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[2021] VSCA 108
General information, not legal advice.
Court of Appeal (Vic)
2021-04-30
Tate JA, Niall JA, Kennedy JA
Original judgment source is linked above.
7. Such further or other Orders as the Court deems fit.
70 Both current appeals were brought pursuant to s 148 of the VCAT Act. Such appeals are confined to questions of law, not to matters of contested facts.
71 In Patsuris v Gippsland and Southern Rural Water Corporation,[126] Garde AJA discussed the general principles in relation to s 148 in detail. Relevantly, he explained the requirement that the appeal must be on a question of law, and not fact, in the following terms:
The limited nature of appeals under s 148 has subsequently been further emphasised by the High Court. Section 148 does not confer a general right of appeal on the merits of a case. If no threshold question of law can be identified, the case is not suitable for the type of restricted appeal that s 148 provides.
The 'question of law' requirement in s 148 confers a limited capacity on the Court to review findings of fact made by a Tribunal member. The requirement in s 148 to state a question of law is germane to the capacity of the Court to review findings of fact made by a Tribunal member. The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself.[127]
72 The law on this matter was also summarised recently by Beach, Osborn JJA and Stynes AJA in Tanah Merah Vic Pty Ltd v Owners' Corporation No 1 of PS631436T[128] who explained:
Section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 allows appeals on a question of law, including whether or not there is any evidence to support a finding of fact. It does not however extend to a mere error of fact unless the Tribunal made a finding that was 'simply not open to it'. For the most part, this requires 'that there was no evidence on the basis of which the Tribunal could reach that finding, not that there was some evidence tending to a different conclusion'.[129]
73 Miller relies upon multiple grounds of appeal, many of which raise only contested issues of fact (including questions about the dates on which the parties filed their affidavits or submissions) and do not properly fall within the scope of s 148 of the VCAT Act. Many of them impermissibly seek to re-agitate the question of the existence of the partnership, the issue of whether the respondents' solicitors should be restrained from appearing for them, and the question of whether Martin and Brabham wilfully gave false evidence before VCAT on the advice of their solicitors.[130] These are matters that have been finally determined and cannot be revisited.
The key issues cannot be re-agitated - res judicata
74 It is fundamental to the finality of judicial decision-making that issues once determined cannot be re-agitated.
75 The doctrine of res judicata is well established. In Jackson v Goldsmith,[131] Fullagar J said:
The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims 'interest reipublicae ut sit finis litium' [the public interest of a matter is so that litigation should end] and 'nemo debet bis vexari pro eadem causa' [no one should be tried twice in respect to the same matter].[132]
76 The distinction between the concepts of 'res judicata' and 'issue estoppel' was authoritatively explained by Dixon J in Blair v Curran[133] as follows:
[I]n the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
... [I]n neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter where it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.[134]
77 These comments were subsequently cited with approval by Gibbs CJ, Mason and Aitken JJ in Port of Melbourne Authority v Anshun Pty Ltd[135] where they commented that the prohibition on re-agitating a matter that has already been determined comes into operation,
whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.[136]
78 The effect of the Court of Appeal's restraint decision and the appeal from the original VCAT decision, which we have described in detail above, is that a number of issues have been determined, at an appellate level, adversely to Miller. These include the following key issues ('the key issues'):
(1) The existence of the partnership;
(2) The proposition that the beach house was purchased from partnership funds;
(3) The proposition that all three members of the partnership, Miller, Martin, and Brabham, held a beneficial interest in the beach house;
(4) The proposition that Martin and Brabham held their interests in the beach house on trust for Miller;
(5) The allegation that Martin and Brabham willingly gave false evidence with an intention to deceive VCAT about the investment in the Buddha Gold shares or the execution of the partnership deed that followed that investment;
(6) The allegation that Martin and Brabham willingly gave false evidence that the profits from the sale of the Buddha Gold shares were used to open the Partnership Account following the execution of the partnership deed.
79 This Court is not sitting on appeal from the earlier determinations of these key issues. The key issues are not ones that it can permissibly revisit. This Court must treat these issues as having been finally determined in accordance with the doctrine of res judicata. It is not open for Miller in this Court to re-agitate the bulk of the questions he wishes to raise. This includes the question of whether Martin and Brabham intended to mislead VCAT about the source of the funds used to purchase the beach house. Nor can Miller assert once more, directly or indirectly, that Martin and Brabham held their interests in the beach house on trust for him. In so far as the current appeals seek to challenge the correctness of the earlier determinations on the key issues, they are not maintainable.
