Plaintiff v Defendants

(a) Pursuant to Rule 23.01(1) of Supreme Court (General Civil Procedure) Rules 2005, ("Rules"), that the proceeding be stayed or judgment given in their favour;

(b) pursuant to Rule 23.02, that the plaintiff's claim endorsed on the Amended Originating Motion dated 21 December 2012 be struck out;

(c) pursuant to Rule 13.11, that the plaintiff provide further and better particulars of the plaintiff's Amended Originating Motion.

2 By order made on 16 January 2013, Ferguson J referred the summons to an Associate Judge pursuant to Rule 77.05 for hearing and determination.

3 The orders sought are in a descending sequence, beginning with -

(a) the proposition that the claim should be stayed or that there should be judgment for the defendants, pursuant to Rule 23.01(1) of the Rules, on the basis that there is no sustainable cause of action or that such cause of action as is disclosed is bad in law;

(b) then descending to the next proposition that pursuant to Rule 23.02 the expression of the claim in the endorsement on the Amended Originating Motion is such that it does not disclose a cause of action, is scandalous, frivolous or vexatious, may prejudice embarrass or delay the fair trial of the proceeding or is otherwise an abuse of process of the Court. That is to say the second level of the application is to strike out the endorsement of the origination motion as if it were a statement of claim;

(c) The next and last level of the application is to get proper particulars of the matters endorsed on the Amended Originating Motion.**

**4 I have concluded that the plaintiff Thanh Tung Vo, known as Dan Vo ("Mr Vo") does at this stage appear to have a sustainable claim, but that it is not expressed in sufficiently clear terms and, accordingly, the whole indorsement on the Amended Originating Motion should be struck out. Mr Vo should be given an opportunity, however, to formulate his claim in an intelligible way, preferably with the assistance of a skilled lawyer. To that end, and having regard to the desirability that there are pleadings, I will order that the proceeding continue as if commenced by Writ pursuant to Rule 4.07, and order that Mr Vo file and serve a Statement of Claim, and make consequential orders for defences and Counterclaims, if necessary, and Reply.

5 I have also formed the view that, unless Mr Vo expressly claims that any interest he claims in the property at 9 Victoria Avenue, Springvale in Victoria ("the Property") is subject to the interest of the Westpac Banking Corporation ("Westpac") arising under its unregistered instrument of mortgage, then Westpac is a necessary party to the proceeding. Accordingly, Mr Vo must join Westpac if he is to proceed with his claim for an unencumbered fee simple estate in the Property.**

**6 Mr Vo is a self-represented litigant. He claims an interest in the Property. He is a former solicitor in New South Wales, having had his practicing certificate suspended.

7 The first defendant, Vu Thi Thuy Trang Nguyen, ("Ms Nguyen") appears to have an equitable interest in the Property arising under a contract of sale from the second defendant, Shayla Ngoc Trang Gip ("Ms Gip") entered into in June 2012. There is in evidence a transfer of land from Ms Gip to Ms Nguyen dated 30 July 2012.[1]**

**8 Ms Gip became the registered proprietor of the Victoria Avenue property in 2006.[2] She had financed the purchase by way of a mortgage loan from the Commonwealth Bank of Australia ("Commonwealth Bank") and the proceeds of sale of another property owned by her. A substantial portion of the purchase price was financed by the Commonwealth Bank and secured by a mortgage over the Property.[3]

9 Ms Gip first met Mr Vo in 2008 and they formed the company Edu Group Pty Ltd in 2009 on the basis that they would have an equal shareholding. Ms Gip says that the problem with the company's business was that Mr Vo continually had people chasing him for money, including people from his former legal practice. Ms Gip denies any allegations of wrongdoing made by Mr Vo against her and says that she signed consent orders in the Supreme Court of New South Wales (referred to below) without obtaining any independent legal advice and in reliance upon representations made by Mr Vo that he would refinance the Property and use the money raised for the Edu Group Pty Ltd business.

10 Mr McNab informed the Court, from the Bar table, that the sale alleged by Mr Vo to have been a 'collusive sale', and not a bona fide sale, was admittedly not an arms length transaction, in that the main purpose of the sale was to refinance the Commonwealth Bank mortgage. He said that otherwise that Bank would have sold the Property (as it had attempted to do on an earlier occasion).

11 On 8 August 2012, after settlement of the sale of the Property from Ms Gip to Ms Nguyen, Mr Vo lodged two caveats against the property. The caveats are not in evidence. There is, however, some information to which I will presently refer that points to the basis of the claims.

12 This proceeding was commenced by Originating Motion filed 3 October 2012 pursuant to s 90(2) of the Transfer of Land Act 1958 ("the Act"). Mr Vo issued the proceeding to prevent the caveats he had lodged on the title to the Property from lapsing by virtue of s 90(1) of the Act.

13 The notice of claim on the Originating Motion is a mish-mash of oddly organised facts, conclusions from facts which are unstated, references to provisions of the Act and the Property Law Act 1958 (which are either clearly irrelevant or the relevance of which is entirely unclear), allegations of fraud and unconscionability, submissions and arguments.

14 Also on 3 October 2012, Mr Vo issued a summons returnable in the Practice Court on 4 October 2012 seeking the relief set out in the Originating Motion. Despite that relief being entirely unclear, it seems that Mr Vo did manage to persuade His Honour Justice Pagone that what he wanted to do was to delay the registration of the unregistered transfer (No. AJ849246G) from Ms Gip to Ms Nguyen and the registration of mortgage AJ849247E given by Ms Nguyen to the Westpac Bank. Indeed, this is what was suggested by the Registrar of Titles as a matter Mr Vo might consider requesting the Court to direct.[4]

15 The order of Justice Pagone operated only for an interim period to 8 October 2012 to enable the defendants to be served. That order was extended on a number of occasions (by Justice Kyrou on 8 October 2012, Justice Almond on 7 November 2012 and by Justice Hollingworth on 4 December 2012 until the trial of the proceeding or further order). Justice Hollingworth, by her order made on 4 December 2012, adjourned the summons and Originating Motion to Associate Justice Daly for directions as to the conduct of the proceeding, including the fixing of a trial date, if appropriate.

16 When the matter came before Associate Justice Daly, Mr D Colman of Counsel appeared for the defendants and Mr Vo appeared in person. Orders were made for Mr Vo to file and serve an Amended Originating Motion, before 21 December 2012, and otherwise directions were made getting the proceeding ready for trial. It seems clear that the order for Mr Vo to file and serve an Amended Originating Motion was treated by the Court and the parties as, in effect, the delivery of a statement of claim properly stating his case. This is evident from the other orders made by Daly AsJ on 11 December 2012, in particular the order for a defence to be filed and served and discovery to be given by the plaintiff and the first and second defendants. A defence is a pleading and this order, in my view, clearly puts the Amended Originating Motion in a different light. It is a pleading in all but name. Moreover, it is not ordinarily appropriate to order discovery in a proceeding commenced by originating motion. Before ordering discovery, it is appropriate to order that the proceeding continue as if commenced by writ and to order pleadings and discovery. Plainly, the Associate Justice intended that the proceeding continue as if it had been commenced by writ.

