Plaintiff v Defendants

Supreme Court of Victoria|2016-06-06|Before: ALMOND J

REAL PROPERTY - Torrens System - Transfer of land - Whether sham transfers of land - Whether wrongful transfers of land - Whether transaction and related documents produced using forged signatures - Valid transfers.

REAL PROPERTY - Torrens System - Indefeasibility of title - Exceptions - Fraud - Indemnity - Transfer of Land Act 1958 (Vic) s 110(1) - No fraud.

CONVEYANCING - Conveyancers - Duty of care to client - Whether conveyancer acted without instructions - Whether conveyancer involved in sham transfers - Whether conveyancer acted contrary to client's interests - No breach.

TRUSTS - Resulting trust - Siblings - Purchase of two properties - Purchase price and other amounts paid by one sibling from own funds - Matrimonial issues - Other siblings registered as proprietor and joint proprietors (respectively) on Certificates of Title - Subsequent transfer of land to first sibling's company and sale of other property to third parties with proceeds to first sibling - Beneficial and legal ownership of land - Express trust.

EVIDENCE - Burden of proof - Standard of proof - Briginshaw principle applicable - Statutory standard of proof - Actual persuasion on part of fact finder required - Evidence Act 2008 (Vic) s 140.

1 The plaintiff, Hau Lam ('Hau'),[1] brings two separate legal proceedings,[2] one concerning the alleged wrongful transfer of land at 46-102 Deanside Drive, Rockbank in Victoria ('Rockbank land'),[3] the other concerning the alleged wrongful transfer of land at 201 The Esplanade, Altona in Victoria ('Altona property').[4] The proceedings were heard at the same time with evidence in one proceeding to be evidence in the other.

2 In the Rockbank proceeding, Hau sues his sister, Phung Thuong Lam ('Cynthia'), and her company, Pacific Far East Pty Ltd ('PFE') as first and second defendants respectively. He alleges that Cynthia and PFE, without his knowledge or consent, transferred the Rockbank land registered in his name, by means of a sham transfer and the production of other documents using his forged signatures.

3 The third defendant in the Rockbank proceeding, Ms Loan Tran, is a conveyancer who conducts business under the name PT Conveyancing. Hau alleges that Ms Tran breached a duty of care owed to him by acting without his instructions, purporting to act both for himself and the first and second defendants in the transaction, lodging documents to give effect to the sham transfer and generally acting contrary to his interests.

4 The fourth defendant in the Rockbank proceeding is the Registrar of Titles. Among other things, Hau seeks an order directing the Registrar of Titles to reinstate him as sole registered proprietor of the Rockbank land.

5 In the Altona proceeding, Hau sues his sister, Mai Nguyen ('Mai'), for the alleged wrongful transfer of the Altona property following its sale in November 2007. Hau alleges that this sale was also effected by means of a sham transfer and the production of documents using his forged signatures. PFE and Vien Dong Tourist Service (Aust) Pty Ltd ('VDT') (entities associated with Cynthia) are joined as second and third defendants. It is claimed that they are knowing recipients of money received by reason of the alleged fraud and breach of fiduciary duties.

6 Ms Tran, is also a defendant in the Altona proceeding. Hau alleges that Ms Tran breached a duty of care owed to him by acting without his instructions, by lodging documents to give effect to a sham transfer and generally acting contrary to his interests. It is also alleged that Ms Tran breached statutory duties by failing to act honestly, fairly and professionally, not complying with fiduciary obligations arising out of the performance of conveyancing work, not acting in Hau's best interests or in accordance with his instructions and not communicating with him.

7 The defences in each proceeding are to the same general effect. Cynthia and Mai concede that Hau was the registered proprietor of the Rockbank land and the joint registered proprietor of the Altona land respectively but allege that at all relevant times while he remained a registered proprietor the beneficial interest was held for Cynthia on a resulting trust. In each case, they deny that the transfer of land was effected without the plaintiff's knowledge or consent. They deny any wrongdoing. In particular, they deny there was any sham transfer or forgery of the plaintiff's signatures.

8 Ms Tran denies breaching any duty owed to Hau. She alleges that she acted on his instructions and that Hau was aware of and consented to each transaction. She denies that there was any sham transfer.