80 On the hearing of the current appeals, Miller identified the fundamental issue as being the failure of VCAT to take into account the evidence that was given on 21 March 2016 by Martin in arriving at its conclusion that a partnership existed. It is this fundamental issue that lies at the heart of Miller's grievance. As discussed above, by reference to the doctrine of res judicata and issue estoppel, this issue cannot be relitigated in this Court. However, in the hearing, Miller directed almost the whole of his oral submissions to the fundamental issue. In those circumstances, there may be some utility in seeking to examine Miller's contentions and to explain the way in which VCAT has throughout the proceeding, in the original VCAT decision, the sale and distribution decision, and the costs decision, sought to rely upon objective evidence. It has done so because it has been unwilling to accept the case presented by any of Miller, Martin or Brabham. In respect of all three men it has made adverse credit findings. Miller's case has been unsuccessful because of the objective evidence that contradicts it, not because VCAT has accepted the case presented by Martin or Brabham.
81 Miller submits that VCAT failed to take into account the evidence given on 21 March 2016 and this led to the Court of Appeal also overlooking that evidence. The evidence given on 21 March 2016 was the evidence of Martin that Miller submits was damning of Martin's credibility.
82 Miller emphasises, first, that the amended order made on 3 June 2016 by VCAT, in recording the original VCAT decision, describes the dates of hearing as: '22 - 26 February 2016' and 'Submissions 15 April 2016'. The order makes no mention of the hearing of 21 March 2016. Miller submits that this shows that the order was made on the basis of part-heard evidence because it omits 21 March 2016. He accepts that [7] of the original VCAT decision acknowledged that evidence was given on 21 March 2016 as follows:
The hearing proceeded from 22 until 26 February 2016 and was then adjourned part heard until 21 March 2016 when the rest of the evidence was given. The matter was then adjourned until 15 April 2016 for the making of oral submissions, with written submissions to be filed and served in the meantime.
83 He contends that this recognition of the additional evidence given on 21 March 2016 reveals that the order of 3 June 2016, dismissing his application, is flawed. He relies on the orders made by Mukhtar AsJ when he remitted the matter, namely, that the statutory claims were to be heard and determined 'according to the evidence already heard'. As mentioned,[137] the orders made by Mukhtar AsJ read as follows:
The proceeding is remitted to the Tribunal to be constituted by the same Senior Member who made the order, to enable the Tribunal to determine the statutory claims according to the evidence already heard and the findings already made by the Tribunal as published in Miller v Martin (Building and Property) [2016] VCAT 854 (3 June 2016), and after hearing or rehearing any further submissions on the determination of the statutory claims according to the evidence already heard and the findings already made by the Tribunal.[138]
84 He submits that the orders of Mukhtar AsJ have never been complied with because Senior Member Walker overlooked the evidence of 21 March 2016 in the original VCAT decision and, on the remitter, in making the sale and distribution decision, he continued to overlook that evidence. He also impugns the refusal decision because, he submits, the proceeding cannot have been finalised if it excluded the evidence of 21 March 2016. Furthermore, in the costs decision, Senior Member Walker records, in respect of the original hearing, that:
I heard the matter over five days in February 2016 and, on 26 May 2016, dismissed Mr Miller's application.[139]
85 There is again no mention of the evidence given on 21 March 2016.
86 The same omission is repeated in the restraint decision when the Court of Appeal describes the original hearing at VCAT in the following way: 'The applicant [for the restraining order, Miller] was represented by counsel in the VCAT proceeding, which took place in the period 22-26 February and 15 April 2016'.[140]
87 Miller submits that the evidence that was given on 21 March 2016 is of considerable significance. It reveals, he submits, that the case put by Martin and Brabham, namely, that the partnership commenced by means of an investment in Buddha Gold shares that made substantial profits, was wrong. In the original VCAT decision, Senior Member Walker described the witness statements of Martin and Brabham in these terms:
In contrast [to Miller], Mr Martin and Mr Brabham said in their witness statements that very substantial profits were made from an investment that they all made in Buddha Gold. They said that they and Mr Miller each invested $5,000 to acquire shares and options in that company and that the shares and options were subsequently sold at a substantially higher price.[141]
88 By contrast, the evidence of Martin on 21 March 2016, under cross-examination, included the following evidence about the purchase of the Buddha Gold shares and the commencement of the partnership that, Miller submits, shows that Martin was uncertain in his recollection, that he conceded that at the time of the purchase of the Buddha Gold shares there was no partnership, and that in general his evidence was implausible:
MARTIN: My recollection is that there was two - two lots of Buddha Gold shares acquired under two prospectuses at the same time, one to Mr Miller, how - how we contributed to that I have no recollection ... and the other 15 - well whether it was 15,000 shares, the other $5000 that we each put in I believe was given to myself because there was no [Brabham] and Martin in the Miller partnership at that stage.
...
