 By his reply in the VCAT proceeding, Miller denied the existence of a partnership and alleged that there was an oral agreement made in or about late 1986 between the three men (the '1986 agreement') to the effect that:
(1) the parties recognised the beach house was purchased from the sum of $282,720 deposited by Miller into the joint bank account of the three men;
(2) the parties recognised that amount was 'the sole funds of [Miller], being the proceeds from the sale of Coles Myer Limited shares owned by [Miller]';
(3) 'the property was acquired for recreational use rather than commercial investment for profit and the respondents' entitlement was only as to recreational use';
(4) Miller had the sole right to sell the property; and
(5) upon the sale of the property, any distribution of the proceeds of sale was to be based on the financial contributions of the [three men].
11 After a trial, the Tribunal delivered substantial written reasons.[3] The senior Tribunal member held that there had been a partnership as the respondents alleged, rejected the existence of the 1986 agreement alleged by Miller, and held that the beach house had been purchased from money in the partnership bank account which 'was regarded by Mr Miller and the other two partners as belonging to the three of them'.[4] The senior member concluded that the amount of $282,820 paid by Miller into the partnership bank account and used to purchase the beach house and another property was, more probably than not, 'paid in with the intention that it would belong to three partners ... [and] that it was partnership money as the respondents contended'.[5] On this basis, the Tribunal dismissed Miller's trust claims. However, it neglected to consider his alternative statutory claims.
12 Miller sought leave to appeal to the Trial Division of this Court under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act'). The parties agreed that leave to appeal should be granted and the appeal allowed in part, so that the Trial Division could remit the statutory claims back to VCAT to be determined. The Trial Division dismissed Miller's appeal from VCAT's order dismissing his trust claims.[6]
13 Miller now seeks leave to appeal to this Court. There are two applications for leave to appeal. First, Miller's main application which contends that the trial judge erred in: (1) dismissing his appeal from VCAT's decision to dismiss his trust claims and (2) remitting the statutory claims to VCAT. The challenge to remitter seeks to raise a new contention - that VCAT has no jurisdiction to consider the statutory claims; and also seeks to challenge the terms of the remitter - which require the same Tribunal member to determine the statutory claims 'according to the evidence already heard and the findings already made' in the VCAT Reasons (the 'main application'). Second, Miller seeks leave to appeal against the dismissal of a summons issued by him which sought production of documents by Martin, Brabham, their former wives and their solicitors and a stay on delivery of judgment by the Trial Division on his appeal (the 'summons application').
14 It is first necessary to note that the two applications for leave to appeal were deemed to be abandoned under r 64.45(2)(a) because Miller did not comply with an order by a Judicial Registrar that he file and serve the application books by an extended date.[7] Accordingly, Miller requires the leave of this Court to reinstate his applications for leave to appeal. His reinstatement applications were listed for hearing together with the applications for leave to appeal, and the appeals should leave to appeal be granted.
15 On 12 June 2019, after a directions hearing, Irving JR made orders settling the index to the leave application book for these applications for leave to appeal and dispensing with the requirement to file an agreed summary of facts. On 28 June 2019, Irving JR made timetabling orders including an order for the applicant to 'prepare the leave application book as settled and deliver one copy to the Judicial Registrar and one copy to the respondent by 19 July 2019'. Following correspondence between the applicant and the court registry, on 8 July 2019 the applicant was granted an extension of time to prepare the appeal books, to 26 July 2019.
16 The appeal books were not provided to the Judicial Registrar or the respondent by 26 July 2019. On 28 July 2019, the court registry received a letter from the applicant objecting to various aspects of the leave application book index settled on 12 June 2019.
17 On 31 July 2019, the appeal books not having been provided, the Deputy Registrar informed the parties that the leave applications were taken to be abandoned pursuant to Supreme Court (General Civil Procedure) Rules 2015 r 64.45(2)(a).
18 On 23 August 2019, the applicant applied for orders that the leave applications not be taken to be abandoned under r 64.45(4)(a) ('reinstatement application').
19 The principles for reinstatement in these circumstances are well-settled, and were recently summarised by this Court in Bodycorp Repairers v Maisano:[8]
The Court has a 'broad, wide and deep' discretion to make an order under r 64.45(4)(a).[9] In exercising that discretion the Court must determine whether, in the circumstances, it is unjust for the appeal to be taken to be abandoned. In Lagarna Pty Ltd v Bridge Wholesale Acceptance Corporation (Australia) Ltd, Tadgell J (with whom Cummins J agreed) stated:
If, upon the material before it, the court perceives that it would be unjust to an appellant that an appeal should be taken to be abandoned despite non-compliance with the relevant rules, it may exercise a discretion in favour of the appellant if it seems appropriate to do so, taking account of the legitimate interest of the respondent to the appeal to insist on an adherence to the rules. ... [T]he court is required to determine what, in its opinion, is the just way in which its discretion should be exercised. This would involve weighing up the extent to which the appellants would be prejudiced by leaving the appeal to stand as though abandoned and any prejudice to the respondent to the appeal by ordering that it not be taken to be abandoned. [10]
The Court may decline to make an order under r 64.45(4)(a) if it would be futile to allow the appeal to proceed because it is so devoid of merit that it is bound to fail. In Sedrak v Carney, Chernov JA stated:
[I]t is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondents and cause needless expenditure of public funds if the appeal were otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that what must be clearly shown before the applicant is denied the right to have his or her appeal heard, is that the appeal would fail.[11]
However, arguments as to the prospects of success of the appeal will ordinarily not be encouraged unless the failure of the appeal is plainly demonstrable.[12]
In determining whether the discretion under r 64.45(4)(a) should be exercised, the Court must also seek to give effect to the overarching purpose in s 7 of the Civil Procedure Act 2010 ('CPA').[13] The overarching purpose is 'to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute'.
20 The applicant's submissions regarding reinstatement repeat his objections to aspects of the settled appeal books; allege various factual inaccuracies in the respondents' draft summary of facts (despite the requirement for an agreed summary of facts having been dispensed with); make various assertions as to the alleged unlawfulness of the respondents' conduct; and raise various factual contentions which repeat his proposed grounds of appeal.
21 The respondents oppose the application for reinstatement on the basis that the applicant has not provided any explanation for his non-compliance and had been warned of the potential consequences of non-compliance with this Court's procedural orders but nonetheless chose not to comply. The respondents contend that the applicant's conduct in the proceedings evidences 'an ongoing disregard for the requirements of the Court' and demonstrates that he will not comply with further procedural orders. The respondents say that they have suffered significant prejudice due to the adjournment of the hearing date,[14] including additional legal costs.
22 The respondents' understandable concerns regarding the applicant's ongoing non-compliance with timetabling and procedural orders notwithstanding, the applications for reinstatement and for leave to appeal were listed and heard together.
23 For the reasons which follow in this judgment, we are not convinced that the main application was always bound to fail. It is enough to say that the main application raises an arguable question regarding VCAT's jurisdiction under pt IV of the Property Law Act 1958, discussed below. While the applicant's actions have not furthered the overarching purpose set out in Civil Procedure Act 2010 s 7(1), an application book has been prepared and after hearing full argument we were satisfied it was in the interests of justice that the issues in the main application should be considered in full. We further considered that any prejudice suffered by the respondents by reason of a delayed hearing and by the incurring of additional costs could be satisfactorily addressed.
24 However, we are of the opinion that the summons application is so devoid of merit that it was always bound to fail. Reinstatement will be refused. Our reasons follow.
25 Miller sought leave to appeal against an order dismissing a most unusual summons filed by him in response to notice from the Court that judgment would be delivered on his application for leave to appeal from VCAT. In response, the applicant, without making any application to re-open the hearing or make further submissions on his application for leave to appeal against VCAT's orders, filed a summons seeking orders that the respondents produce to him 'all files and documents that were with their prior lawyers in relation to these proceedings', that the 'current lawyers provide all files in relation to these proceedings that were provided by the previous lawyers' and that the associate justice 'stay his decision in this proceeding whilst inspection of the files [is] undertaken by [him]'.
26 Even without considering the proposed grounds of appeal, the nature of the applicant's summons meant that it was always doomed to fail.
27 The summons was filed on 9 August 2018. On 26 June 2018 the parties had been notified that judgment in the trial below would be delivered no later than 10 August 2018. In anticipation of this, on 3 August 2018 the respondents' solicitor delivered a letter to the applicant placing him on notice of an application for a special costs order, on the basis of a Calderbank offer refused by the applicant in January 2017, and attaching a schedule of costs.