9 The Registrar of Titles (the fourth defendant in the Rockbank proceeding) relies on the statutory limitations on indemnity in s 110(4) of the Transfer of Land Act 1958 (Vic) and a contribution notice against the other defendants to take effect in the event that the Registrar is held liable to indemnify the plaintiff.

10 Otherwise, the Registrar takes an appropriately neutral stance.

11 Given the nature of the issues raised in these proceedings, it is helpful to restate some basic principles.

12 The party who challenges the efficacy of the execution of documents bears the onus of proof.[5]

13 Section 140 of the Evidence Act 2008 provides that in a civil proceeding, in deciding whether a party has proved its case, the Court must be satisfied that the case has been proved on the balance of probabilities.[6] In deciding whether it is so satisfied, the Court is to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding; and the gravity of the matters alleged.[7]

14 Section 140 enshrines the principle stated in Briginshaw v Briginshaw, where Dixon J observed:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

...

... [W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. [8]

15 In Morely v Australian Securities and Investments Commission, Spigelman CJ, Beazley and Giles JJA held that '''actual persuasion" in Briginshaw should be understood as equivalent to the state of "satisfaction", as the word is used in s 140'.[9]

16 In Neat Holdings Pty Ltd v Harajan Holdings Pty Ltd, the High Court observed that statements to the effect that clear, cogent, or strict proof is necessary where fraud is to be found should:

...be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct, and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to a civil litigation has been guilty of such conduct.' [10]

17 The Lam defendants contend in each proceeding that the plaintiff held his interest in each property on trust for Cynthia; in the case of the Rockbank land on a resulting trust and in the case of the Altona land on an express trust.

18 The relevant principles underlying resulting trusts are explained by Gibbs CJ in Calverley v Green:

Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person, who provided none of the purchase money, acquires a beneficial interest in the property depends on the intention of the purchaser. [11]

19 Unless the relationship between the parties is such as to give rise to the presumption of advancement, it is presumed that the purchaser did not intend the other person to take beneficially.[12] It is not suggested that the presumption of advancement arises in these proceedings.

20 For a resulting trust to arise the purchase money must have been provided by the purchaser with the character of purchase money (i.e. not as a loan).[13] A person's beneficial interest under a resulting trust is determined by the person's direct financial contribution to the purchase price at the time the property is purchased and the trust created.[14]

21 A beneficial interest arising by way of resulting trust will not be established by contributions other than contributions to the purchase price. Money subsequently expended on outgoings or improvements will not alter the beneficial interest of contributors under a resulting trust that is already in existence.[15] The assumption of liability under a loan, such as by way of mortgage, can constitute a direct contribution.[16]

22 The equitable presumption that contributors to the purchase of property hold the legal estate proportionally to their share can be rebutted or qualified by evidence of a contrary intention common to the contributors to the purchase price.[17] Common intention is inferred from what the parties do or say before or at the time of the purchase or so immediately after it as to constitute part of the transaction.[18]

23 As observed by Kyrou J in Sivritas v Sivritas, 'in the context of a "purchase money resulting trust", a presumption of resulting trust arises in favour of a person where that person purchases property in the name of another, or in their joint names'.[19] The person asserting the existence of a resulting trust bears the onus of establishing the payments which give rise to it.[20]

24 When a common intention of two or more purchasers is in issue, it is to be inferred from what the parties do or say.[21] In Charles Marshall Pty Ltd v Grimsley, the Court observed that the evidence admissible to establish the intention of the purchaser comprises the 'acts and declarations of parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction'.[22]

25 For the creation of an express trust, it is substance not form which is important. In Nguyen v Phan, Elliott J said:

In order to find an express trust was created, it is not necessary for the plaintiffs to prove the parties specifically and formally turned their minds to the fact that a trust was being created; no special or technical language needs to be used; it is sufficient if the intention to create a trust may be ascertained from what the parties actually agreed or said. The intention is imputed when manifest in what is expressly agreed or declared. That intention must be clear from the language used, as objectively understood in the relevant circumstances of the case, including the relationship of the parties."[23] More than once, Gummow J has observed that the precision that might be expected in arms-length commercial transactions is not to be expected in private family dealings.'[24]

26 These observations are pertinent to these proceedings where no special or technical language is used.

27 The areas of disagreement between the plaintiff, the Lam defendants[25] and Ms Tran are fundamental and numerous. Broadly, they concern:

The circumstances of the purchase of the properties, including the intention of the parties and the source of the funding for the purchases.
The circumstances giving rise to the use of the Rockbank land as security for a loan from Bankwest to the plaintiff.