17 On 21 December 2012, Mr Vo filed an Amended Originating Motion. It is barely better than the original. It is the indorsement on that Originating motion that is the subject of attack by the defendants.**

**18 Experienced legal practitioners need little, if any, further exposition of the rules relating to the operation of the Supreme Court (General Civil Procedure) Rules 2005 ("the Rules") so far as they relate to the sufficiency of pleadings and indorsements on writs and originating motions. In this case, however, where the plaintiff is self represented and, although apparently a former legal practitioner, not versed in the requirements for an intelligible pleading or indorsement, nor in the niceties of Victorian property law, it is desirable that I set out the essential requirements.

19 A proceeding may be commenced by originating motion where:

(a) it is unlikely there will be any substantial dispute of fact; and

(b) for that reason it is appropriate there be no pleadings or discovery: see Rule 4.06

20 An indorsement of claim on an originating motion is, under the Rules, only required to specify the relief or remedy sought and the Act, if any, under which the claim is made and, where it includes any question to be answered, the question shall be stated: Rule 5.05.

21 But, as I have indicated, it is evident from the orders made by Daly AsJ, and from the nature of the case sought to be raised by Mr Vo, that if the indorsement is to perform even this limited function it must be at a minimum comprehensible both to the defendants and to the Court. Further, the indications by the active defendants are that there will be disputes of fact. So much is clear from the submissions made by Mr McNab, the solicitor for Ms Gip and Ms Nguyen. It is also clear from a review of the affidavit of Mr McNab.

Rule 23.01

22 Rule 23.01 provides:

(1) Where a proceeding generally or any claim in a proceeding-**

(a) does not disclose a cause of action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the Court -

**the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

23 "Proceeding" in r 23.01 means any proceeding, that is, any proceeding however commenced. The rule applies to a proceeding commenced by originating motion. In such case there is no statement of claim, but the court may be able to determine from the indorsement or any affidavit material filed by the plaintiff in support of the Originating Motion whether the conditions stated in r 23.01(1) (a), (b) or (c) for staying the proceeding or giving judgment for the plaintiff are satisfied: Harris v Bennett.[5]

24 The tests for summary dismissal or stay under Rule 23.01(a) - and under the inherent jurisdiction - have been described in many different ways. It is sufficient for present purposes to say that in order to dismiss a proceeding summarily at a preliminary stage, it must be "very clear indeed'' that the action is "absolutely hopeless" (per Dixon J. in Dey v Victorian Railway Commissioners[6] or "so clearly untenable that it cannot possibly succeed" (per Barwick CJ in General Steel Industries Inc. v Commissioner for Railways (N.S.W.).[7] Because the test is placed so high it is not difficult to characterise such a claim as itself "vexatious'', in the sense that it constitutes an abuse of process and should be summarily brought to an end.[8]

25 In Charles Lloyd Property Group Pty Ltd v Buchanan ("Charles Lloyd",)[9] Mukhtar AsJ referred to the various epithets that have been used to describe the "no real question to be determined" test described by Dixon J in Dey by equating it practically with a requirement that a case has to be "hopeless" or "bound to fail" or "beyond argument" before the summary judgment procedure will be invoked.

26 On an application under r 23.01, any party may rely upon evidence given on affidavit or, by leave, orally (r 23.04(1)).

27 The applicant in this case must contend that that by no proper amendment could the plaintiff raise a good cause of action. That is, the claim so completely lacks foundation in fact or law that no legitimate pleading amendment could save it.[10]

28 No application was made formally pursuant to s 62 and 63 of the Civil Procedure Act 2010 ("CPA"). If it had, in the current state of the law I would have felt bound to follow the decision of the Court of Appeal in Karam v Palmone Shoes Pty Ltd,[11] ("Karam") in which the Court expressed the view (at [45]) that the test for summary judgment under s 63 of the CPA, is little different to the criterion under Rule 22.02 of the Rules, of whether the defendant has no defence. The Court noted that the change in terms (in s 63) was not intended to establish a new or different test; rather to express more accurately the way in which the rule had been interpreted by the courts. It remains that the power to order summary judgment is to be exercised sparingly and not 'unless it is clear that there is no real question to be tried'.

29 The question of the test to apply under s 63 of the CPA has recently been the subject of a reference (pursuant to s 17B (1) of the Supreme Court Act 1958) to the Court of Appeal by Vickery J in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[12]

Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading-**

(a) does not disclose a cause of action or defence;

(b) is scandalous, frivolous or vexatious;

(c) may prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the Court--

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.

**31 Under this Rule, the objection is to the manner of expression of the claim or defence in the indorsement of claim or pleading. That is, the indorsement or pleading does not disclose the cause of action or defence or its contents are such that it is scandalous, frivolous or vexatious, or may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of process. Under this Rule, the defendants do not ask that the proceeding be brought to an end. They seek an order that the offending indorsement be struck out or amended, and that the plaintiff present the claim in the proper way: Brinson v Rocla Concrete Pipes Ltd.[13]

32 Under r 23.02, the court is confined to what appears in the indorsement and the pleadings (r 23.04(2)) and may not consider affidavit or other extrinsic material.

33 Most decisions under this rule concern pleadings. It is clear from the wording of the rule that it applies also to the indorsement on an originating motion.