28 On 28 July 2018 a notice of change of solicitor had been filed stating that GE Law Services Pty Ltd of 110 Kingsway, Glen Waverley had been appointed as solicitors for the defendants in place of Messrs Goddard Elliot of 110 Kingsway, Glen Waverley. GE Law Services Pty Ltd was a reorganised corporate vehicle for the same solicitors on the record.
29 Putting aside the misconception that the defendants had changed their lawyers, a matter to which the judge drew attention in his reasons dismissing the summons, it was on its face an impermissible fishing exercise and an abuse of process. The applicant's affidavit in support, sworn on 3 August 2018, made allegations of criminality on the part of the respondents and their solicitors. The allegations were said to arise from the same facts considered at VCAT and were contrary to factual findings made at VCAT.
30 The trial judge characterised the summons as follows:[15]
... before {Miller] knows the outcome of this appeal, this Court is being asked to abstain from deciding the appeal while [he] pursues, but cannot himself institute, a criminal prosecution on the very same facts; that is, not on newly discovered evidence, or evidence wrongfully withheld.
His Honour correctly observed that the orders sought were 'ostensibly within the purview of the proceeding' before him, but in fact had nothing to do with that application. Further, Miller had no right to documents which were in the possession of the lawyers. They were prima facie protected from production by client legal privilege. Miller's application in that connection was 'manifestly unattainable, if not ludicrous'.[16]
31 The proposed grounds of appeal from the Summons Reasons can be grouped together as follows:
(1) The trial judge denied the applicant procedural fairness and natural justice in the determination of the summons application.[17]
(2) The trial judge did not make fact findings sought by the applicant, including:
(a) not accepting the applicant's allegations regarding fraud by the respondents and the respondents' solicitors;[18]
(b) not accepting the applicant's allegations regarding false and misleading evidence allegedly given by the respondents;[19]
(c) not making other factual findings propounded by the applicant.[20]
(3) The trial judge made errors of law in refusing the summons.[21]
32 In our opinion, there is no merit to any of these grounds. The summons was misconceived and was bound to fail. The judge's reasons show why that was so. We refuse reinstatement.
33 We return to consider the main application for leave to appeal. It is first necessary to summarise the VCAT Reasons and the Trial Division Reasons.
34 The Tribunal member delivered extensive reasons comprising 206 paragraphs. He clearly gave full consideration to all of the evidence. He commenced his reasons by noting the difficulties facing the witnesses in recalling events which occurred up to 35 years ago, noting that only Mr Miller retained some relevant contemporaneous documents, that none of the respondents had been given access to them before trial, that none of the witnesses - excepting Mrs Martin in one connection - was particularly impressive and that he 'had some difficulty reconciling much of the oral evidence with the documentary evidence'.[22]
35 The Tribunal member did not consider whether or not VCAT had jurisdiction to consider the trust claims. As appears below, that is a matter which was considered by the trial judge. No party contended, before VCAT or the trial judge, that VCAT lacked jurisdiction to determine the statutory claims.
36 The Tribunal member set out the relevant legal principles concerning the existence of a resulting trust by reference to the decision of the High Court in Calverley v Green,[23] where Gibbs CJ stated the well-known principles in the following terms:
Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person, who provided none of the purchase money, acquires a beneficial interest in the property depends on the intention of the purchaser. However, in such a case, unless there is such a relationship between the purchaser and the other person as gives rise to a presumption of advancement, i.e., a presumption that the purchaser intended to give the other a beneficial interest, it is presumed that the purchaser did not intend the other person to take beneficially. In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchaser.[24]
37 The Tribunal member referred also to the statement by Mason and Brennan JJ in Calverley that:
Equity presumes a trust in favour of the person who contributes the whole of the purchase price when the property is conveyed into the joint names of himself and another ... though the strength of the presumption varies from case to case ... and may be confirmed, rebutted or qualified by evidence of his intention ... [25]
38 Applying these statements in Calverley, the Tribunal member stated that a presumption of resulting trust 'may be rebutted by evidence to the effect that the person to whom the property was transferred was intended to take his interest beneficially'.[26] The Tribunal member noted also that the relevant intention is to be assessed at the time the relevant property was purchased,[27] citing Charles Marshall Pty Ltd v Grimsley.[28] The High Court in that case approved a passage from Snell's Equity that:
'The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against a party who did the act or made the declaration ... but subsequent declarations are admissible as evidence only against the party who made them, and not in his favour.'[29]
39 As appears below, the Tribunal member applied Charles Marshall and had regard to subsequent admissions by Miller against his interests that the beach house was beneficially owned equally by the three men or, after the 1990 transfer, that 80 percent of the beach house was beneficially owned by the three men and their wives in equal shares.
40 The Tribunal member did not consider the law relating to constructive trusts, because it was clear that Miller was putting his case on the basis of resulting trust in accordance with these principles.
41 The Tribunal then considered whether or not there was a partnership between the three men, as alleged by the respondents and their former wives and denied by Miller.[30] As noted, the Tribunal member made the partnership finding. The reasons he gave may be briefly summarised:
(1) the three men opened a joint bank account in October 1980 with the Commonwealth Bank ('partnership bank account');[31]
(2) the first cheque drawn on the partnership bank account was for the purchase of a partnership deed from a legal stationer;[32]
(3) Miller, who had been in possession of the cheque stubs for the partnership bank account since 1988,[33] tried to hide the fact that the first cheque had been used to purchase a form of partnership deed by blacking out the words 'Partnership deed' on the cheque stub. Miller had no satisfactory explanation for this conduct, and the Tribunal member inferred that he engaged in a deliberate attempt to conceal evidence that a partnership deed had been purchased from the partnership bank account;[34]
(4) apart from the fact that the partnership account had been opened and the first cheque stub had been used to purchase a form of partnership deed, Miller had acknowledged the existence of the partnership a number of times and Mrs Martin gave evidence that both the partnership and the fact that it purchased 'lifestyle assets' were 'spoken about openly';[35]
(5) there were many transactions - see below - in which, using moneys in the partnership account, assets of different kinds were purchased in the names of the three men;
(6) Miller sent an email to Brabham on 26 November 1992, describing the partnership account as being 'the partnership's bank account';[36] and
(7) in a deed of property settlement in the Family Court in 1999, Miller described his interest in various assets in terms only compatible with there being a partnership.[37]
42 Having regard to these matters, the Tribunal member was satisfied that on or about 31 October 1980 the three men entered into a partnership with a view to buying and selling shares at a profit.[38]
43 The Tribunal member considered the question: 'What were the partnership assets?'[39] Relevantly, the Tribunal member found that the partnership commenced with an initial purchase of shares in Buddha Gold Mines NL, later sold at a profit. The Tribunal member found that 'numerous assets were brought in the names of the three partners including the Beach House and a great many payments passed through the Partnership Account'.[40]
44 The Tribunal member referred to a number of specific admissions made by Miller that there was a partnership and that the beach house was one of the partnership assets, including the following. First, on 14 October 1992 Mrs Brabham wrote to Miller asking for details of the entitlements that she and Mr Brabham had in the partnership. In response, Miller sent an email dated 26 November 1992 addressed to Mr Brabham providing a list of partnership assets including the beach house, which Miller asserted was '80% owned by members of the partnership'.[41] The list referred to other assets, including a one third interest in a 48 foot motor cruiser, shares worth $50,000, 'cash reserve' of $30,000, land at Mansfield (Merrijig), and three racehorses.