The validity of four documents, purportedly executed by the plaintiff in 2005, notably a General Power of Attorney and documents described as a Statement of Commitment (re Rockbank), a Declaration and an Acknowledgment (re Altona), (collectively the 'Authority documents').

The circumstances of the transfer of the Rockbank land to PFE and the sale of the Altona property to an unrelated third party, and in particular the validity of the documents effecting these transactions (collectively the Transaction documents).

28 Each of these broad categories gives rise to sub-categories of disagreement, which will be addressed as the need arises.

A. The circumstances of the purchase of the properties

29 At the time of its purchase in June 2001 the Rockbank land comprised approximately 15 hectares of vacant land.

30 Hau gave evidence that in 2001 he saw the property advertised in a real estate agent's window in St Albans; that he spoke to a sales consultant at the real estate agency, a Mr Sam Latif, and expressed interest in the property. After inspecting the property he made an offer of $270,000. This offer was refused. Subsequently he offered $330,000, which was accepted. Upon acceptance of the offer, he gave the real estate agent $1,000 in cash in $50 notes. He said he did so 'straight away because I loved this farm'.[26]

31 Hau signed a contract note on about 30 June 2001. The purchaser was described as 'Hau Lam and Nominee of 16 Jerrold Street, Footscray'. The contract was subject to finance. It was conditional upon the purchaser obtaining approval for a loan of not less than $220,000 from the Commonwealth or National Bank.[27]

32 The plaintiff gave evidence that he obtained approval for a loan from the Commonwealth Bank but did not take up the loan. Instead he paid for the land using US dollars, which he had in his possession. He did this by exchanging the US dollars for Australian dollars with clients who purchased goods from a duty free shop where the plaintiff said he worked. After obtaining the Australian dollars in this way he gave the money to Cynthia to purchase bank cheques. In total, he gave Cynthia A$350,000 with respect to the purchase of the land at Rockbank comprising tranches of A$50,000 on 17 June 2001, A$100,000 on 13 July 2001 and A$200,000 on 25 July 2001. He recorded the amounts given to Cynthia in a notebook.[28]

33 In relation to the source of the US dollars, Hau gave evidence that he inherited US$192,000 from his mother.[29] As to part of this inheritance (US$110,000), his sister Minh Phung Lam ('Minh') had told him she had received money from her mother and had US$110,000 in her office in Vietnam[30] that she was to hold for Hau and give it to him after his mother died Hau said he obtained the money from Vietnam in two tranches. The first tranche (US$50,000) was brought to Australia in about 1996. The second tranche (US$60,000) was brought to Australia in 1997 following a second visit to Vietnam. Once in Australia this money was kept in a suitcase under Hau's bed. Hau gave evidence that on arrival back into Australia he declared the US currency by filling out and signing a form, which he gave to the Australian Customs authorities.

34 As to the balance of the inheritance ($US82,000), Hau gave evidence that the family home in Vietnam at 624 Dien Bien Phu in Saigon[31] was in the name of his sister, Phung Anh Lam (Anna Nguyen) ('Anna'). After his mother died, Anna sold the house at 624 Dien Bien Phu. She told him that the property had belonged to their mother and represented property which was to be given to Hau when their mother died. Hau gave evidence that Anna transferred US$82,000 to Australia via a Vietnamese money transfer company. Once in Australia, this money was also kept in the suitcase under Hau's bed.