34 Scandalous: Allegations made in a pleading for the purpose only of abusing or injuring the opposite party and allegations which are indecent or offensive are scandalous within the meaning of the rule, and liable to be struck out: Christie v Christie;[14] Coyle v Cuming;[15] Cashin v Craddock.[16]

35 Frivolous or vexatious: These words in combination have traditionally been used to describe a wide variety of circumstances in which a claim is found to be groundless, or lacking a legal basis or merit

36 Prejudice, embarrass or delay: In general, a pleading or indorsement is embarrassing when it places the opposite party in the position that he or she does not know what is alleged against him or her: Girando v Padbury [1919] WALawRp 17; (1919) 22 WALR 7; Meckiff v Simpson [1968] VicRp 7; [1968] VR 62 at 70; Gunns Ltd v Marr [2005] VSC 251; BC200505042 at [15]. Thus, a pleading which is unintelligible (Hoffnung v Fletcher (1887) 4 WN (NSW) 68), or is vague or ambiguous (Byrd v Nunn (1877) 7 Ch D 284), or is too general (British & Colonial Land Assn Ltd v Foster (1888) 4 TLR 574) is embarrassing.[17]

37 The principles to be applied in the exercise of the power under r 23.02 are well understood.[18] Weinberg J (as he then was), in McKellar v Container Terminal Management Services Ltd1 said (in relation to pleadings) that the purpose of pleadings is to define the issues and thereby to inform the parties in advance of the case they have to meet so as to enable them to take the steps necessary to deal with it: Dare v Pulham.[19]

38 The primary function of a statement of claim, and a properly drawn indorsement on an originating motion (and with reference to affidavits in support if necessary), is to tell the defending party what the claim is that has to be met. That is a matter of elementary natural justice; the claim cannot be answered until it is known.[20]

39 In the case of a statement of claim, when a sufficient defence has been filed to a sufficient statement of claim, a further function will generally have been performed -- that of defining the question or questions for decision. This definition is required, of course, from an early stage, or else discovery and other interlocutory procedures are likely to prove misdirected, wasteful and unproductive. In order to achieve these fundamentals, a statement of claim must set out clearly, not just the bare claim that is made, but also "the material facts on which it is based", including facts that, if not specifically pleaded, might take the other party by surprise.[21]

40 A number of authorities support the proposition that a statement of claim must contain material facts, being the facts necessary for the purpose of formulating a complete cause of action, and that it is not sufficient simply to plead a conclusion drawn from unstated facts: see for example Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228; (1985) 7 FCR 109 at 114-115 per Fisher J; H 1976 Nominees Pty Ltd v Galli [1979] FCA 74; (1979) 40 FLR 242 at 246-247 per Northrop J; Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd [1999] FCA 142 at para 7 per Kenny J. A statement of claim which simply repeats the language of a provision of the Act, and then baldly asserts a contravention of that provision, without more, will be struck out.[22]

41 As Harper J (as he then was) pointed out in Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd,[23] pleadings have another important audience: the Judge or Magistrate. In most cases, the opposite party will have the assistance of some knowledge of the factual background -- some knowledge, in other words, of the facts against which the pleadings can be assessed. The tribunal of fact will never be in that position. The pleadings must therefore be drawn so as to allow the impartial and uninformed reader to know what the case is about. This end cannot be achieved unless the pleadings form a coherent narrative, of material fact, with the necessary detail included as particulars. They must be drawn with a careful eye to the evidence that will necessarily be called if the case is to be made out. If the party pleading does not have that evidence, then the case ought not go to trial. Indeed, it is generally true to say that it ought not to proceed beyond the point at which the party pleading appreciates, perhaps because the very act of pleading reveals it, that there is and will remain a gap in the evidence upon which the cause of action or defence is based and without which that cause of action or defence will fail.**

**42 What emerges from the Amended Originating Motion, when read together with some of the affidavits and exhibits, including the exhibits to the affidavits sworn on behalf of the defendants by their solicitor Mr Bruce Travers McNab,[24] is the following:

(a) Mr Vo and Ms Gip were each directors and equal shareholders of a company called Edu Group Pty Ltd (ACN 135 405 971) ("Edu Group"). It would seem that Mr Vo and Ms Gip were in dispute in relation to the conduct of Edu Group resulting in a proceeding being commenced in the Corporations List of the Equity Division in the Supreme Court of New South Wales in 2010.[25] It was between Edu Group (first plaintiff) and Thanh Tung Vo (second plaintiff) and Shayla Gip (defendant);

(b) On 9 and 12 April 2010, Mr Vo made application for interlocutory orders against Ms Gip. Her Honour, Bergen CJ in Eq, ordered on 12 April 2010 that, upon Mr Vo giving the usual undertaking as to damages, Ms Gip was to deposit all moneys, cash, cheques and payments received for or on behalf of Edu Group into the bank account of that company held at the Bankstown branch of the ANZ Banking Group and, additionally, Ms Gip was to provide access to all financial records and books of the company to Mr Vo;[26]

(c) Orders for service of the originating process, affidavit and other orders were also made. In the course of obtaining those orders Mr Vo gave viva voce evidence before Bergen CJ in Eq and the transcript of that evidence is on the New South Wales court file. The essence of what emerged in that evidence, and from the affidavit filed by Mr Vo in support of his application, was that Ms Gip was diverting business of Edu Group, and moneys due to that company, to herself or to another company and not accounting for those moneys to Edu Group. Clearly there was a complete deadlock in the management of that company;

(d) The New South Wales court file does not record what happened on the adjourned date of 19 April 2010, nor anything until 19 July 2010, when the associate's record of proceedings shows that there was no appearance before Barrett J in the proceeding on that day, and no orders made;

(e) By contrast, in a bundle of documents exhibited as annexure "AA" to the affidavit of Mr Vo sworn on 1 November 2011 there is a copy of what appears to be an authenticated consent order of the Supreme Court of New South Wales made on 19 April 2010. This order appears to be the first basis upon which Mr Vo claims to hold an interest in the Property. The first paragraph of the order, made by consent, is as follows:**

The defendant holds the property situate at 9 Victoria Avenue, Springvale in the State of Victoria in [sic] constructive trust and as security for equitable charge to be claimed by or transferred to the plaintiff(s) [sic].

(f) Then follows a sequence of orders by consent. Returning to the court file, the next document on it is a document described as "short minutes of order", apparently signed by Mr Vo and Ms Gip and dated 26 July 2010. The first order is:

The defendant shall forthwith transfer the whole of the land known as 9 Victoria Avenue, Springvale in the State of Victoria, being the whole of Lot 10, Block D, Plan LP1239, Volume 7410, Folio 983 ("the property") to the second plaintiff or whom the second plaintiff may direct. Such transfer shall include the right to sue upon any instrument and/or the power to sell the Property for the recovery or mitigation of loss by the transferee.

The defendant shall forthwith procure discharge of mortgage and removal of any dealing affecting the Property, and to reply to any requisitions, in order to give effect to the order 1 herein.

(h) Then there are orders giving Edu Group the right to file and serve a number of subpoenas for production and order 4 is as follows:

In the event any of the defendant, caveator or the mortgagee fail to comply with their respective obligations as contained in the orders or subpoenas given herein, a registrar appointed by this court or the Office of Titles of Victoria may, inter alia, give effect to the orders or subpoenas given herein.