45 Miller added a 'NOTE' to the list of partnership assets, in which he referred to a unit in a Gold Coast apartment property known as 'Imperial Surf' which was registered in his name. The note states in that regard:
Unit 30b at Imperial Surf (Gold Coast) is owned by J.E. Miller. The partners (Brabham, Martin and Miller) have been given rights to use the unit at no charge. Rental receipts and operating expenses are credited/charged to the partnership's bank account.[42]
46 The Tribunal member noted in respect of this note:
As to Note (a), if Mr Miller is right and he was the sole owner of Imperial Surf, it would have been unnecessary for him to be given the right to use that unit at no charge. That would have been his right as owner. Further, the rental derived from leasing the unit would have belonged to him and not to the partnership. Despite that, the rental was paid into the Partnership Account.[43]
47 Second, in the deed of property settlement to which we have already referred, dated 12 November 1999 and filed on his behalf in the Family Court, Miller said that his assets included:
(1) a 27 percent (roughly equivalent to 8/30ths) interest in the beach house together with his former wife;
(2) a 27 percent interest in the Merrijig land together with his former wife; and
(3) a 33 percent interest in Imperial Surf.[44]
48 Third, in a memorandum sent by Miller to Martin on 13 June 2000, Miller acknowledged that his ownership of Imperial Surf was held for himself, Martin and Brabham in equal one third shares.[45]
49 Fourth, in a letter dated 2 July 2014 from Miller to the Commissioner of State Revenue, Miller incorrectly asserted that the beach house now had 10 owners rather than the previous three, and that no owner had a greater interest than 13.33 percent. This statement was said by Miller to relate to the 'SRO threshold of $250,000 for individual assessment' - presumably, for the land tax.[46]
50 Unsurprisingly, the Tribunal member rejected Miller's assertions that these admissions and acknowledgments were all subject to Martin and Brabham making financial contributions to equal his, before they were beneficially entitled to ownership of the partnership assets in the proportions he stated.[47]
51 The Tribunal member then dealt specifically with the purchase of the beach house and the subsequent changes in registered ownership by the 1990 transfer.[48]
52 The Tribunal member found that the initial deposit of $1,000 for the purchase of the beach house was paid by Miller from his personal bank account, and that the balance of the purchase price came from the partnership bank account.[49] As appears below, the partnership had sufficient money in its bank account to pay the balance because of the $282,820 deposited into the partnership account by Miller.[50] The Tribunal member then noted that the three men were initially registered as tenants in common in equal shares on the beach house title,[51] but this ownership position was altered by the 1990 transfer.[52]
53 The Tribunal member referred to the alleged 1986 agreement and rejected Miller's evidence about the making of such an agreement.[53] No ground of appeal challenges this finding.
54 The Tribunal member first turned to consider the source of the money used to purchase the beach house. This required an analysis of the source of the $282,820 deposited into the partnership bank account shortly before the purchase was settled, and the intentions of Miller, Martin and Brabham at this time. The Tribunal member first noted that the $282,820 represented the proceeds of the sale of shares in Coles Myer that were in the name of New Kapital Investments, a business name used by Miller.[54] He noted Miller's evidence that he paid this amount into the partnership bank account 'for the purpose of funding the purchase of the beach house ... because the Partnership Account appeared ideal to manage payments and contributions relating to the Beach House, thereby providing a single record for determining distributions when it was sold.'[55] The Tribunal member rejected this explanation as unlikely, because the partnership bank account was in the names of the three men and was used by them for other purposes; and because the money was first used to purchase bank bills in the names of the three men pending the need to use the money to complete the purchase of the beach house and, soon after, the purchase of Imperial Surf.[56]
55 The Tribunal member then gave brief consideration to whether the beach house was still partnership property. In an important paragraph he stated:
Mr Squirrel [sic] [counsel for the respondents] submitted that the Beach House is an asset of the partnership and that the appropriate remedy for Mr Miller is to apply for the dissolution of the partnership and the taking of accounts. Land held as partnership property is considered to be personal property (see Partnership Act 1958 s 26). It was not suggested by Mr Squirrel [sic] that the registered proprietors of the Beach House apart from Mr Miller, Mr Martin and Mr Brabham, were members of the partnership. If the property was initially a partnership asset it probably ceased to be so when the other registered proprietors were introduced.[57]
56 Thus, the Tribunal member rejected any contention that, after the 1990 transfer, the beach house was still partnership property.
57 The Tribunal member then considered a range of assets other than the beach house which the respondents contended were partnership property. In turn, he considered:
(1) Racehorses. The Tribunal member noted the ambiguous nature of the evidence concerning the source of the purchase for one particular horse, 'Rapavan', and that 'Rapavan and the other horses were registered in the names of all three partners'.[58] He noted that Miller's explanation for this was that, while the racehorses were not purchased from partnership funds, all three men were registered as owners 'in order that Mr Martin and Mr Brabham could enjoy free access to race meetings as owners'.[59]
(2) Holidays. The Tribunal member noted that the respondents claimed that partnership funds were used to fund overseas holidays for the three partners and their wives;[60] while Miller said these holidays were funded from his personal account without giving any explanation as to why he would pay for the holidays of the Martins and the Brabhams. [61]
(3) Spa baths. The Tribunal member noted that Miller claimed he had paid for spa baths to be purchased and installed in the homes of the parties and the Lamberts; and that the respondents contended that they were paid for from partnership funds.[62]
(4) Imperial Surf apartment. The Tribunal member noted that Miller paid the deposit of $16,000 from his personal account,[63] and that the balance of the purchase price was paid from the partnership account from the balance of the bank bills which had been funded by the $282,820 deposit.[64] He noted that the Imperial Surf apartment was not registered in the names of the three men, but in Miller's sole name; and Miller's evidence that this was because he did not believe that Martin or Brabham would be contributing any money towards the purchase.[65] On the other hand, when the apartment was not being used by any of the partners, it was rented and, after June 1993, the rental statements were in the names of the three partners - with the rental payments being deposited into the partnership account.[66] The Tribunal member noted Miller's explanation for payment of rentals into the partnership bank account: '[h]e said that he wanted there to be one account that recorded all transactions relating to contributions and expenses'.[67] The Tribunal member said he could not understand this explanation in light of Miller's evidence that he did not believe Martin or Brabham would be contributing any moneys towards the purchase of the apartment.[68] The Tribunal member then noted the acknowledgment signed by Miller in June 2000 confirming that the apartment was owned beneficially for himself and the respondents in equal one third shares.[69] Finally, the Tribunal member noted that Miller sold the apartment and used all of the net sale proceeds for his own purposes, in the context of a property settlement with his wife;[70] and that Brabham said he was very upset by this but 'believed he could nothing about it because he was not on title'.[71]
(5) The Merrijig land. The Tribunal member noted that this land was purchased in August 1989 and settled in October 1989 and that the purchase moneys were all paid from Miller's personal account.[72] Notwithstanding this the land was registered in the name of the ten owners of the beach house - the Millers, the Martins, the Brabhams, the Stodgells and the Lamberts.[73] Apparently Miller brought this situation about by the use of powers of attorney which he held for the others. The Tribunal member analysed what happened with this property in some detail which it is unnecessary to set out.[74] The property was sold at a loss,[75] Miller received all of the proceeds of sale,[76] and there was no evidence that any of the registered owners raised any complaint.[77]
(6) Company shares. The Tribunal member noted that it was common ground that the three men bought and sold shares, with the dispute concerning the extent of the dealings and the scale of the profits earned.[78] The Tribunal member noted that a list of share trading between 1980 and 1982 prepared by Martin showed only modest profits,[79] and Martin's evidence - which he accepted - that this was not a complete record of all share investments that were made but simply a list of shares which were held at the time he prepared the document.[80] The Tribunal member then analysed the share trading in Buddha Gold Mines shares, and the conflicting evidence of the three men on that topic - Miller's evidence being that all share trading ceased in 1983 and that there was an overall loss of $287[81] and the respondents' evidence being that substantial profits were made. Based on his review of the evidence, the Tribunal member rejected Miller's evidence and accepted the evidence of Martin and Brabham that substantial profits were made, stating that he was 'quite unable to assess what they were'.[82]
(7) Tegal Pty Ltd. The Tribunal member noted that the three men were equal shareholders in Tegal Pty Ltd,[83] and that Miller and Martin considered this company to be a partnership between the three men.[84] The Tribunal member analysed the funding and dealings of Tegal,[85] and noted that, while Miller initially funded Tegal from a bank account in America,[86] by August 1990 Tegal had a bank account in New York with a credit balance of $341,000 and there was 'no evidence of the source'. The evidence about this company appears to be most unsatisfactory, and the Tribunal member concluded only that:
The thing to note about the money paid into it is that it came from a bank account in America that was initially in the name of Mr Miller and was then in the name of Tegal. Yet Tegal appears to have been regarded as an equal partnership between them. That raises the possibility that although the account in America was initially in the name of Mr Miller, the money in the account might have been regarded by the partners as belonging to the partnership.[87]
(8) Bizane Pty Ltd. The Tribunal member noted that this was a venture between Miller, Martin and a third person (Parker). Accordingly, it was separate from the partnership, as Brabham was not involved. Bizane conducted litigation and was awarded substantial damages of $572,000, much of which was ultimately paid to Miller as consultancy fees and repayment of his loan account.[88] Miller and Martin sold their shares to Parker for significant sums - Miller ($140,000) and Martin ($75,000). There was evidence that Tegal lent $300,000 to Bizane and it was repaid.[89] Ultimately, the Tribunal member was only able to conclude in respect of Bizane:
What all this shows is that there was yet another source of large sums of money that were apparently handled by these men without any clear paper trails or explanation of why substantial sums were paid without any apparent consideration or record of whose money it was or its sources.[90]
58 The Tribunal member then moved to consider the evidence concerning payment of the outgoings, maintenance and upkeep of the beach house.