35 In addition to the inheritance, Hau testified that he had several sources of income during the relevant period.

36 One source of income was working for family members. Between January 1997 and June 2000 he worked for his sister Cynthia at a travel agency, Vien Dong Travel, which conducted business at 151 Hopkins Street, Footscray. Sometimes he worked part-time and sometimes six days a week, depending on whether Cynthia needed him. His duties were to sell travel tickets. In early 2000, he also worked at Cynthia's duty free store, VDT Duty Free, which conducted business in Victoria Street, Abbotsford.

37 Hau gave evidence that his pay depended on how many hours a week he worked. He received approximately $850 per week in cash. He saved some of his wages, which he placed inside the roof on the first floor at his house at 28 Shepherd Street, Footscray. During the period 2000 to 2004, he worked for his sister Minh at Footscray and at St Albans at different duty free stores. When working for Minh, his wages were approximately $850 for a five-to-six day week. If he worked more than six days a week, he received more than $850. His wages were paid in cash.

38 A second source of income was a partnership with a person in Vietnam operating a mobile phone shop with a Motorola franchise. From 2000 to 2008, Hau received 'roughly under A$100,000'[32] from this partnership business.

39 A third source of income was a bakery business known as Saigon Baker which Hau carried on for a short time in 2003. Saigon Baker was located in Victoria Street opposite Cynthia's business, VDT Duty Free. According to Hau, the bakery business was not very successful and he did not receive much income from it. The bakery was established in an empty shop. Renovations took three or four months. The bakery business operated for four or five months before Hau gave it up.[33]

40 Sadrettin ('Sam') Latif, real estate agent, gave evidence that in 2001 he worked for JC Optimum Australia Pty Ltd as a real estate salesman in St Albans.

41 In 2001, the company received instructions to act for the vendors in selling the Rockbank land. Mr Latif described the land as farm land with vegetation on it, but without a dwelling. The land was offered for sale in about May 2001. It was advertised on the window display in the office. Mr Latif said that Hau expressed interest in buying the land. He went with Hau to inspect the property. Mr Latif said that at the time he inspected the property with Hau there were no signs there. After engaging in some negotiations about price, Hau put an offer that he was prepared to put to the vendors. Mr Latif said he told Hau that the offer would have to be in writing as the agency did not take verbal offers, and that he would need to put down an initial deposit of $1,000. He would then take the written offer to the vendors.

42 Mr Latif said Hau put an offer in writing and gave him $1,000. Mr Latif took the offer to the vendors who accepted the offer and signed a contract note. Mr Latif said he asked Hau which bank he was getting his finance from. Hau said he was not sure - either the Commonwealth or the National Bank - and that he was borrowing $220,000, which resulted in Mr Latif specifying an approval date for the finance on the contract note. Hau said he would be using Low Cost Conveyancing of Ashley Street, West Footscray, provided the telephone number and a contact person, 'Ms An'. These details were recorded by Mr Latif on the contract note. Mr Latif said he did not deal with any person other than Hau in relation to the sale of the property.

43 Mr Latif said that the vendors of the Rockbank land were Vietnamese and that he did not speak Vietnamese. He said there was 'one guy' at the JC Optimum Real Estate office in 2001 who spoke Vietnamese; Mr Latif did not know whether that person had spoken with anyone else regarding the purchase of the Rockbank land.[34]

44 Mr Latif said he met Hau a few years afterwards on an occasion where he bought some items from a duty free shop in Barkly Street in Footscray.

45 Boon Seam Bouakeo, Manager, Personal Lending, at the Commonwealth Bank of Australia, gave evidence that he met Hau in around 2001 at the West Footscray branch of the Commonwealth Bank when he attended the bank and applied for a loan to purchase vacant land at Rockbank.

46 He gave evidence that when an applicant for a loan comes to the bank he will ask for a payslip and that he asked Hau for a payslip on this occasion; that Hau had said because he was working for his family business, a duty free shop at St Albans, he did not have a payslip. Mr Bouakeo said he then asked for an employment letter and Hau produced a letter of employment. Other than the letter of employment and matters to do with his employment Mr Bouakeo could not remember considering anything else in the application for the loan. Mr Bouakeo said that the 'normal lending margin would be 80% but we go up to 95%'.[35] He said he remembered assessing Hau's capacity to service the loan and was satisfied that he had the ability to do so.[36] Hau's application for a loan was approved, but Mr Bouakeo did not know whether the loan proceeded or not.