**(i) The Associate's record of proceedings indicates that these orders were made by consent by Barrett J on 26 July 2010. That is confirmed by what appears to be a copy of an authenticated order of the Supreme Court of New South Wales made on 26 July 2010 in the bundle of papers in Annexure "AA" to Mr Vo's affidavit of 1 November 2011;

(j) Mr Vo claims an interest in the Property on the basis that these orders give him an interest in the land; and

(k) He alleges that the second defendant has, since May 2012, been attempting to transfer the Property into the name of Ms Nguyen or another person named Hong Hai Thi Nguyen "who were appointed or caused to be appointed by the second defendant as 'director and shareholder' of the Edu company in which the second defendant was under the colour or authority as the Chief Executive Office ("CEO").[27]

(a) First, he has an interest in the Property pursuant to the orders made by the New South Wales Supreme Court. Whatever that interest might be, is the first question;

(b) Secondly, that the sale by Ms Gip to Ms Nguyen was designed to defeat that interest and was not undertaken in good faith;

(c) Thirdly, the equitable interest that arises by virtue of the entry into the contract of sale by Ms Gip to Ms Nguyen is in competition with whatever interest Mr Vo maintains he has pursuant to the New South Wales orders. No doubt he would maintain that the ordinary rule applies that first in time prevails; and

(d) In the result it is a competition between equitable interests and, so as to advance his prior equitable interest in that competition, and perhaps to repel any plea of bona fide purchaser of the later equitable estate without notice, an attack on the transaction between the defendants as being not an arms length bona fide transaction, but one designed to defeat his interest and thus fraudulent.

44 Thus, although there is a great deal that is not clear about what Mr Vo alleges, this much seems clear, that Mr Vo contends that the sale from Ms Gip to Ms Nguyen is not a bona fide sale and that Ms Nguyen is not a bona fide purchaser (of the equitable estate) without notice or knowledge of his (Mr Vo's) equity (if that is what it is) arising under orders of the Supreme Court of New South Wales.[28] If that is correct, his prior equity will prevail over any equitable interest in Ms Nguyen as unregistered transferee. If, on the other hand, his right is an equitable interest properly so called and not a mere equity, then the contest between the competing equitable interests may depend on the presence of postponing conduct on the part of Mr Vo,[29] or on whether the later interest holder had notice of the interest of Mr Vo.[30] The allegations of fraud and collusion between Ms Gip and Ms Nguyen - if they are properly pleaded - may strengthen these claims.

45 It is also evident that any claim Mr Vo has to an unencumbered fee simple estate in the Property is one solely against Ms Gip and not against the registered mortgagee, the Commonwealth Bank. This is because the orders on which Mr Vo relies for his interest are made against Ms Gip and purport to require her to procure a discharge of the mortgage.

46 Mr Vo's indorsement appears to seek relief that includes an unencumbered fee simple in the Property; that is a fee simple free of any mortgage, registered or unregistered. To achieve that he must take on the Westpac Bank, and defeat its later equitable interest apparently arising under an unregistered mortgage from Ms Nguyen. Mr Vo submitted that the only registered mortgage was that of the Commonwealth Bank and that Westpac had no right until registered.[31] That ignores the rights of Westpac in equity. Westpac apparently has an unregistered mortgage taken in circumstances where the payment at settlement is likely to have paid out the existing registered mortgage in favour of the Commonwealth Bank, giving to Westpac, prima facie, subrogation rights in respect of the Commonwealth Bank mortgage. This enables Westpac to stand in the shoes of the Commonwealth Bank: Ghana Commercial Bank v Chandiram;[32] Burston Finance Ltd v Speirway Ltd;[33] Cochrane v Cochrane;[34] Meagher, Gummow & Lehane's Equity, Doctrines & Remedies, 4th Ed, [9-060]-[9-075]; Fisher & Lightwood's Law on Mortgage, 2nd Australian Ed, [42.18]-[42.19]. Mr Vo cannot seek to have priority over Westpac's interest without either joining it or taking his interest subject to Westpac's interest. Thus, the only alternative to joining Westpac as a defendant is that he claim only such interest as Ms Nguyen has, and subject to the Westpac Mortgage and any rights it has by way of subrogation in respect of the still registered Commonwealth Bank mortgage.

47 In my view, on the basis that Mr Vo's relief extends to a claim for the whole unencumbered fee simple in the Property, Westpac is a person who ought to have been joined as a party, or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon: see r 9.06(b) (i) of the Rules. Further, Westpac is, in these circumstances, a person between whom and the plaintiff and defendants there exists a question arising out of, or relating to, or connected with, a claim in the proceeding which it is just and convenient to determine: r 9.06(b) (ii) of the Rules.

48 Mr Vo purports to rely upon s 205 of the Property Law Act 1958 in relation to the orders made by the Supreme Court of New South Wales. Section 205 provides:**

(1) An order of the Court under or purporting to be under any statutory or other jurisdiction shall not, as against a purchaser, be invalidated on the ground of want of jurisdiction, or of want of any concurrence, consent, notice or service, whether the purchaser has notice of any such want or not.

(2) This section shall have effect with respect to any lease, sale or other act under the authority of the Court, and purporting to be in pursuance of any statutory power notwithstanding any exception in such statute.

(3) This section shall apply to all orders made before or after the commencement of this Act.

49 There are a number of things that can be said about this. First, by s 3 of the Property Law Act "Court" is defined to mean the Supreme Court of Victoria, or both that Court and the County Court where the value of the property does not exceed the jurisdictional limit of the latter Court. Therefore, it has no application to orders made by the NSW Supreme Court. Secondly, the provision is intended to overcome the limited operation of an order of Court as binding only between the parties. Here, Ms Gip was party to the consent orders made, although neither the Commonwealth Bank nor Westpac were parties to it. Thirdly, it seems clear in any event that since Jones v Barnett[35] the provisions of this section cannot be invoked to deprive a person not a party to proceedings of that person's property.[36]

50 Mr McNab, solicitor, who appeared for Ms Nguyen and Ms Gip, attacked the Amended Originating motion essentially on the footing that:

(a) "we don't have a clear idea about what precisely it is all about";[37]

(b) Insofar as it appears to be a claim to the whole unencumbered fee simple in the Property, Westpac Bank is not a party and the claim cannot possibly succeed without it;

(c) That the orders made in NSW do not bind the Commonwealth Bank;

but that he could not submit that whilst the NSW orders stand (and are not set aside) Mr Vo could not have an equitable interest, or an equity, in the Property sufficient to sustain his claim. That is, there may be some form of interest in the Property arising under those orders.

51 He pointed out that on the present affidavit material, there is a dispute between Mr Vo and Ms Gip as to the consent orders made by the Supreme Court of New South Wales, which are the basis for the equitable interest the subject of the two caveats lodged by Mr Vo and the claims in this proceeding. Those orders were never enforced by Mr Vo nor sought to be the subject of any action until he lodged caveats on the Property in 2012.