59 The Tribunal member noted Mr Miller's evidence, in a schedule of payments produced by him, that he has paid a total of $75,960.17 for renovation, maintenance, rates and other expenses of the beach house.[91] The Tribunal member noted that most of the payments appeared to have been made in cash, but some were made by credit card and others were made by cheques drawn on either Miller's personal account or on the partnership bank account.[92] He noted that the essence of the dispute was whether the money that was paid by Miller was his own money or that of the partnership. He reviewed the evidence,[93] and noted that the reimbursement of the few payments made by the Martins or the Brabhams were made by Miller, which suggested 'either that Mr Miller was particularly generous or that payments were being made from a fund upon which they all felt entitled to draw'.[94]
60 It is convenient to note here that in oral submissions before us, Miller relied heavily on successive versions of the respondents' proposed summary for this Court, which stated:
Miller expended approximately $130,710 on rates, renovations and insurance for [the beach house]. Apart from working bees and the like, no other party contributed money to the upkeep of the property. Neither Martin nor Brabham paid anything for rates, renovations and insurance.
Miller said he had filed three schedules of expenses paid by him with VCAT and implied that they supported this figure. That appears to be correct, because senior counsel for the respondents informed us that the respondents do not contest that $130,710 was paid in respect of expenses for the beach house. Counsel said that the dispute before the Tribunal concerned whether or not the payments were made by Miller from his own money. He referred to evidence before the Tribunal that the payments had been made from a variety of sources, including some from the partnership bank account.[95]
61 The Tribunal member reviewed various other financial dealings between the parties during the 1980s and 1990s.[96] The transactions sometimes included large sums of money. This review led the Tribunal member to pose the question: 'What is the source of all this money?'[97] By this question, it is clear that the Tribunal member was considering the assets acquired by the partnership and the other financial dealings between the three men, Tegal and Bizane. The Tribunal member commented that it was 'most striking' that the three men, all trained accountants, had not kept a proper set of accounts to record their financial dealings, leaving him in the position of having to determine 'where all this money is likely to have come from on very inadequate evidence'.[98] He noted and rejected Miller's evidence that 'the source of the funds the partners used ... was his, that he was a wealthy man and that he was generous to his friends'.[99] In respect of that evidence, the Tribunal member commented:
However much money he had, he did not adequately explain, and I do not understand, why he would spend such substantial sums on other people and buy substantial assets and put them into other people's names. Certainly the parties were friends but the scale of the spending seems to me to have gone well beyond what one would have expected. Further, the sorts of things the money was spent on also seem odd. All parties have described them as Lifestyle assets. They appear to have been luxuries and although one might understand Mr Miller being concerned to assist friends in need one might also wonder why he would want to assist them in the purchase of luxuries.[100]
62 The Tribunal member also noted doubts about the evidence of Martin and Brabham:
On the other hand, although Mr Martin, Mr Brabham and their respective wives insist that the money spent on these 'quality-of-life' assets was partnership funds the only sources of funds they have identified in their witness statements are proceeds of share trading and dealings in bank bills and other investments. Although I am satisfied that substantial profits might well have been made from those sources, the large sums of money spent by the parties seem to have amounted to a great deal more than that.[101]
63 It is clear that the Tribunal member was in a difficult position but had to make factual findings doing the best he could on the available evidence and in the absence of any proper accounts having been kept by the parties.
64 The Tribunal member appears to have derived considerable assistance from evidence given by Mrs Martin in cross-examination concerning profits made by Miller using Coles Myer money (the 'unauthorised profits'):
In the course of her cross-examination, Mrs Martin said that she was told by Mr Miller where the money came from. I asked her what he had said to her and she said that he told her that he had invested some of 'the company's funds' [a reference to Coles Myer funds] without approval and when he sought the approval it was denied. By that time, he had already made the investment and made a very large profit but as it was unauthorised could not risk the company hierarchy finding out what he had done so he kept the profits.
...
It was not put to Mrs Martin during cross-examination that this conversation did not take place nor was it suggested to her that her evidence about it was wrong. ...[102]
65 After noting that the substance of this evidence was not put to Miller in cross-examination, about which no question is raised on appeal to this Court,[103] the Tribunal member concluded that there was no reason to disbelieve Mrs Martin's evidence:
In the present case if Mr Schlicht [counsel for Miller in the Tribunal] had wished to re-call Mr Miller to give evidence in response to the allegation that Mrs Martin had made he could have made application to do so and leave would certainly have been granted. There was no application to call him which perhaps explains why her evidence was not challenged during cross-examination. Since there is no reason to disbelieve what she said I accept that the conversation occurred and that Mrs Martin's evidence about it is correct.[104]
66 Mrs Martin's evidence caused the Tribunal member to conclude that Miller's statement to her amounted to an admission by Miller 'that the money came from an unknown source and not from his own resources'.[105] On this basis, the Tribunal member concluded:
Whatever the source of the money was, Mrs Martin said that she believed that Mr Miller put it into the partnership and it appears more probable than not from the evidence that it was treated by these three men as being a common fund to be spent on their lifestyles.[106]
67 The Tribunal member next considered the 'nature of the critical deposit' of $282,820 which was used to fund the payment of the beach house and Imperial Surf. He noted Miller's evidence that the money was his, Brabham's evidence that he did not recall, and Martin's evidence that the critical deposit was paid into the partnership bank account in repayment of money that Miller owed to the partnership.[107] The Tribunal member then summarised the evidence which made Miller's evidence that he had paid all of the purchase price for the beach house improbable,[108] and concluded:
I think on the balance of probabilities that there was a pool of partnership funds derived partly from investments but principally from an unknown source that involved Mr Miller and possibly the other members of his very small team as well. I am satisfied that this pool was regarded by Mr Miller and the other two partners as belonging to the three of them.[109]
68 In reaching his conclusion, the Tribunal member gave specific consideration to the critical deposit of $282,820 by Miller into the partnership account:
The amount of $282,820 was paid into the Partnership Account. In view of the admixture of Mr Miller's funds with those of the partnership, the fact that the amount was paid into the Partnership Account and not into Mr Miller's personal account, the fact that Mr Miller acknowledged that the Beach House belonged beneficially to the three partners equally and the fact that after the money was paid in it was used in the purchase of bank bills in the names of all three partners, all lead me to think that it is more probable than not that it was paid in with the intention that it would belong to the three partners. It was then used to purchase investments in the way of bank bills in the names of all three partners and when those bank bills matured the proceeds were paid, not to Mr Miller, but back into the Partnership Account and were ultimately used to pay first for the Beach House and then for Imperial Surf. At the time of those purchases I think that it was partnership money as the respondents contended.[110]
69 On this basis, the Tribunal member dismissed the trust claims.[111] As noted, he neglected to then determine the statutory claims and make orders on them.
70 Miller sought leave to appeal to the Trial Division. Leave to appeal was granted. His notice of appeal to the Trial Division raised alleged errors of fact and law, many of which are not pursued in the proposed notice of appeal to this Court ('Trial Division notice of appeal'). The Trial Division notice of appeal raised procedural issues, including procedural fairness issues which are not included in the proposed notice of appeal to this Court.
71 As we have said, it was common ground that the Tribunal erred in failing to determine the statutory claims and that the statutory claims should be remitted to the Tribunal to be determined.
72 By grounds JA, JB and JC of the Trial Division notice of appeal, Miller contended that it was not reasonably open to the Tribunal member, on the evidence before him, to make findings that:
(1) the money used to purchase the beach house 'did not solely belong to the applicant', but formed part of 'a pool of partnership funds derived principally from an unknown source';
(2) the applicant intended at the time of the purchase that Martin and Brabham would take a beneficial interest in the beach house; and
(3) the applicant had acknowledged that the beach house belonged beneficially to the three men equally or, after adjustment of the co-ownership shares, that 80 percent of the beach house was owned equally by Miller and the respondents.