MARTIN: My recollection is that the prospectus was given to me and there was no partnership and I certainly couldn't afford $15,000 to take it up and we took it up as a ... a group and that was the origins of the partnership.
...
SCHLICHT: This prospectus is October 1980 correct? ...
MARTIN: Um, I thought it was 79 or 1980.
...
SCHLICHT: And you say that you were able to get an allocation, an allotment of these shares because you were in the money market, is that right?
MARTIN: Ah, well, yes, I was in - I was in that money market, yes.
SCHLICHT: Yes but you didn't go into the money market until 82 or 83, some two years after this prospectus?
MARTIN: Well then I must've got the dates wrong.
...
SCHLICHT: What I'm saying to you is that ... if you got this entitlement by reason of the fact that you're being in the money market, that couldn't be so because you don't start at the money market until at least two or three years later, what do you say to that?
MARTIN: ... I that - that's incorrect.
...
SCHLICHT: Well what did you do with - look if the - if you - if these $15,000 shares are purchased in your name?
MARTIN: Yes.
SCHLICHT: And you've sold them?
MARTIN: Yes.
SCHLICHT: Then the cheque would've been made out to you personally, correct?
MARTIN: I believe so, yes sir.
SCHLICHT: And what did you do with that money?
MATIN: I believe as I said last time, I believe I put it into a term deposit which was normal practice for us.
SCHLICHT: Right and what then happened?
MARTIN: We would've invested it in other shares but I don't - as I've said I have no direct recall for that but I - I don't believe the things that Mr Brabham said we invested in were true, well, I certainly didn't recall them.
SCHLICHT: Did you - have you got this - is there any explanation as to why there is not one record of the proceeds of this $15,000 worth of shares?
MARTIN: I haven't got any records of any of the transactions, only what Mr Miller's provided today, well not today but during this.
SCHLICHT: At the same time of this $15,000, Mr Miller also purchased $3,000 worth of Buddha Gold shares, that's correct isn't it?
MARTIN: I - yes - I believe that's ...
SCHLICHT: Those moneys got deposited into the BBM account [the Brabham, Miller, Martin account], didn't it?
MARTIN: I believe the cheque was to him and then he ... into his account when he sold them and then he wrote the personal cheque and put it into Brabham, Martin account, it ultimately ended up there, yes.
SCHLICHT: Yes and the same could've applied to the $15,000 worth of shares too, couldn't it?
MARTIN: We I would've - well it could've but it would've - because of the quantum difference, we would've put it into a term deposit.
...
SCHLICHT: Why didn't you record the $15,000 into the BMM account?
MARTIN: Because they said it had already been sold the ...
SCHLICHT: When did they get sold?
MARTIN: Almost immediately, the same time as Mr Miller sold the original ones ...
...
SCHLICHT: ... these 15,000 worth of Buddha Gold shares, was it just rolling over into a term deposit all the time was it?
MARTIN: No, it wasn't sir, no that's incorrect, it was invested in other shares, it would've been in term deposits for holding for very short periods of time.
SCHLICHT: Well?
MARTIN: When I say that, 30, 60 days but not - not years.
...[142]
89 In Martin's witness statement in reply he states, at [51]:
Miller says ... that he purchased 6,000 Buddha Gold Mine Shares. He omits to mention that the BMM partnership Invested $15,000 ($5,000 contributed each) in shares in the same company. I believe the shares were either 1 cent or 5 cent partly paid $1 shares. I think that they were 5 cent paid, which equals 300,000 shares. The sale of the shares at near $2 [yielded] a healthy profit for the partnership and my belief is that the proceeds went into the BMM CBA partnership account. The way I see the math is: $15,000 at $0.05 per share giving 300,000 shares. If sold at $1.90 per share (which for some reason is what I recall) that would provide proceeds of $285,000 being ($1.90 less $0.95).
90 Miller submits that the evidence of the value of the shares that Martin gives in his witness statement in reply is demonstrably false because there is evidence in the Buddha Gold prospectus, which he produced in discovery, that shows that Miller obtained 6,000 shares for the $3000 he invested personally (an investment Martin acknowledged) meaning that the value of the shares on purchase must have been 50c and not 0.05c.[143] He also emphasises that it was accepted by Martin, as mentioned above, that Miller had acquired Buddha Gold shares in his own name. This was also accepted by Brabham in a letter dated 6 September 2012, to Miller's then solicitors, to the effect that:
I recall Mr Miller acquired some shares in his own name so it is quite possible the share sale you refer to was his own and not part of the partnership of Brabham, Martin & Miller that I have referred to previously.