52 In relation to the lodging of the caveats, Mr Vo adopted a strategy of waiting for the sale of the Property by Ms Gip to Ms Nguyen, and the discharge of the existing caveats over the Property before lodging.[38] In the short space of time between settlement of the sale and the lodging of the transfer, discharge of the Commonwealth Bank mortgage and mortgage to Westpac, Mr Vo lodged his caveats. Mr McNab submitted that this was calculated by Mr Vo to avoid his claim to the Property being subject to the mortgage to the Commonwealth Bank. However, that mortgage is still registered on the title to the Property.

53 Mr McNab, solicitor, submitted that the indorsement fails to disclose a cause of action, or should be struck out, because:

(a) It is apparent from the evidence filed in the proceeding that Westpac holds an unregistered mortgage - at this point an equitable mortgage - over the Property. Mr Vo's proceeding is delaying the registration of that mortgage. Although it seems that the Bank has notice of this proceeding, there is nothing to suggest that it had notice of the interest claimed by Mr Vo, whose caveats were lodged after settlement of the sale from Ms Gip to Ms Nguyen;

(b) Westpac is not a party to the proceeding and its interest as equitable mortgagee cannot be affected unless it is made a party. Unless it is made a party, there is no basis upon which its equitable mortgage will be postponed to Mr Vo's equitable interest;

(c) Mr Vo misapprehends the effect of s 205 of the Property Law Act 1958. The purpose of s 205 is the protection of purchasers (specifically of general law land where defects in the chain of title can cause ongoing problems for holders of subsequent interests) against problems that might arise if a Court making an order had no power or jurisdiction to make the order. The orders referred to in the section do not have the sort of universal effect that Mr Vo in his indorsement seems to think. Certainly, orders of a kind referred to in s 205 are not effective as against third parties who were not parties to the New South Wales proceedings in which the orders were made: Pritchard v Briggs;[39]

(d) If what can be discerned from the indorsement on the Amended Originating Motion is simply that the plaintiff wishes now to enforce the orders made by the Supreme Court of New South Wales, being orders apparently made by consent, then the current proceeding is an abuse of process and ought to be dismissed;

(e) It was submitted, with some detail, that the indorsement was unintelligible, advanced conclusions arising from unstated facts, did not properly allege facts, contained bald allegations of fraud without particulars, includes legal submissions, and is vague, ambiguous, too general and - overall - embarrassing. I deal with these criticisms in the Schedule to these Reasons.

54 Mr McNab informed the Court that if the matter proceeds the first and second defendants will assert that Mr Vo should have lodged his caveats earlier and that he is not entitled to the Property at the expense, so to speak, of the first defendant, Ms Nguyen and, more particularly, her bank, which is not a party to the proceeding, but which has advanced $720,000 at settlement of Ms Nguyen's purchase.

55 Mr Vo provided short written submissions supporting his indorsement. It maintained the force of the matters already contained in the indorsement and sought that the defendants' summons be dismissed with costs. He confirmed in submissions that his claim was based on his interest arising under the NSW Supreme Court orders and on an alleged fraud on the part of the defendants both by making the sale at an undervalue and to put the Property beyond his reach by transferring it to Ms Nguyen.

56 He sought to explain the various aspects of the indorsement that were the subject of complaint and the result is the somewhat shorter explanation of the basis of the claim that I have set out above. Such things as "occupier" and "owner-in-fact" were explained but it is not productive to dwell on them here.

57 Mr Vo submitted that if Westpac do not come in to the proceeding (of its own motion) to establish its equitable mortgage and to establish that that equitable mortgage has priority over whatever interest he has, then he is entitled in this proceeding to be registered as proprietor, sole proprietor, in fee simple of the land without there being any liability to Westpac under its mortgage. He viewed the real interest that stands in his way as that of the Commonwealth Bank, which remains as registered mortgagee but has, by all accounts, been paid out and has given a discharge, which is being held up by the orders of the Court along with the mortgage to Westpac.

58 Nevertheless, he conceded that his alternative position, or claim, is that he takes his interest in the Property subject to the Westpac mortgage.**

**59 The basis for dismissal of the claim as not disclosing a cause of action at all, that is, being hopeless, was not put at the forefront of Mr McNab's submissions. It is plain to me from the analysis above that it is not so groundless as to warrant dismissal.

60 The difficulty is that Mr Vo seeks relief which will inevitably affect the interest of Westpac. Even though Westpac has apparently been contacted (by Justice Kyrou's associate) it has not sought to intervene, and that is hardly surprising. Its interest is unlikely to be affected by an order of the Court unless it is a party. The fact that its unregistered mortgage is taken from MsNguyen, and thus depends for its force on the efficacy, if not the registration, of her transfer, raises the prospect of the Court being faced with an impossible task if it is not joined. Where it has paid out the Commonwealth Bank, may be entitled pursuant to subrogation principles to the benefit of the Commonwealth Bank mortgage and, so far as appears, has no basis of knowing of the claims of Mr Vo, it is difficult to conceive that the Court could make orders that affect its rights.

61 In that circumstance, unless Mr Vo expressly claims that any interest he claims in the Property is subject to the interest of Westpac arising under its unregistered instrument of mortgage, then Westpac is a necessary party to the proceeding, and that accordingly Mr Vo must join that Bank if he is to proceed with his claim.**

**62 The indorsement on the Amended Originating Motion employs extravagant and sometimes absurd language. It is confused and confusing in its language and organisation.[40] It pleads conclusions drawn from unstated facts, or from facts that may be elsewhere in the indorsement but are not clearly linked to the conclusions advanced. In many respects it fails to 'plead' the material facts on which the relief claimed is based. As far as the defendants and the Court are concerned, it is not drawn so as to allow the impartial and uninformed reader to know what the case is about. There is no coherent narrative of material facts, with the necessary detail included as particulars.

63 In my view, none of the indorsement should be permitted to remain in its present form. I set out in the Schedule to these reasons each paragraph of the indorsement with my observations about it. It is my clear view that the indorsement, whether considered as an indorsement on originating motion or as a statement of claim, should be struck out, but with leave to file and serve a Statement of Claim properly setting out the claims.

64 I have attempted to understand the further and better particulars filed by Mr Vo, but with some minor exceptions, they suffer from the same confusion of thought and language as the indorsement. In light of the conclusion that the whole of the indorsement should be struck out it is unnecessary to deal with the third rung of the application, namely that particulars should be ordered to be given.