73 The Trial Division notice of appeal did not include any challenge to the jurisdiction of VCAT to determine either the trust claims or the statutory claims. The trial judge nevertheless considered whether the trust claims fell within VCAT's jurisdiction,[112] and determined that the statutory claims gave the Tribunal jurisdiction to determine the trust claims as part of determining the statutory claims.[113] Although the question does not arise on appeal to this Court, we agree with the trial judge's decision in this respect.[114] Bearing in mind that many of the Trial Division grounds of appeal are not pursued in the proposed grounds of appeal to this Court, we proceed to summarise the reasons of the trial judge.
74 The trial judge considered that the Tribunal's conclusion that the three men were in partnership was 'unassailable' and that, in denying a partnership, Miller's credibility was damaged in the Tribunal.[115] Having heard all of the arguments on 15 grounds of appeal, the trial judge stated that he did not understand Miller's appeal materials to be challenging either the partnership finding or the Tribunal's rejection of the 1986 agreement.[116] This was to be contrasted with the 'prime issue' before the Tribunal which was whether there was a partnership between the three men and whether the beach house was purchased from the funds of that partnership.[117] The trial judge then reviewed the evidence before the Tribunal, and the Tribunal's findings, as to the existence of a partnership,[118] and noted that Miller's alleged 1986 agreement was rejected by the Tribunal.[119]
75 The trial judge surveyed what he described as the 'substantial merits of this case' as involving the following steps:
(a) Miller's case was that he paid for the beach house and subsequent costs of ownership;
(b) his case was although it was his property, there was an unwritten agreement [the 1986 agreement] that Brabham and Martin could make recreational use of the house;
(c) any financial contributions by Brabham and Martin to the beach house would be recoverable by them on the ultimate sale of the house;
(d) despite all that, Brabham and Martin were on title as equal co owners from the outset;
(e) Brabham and Martin were never asked to make contributions;
(f) as Brabham and Martin did not make any financial contributions under the unwritten agreement, [it was Miller's contention that] they hold their interest on resulting trust and therefore any evidence of intention concerning any beneficial ownership is irrelevant;
(g) the Tribunal held there was no such unwritten agreement, a finding not challenged on appeal;
(h) the relationship was attributable to a partnership as a form of association, a partnership that was trading in shares;
(i) the beach house was purchased from funds in a partnership account and there was objective evidence to show an intention or a recognition by Miller that the moneys in that partnership account were partnership moneys, and more pertinently, there were documented instances of acknowledgment by Miller that Brabham and Martin had a one-third beneficial interest in the land;
(j) on that basis, and acting on the whole of the evidence that was before the Tribunal, any presumption of a resulting trust asserted by Miller was rebutted.[120]
76 Against that background, the trial judge considered the Trial Division grounds of appeal.
77 The first group of Trial Division grounds of appeal concerned procedural fairness issues, including failure to apply the rule in Browne v Dunn,[121] relating to the evidence of Mrs Martin concerning the unauthorised profits;[122] and concerning a complaint that the Tribunal 'permitted' late changes in the defence which went beyond the pleadings.[123] The trial judge rejected both these grounds of appeal. None of them have been repeated in the proposed grounds of appeal in this Court, although proposed ground 10 is an apparent challenge to Mrs Martin's evidence about the unauthorised profits - on the implicit basis that the acceptance by the Tribunal member of that evidence was not open.
78 The trial judge then considered the Trial Division ground of appeal alleging that the Tribunal member failed to give sufficient reasons,[124] an issue which is not sought to be agitated by the proposed grounds of appeal in this Court, and other Trial Division grounds of appeal which are not persisted with in this Court.[125] The judge then turned to consider ground J of the Trial Division grounds of appeal. As appears below, the proposed grounds of appeal in this Court include, as ground 8, the contention that the trial judge erred in 'not considering' whether the findings in ground J of the Trial Division notice of appeal were reasonably open to the Tribunal. The trial judge considered ground J by referring to the applicable legal principles and then applying those principles by reference to the objective evidence he had already considered.[126]
79 As to the applicable principles to be applied where it is contended that a factual finding gives rise to an error of law, the trial judge referred to the well-known principles stated in S v Crimes Compensation Tribunal,[127] where Phillips JA reviewed the authorities and stated that a finding of fact will be overturned on an appeal on a question of law 'only if that finding was not open' on the evidence before the relevant court or tribunal.[128]
80 As to Miller's contention in the Trial Division that the factual findings referred to in ground J were not open to the Tribunal on the evidence before it, the trial judge referred to his previous review of the evidence and the Tribunal member's reasons and stated:
Although Miller denied being in partnership with Brabham and Martin, the evidence of a partnership was, as the Tribunal described it: 'overwhelming'. The money used to pay for the beach house was paid by Miller into the partnership account. The Tribunal's finding that the money was partnership money was not only open, but it was more aligned with the objective evidence which showed Miller as acknowledging that the beach house was purchased with the apparent and executed common intention that it would belong to all three partners beneficially.[129] That rebutted equity's presumption that when a person purchases a property in the name of himself and another it is presumed that the purchaser did not intend the other person to take beneficially.[130]
81 By reference to the objective evidence and findings by the Tribunal member, canvassed earlier in the Trial Division Reasons over more than 70 paragraphs,[131] the trial judge rejected Miller's contentions that the factual findings referred to in ground J were not open to the Tribunal, in the following terms:
The Tribunal accepted that the amount of $282,820 was deposited into the partnership account, and it was the proceeds of sale of shares in Coles Myer in the name of New Kapital Investments. The relevant conclusion was that the money paid into the partnership account was partnership money. That is what defeated the case for a resulting trust, and collaterally, defeated the case for a constructive trust. The money was paid into the partnership account and then used to buy bank bills in the name of all three partners and then to purchase the beach house and the apartment at Surfers Paradise. The objective evidence to which I have made reference in this judgment made it not only open, but I think compelled the view that there was an evident intention that the beach house was a partnership asset in which Brabham, Martin and Miller had an equal beneficial interest, especially given the Tribunal's rejection of his case concerning the unwritten [1986] agreement which, like the conclusion that there truly was a partnership, was not challenged on this appeal.[132]
82 The trial judge then considered other Trial Division grounds of appeal which are not pressed in this Court,[133] considered the Tribunal's jurisdiction to determine the trust claims in the context of the statutory claims,[134] and proposed orders that the appeal be allowed to enable the statutory claims to be remitted and determined and the appeal otherwise be dismissed.[135]
83 The applicant relies on the following proposed grounds of appeal:[136]
84 In broad summary, and giving the proposed grounds of appeal a beneficial reading given Miller's status as an unrepresented litigant, they can be categorised as follows:
(1) The partnership finding was not open, or resulted from legal error, because:
(a) there was no express finding that there was a partnership agreement;[137]
(b) there was no finding as to the terms of the partnership agreement;[138] and
(c) the respondents' evidence concerning their investments in Buddha Gold Mines was wilfully false, as was their evidence that the profits made by them and Miller from Buddha Gold Mines shares were used to establish a partnership bank account governed by a written partnership deed.[139]
(2) The trial judge erred in law in determining that the beach house was partnership property:
(a) without taking into account the respective entitlements of the partners upon a dissolution of the partnership;[140] and
(b) by taking into account the intentions of the partners in determining that the beach house was partnership property.[141]
(3) Assuming the correctness of the partnership finding and on the basis that the beach house was still partnership property, the trial judge erred in holding that VCAT had jurisdiction to determine the statutory claims because:
(a) VCAT has no jurisdiction in respect of co-owned property '[to] which the Partnership Act applies';[142]
(b) an order for sale of the beach house, as partnership property, cannot be made without first determining the interests of the partners upon a dissolution of the partnership;[143] and
(c) Miller had lodged a caveat upon the beach house title.[144]
(4) The trial judge erred in law in not considering whether the factual findings challenged in ground J of the Trial Division notice of appeal were reasonably open to VCAT.[145] In particular, VCAT's findings that:
(a) the money used to purchase the beach house 'did not solely belong to the applicant', but formed part of 'a pool of partnership funds derived principally from an unknown source';[146]
(b) Miller intended at the time of the purchase that Martin and Brabham would take a beneficial interest in the beach house;[147] and
(c) Miller had acknowledged that the beach house belonged beneficially to the three men equally or, after adjustment of the co-ownership shares, by Miller and the respondents as to 80 percent.[148]
(5) The trial judge erred by failing to make findings, as follows:
(a) failing to find that Martin and Brabham wilfully gave false and misleading evidence in relation to payment of $20,000 to each of them by Miller from his New Kapital Investment bank account;[149]
(b) 'not correcting' the Tribunal's finding accepting Mrs Martin's evidence about unauthorised profits being paid into the partnership bank account;[150] and
(c) failing to find that Martin and Brabham gave false evidence about their investment in Buddha Gold Mines, the execution of a partnership deed to form the partnership, and the use of profits from trading in shares in Buddha Gold Mines to open the partnership bank account.[151]
85 Reading the appeal grounds as whole, it is clear that Miller continues to deny the existence of any partnership, and wishes to re-agitate that issue, notwithstanding that he did not do so in the Trial Division. The effect of the partnership finding, combined with the finding that the beach house was purchased with partnership funds, was to rebut any presumption that the beach house was held on a resulting trust for Miller - as he contends. Alternatively, if there was a partnership, Miller asserts that the beach house was not, in any event, purchased with partnership funds or otherwise intended to be a partnership property. If the beach house was partnership property, Miller contends that it remains so - with the asserted consequence that VCAT lacks any jurisdiction to determine the statutory claims.