91 Miller submits that the only purchase of Buddha Gold shares was his personal purchase in the sum of $3000 and there was never any purchase of a $15,000 parcel of Buddha Gold shares by him, together with Martin and Brabham, nor any significant profits that could provide the basis of wealth for a variety of investments. Miller emphasises that his discovery was accepted by Martin and Brabham as adequate and that there was no request for documents supporting a purchase of $15,000 worth of Buddha Gold shares. He highlights that there was no documentary evidence of that purchase and no documentary evidence of the term deposit to which Martin referred. He submits that there was, in any event, an upper cap on the parcels of shares that could be bought, namely, 18,000 shares for $9,000. He submits that it is curious for Martin to speak of investing in a term deposit account as 'our normal practice' when Martin had conceded that this was at a time when no partnership was in existence and, on Martin's evidence, the transaction led to, or was associated with, the creation of the partnership.
92 Miller also relies on the recognition by Senior Member Walker that there was no satisfactory documentation supporting Martin and Brabham's evidence of the purchase of Buddha Gold shares. Senior Member Walker said:
They [Martin and Brabham] produced no documentation to substantiate their allegations and the figures stated by each of them in their respective witness statements turned out to be incorrect. The shares subscribed for were not five cent shares but rather, $0.20 shares issued at a premium of $0.30 each. For each three shares subscribed for they were entitled to acquire one option for a further five cents. That would have meant that, for an investment of $15,000 the parties would have received 30,000 ordinary shares and 10,000 options. That is, assuming that the numbers of shares and options purchased were as alleged.[144]
93 Miller submits that this passage of VCAT's reasons amounts to a finding that what Martin and Brabham said in their witness statements was false. Accordingly, when Mukhtar AsJ remitted the matter back to VCAT for the hearing and determination of the statutory claims 'on the findings made' it ought to have been on the basis that Martin and Brabham had given false evidence.
94 Miller also highlights that Martin and Brabham now accept facts that are inconsistent with the evidence they gave at VCAT about the initial purchase of $15,000 worth of Buddha Gold shares as the commencement of the partnership. Instead, they assert that there was a small investment leading to a small profit. In their 'Summary of facts', prepared for the Court of Appeal, Martin and Brabham say that:
Miller Martin and Brabham made a small investment in the float of Buddha Gold Mines NL in the early 1980s. The sale of the shares resulted in a profit of $4,857, which was deposited into a joint bank account in the names of Martin Miller and Brabham.
95 Miller submits that this has implications for the purchase of the beach house. Martin and Brabham accept that Miller sold his Coles Myer shares for $282,720 in December 1986 and that this was used in part for the purchase of the beach house. Their 'Summary of facts' states:
On 3 December 1986 Miller sold Coles Myer shares for $282,720. On 5 December 1986 the proceeds of sale were paid into the joint bank account.
96 Miller submits that the finding of VCAT that he had put those proceeds into a partnership account depended on Senior Member Walker first finding that a partnership existed between the three men and that conclusion was based on the purchase and sale of the Buddha Gold shares in 1980. He argues that if VCAT's conclusions about the Buddha Gold shares can be demonstrated to be erroneous, it follows that the inferences drawn about the beach house are similarly mistaken.
97 Miller also emphasises that, with respect to the ongoing maintenance costs for the beach house over the years, it is not in contest that neither Martin nor Brabham made any contribution. The respondents 'Summary of Facts' records the following:
Miller expended approximately $130,710 on rates, renovations and insurance for Moggs Creek. Apart from working bees and the like no other party contributed to the upkeep of the property. Neither Martin or Brabham paid anything for rates, renovations and insurance.
98 The difficulty for Miller is that Senior Member Walker did understand that the evidence of Martin and Brabham was unreliable. In the original VCAT decision, he identified the conflict in the evidence between Miller, and Martin and Brabham.[145] In the passage quoted above,[146] he accepts that Martin did not acquire the Buddha Gold shares as he had said; he concludes that Martin's evidence should not be accepted as an accurate record of what had happened.