65 For the reasons above, I conclude that Mr Vo does at this stage appear to have a sustainable claim, but that it is not expressed in sufficiently clear terms and, accordingly, the whole indorsement on the Amended Originating Motion should be struck out. Mr Vo should be given an opportunity, however, to formulate his claim in an intelligible way, preferably with the assistance of a skilled lawyer. To that end, and having regard to the desirability that there be pleadings, I will order pursuant to Rule 4.07 that the proceeding continue as if commenced by Writ, and order that Mr Vo file and serve a Statement of Claim, and make consequential orders for defences and Counterclaims, if necessary, and Reply and defence to Counterclaim, in addition to orders for discovery already made.

66 I have also formed the view that, unless Mr Vo expressly claims that any interest he claims in the Property is subject to the interest of the Westpac arising under its unregistered instrument of mortgage, then Westpac is a necessary party to the proceeding, and that, accordingly, the Mr Vo must join that Bank if he is to proceed with his claim for an unencumbered fee simple estate in the Property.

The Indorsement of Claim on the Amended Originating Motion

This proceeding is made... AGAINST the 1st and 2nd defendants under s. 44 of the Transfer of Land Act 1958 ("TLA") on the basis that no party to the fraud should benefit from the product of their "designed cheating ... by means of a collusive and colourable sale" within the same board of management of Edu Group Melbourne Pty Ltd ("EDU"). [Emphasis in original]

2 This is a conclusion from facts that are neither set out nor particularised and raises an allegation of fraud against the defendants without any proper particulars. However, other parts of the endorsement on the Amended Originating Motion give a clue to what Mr Vo is driving at, but in a way that is overly general in nature, and lacking facts as opposed to conclusions from facts. It should be noted, that the company referred to and defined as EDU is not a party, is a separate entity from Edu Group Pty Ltd, which was a party in the NSW proceedings, and is only tangentially involved.

This proceeding is made... AGAINST the conduct of the board of management or principals of EDU comprising mainly of the 1st and 2nd defendants, who have consistently shown "the lack of good faith" when dealing with court and court orders and contravention of the Civil Procedure Act 2010 ("CPA") in addition to s.44 of the TLA and common law first and foremost duty. [Emphasis in original]

**4 It is an allegation, again, of conduct said to be lacking in good faith, without any identification of the conduct, as a matter of fact. In short, no facts are alleged. Similarly, the further and better particulars provided in response the defendants' request - although perhaps identifying an aspect of the conduct - do not provide much in the way of facts. In addition, the allegation against the conduct of the Board of EDU brings in what appears to be an unnecessary complication. This company is a different entity from the company in which Mr Vo and Ms Gip were directors and shareholders and which was the company involved in the NSW proceedings that are the source of the orders that Mr Vo relies upon for his interest in the Property. Neither that company, nor its Board (as a Board) are parties in the proceeding. The reference seems to be, as Mr Vo explained it from the Bar table, related to the allegation that Ms Nguyen was the 'creature' of Ms Gip by virtue of their relationship in that company.

This proceeding is made... FOR vindication of the plaintiff's legitimate interest as an occupier, in addition to his interest or estate in fee simple or as an owner-in-fact, of the property situated at 9 Victoria Avenue, Springvale Vic 3171, known as Volume 7410 Folio 983 ("subject property") which had been vested in the plaintiff by way of a Court order. [emphasis in original]

**6 The first difficulty with this allegation is that it does not advance any facts. The defendants have sought further and better particulars, to which Mr Vo has responded, but the response does not improve the position. There is a further element in this paragraph that is embarrassing. It is the embedded conclusions that Mr Vo is an occupier and is an 'owner-infact'. From all the material so far disclosed in the proceeding it is clear that Mr Vo is not occupying the Property and has not done so since he was ejected in about med 2012 by the Commonwealth Bank. I gathered from his oral submissions in the course of argument that his reference to being an 'owner-in -fact' is a reference to his alleged entitlement to the fee simple in the Property pursuant to the NSW Court orders..

Even in absence of fraud, the plaintiff's vested interest in the estate or vested property should prevail over the 1st defendant's latent unregistered interests for:

(i) The 1st defendant has not been registered and she is not entitled to indefeasibility;

(ii) Where conflict arise, [sic] the "conclusiveness" of the Court order according s.205 of the Property Law Act 1958 ("PLA") and the "priority" of interest according to the old title should prevail over any latent unregistered interests claimed by the 1st defendant;

(iii) The 2nd defendant had no estate in fee simple to give or to transfer to the 1st defendant according to nemo dat quot [sic] non habet rule when she had disposed her estate in fee simple to the plaintiff according the Court order and s.60 of the PLA.

(iv) The 1st and 2nd defendants should not be taking benefit unconscionably or exploiting their knowledge of the plaintiff's vulnerability arising out of the plaintiff's extraordinary family mishaps (demise of plaintiff's wife and business) in designing and attempting to transfer the possession and title of the subject property to the 1st defendant. [Emphasis in original]

**8 Apart from some embedded, unparticularised conclusions from fact, this sequence of allegations principally comprises submissions and argument. Moreover, the reliance on s 205 of the Property Law Act 1958 is misconceived for the reasons I have given in the body of these reasons. The reliance on s 60 of the Property Law Act is similarly misconceived. That section applies to general law land and not to land registered under the TLA.[41] So too is the purported reliance on the misquoted legal maxim nemo dat quod non habet,[42] which Mr Vo seeks to deploy against Ms Gip as holder of the legal interest as registered proprietor, presumably on the basis that she had disposed of her equitable fee simple by consenting to the orders in the NSW Supreme Court.

9 The next paragraph in this indorsement appears under the heading "Relief/Orders Sought" and is the most revealing part of the whole endorsement. It seeks:**

(1) The unregistered Transfer AJ849246G is void, the 1st defendant is restrained permanently from registration of the unregistered Transfer, and the Registrar of Titles shall reject the unregistered Transfer AJ849246G.

(2) The Registrar of Titles shall record the Plaintiff as registered proprietor of Volume 7410 Folio 983 and to give the plaintiff a new certificate of title.

(3) The 1st and 2nd defendants to pay the Plaintiff costs on indemnity basis, including the cost of relocation and rental accommodation arising out of the Sheriff's eviction notice since 29 July 2012.

**10 Even though this is an expression of the kind normally expected in prayer for relief in a pleading, even here there are embedded facts that are embarrassing. In paragraph (3) there is a hint at the former occupation that the plaintiff had of the property, as it appears that he was evicted from it in July last year.

11 The next section of the indorsement is under the heading "The Parties". It contains paragraph 3 which is as follows:**

(a) The plaintiff has been an occupier, and still is "owner-in-fact" of the subject property pursuant to a court order;

(b) The 2nd defendant has been, and still is, the "registered proprietor" of the subject property owing the Court and the plaintiff an obligation to transfer the subject property to the plaintiff;

(c) The 1st defendant has been, and still is, the collusive "purchaser" of the subject property who has not been registered due to plaintiff's caveats lodged on 8/08/2012 and subsequent injunctions made judicially by Justices Pagone, Kyrou, Almond and Hollingsworth [sic] in the Practice Court since 4/10/2012.