47 Mr Bouakeo said he subsequently saw Hau at a duty free shop in St Albans on a couple of occasions when he purchased duty free alcohol. Mr Bouakeo said Hau was working there as an accountant.[37]

48 Cynthia said that she first saw the Rockbank land in 2000 or 2001. She remembers it was on a Sunday on a day off from work. She was searching for land to buy in the area and drove past the land with her sister, Mai.[38]

49 Cynthia said that she wanted to buy something in order to keep her savings away from her ex-husband because he had been using a lot of money and she did not want him to touch her savings. She said she really wanted to buy land in Caroline Springs, but at that time she could not find any land in Caroline Springs, so she went to the area next to Caroline Springs. She saw the Rockbank land advertised for sale and thought the land would be a good long-term investment.[39]

50 There was a big board displayed on the land. She called the number displayed on the board and a Vietnamese-speaking male answered the phone. She asked him questions about the land and he asked her to come back the following day on the Monday to see the land. The next day they went back and Cynthia saw a Vietnamese person working on the land. This caused Cynthia to think she was dealing directly with the land owner until a Vietnamese man, the agent, came over and met Cynthia and Mai. Cynthia asked him about the land, how much the vendor was looking for and the agent said 'not more than $350,000'. Cynthia said she was happy because it was within her budget and she then asked the agent what she should do if she wanted to make an offer. The agent informed her that if she wanted to make an offer then she had to come to the office to put down $1,000 to show it was a genuine offer. Cynthia did not have a chance to go to the agent's office, so she asked her brother Hau to go on her behalf. She asked Hau to come to her office and gave him $1,000 to take as a deposit for a genuine offer.[40]

51 Cynthia could not remember precisely when she did this. In evidence-in-chief, she said she gave Hau $1,000 in cash on the Monday. Under cross-examination, she said she did not remember whether it was on the Monday or in the next few days.[41]

52 At first, Cynthia offered $300,000 or $310,000 but ended up offering $330,000. A day or two later, the agent called her and said that the vendor accepted the $330,000 offer. About a week later, Cynthia said she gave three or four bank cheques to Hau to take to the agent to pay the 10 per cent deposit. Cynthia did not remember precisely when she paid the deposit. The balance of the purchase price was paid through the conveyancer, Low Cost Conveyancing, in October 2001. She dealt with Ms An Bui of Low Cost Conveyancing.

53 Cynthia gave evidence that she and Hau had a conversation about the Rockbank land on the Sunday after she called the agent to make an appointment to inspect the land on the Monday. This conversation took place at 16 Jerrold Street, in the presence of her sister Mai. Hau and most of the family members were there. They talked about the land. Cynthia said that she would really like to buy the land. Hau said, 'Your husband (now Cynthia's ex-husband) is using a lot of money and you had better use someone else's name'.[42] He suggested that Cynthia use his name on the title to hold the land for her. Cynthia said that she thought that would be a good idea. Cynthia was unable to remember the precise date of this conversation. She thought it was some time in May or June 2001, before she paid the deposit. Cynthia said that the deposit was paid with three or four bank cheques, which she obtained from the Commonwealth Bank. Whilst not being able to remember the precise amounts of each bank cheque, Cynthia said that each cheque was for less than $10,000 because she did not want to use too much cash from her business and the teller from the bank had also advised her that if the bank cheques were of amounts of more than $10,000 she would have to declare the cheque. In order to avoid too much paperwork, she preferred to buy bank cheques for amounts of less than $10,000. Bank cheques for the deposit were acquired over a period of about a week, but not on the same day. Cynthia said she went to the bank whenever she was free. The bank was very close to her office. On each occasion, she dealt with a Vietnamese teller, Ms Annie Thao Nguyen. Cynthia said she had surplus cash left over in her business, which she accumulated and kept in the office safe until she had enough to buy a bank cheque.