99 Moreover, as the respondents submit, the inferences drawn about the joint proprietorship of the beach house was not based upon the evidence about the purchase of the Buddha Gold shares but on acknowledgements Miller had made in writing that the beach house was held jointly. This included an email sent by Miller to Brabham;[147] the statements made by Miller in proceedings in the Family Court where he acknowledged that the beach house was held beneficially in accordance with the interests registered on title;[148] and Miller's land tax declaration dated 2 July 2014 where he admitted that 'no joint owner has greater than 13.33% of the Property [the beach house], and therefore less than the threshold of $250,000 for individual assessment'.[149]
100 As mentioned, there was evidence from Mrs Martin about where the money came from that went into the common fund. While Senior Member Walker was not prepared to draw an inference about unlawful conduct he was prepared to say that the statement made by Miller to Mrs Martin 'amounts to an admission by him that the money came from an unknown source and not from his own resources'.[150] He also observed that '[i]f the source of the funds was questionable that might explain the poor state of the evidence concerning where the money came from'.[151]
101 Ultimately, Senior Member Walker was persuaded that there was a common fund between Miller, Martin, and Brabham which facilitated trading in shares and the purchase of joint 'lifestyle' investments for the three men even if the evidence did not allow for precise identification of the original source of the funds. This finding of the existence of a common fund also provided the basis for his reasoning on the sale and distribution decision.[152]
102 Senior Member Walker emphasised how difficult it was to reconcile the documentary and oral evidence.[153] He deliberately avoided placing any reliance on the evidence of Martin, Brabham or Miller and chose instead to rely on the objective evidence, namely, the documentation. This included the most significant documentation, namely, that the interests of Martin and Brabham were registered on the title of the beach house.
103 With respect to the ongoing costs, VCAT found that the maintenance costs came from the common fund 'upon which they [that is, all eight respondents] all felt entitled to draw'.[154] If the maintenance costs came from a common fund, this meant that payments made by Miller from that fund could not be treated as payments to the credit of Miller in the sale and distribution decision.
104 It is a principal doctrine of the law of real property in Victoria, in accordance with the Torrens system, that registration confers title. As Barwick CJ said in Breskvar v Wall:[155]
The Torrens system of registered title ... is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor.[156]
105 These observations have been accepted as an accurate description of the Torrens title system created under ss 40-43 of the Victorian Transfer of Land Act 1958.[157] In Perpetual Trustees Victoria Ltd v Gheorghui,[158] Harper J observed:
The effect of s 40 is that no instrument until registered shall be effectual to create, vary, extinguish or pass any estate or interest in or over any land under the operation of the Act; but upon registration, the estate or interest shall be created, varied, extinguished or pass in the manner and subject to the conditions specified in the relevant instrument or in the Act.
Section 41 then proceeds to give effect to the proposition that a certificate issued by the Registrar of Titles pursuant to the Act shall be conclusive evidence of the title to which that certificate refers.
The section provides amongst other things, in effect, that the register shall be received in all courts as evidence of the particulars recorded in it and shall be conclusive evidence that the person named in the relevant folio as the proprietor or as having any estate or interest in the land is possessed of that estate or interest as described in the register.
Consistently with the scheme of the Act s 42 then provides, in effect, that - notwithstanding the existence in any other person of any estate or interest which but for the Act might be held to be paramount or have priority - the registered proprietor of land shall, except in the case of fraud and other specified instances, hold such land subject only to such encumbrances as are recorded on the relevant folio of the register and absolutely free from all other encumbrances.[159]
106 Proprietorship of land, gained by registration, is indefeasible. This was explained by Vickery J in Mathieson Nominees Pty Ltd v Aero Developments Pty Ltd[160] in this way:
[E]xcept in cases of fraud or other instances provided for in s 42, 'there is immediate indefeasibility of title by the registration of the proprietor named in the register' with the result that a registered interest prevails over an encumbrance not recorded on the Register and prevails unaffected by notice of the unregistered interest.[161]
(4) Registered interests on title - sale and distribution decision reflects registered interests
107 Senior Member Walker was faced with the objective evidence that Martin and Brabham's names were on the title deeds to the beach house. The explanation that Miller gave to defeat their interests on title was strained. It was repeated in this Court, on the appeals, namely, that :
The sale contract ... that's the sale of $282,720 of 50,000 Coles Myer shares I sold ... but in the name of New Kapital Investments [Pty Ltd], care of Mr James Miller of Coles Myer Limited. ... I deposited that into the joint account because I told the guys [Martin and Brabham] I'd like to buy a beach house, I'll put them on title and they can pay me later, or upon sale distribution to be based on contributions.
108 Senior Member Walker regarded this explanation as unconvincing. He said:
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.[162]
109 In our view, it was open for Senior Member Walker to treat the explanation proffered by Miller for placing the names of his friends on title as unconvincing. Moreover, he had the unimpeachable documentary evidence that there was a joint Commonwealth Bank Account for the three men and that $282,820 was paid into that account on 5 December 1986. This was common ground. Miller also accepted that 'we pulled ... money out [of the joint bank account] and put it into term deposits in 1986 and 87'.
110 It was also common ground that, as the respondents put it in their 'Summary of facts', Miller attended the settlement of the beach house with funds from the joint account:
On or around 30 January 1987, Martin provided Miller with a statement listing the required bank cheques totalling $132,832.53 for settlement of the Moggs Creek property. Miller attended settlement after drawing from the joint bank account the required bank cheques.