(d) Both the 1st and 2nd defendants knew the plaintiff was living at the subject property when they designed the overt act of "sale and purchase" among themselves. [Emphasis in original]

**12 This paragraph, much like the earlier paragraphs to which I have referred, mixes conclusions of fact (for which there is no supporting information) with allegations that have embedded in them allusions to fact. Further particulars were given in response to the first and second defendants' requests but the response is not helpful.

13 The next section is headed "The Material Fact" and begins to provide some of the content that could, if properly organised, support some of the earlier allegations. Paragraph 4 provides:**

On 19 April 2010 and 26 July 2010, the Supreme Court of New South Wales made several orders ("Court Orders") by consent pursuant to company resolutions and the Corporations Act to the effect that the 2nd defendant to hold the subject property in trust and to transfer the subject property to the plaintiff.

**14 I have set out in the body of my reasons the substance of the orders that were apparently made by the Supreme Court of New South Wales, and which are in evidence for the purposes of the applications that came on in the Practice Court before Justice Pagone and others. There is nothing in the orders, nor in any of the material disclosed concerning the orders, that explains the reference in this paragraph to the making of the orders by consent pursuant to company resolutions and the Corporations Act. A request for further particulars has not provoked any helpful response. It emerged in argument hese were entirely oral and were in substance discussions between Mr Vo and Ms Gip.

15 Paragraph 5, also a part of the so-called material facts, provides:**

Despite of those Court Orders (sic), the 2nd defendant since May 2012 has been attempting to transfer the subject property into the name of the 1st defendant and/or Hong Hai Thi Nguyen who were appointed or caused to be appointed by the 2nd defendant as "director and shareholder" of the EDU company in which the 2nd defendant was under a colour or authority as the Chief Executive Officer (CEO). [Emphasis in original]

**16 This allegation once again advances conclusions from facts without giving any proper basis for them, even by way of particulars in the further and better particulars provided. It is unclear what is intended to be alleged. It may be an allegation that Ms Gip has used those persons for the purpose of depriving Mr Vo of his claimed interest in the Property. But to assert that without any underlying facts to support it is impermissible. It also drags in a reference to the conduct of one or other of the first defendant or Hong Hai Thi Nguyen (and these probably should be alleged in the alternative, but they are not) as directors and shareholders of the EDU company with a superadded element or implication that they were under the control of the second defendant, Ms Gip. It is plainly embarrassing when viewed as a pleading. Whether it is viewed as a pleading or not it is unclear what it is that must be responded to by way of defence. The next allegation, however, provides some possible basis for this allegation.

17 It is alleged in paragraph 6 that "Following the appointment of those Edu directors and shareholders", the following occurred:

(a) Hong Hai Thi Nguyen executed or was caused to execute a contract for purchase of the subject property for the consideration of $1,350,000;

(b) the first defendant executed or "was caused" to execute a New Contract for purchase of the subject property at a nominal price of $900,000;

(c) both of these newly appointed Edu directors executed their respective "contracts" as "purchaser" for the same subject property using the same deposit ($90,000 and $30,000 in cheques) drawn by the same CEO, second defendant;

(d) these company directors and the CEO (formed the board of management of Edu, chaired by the second defendant) conveniently used the same "legal" services represented uniquely by the only solicitor, Mr McNab, for the two concurrent "sales" and "purchases" of the same subject property using the one deposit;

(e) Mr McNab acted as the "legal" professional during execution, mortgage dealing, caveat removal, settlement, dealing with previous court orders made by the Honourable Supreme Court of New South Wales, and recently dealing with interim orders made by the Honourable Practice Court and final orders to be made in Commercial and Equity Division of the Honourable Supreme Court of Victoria.

18 These allegations involve conclusions from facts unstated and include, in any event, allegations that the persons referred to 'were caused' to do things. It is left to inference and only inference that the person who caused these things to be done was Ms Gip. It is an impermissible and embarrassing allegation in its current form. It also casts a slur on the legal practitioner without making any direct and supportable allegation of impropriety. This falls into the description given by Alexander Pope:

Just hint a fault and hesitate dislike.[43]

19 It is then alleged by paragraph 7 that, as a consequence of the above relationship, dealings or overt acts made internally within the veil of Edu between the three (3) executives and the solicitor, the following anomalies have been observed:**

(a) the "two Contracts and a Deposit" were out of the ordinary;

(b) each Contract was out of ordinary in itself;

(c) the consideration if any for the New Contract was out of ordinary;

(d) there was a substantial diminution of the "purchase price" (and therefore equity of the plaintiff) between the first HHN Contract and the New Contract;

(e) the appointment or creation of the 1st defendant as "secretary, director and shareholder" of EDU was out of ordinary;

(f) the passing and sharing of information, name, identity and particulars between 1st defendant and the 2nd defendant was out of ordinary;

(g) the 1st defendant's dependency or reliance upon the 2nd defendant for deposit, mortgage dealing, execution and completion of the New Contract, removal of caveats - that is the whole conveyancing process - was out of ordinary;

(h) the settlement (although incomplete) was out of ordinary;

(i) the "legal" representation, short cut, speed and circumstances surrounding the Contracts and the relationship between EDU executives and Mr McNab have been extraordinary.

**These have been within the authority of Mr McNab and knowledge of the 1st and 2nd defendants. [Emphasis in original]

20 This is entirely embarrassing. What is meant by "out of the ordinary"? How is it that each of the matters said to be out of the ordinary are such? What is it that makes these things out of the ordinary. What are the facts that are relied on?

These anomalies appear to have arisen from "designed cheating ... by way of collusive and colour sale" among the fraudsters as revealed by Kito J in Latec Invesetments Ltd v Hotel Terrigal Pty Ltd (1965) HCA, rather than by an ordinary bona fide purchaser for valuable consideration. [Emphasis in original]

**22 In referring to the matters in the previous paragraph as "appearing" to have arisen from designed cheating, etc, the embarrassment caused by the previous paragraph is compounded. It is also in substance an allegation of fraud without proper particulars.