86 We will consider Miller's grounds of appeal under the following headings:
(1) Was the partnership finding open?[152]
(2) Was the beach house partnership property?[153]
(3) Has the beach house ceased to be partnership property?[154]
(4) Did the trial judge fail to consider grounds of appeal contending that factual findings were not open?[155]
(5) Did the trial judge err in failing to make findings which he should have made on appeal?[156]
(6) Did VCAT have jurisdiction to determine the statutory claims? Did VCAT have jurisdiction on the remitter?[157]
87 Before considering these six questions, we note that we had the benefit of written submissions by the parties in respect of each of the proposed grounds of appeal. Much of the analysis which follows is based on the written submissions. This is because Miller's oral submissions did not follow his grounds of appeal in any ordered fashion, Miller did not address the jurisdiction issues in his oral submissions, and counsel for the respondents made oral submissions which were almost wholly confined to adopting their written submissions.
88 Further, we note that Miller's oral submissions raised issues outside his proposed grounds of appeal. In particular, Miller submitted orally that the remitter of the statutory claims to the same Tribunal member - especially the remitter of the application of s 233 of Property Law Act 1958 ('the Act') - was an error. He contended that the Tribunal member made a specific error in paragraph [155] of its reasons - that the amounts of $20,000 paid to each of Martin and Brabham on 18 January 1988 were distributions from the partnership bank account and not, as was the fact, partial repayments of loans made by Miller to Martin and Brabham - and that this error was conceded by the respondents before both the trial judge and this Court.[158]
89 It is no longer open for Miller to agitate in this appeal that remitter to the same Tribunal member was an error, even if leave to amend his grounds were given. This is because, as emerged during the course of the oral hearing in this Court, the remitter has already taken place and the Tribunal has made sale and distribution orders in relation to the beach house.[159] In general terms, those orders provide for the sale of the beach house under the control of an independent solicitor, and for the net balance of the sale proceeds to be paid according to the registered interests on title; with Miller having the opportunity to satisfy the independent solicitor managing the sale that the interests of the Stodgells and the Lamberts have been transferred to him. No orders were made under s 233 of the Act for compensation, reimbursement, accounting or adjustment of the co-owners' interests in the beach house.
90 Counsel for the respondents informed us that the sale and distribution orders were made on the basis of written submissions filed by the respondents, but that there were no written submissions by Miller. The sale and distribution orders record that Miller did not make any submissions 'within the time directed'. Miller informed us that he filed an affidavit on 20 June 2019, which was within the extended time of 21 June 2019, but the affidavit was not taken into account by the Tribunal. Given that Miller has sought leave to appeal against the sale and distribution orders, it is not appropriate to say anything further on the remitter of the statutory claims in these reasons.
91 Otherwise, Miller's oral submissions, for the most part, revisited past attacks on the truthfulness and reliability of Martin and Brabham's statements and evidence, accusing them of fraud on VCAT and the Court and criminal behaviour. He argued that they had purchased no shares at all in Buddha Gold Mines, and had thus made no profits. As we understood it, he argued there could not have been a partnership because Miller and Brabham had contributed nothing towards the purchase of the shares or to the funds used to establish the partnership bank account. He sought to reargue his previous application to restrain the respondents' solicitors from acting in this appeal, on the basis that statements in the agreed summary contained an admission that he alone had paid outgoings in respect of the beach house, and this evidenced further fraudulent conduct by the respondents and their solicitors which, had it been known when the restraint application had been heard, would have required this Court to restrain the solicitors. He attributed many and varying forms of misconduct to the respondents' solicitors and asserted, bluntly, that the solicitors and counsel for the respondents 'should not be there' and that, on this basis, he would appeal any decision that was based upon what they submitted.
Was the partnership finding open?[160]
92 Although he did not do so before the trial judge, Miller now seeks to challenge the partnership finding on three grounds. First, he contends that the trial judge erred in holding that a partnership could exist without making a finding that there was a partnership agreement (ground 2). Second, he contends that the trial judge erred in failing to hold that the Tribunal had a duty to determine the terms of the partnership agreement (ground 6). Third, he contends that, in making the partnership finding, the trial judge erred in not finding that Martin and Brabham 'willingly gave false and misleading information that there was a $15,000 investment in Buddha Gold Mines' (ground 11).
93 As to grounds 2 and 6, while ground M(b) of the Trial Division notice of appeal alleged that the Tribunal member erred by failing to make a decision on the statutory claims, including a decision as to the terms of the partnership agreement between the parties, no such issue was before the Tribunal, and the trial judge was not required to determine that issue.[161]
94 Miller asserts, without any reference to legislation or authority, that the Tribunal member needed to determine whether there was a partnership agreement and the terms of that partnership contract, as a pre-condition to finding the existence of a partnership agreement. We do not accept that contention. The Partnership Act 1958 governs the relations between partners in the absence of agreement. In this case, there was evidence that a standard form of partnership agreement had been executed - but no party could produce it. It is clear that a partnership agreement can be inferred from the conduct of the parties,[162] and whether or not this is so is a question of fact depending on the joint and not individual intention of the parties.[163]
95 As to ground 11, no ground in the Trial Division notice of appeal required the trial judge to make such a finding, or to find that the Tribunal member erred in law by failing to make such a finding. Even if they had, no error is demonstrated. This issue was raised by Miller in his application to this Court to restrain the respondents' legal practitioners from representing them in this Court. It is clear from the Court's decision dismissing that application that the Tribunal was not misled by the mistaken evidence given by Martin and Brabham, to the best of their recollections after more than three decades, and that neither of them willingly gave false evidence.[164]
96 In any event, it is clear from both the VCAT Reasons and the Trial Division Reasons that there was more than enough evidence to justify the making of the partnership finding.
Was the beach house partnership property?[165]
97 Miller contends that the trial judge erred in law in determining that the beach house was partnership property, because he did not have regard to the respective entitlements of the partners upon a dissolution of the partnership (ground 4), and because he took the intentions of the partners into account (ground 11).
98 As to ground 4, Miller contends that the Tribunal member, and thus the trial judge, erred in law in failing to determine the respective entitlements of the three men upon dissolution of the partnership, as part of exercising his jurisdiction under s 233 of the Act. He contends that ground M(b) of the Trial Division notice of appeal was wide enough to require such a finding, because it alleges that the Tribunal member erred in law by failing to make a decision on what were the terms of the partnership agreement.
99 We do not accept Miller's contentions on this ground. There was simply no issue before the Tribunal member, or the trial judge, which required the taking of partnership accounts as part of exercising the discretion under s 233 of the Act. This is because, for reasons explained below, the beach house had ceased to be partnership property from the time of the 1990 transfer. The Tribunal member was clearly of this view.[166]
100 Ground 7 also proceeds on the false assumption that the beach house was partnership property at the time of the VCAT hearing. For the reasons given, that assumption is incorrect. The Tribunal member decided only that the beach house was partnership property in the period from its purchase to the time of the 1990 transfer. The relevance of the finding that the beach house was partnership property during this period is that the Tribunal member was able to conclude that any presumption of resulting trust was rebutted by the parties' intentions.
101 Grounds 4 and 7 are not made out, as the beach house ceased to be partnership property at the time of the 1990 transfer.