111 The registered title provided the objective basis upon which Senior Member Walker decided in the original VCAT decision that the trust claims ought be rejected. This was in conjunction with his rejection of any factual basis that would give rise to a displacement of those registered interests in equity.
112 Ultimately, as described above, the sale and distribution decision also reflected the registered interests on title.
113 In the circumstances in which, as described in detail above, Senior Member Walker could not rely on the truthfulness of the accounts given by any of the three men, including not only as to the original source of the funds but also as to the source of the funds used for payment for ongoing maintenance, his only recourse was again to turn to the evidence that could be objectively proved. By basing the sale and distribution decision on the respective interests on title enjoyed by each of the parties, the Senior Member opted for an objective and fair method for arriving at an apportionment consistent with the law of real property. There was no error in this approach.
114 The findings on credit made by Senior Member Walker in the original VCAT decision (as further explained in the costs decision) meant that the statutory considerations identified in s 233(2) of the PLA could have no real force in arriving at a just and fair division of the proceeds of the sale of the beach house. Those considerations include, as mentioned above,[163] relevantly, 'any amount that a co-owner has reasonably spent in improving the land or goods'; 'any costs reasonably incurred by a co-owner in the maintenance or insurance of the land or goods'; and 'the payment by a co-owner of more than that co-owner's proportionate share of rates ..., mortgage repayments, purchase money, instalments or other outgoings in respect of that land or goods for which all the co-owners are liable'. The finding that these types of costs and payments were made from a common fund, from which all parties were entitled to draw, effectively neutralised each of these considerations in respect of Miller. As the Senior Member said, this finding was 'fatal' to Miller's application for an order for adjustment of interests under s 233 and, in the absence of an order under s 233, it was appropriate for the division of the sale proceeds to reflect, proportionately, the respective registered interests on title.[164]
115 As described in detail above, Senior Member Walker refused to make an order for costs in favour of the respondents largely on the basis that they had been given an opportunity to provide a full and frank explanation to the Tribunal and had failed to do so.
116 The conclusion that the prima facie position at VCAT for dealing with costs should apply (that is, that no party should be awarded their costs) was based, in part, on Senior Member Walker's determination 'that the costs incurred were to present cases on both sides that were not accepted'.[165]
117 The respondents acknowledge that, in the costs decision, Senior Member Walker dealt only with their application for costs. The order made solely related to the respondents' application for costs and this was dismissed. The transcript of the hearing on costs of 31 August 2020 shows that at the commencement of the hearing Senior Member Walker stated that Miller and the respondents had each made applications for costs. He said: 'Now, both the respondents and the applicant have applied for orders for costs'.
118 He went on to say that the respondents' applications had been made first in time and, therefore, he heard submissions on their application first.
119 However, he never returned to consider Miller's application for costs and his order does not carry any disposition with respect to that application.
120 The respondents accept that by not referencing Miller's application for costs, made at least orally, Senior Member Walker committed an error. They further accept that the error ought to be corrected by this Court granting leave to appeal in the second appeal, allowing the appeal, setting aside the order that solely dismissed the respondents' application for costs and in its place making an order that each party is to bear their own costs.
122 It is indisputable that in the costs decision Senior Member Walker refuses to accept that the evidence of any of Martin, Brabham, or Miller was reliable. In particular, as noted, he held that none of the three men gave credible evidence in respect of the source of the funds that paid for their lifestyle. The evidence of each of the three men on the critical issues was dismissed. In those circumstances, Senior Member Walker could not differentiate amongst the relative strengths of the parties' cases.
123 In a scathing observation, Senior Member Walker said, as mentioned, that while the hearing would have taken one day if the men had been truthful, it was prolonged and took five days. He held that the three men were 'equally responsible for the time that was wasted'.[166] This factor particularly supports an order from this Court that each party bear their own costs, as does the fact that Miller was wholly unsuccessful.
124 The respondents accept, and we agree, that, in effect, Senior Member Walker took the view that no party came before him in a position of merit and that, therefore, it would be unjust to award costs to any party.
125 With respect to the refusal decision, VCAT was entirely correct in expressing the view that, as the proceeding had come to an end, there was no live matter before it, in respect of which a further directions hearing could be called. In any event, the refusal decision does not amount to an order of the Tribunal from which leave to appeal can be sought pursuant to s 148 of the VCAT Act.
Conclusion on the applications for leave to appeal
126 We consider that, on the first appeal, leave to appeal should be refused.
127 On the second appeal we would grant leave and allow the appeal solely for the limited purpose described above.[167]
[1] Proceedings S EAPCI 2020 0005 (the first appeal') and S EAPCI 2021 0009 ('the second appeal'). For convenience, in what follows we refer simply to 'the appeal', 'the appeals', 'the current appeals', 'the first appeal', or 'the second appeal', unless the context indicates otherwise.