The lack of good faith as revealed in the series of extraordinary events between the 2nd defendant (seller) and her appointee 1st defendant (purchaser) within the same board of management as shown in paragraphs 5, 6(a-3_ and 7 (a-g) above, and further oral evidence at the hearing, would be sufficient to prevent the sale of the subject property to the 2nd defendant. For according to Menzies J and all of the Honourable Justices of the High Court in Latec Investments above: "The lack of good faith on the part of Latec [the seller] to which, of course its creature, Southern [the purchaser] must have been a party is sufficient ground for avoiding the sale to Southern." [Emphasis in original]

**24 I will not for present purposes deal with the reference to Latec Investments Ltd v Hotel Terrigal Pty Ltd (In liq) [1965] HCA 17; (1965) 113 CLR 265. That case is put forward by Mr Vo, as I understand it, to advance the proposition that as Ms Nguyen is the alleged 'creature' of Ms Gip (assuming that that were established) then if the sale from Ms Gip to

Ms Nguyen was calculated to defeat the interest of Mr Vo, then the Court would set it aside. But the allegations in the paragraph mix up matter relating to the internal workings of EDU and a series of conclusions and submissions, with the notion that an 'inquiry' by the Court will reveal all the necessary facts. Mr Vo must, contrary to that approach, marshal his facts and present them in an intelligible fashion. This fails on that score and adds in what can only be described as a submission.

Thus, Order 1 sought herein should be made, as the purchase of the subject property is "fixed" amongst the fraudsters of the same company in which the purchaser is a creature of the seller and the purchase is not made at arm's length but rather a sham made in bad faith among the fraudsters themselves.

**26 This appears to be an allegation of fraud without proper particulars. It is also an attempt at a summary of what has gone before, but for the reasons already given, it is embarrassing.

Even in the absence of fraud, Order 2 sought herein should be made for the plaintiff's rights in personam as referred to in Paragraphs 1C, 1.1, 1.3 and 4 above; or alternatively against unconscionability of the 1st and 2nd defendants when they all knew that the plaintiff had taken possession of the subject property but he has been unable to secure it by way of litigation and registration with the Registrar of Titles due to circumstances beyond his power to control. [Emphasis in original]

**28 I am frankly at a loss to understand this paragraph. Given that Mr Vo has not been in possession since mid 2012, it is hard to see what relevance that has. What rights in personam are referred to? Presumably, this is a reference to his rights under the NSW Court orders? But it is all unclear and embarrassing.

Since 9/10/2012 the 1st and 2nd defendants and their solicitor have shown their true colours. The plaintiff has suffered considerable relocation and legal costs. Due to their lack of good faith when dealing with Courts and Court orders, Order 3 sought herein should be made against them on indemnity basis. [Emphasis in original]

**30 This allegation seems to be a colourful claim for damages. If it is, it is not clear on what basis Mr Vo is entitled to damages. Is it breach of contract, being the alleged basis for the NSW Court orders? Or is it the orders themselves? The reference to the parties and their solicitor showing their true colours is unclear and embarrassing.

The plaintiff shall rely on his affidavits, oral evidence of the 1st and 2nd defendants, Bruce McNab, Avery Nguyen and Hong Hai Thi Nguyen, subpoenaed documents from Westpac, the Commonwealth Bank and Registrar of Titles and his submissions before the Court.

**32 This is unnecessary in an indorsement on an originating motion.

[1] Exhibit "C-2" to the affidavit of Mr Vo sworn 29 November 2012.

[2] See Exhibit "BM2" to the affidavit of Bruce Travers McNab sworn 1 November 2012.

[3] See the affidavit of Mr McNab sworn 1 November 2012 at [7].

[4] See letter from the Registrar of Titles dated 3 October 2012 to Mr Vo attached to a letter of the same date to the Prothonotary.

[5] [2002] VSC 139; Williams, Civil Procedure Victoria, 23.01.1

[6] [1949] HCA 1; (1949) 78 C.L.R. 62 at 91.

[7] [1964] HCA 69; (1964) 112 C.L.R. 125 at 130

[8] See the observations of Ormiston JA in State Electricity Commission v Rabel (1988) 1 VR 102 at 109.

[9] Charles Lloyd Property Group Pty Ltd v Buchanan [2013] VSC 148 (Revised 5 April 2013) [49].

[10] See Donga Meats (Vic) Pty Ltd v ANZ McCaughan Ltd (VSC, Harper J, No 6264/91, 30 June 1992, unreported (BC9200807).

[11] [2012] VSCA 97.

[12] [2013] VSC 201 at [15] - [20].

[13] [1982] 2 NSWLR 937

[14] (1873) LR 8 Ch App 499.

[15] (1879) 40 LT 455

[16] (1876) 3 Ch D 376. See Williams, Civil Procedure Victoria, 23.02.30.

[17] See Williams, Civil Procedure Victoria, 23.02.35.

[18] See Environinvest Ltd (R & M App) (In liq) v Pescott [2011] VSC 325 at [23] ff ("Environinvest").

[19] [1982] HCA 70; (1982) 148 CLR 658 at 664.

[20] Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [1996] FCA 1758; (1996) ATPR 41-522 at 42,679; op cit Environinvest at [23]

[21] Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [1996] FCA 1758; (1996) ATPR 41-522 at 42,679; op cit Environinvest at [23]

[22] Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [1996] FCA 1758; (1996) ATPR 41-522 at 42,679; op cit Environinvest at [23]

[23] [2008] VSC 77, [1]-[4].

[24] Affidavits sworn 1 November 2012, 20 November 2012 and 9 January 2013.

[26] The court file purports to be Exhibit "BM-1" to the affidavit of Bruce Travers McNab sworn 1 November 2012, although the exhibit note incorrectly identifies the exhibit as Exhibit BM-1 to Mr McNab's affidavit of 18 July 2012.

[27] Paragraph 5 of the Amended Originating Motion filed 21 December 2012.

[28] Latec Investments Ltd v Hotel Terrigal Pty Ltd (In liq) [1965] HCA 17; (1965) 113 CLR 265.

[29] Heid v Reliance Finance Corporation Pty Ltd [1983] HCA 30; (1983) 154 CLR 326 at 333.

[30] Moffett v Dillon [1999] VSCA 32; [1999] 2 VR 480 at 492.

[32] [1960] AC 732

[33] [1974] 3 All ER 735 at 738; [1974 1 WLR 1648 at 1652-3;

[34] (1985) 3 NSWLR 403 at 405.

[35] [1899] 1 Ch 661 and [1900] 1 Ch 370 at 375; see also Pritchard v Briggs [1980] Ch 338 at 408.

[36] See Robinson, The Property Law Act Victoria, p.448-449_._

[38] Affidavit of Mr Vo sworn 29 November 2012 at [13].

[39] [1980] Ch 338 at 407.

[40] See Collins v Supreme Court Library Committee [1953] VicLawRp 26; [1953] VLR 161 at 167.

[41] S. Robinson, The Property Law Act Victoria, 1992 p. 120 and the cases there cited.

[42] "No one can transfer to another a better title than he himself has".

[43] An Epistle to Dr Arbuthnot (1735).