54 On the day of settlement, Cynthia took more than 30 bank cheques to the settlement. The cheques were all for less than $10,000 and were acquired using cash from Cynthia's business. They were kept in the safe until settlement day. Prior to the settlement, Cynthia and Mai went to Ms Bui's office (Low Cost Conveyancing) in Footscray West and gave the cheques to her. After settlement, Cynthia brought Hau and Mai and others to show the new land to them. This occurred either on the date of settlement or a few days later.[43]

55 About three or four weeks after settlement, An Bui from Low Cost Conveyancing asked Cynthia to collect the Rockbank land title. She went to see Ms Bui, together with Hau and Mai, to collect the document. Cynthia said that because she had not had to borrow any money from the bank she was able to keep the title herself. This was her first opportunity to hold a title to property. She said she was happy to show it to Hau and Mai and everyone.[44]

56 Mai gave evidence that Cynthia liked to look at land and, as she was very busy, she was only able to do so on Sundays. On one Sunday, she and Cynthia went together to look at properties. They saw a For Sale sign on the Rockbank land which had the vendor's real estate agent's contact details. Cynthia took the mobile phone number from the For Sale sign. She called the number and asked how much the piece of land would be sold for.

57 Mai said that on the second occasion they visited the Rockbank land they met a Vietnamese man who asked them to meet there again to inspect the land, which she did with Cynthia and Hau the next day. Mai gave evidence that the Vietnamese man was a real estate agent. They spoke to each other in Vietnamese. At first, the agent said that the price was around $350,000. Cynthia sought to negotiate on price. According to Mai, Cynthia made a few offers but there was no deal finalised on that day. At one point, the real estate agent said that $310,000 would not be accepted by the vendor and that there would need to be a better offer. He also said that if Cynthia would like to purchase the land she should put down a deposit of $1,000 so that he could go back to the vendor and say that she actually intended to buy the property.[45]

58 After seeing the land, they went to 16 Jerrold Street in Footscray and had a meeting. Mai could not remember whether the meeting took place on the Sunday or the Monday after she and Cynthia first visited the Rockbank land. There were lots of people there, including siblings Anna and Thu Thuy Lam ('Thuy'). Mai said the real estate agent said the sale price would not exceed $350,000. Cynthia said she could afford to buy the land, that it was a very affordable price, but she wanted to negotiate a lower figure if possible. Hau said it was very a good price and that she should 'go for it', but that she should not have her name on the title because of matrimonial issues with her husband.[46] Hau said 'Let me stand on the title name for you, you shouldn't stand on the title yourself...'.[47] Cynthia then asked Hau whether he would 'stand on the title' for her and they agreed that it was okay and that he would do so.

59 After the sale price was finalised, Cynthia again asked Hau whether he was sure he could stand on the title for her and Hau had said '...Just buy it and I will stand on the title to help you'.[48]

60 It was agreed that Hau would sign the contract. There was also some discussion about a loan being applied for though Mai was not sure of the details. Cynthia asked Hau to try to get finance but if not she could still afford to buy the land. Mai said she thought that Cynthia let Hau take the $1,000 to the real estate agent's office as Cynthia was busy. The vendors accepted the offer of $330,000 the day after the initial deposit of $1,000 had been paid.[49]

61 After the contract was signed, Mai said that Cynthia said that finance would not be needed because she had enough money to purchase the land.[50]

62 Mai said Cynthia provided all of the purchase money for the Rockbank land, which she did by buying bank cheques. Mai said that both she and Cynthia bought bank cheques for this purpose. Cynthia asked her to go and buy the bank cheques at the local CBA bank branch, which was located between the Vien Dong Travel office and the Holiday Travel office. Mai said she was not sure how many bank cheques she purchased for the Rockbank land purchase, but estimated between 15 to 20 bank cheques. Usually she purchased them when Cynthia had finished her accounts or banking. Cynthia would give her a call to take the money, generally around $9,000 in cash. Mai would then buy the bank cheques, with the vendor's name as payee. Mai could not remember the exact name or spelling of the vendor(s), but said she knew that it was a Vietnamese name. She said the cheques were purchased from a female Vietnamese bank teller. She was not sure of her name, but said it sounded like Annie Thao Nguyen. On each trip to the bank, Mai would purchase one bank cheque. When she went to Cynthia's office, Cynthia had the money counted and ready. The cash was in a cloth bag, which Mai would put in her handbag to take to the CBA branch. On her return, Mai would give the bank cheque to Cynthia. Mai was not sure over what period of time she obtained bank cheques in this way for the Rockbank land purchase, but thought it was approximately three months. After settlement, Mai said that she camped at the Rockbank land with Cynthia, Hau, and their sibling Tien Hung Nguyen (Hung Lam) ('Hung'), and that Hau had said it was a very cheap price for the land.