[2] Miller names eight respondents to both Notices of Appeal, but while the first to fourth respondents contest the appeals, the remaining respondents have taken no active part.
[3] Miller v Martin [2020] VCAT 29.
[4] Miller v Martin [2020] VCAT 1218.
[5] Miller v Martin [2016] VCAT 854.
[6] On 10 August 2018 Mukhtar AsJ ordered that the matter be remitted to Senior Member Walker for determination of the statutory claims.
[7] Miller v Martin [2018] VSC 444.
[8] Miller v Martin [2020] VCAT 1218, [48] and [56] respectively.
[13] Breskvar v Wall (1971) 126 CLR 376, 385-6; [1971] HCA 70.
[14] Mathieson Nominees Pty Ltd v Aero Developments Pty Ltd [2016] VSC 131, [123].
[15] Miller v Martin [2020] VSCA 4 (Niall, Hargrave and Ashley JJA).
[16] Miller v Martin (Supreme Court of Victoria, Mukhtar AsJ, 13 August 2018).
[17] The application for leave to appeal from the substantive Mukhtar AsJ decision and the application for leave to appeal from the decision dismissing the summons had both been taken to be abandoned under r 64.45(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015. The Court of Appeal refused to reinstate the application for leave to appeal from the decision dismissing the summons because it was so devoid of merit that it was bound to fail: Miller v Martin [2020] VSCA 4, [24]. The Court granted reinstatement of the application for leave to appeal from the substantive Mukhtar AsJ decision, granted leave to appeal but dismissed the appeal.
[18] Miller v Martin [2019] VSCA 86 (Kyrou, Niall and Ashley JJA).
[19] Miller v Martin [2019] HCASL 341.
[20] Miller v Martin [2018] VSC 444, [11].
[21] Miller v Martin [2016] VCAT 854, [54].
[22] Miller v Martin [2018] VSC 444, [42].
[23] Robyn Lambert was Miller's personal assistant at Coles, while John Stodgell also worked in the finance planning department: Miller v Martin [2016] VCAT 854, [17]-[18].
[24] Miller v Martin [2016] VCAT 854, [55]-[56]; Miller v Martin [2018] VSC 444, [12].
[25] Miller v Martin [2016] VCAT 854, [62].
[26] Miller v Martin [2018] VSC 444, [14].
[28] Miller v Martin [2016] VCAT 854, [4].
[30] Miller claimed that if he had previously spoken of a partnership, it was only in relation to an entitlement to use certain assets for recreational purposes: Miller v Martin [2016] VCAT 854, [22].
[31] Miller v Martin [2016] VCAT 854, [57]-[58]
[34] Miller v Martin [2016] VCAT 854.
[37] Miller v Martin [2016] VCAT 854, [28].
[40] The words on the cheque stub had been blacked out by Miller. Senior Member Walker found that a partnership deed had been executed by the parties, though its current whereabouts was unknown: Miller v Martin [2016] VCAT 854, [24], [28].
[41] Miller v Martin [2016] VCAT 854, [27].
[48] Miller v Martin [2016] VCAT 854, [57]-[61], [73], [74]. See [25] above.
[49] Miller v Martin [2016] VCAT 854, [59]-[60].
[55] Ibid [175]. See [175]-[180].
[59] Miller v Martin [2016] VCAT 854, [139].
[65] For $5,000 on 14 May 1995 for 'painting/balcony/swing', $7,000 on 15 May 1996 again for 'painting/balcony/swing' and $3,000 on 15 May 1996 for 'painting'.
[66] For $3,000 on 14 May 1995 for 'painting/balcony/swing'.
[67] Miller v Martin [2016] VCAT 854, [144].
[76] Miller v Martin [2018] VSC 444.
[79] Emphasis added. Paragraph 1 of VCAT's orders, referred to in the orders of Mukhtar AsJ, was the dismissal of Miller's application for relief.
[80] Miller v Martin [2020] VCAT 29, [6]-[15].
[82] Miller v Martin [2020] VCAT 29.
[83] Miller v Martin [2020] VCAT 29, [22].
[85] Ibid [24]-[25] (emphasis added).
[87] Miller v Martin [2020] VCAT 29, [28]-[31] (emphasis added).
[88] Miller v Martin (Supreme Court of Victoria, Mukhtar AsJ, 13 August 2018).
[89] Miller v Martin [2019] VSCA 86.
[90] Miller v Martin [2019] HCASL 341.
[91] Miller v Martin [2019] VSCA 86, [29]-[41] (emphasis added) (citations omitted).
[92] Miller v Martin [2020] VSCA 4. See n 17 above.
[93] Miller v Martin [2020] VSCA 4 , [6].