Has the beach house ceased to be partnership property?[167]
102 As we have said, the beach house ceased to be partnership property on the registration of the 1990 transfer. The understanding of Miller and the respondents that an 80 percent interest in the beach house was 'owned by members of the partnership' was clearly wrong as a matter of law. As the Tribunal member later decided,[168] the beach house ceased to be partnership property of the three men by the 1990 transfer. That transfer had the effect of a distribution of partnership property by the three men to themselves and others.[169] At that time, the beach house ceased to be property of the partnership, and s 43 of the Partnership Act 1958 has no application to it.
103 Further, the co-ownership of the beach house from that time would only constitute a partnership between the new co-owners if they were 'carrying on business in common with a view of profit';[170] rather than simply enjoying a lifestyle asset.
Did the trial judge fail to consider grounds of appeal contending that factual findings were not open?[171]
104 Miller contends by ground 8 that the trial judge 'erred in not considering whether the findings in ground J of the [Trial Division] notice of appeal were reasonably open to VCAT'. We do not accept that contention. As we have said, the trial judge reviewed the relevant evidence in detail over more than 70 paragraphs and concluded that all of the factual findings which Miller sought to challenge by ground J were open to the Tribunal.[172] We agree.
Did the trial judge err in failing to make findings which he should have made on appeal?[173]
106 Miller contends that there were three specific findings which the trial judge ought to have made. We shall consider each in turn.
107 First, Miller contends by ground 9 that the trial judge erred in not finding that Miller and Brabham 'wilfully gave false and misleading information' that amounts of $20,000 paid to each of them by Miller from his New Kapital Investment bank account were returns of partnership capital 'when they were in fact unpaid loans' from Miller.
108 We accept that the Tribunal member made a factual error in this regard, as he mistakenly found that the two $20,000 payments were made from the partnership account and not from one of Miller's personal bank accounts.[174] This mistake was acknowledged by counsel for the respondents in the hearing of the appeal in the Trial Division, but was unfortunately not referred in the Trial Division Reasons. We are not persuaded that this isolated finding, even if constituting an error of law, would have altered the conclusions reached by the Tribunal or the trial judge.
109 Second, Miller contends by ground 10 that the trial judge erred in law 'in not correcting' the Tribunal member's factual finding that he accepted Mrs Martin's evidence about the unauthorised profits.[175]
110 We do not accept this contention. Once again, this issue was not raised by any ground of appeal in the Trial Division notice of appeal. In any event, Miller's submissions in this regard focus on the critical payment of $282,820. Mrs Martin's evidence did not relate to that specific payment but, rather, in the context of a question from the Tribunal member to Mrs Martin, arising out of cross-examination, about how the partnership came to have sufficient funds to purchase all of the partnership assets. This is clear from a reading of the whole of the Tribunal member's reasons on this issue,[176] which concern funding of the partnership from unexplained sources to purchase many assets of considerable value, and precede the Tribunal's specific consideration of the critical deposit under the heading: 'The nature of the critical deposit'.[177]
111 Third, by ground 11 Miller contends that the trial judge erred in not finding that Martin and Brabham 'willingly gave false and misleading information that there was a $15,000 investment in Buddha Gold Mines'. Once again, no ground in the Trial Division notice of appeal raised such an issue to be determined by the trial judge. In any event, there is no substance to the contention that Martin and Brabham willingly gave false evidence on this issue, as this Court's earlier decision dismissing Miller's application to restrain the respondents' lawyers from acting makes plain.[178]
112 Grounds 9, 10 and 11 are not made out. We add, not that it affects this conclusion, that it was not the task of the trial judge to make findings; and that a complaint that the judge did not make findings is even further removed from the task which his Honour was required to undertake.
Did VCAT have jurisdiction to determine the statutory claims? Did VCAT have jurisdiction on the remitter?[179]
113 On the basis that there was a partnership between Miller and the respondents, and the beach house is still partnership property, Miller contends that s 234C(2) and (3) of the Act deprive VCAT of jurisdiction to determine the statutory claims. In summary, s 234C(2) and (3) provide that the Supreme Court and the County Court have exclusive jurisdiction to determine applications under pt IV of the Act which relate to 'a proceeding under the Partnership Act 1958'.
114 Miller's challenge to jurisdiction fails at the outset. As appears above, the beach house was partnership property when acquired, but ceased to be so following the 1990 transfer.
115 However, if the beach house was still partnership property, we are of the clear view that VCAT would nevertheless have had jurisdiction, and has jurisdiction to determine the statutory claims on the remitter. Our reasons follow.
116 Miller's main grounds of appeal contending that VCAT did not have jurisdiction assume the correctness of the Tribunal's findings that there was a partnership - and that the beach house was purchased from partnership funds. They then assume that it not only became but remains, partnership property. Miller relies upon s 234C of the Act, which provides:
234C Jurisdiction
(1) Subject to this section, the Supreme Court and the County Court do not have jurisdiction to hear an application under this Part.
(2) The Supreme Court and the County Court have jurisdiction to hear an application under this Part if the matter which is the subject of the application relates to a proceeding under -
(a) Part IX of this Act; or
(b) Part IV of the Administration and Probate Act 1958; or
(c) the Partnership Act 1958.
(3) VCAT does not have jurisdiction to hear an application of a kind referred to in subsection (2).
(4) The Supreme Court and the County Court have jurisdiction to hear an application under this Part if -
(a) in any proceeding which has commenced in the Supreme Court or the County Court (as the case requires), the issue of co ownership of land or goods arises in the course of that proceeding; or
(b) in the opinion of the Supreme Court or the County Court (as the case requires), special circumstances exist which justify the Supreme Court or the County Court hearing the application.
(5) For the purposes of subsection (4), special circumstances means circumstances in which -
(a) the matter which is the subject of the application is complex; or
(b) the matter which is the subject of the application, or a substantial part of that matter, does not fall within the jurisdiction of VCAT.
117 The respondents contend that s 234C(2)(c), and thus s 234C(3), have no application because Miller's statutory claims do not 'relate to a proceeding under the Partnership Act 1958'. Miller contends that the effect of s 234C is that VCAT does not have jurisdiction to hear an application under pt IV of the Act wherever the application relates to a partnership which is 'governed by the Partnership Act'. Miller relies on the trial judge's description of the respondents' submissions to VCAT that:
Any dispute between partners concerning financial adjustments according to contributions to a partnership undertaking is a matter for the law of partnership and the taking of proceedings to dissolve the partnership and to seek a taking of accounts.[180]
However, that contention was rightly rejected by the Tribunal.[181]
118 Whether s 234C of the Act deprives VCAT of jurisdiction is a question of statutory interpretation. The principles to be applied are not in doubt. As the High Court has repeatedly stated, the process of statutory construction involves beginning with the words of the statute and then considering those words in light of their context and the purpose of the provision to be interpreted.
119 For example, in Federal Commissioner of Taxation v Unit Trend Services Pty Ltd, French CJ, Crennan, Kiefel, Gageler and Keane JJ stated:
As French CJ, Hayne, Crennan, Bell and Gageler JJ said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd: 'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'. Context and purpose are also important. In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross French CJ and Hayne J said:
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' ... That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'.[182]
120 Consistent with these general principles, s 35(a) of the Interpretation of Legislation Act 1984 provides that 'a construction that would promote the purpose or object underlying the Act ... shall be preferred to a construction that would not promote that purpose or object'. Section 35(b) empowers the Court to consider 'any matter, document or thing that is relevant' to the interpretation of a provision.
121 In Thiess v Collector of Customs,[183] the High Court described the search for statutory purpose as:
... a particular statutory reflection of a general systemic principle. For:
it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.[184]
122 We do not accept Miller's contentions. First, they do not grapple with the actual words used in subsections 234C(2) and (3). Subsection (2) gives the Supreme and County Courts jurisdiction to hear applications under pt IV of the Act wherever 'the matter which is the subject of the application relates to a proceeding under ... the Partnership Act'.[185] The emphasised words raise an interpretation issue, namely, what is 'the matter'? Read in context, it is clear that 'the matter' is a reference to the particular co-owned land which is the subject of an application under pt IV. In order for the Supreme and County Courts to have jurisdiction under pt IV of the Act, the application under that part must relate to a proceeding under one of the three Acts mentioned in paragraphs (a), (b) and (c) of sub-s (2).
123 Read in the context of pt IV of the Act as a whole, the requirement that there be 'a proceeding under' one of the three mentioned Acts refers to legal proceedings authorised by one of those Acts. This is made textually clear by the references in s 234C(4)(a) to 'any proceeding which has commenced in the Supreme Court or the County Court'; the assumption underlying s 234C(5) that there is an existing application before either the Supreme Court or the County Court which calls for a consideration as to whether there are 'special circumstances' enlivening jurisdiction in those courts; and the provisions of s 234D concerning the powers of courts which have jurisdiction in 'any proceeding in relation to the co-ownership of land'.
124 This analysis of the reference in s 234C(2) to 'a proceeding under' one of the three mentioned Acts is supported by the decision of Brereton J in Re Struthers (liq of Project Management, Architecture and Construction Interior Pty Ltd) (No 3),[186] where the authorities relating to the phrase 'proceeding under this Act' were reviewed. Brereton J concluded that: 'proceedings will be "under this Act" if they are authorised by, or provided for, or in respect of a cause of action created by, the Corporations Act'.[187] While Brereton J noted that the word 'proceeding' is capable of variable and varying meanings: 'generally speaking, a proceeding means the invocation of jurisdiction by an initiating process'.[188]
125 Read this way, the Supreme and County Courts are invested with jurisdiction to hear applications under pt IV of the Act where the application relates to a proceeding which has been commenced under one of the three mentioned Acts:
(1) as to s 234C(2)(a), although pt IX of the Act has been repealed, it is a reference to the previous provisions of the Act which authorised unmarried domestic partners - called 'de facto partners' - to make application to the Court for 'an order adjusting the interests of the de facto partners in the property of one or both of them that seems just and equitable';[189]
(2) as to s 234C(2)(b), pt IV of the Administration and Probate Act 1958, s 90A of that Act authorises the making of 'an application for a family provision order' to the Court by or on behalf of 'an eligible person'; and
(3) as to s 234C(2)(c), the Partnership Act authorises or provides for partners to apply to a court for a 'decree [of] dissolution of the partnership'[190] and, consequent upon the dissolution of a partnership, to 'apply to the Court to wind up the business and affairs of the firm'.[191]
126 The purpose of pt IV of the Act also supports the construction of s 234C which we prefer. Part IV of the Act as it presently stands was introduced by the Property (Co-ownership) Act 2005. Section 1(a)(i) describes one of the 'main purposes' of that Act as being 'to provide for ... the transfer of jurisdiction for disputes relating to the co-ownership of land and goods from the Supreme Court and County Court to VCAT'. The present form of pt IV of the Act arose from a report of the Victorian Law Reform Commission titled 'Disputes Between Co-owners'.[192] The reasons for reform were expressed in terms that applications to the Supreme or County Court to end co-ownership of property may involve needless expense and delay,[193] and the advantages of having such applications heard in VCAT including: 'lower costs, less formality [and] quicker hearing times.'[194] Thus, a main purpose of pt IV of the Act is to confer jurisdiction on VCAT wherever the parties choose to, or acquiesce in, the invocation of its jurisdiction in preference to other available forums to resolve their co-ownership dispute.
127 In this case, no application was purportedly made to VCAT under the Partnership Act 1958, and no application has ever been made to the Supreme Court or the County Court under that Act - for example, seeking an order that the partnership between the three men be dissolved and accounts be taken. On this basis, VCAT had and has jurisdiction to determine Miller's statutory claims under pt IV of the Act. However, for the reasons expressed above the better view is that, while the beach house was initially partnership property when it was co-owned by the three men only, it has since ceased to be partnership property. Thus, s 234C(2)(c) is not engaged.
128 Miller's contention that the caveat he lodged on the title to the beach house deprives VCAT of jurisdiction to determine the statutory claims has no merit. He lodged the caveat to protect his trust claims. It was the existence of the statutory claims which gave VCAT jurisdiction to consider the trust claims.[195] VCAT found that those claims were not established, and Miller's appeals against that order have failed.
129 For the above reasons, while we would grant leave to appeal, the appeal will be dismissed.
[1] Miller v Martin [2016] VCAT 854 ('VCAT Reasons').
[6] Miller v Martin [2018] VSC 444 ('Trial Division Reasons').
[8] [2019] VSCA 187 [36]-[39] (citations in original) (emphasis added).
[9] [1995] VicRp 9; [1995] 1 VR 150, 152 ('Lagarna'). See also Longreach Family Living (Vic) Pty Ltd v Simonds Homes Melbourne Pty Ltd [2013] VSCA 274, [35]; Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [No 2] [2016] VSCA 183, [21]; Jambere Pty Ltd v Body in Balance Chiropractic Pty Ltd [2017] VSCA 143, [28].
[10] [1995] VicRp 9; [1995] 1 VR 150, 152.
[11] [1998] VSCA 114; [1999] 3 VR 95, 97 [16].
[12] Lagarna [1995] VicRp 9; [1995] 1 VR 150, 152.
[13] Civil Procedure Act 2010 s 8(1). See Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [No 2] [2016] VSCA 183, [22].
[14] These hearings were originally set down for 25 October 2019.
[15] Summons Reasons [23] (emphasis in original).
[21] Proposed grounds 3, 5, 6, 9 and 15.
[23] [1984] HCA 81; (1984) 155 CLR 242 ('Calverley').
[24] Ibid 246 (emphasis added); VCAT Reasons [13].
[25] Ibid 255 (emphasis added); VCAT Reasons [14].
[26] VCAT Reasons [16] (emphasis added).
[28] [1956] HCA 28; (1956) 95 CLR 353, 365 ('Charles Marshall').
[29] Ibid 365, quoting R. E. Megarry, Snell's Principles of Equity (Sweet & Maxwell, 24th ed, 1954) 153.
[38] Ibid [28], [32], [108]-[123].
[47] Ibid [59]-[60], [73]-[74], [200].
[53] Ibid [57]-[61], [73], [74].
[103] This issue was raised in the Notice to Appeal to the Trial Division and was considered and rejected by the trial judge: Trial Division Reasons [90]-[109].
[104] VCAT Reasons [180] (emphasis added).
[108] Ibid [194]-[201], [203]-[205].
[114] Krsteski v Jovanoski [2011] VSC 166, [19].
[116] Ibid [88], [89(g)], [138].
[122] Trial Division Reasons [91]-[104].
[130] Trial Division Reasons [30] (emphasis added) (citation in original).
[136] For convenience, these will be referred to simply as 'grounds of appeal'.
[146] Proposed ground 8, Trial Division notice of appeal ground JA.
[154] This issue arises as a necessary precursor to a consideration of grounds 1 and 5, which contend that VCAT had no jurisdiction because the beach house remains partnership property.
[158] This error is the subject of proposed ground 9 and is considered below.
[159] Miller v Martin [2020] VCAT 29. These reasons were delivered after the hearing of this appeal, on 8 January 2020.
[162] Rosselli v Rosselli [2007] VSC 414 [39] citing Higgins and Fletcher, The Law of Partnership in Australia and New Zealand (Law Book Company, 6th ed, 1991) 93.
[164] Miller v Martin [2019] VSCA 86 [29]-[41].
[167] This issue arises as a necessary precursor to a consideration of grounds 1 and 5, which contend that VCAT had no jurisdiction because the beach house remains partnership property.
[169] Hancock Prospecting Pty Ltd v Wright Prospecting [2012] WASCA 216; (2012) 45 WAR 29, 46 [43]-[45], citing RI Banks, Lindley & Banks on Partnership (Sweet & Maxwell, 19th ed, 2010) [18-44]. See, also, RI Banks, Lindley & Banks on Partnership (Sweet & Maxwell, 20th ed, 2017) [18-46].
[170] Partnership Act 1958 s 5(1).
[172] Trial Division Reasons [38]-[109], [138].
[178] Miller v Martin [2019] VSCA 86 [29]-[41].
[182] (2013) 250 CLR 523, 539-40, [47] (original emphasis; citations omitted).
[183] [2014] HCA 12; (2014) 250 CLR 664, 672.
[184] Ibid [23] (citations omitted).
[190] Partnership Act 1958 s 39.
[192] Victorian Law Reform Commission Report, Disputes Between Co-owners (Final Report, February 2002).
[195] Krsteski v Jovanoski [2011] VSC 166, [19].
Miller
Martin [2020] VSCA 4
(1984) 155 CLR 242
(1956) 95 CLR 353
(2012) 45 WAR 29
(2013) 250 CLR 523
(2014) 250 CLR 664