[98] Miller v Martin [2020] VSCA 4, [60].
[101] Miller v Martin [2020] VSCA 4, [84(1)(c)].
[103] Ibid [95], referring to Miller v Martin [2019] VSCA 86, [29]-[41]. See [47] above.
[104] Miller v Martin [2020] VSCA 4, [92].
[110] This is proceeding S EAPCI 2020 0005 that has now come before this Court.
[111] Miller v Martin [2020] VSCA 4, [90]
[112] The Amended Notice of Appeal in S ECI 2019 05551, which was dated 16 January 2020, was filed on 29 January 2020 following leave granted by Hargrave JA.
[113] Miller v Martin (Ruling No 1) (Supreme Court of Victoria, Hargrave JA, 29 January 2020). A new Court of Appeal proceeding number was allocated: S EAPCI 2020 0005.
[114] Miller v Martin [2020] VCAT 1218.
[115] Ibid [8], citing Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117, [20] (Gillard J).
[118] Ibid [48], [56] respectively.
[120] Miller v Martin [2020] VCAT 1218, [23]-[63] (emphasis added).
[121] Ibid [64]-[69] (emphasis added).
[122] Her Honour heard the applications sitting as an additional Judge of the Trial Division. See Constitution Act 1975 s 80C(2).
[123] Miller v Martin (Ruling No 1 of 2021) [2021] VSC 28.
[124] Miller v Martin [2021] VSCA 13. This was proceeding S EAPCI 2021 0010.
[125] This appears to be a reference to a further email sent by VCAT on 11 December 2020 to the following effect: 'Dear Mr Miller, Proceeding BP244/2015 relating to the ownership of the property at Moggs Creek has been finally determined and is now at an end. The Tribunal has no power to revisit its decisions and change the orders that were made. All that it can do is make orders in aid of enforcement relating to the sale that has been ordered. If you are dissatisfied with a decision of the Tribunal, the only remedy is to appeal and we note that you have done that. It is not appropriate to write directly to a member of the Tribunal and no such communications will be directed to the member concerned.'
[127] Ibid [43]-[44] (citations omitted), referring to Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320, 331-3 [18]-[21]; [2010] HCA 24.
[129] Ibid [198] (citations omitted).
[130] For example, in one ground Miller maintains that the Senior Member erred by not addressing the cases of Australian Competition and Consumer Commission v Sampson [2011] FCA 1165 and Legal Services Commissioner v Pippa Samson [2013] VCAT 1177, both of which were said to have been raised by Miller on 20 June 2019. Those cases concern findings of misleading and deceptive conduct, and professional misconduct, respectively, that were made against the respondents' lawyer in unrelated proceedings. The respondents maintain that this is not a proper ground of appeal. In particular, they submit that Miller's contention does not relate to the issues that the Senior Member was required to consider. It is said to be, at best, an attempt to relitigate Miller's previous application to restrain the respondents' solicitors from acting. They note that that application has already been heard and dismissed by this Court.
[139] Miller v Martin [2020] VCAT 1218, [2].
[140] Miller v Martin [2019] VSCA 86, [4].
[141] Miller v Martin [2016] VCAT 854, [112].
[143] The prospectus discovered shows 6,000 shares for $3,000, 2,000 options for $100, total $3,100.
[144] Miller v Martin [2016] VCAT 854, [112].
[147] Ibid [36]. Miller included in the list, amongst other things, 'Mogg's Street [sic] beach house (80% owned by members of partnership').
[152] Miller v Martin [2020] VCAT 29, [28].
[153] Miller v Martin [2016] VCAT 854, [12]. See [28] above.
[155] (1971) 126 CLR 376; [1971] HCA 70.
[157] Mathieson Nominees Pty Ltd v Aero Developments Pty Ltd [2016] VSC 131, [115]-[120].
[162] Miller v Martin [2016] VCAT 854, [173].
[165] Miller v Martin [2020] VCAT 1218, [62].
Miller
Martin [2021] VSCA 108
[2020] VCAT 29, [2020] VCAT 1218 (Senior Member Walker)
REAL PROPERTY - Co-ownership of land - Sale and distribution of proceeds reflected registered interests on title - No credible evidence of source of funds - No adjustment of interests - Just and fair division - Breskvar v Wall (1971) 126 CLR 376, Perpetual Trustees Victoria Ltd v Gheorghui [2007] VSC 412, applied - Property Law Act 1958 ss 228 and 233.
PRACTICE AND PROCEDURE - Principle of finality - Res judicata - Issue estoppel - Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446, Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, applied.
(1971) 126 CLR 376
(1950) 81 CLR 446
(1939) 62 CLR 464
(2010) 241 CLR 320
(1981) 147 CLR 589