63 Considering the different versions side by side it is evident that there are inconsistencies, some of which are irreconcilable. Notably, Mai said that Hau was present at the inspection when Cynthia met the Vietnamese man at the Rockbank land. Cynthia said nothing about Hau being present at that time. Another notable difference is that on the plaintiff's case Hau saw the land and inspected it before Cynthia. On the Lam defendants' case, Cynthia and Mai saw the land before Hau. Considering the effluxion of time, inconsistencies are not unexpected. The events occurred approximately 15 years ago. Until the allegations were made by the plaintiff in 2013, the individuals concerned would probably have had no cause to recall the specific events, much less the nuances associated with them.

64 Allowance must therefore be made for inconsistency and imperfection in the accounts of all of the relevant witnesses. After making such allowance, I have a clear preference for the Lam defendants' account of the purchase of the Rockbank land.

65 First, there is a believable context for Cynthia's discovery of the land. I am satisfied that Cynthia was in the habit of driving around on Sundays looking for real estate opportunities. She was looking for land in Caroline Springs and, due to the unavailability of opportunities there, had to look further afield. This took her to the Rockbank area. There, she chanced across the land coming off a freeway exit. In my view, this is likely on the balance of probabilities, given the close proximity of the land to the relevant freeway off ramp.

66 Secondly, Cynthia had demonstrated means and ability to pay for the Rockbank land. On her account, she accumulated enough cash from daily turnover in her business to purchase multiple bank cheques. For the deposit ($33,000 less $1,000 initially paid), this accumulation took approximately a week or two. Accumulation of the balance of the purchase price took several months.

67 At the time of the purchase in 2001, Cynthia operated a very successful travel agency and a duty free business. Vien Dong Tourist Service operated through PFE as corporate trustee for the Vien Dong Trust. The revenue of this business for the year ended 30 June 2001 was in excess of $9.9 million, an average of approximately $190,000 per week.[51] For the year ended 30 June 2002, the revenue of the business was approximately $9.2 million, or an average of $177,000 per week.[52]

68 According to Cynthia, the majority of customers booked tickets to Vietnam or other Asian destinations. At the relevant time the travel agency represented all airlines, but mainly Vietnam Airlines.[53] Depending on the season, customers would typically pay between $1,000 and $1,700 per ticket. Customers paid variously by cash, direct credit, bank cheque or credit card.[54] Given the very substantial turnover, in my view it is reasonable to infer, and I do infer (even allowing for seasonal fluctuations) that the travel business produced sufficient cash flow from which Cynthia would have been able to accumulate cash in the terms claimed.

69 Further, despite the effluxion of time, Cynthia gave a believable and cogent account of the circumstances of the purchase of the Rockbank land. Generally, she had a good recall of events, was willing to concede when her memory failed her and withstood cross-examination.

70 On the other hand, the plaintiff's account is implausible for some fundamental reasons.

71 The plaintiff claims that he paid for the Rockbank land from an inheritance of US$192,000 received from his mother.

72 The claim of receiving the inheritance is supported by Anna to the extent of US$82,000 and by Minh to the extent of US$110,000. It is necessary to evaluate this evidence, dealing first with Anna and then with Minh.

73 Anna gave evidence that her mother instructed her that if in the future she (Anna) intended to live in Australia she should sell her house (at 624 Dien Bien Phu) and give the money to Hau.[55] Anna lived at this house from 1990 to 1997, when she migrated to Australia. The house was sold in 1997 for 249 taels of gold. After she received the money, Anna changed it into US dollars and transferred it to Hau using a remittance service.[56] Anna said that her parents 'used to have a lot of money' and 'had rice fields'.[57] There was no independent evidence to corroborate these assertions.

74 Anna denied that the house at 624 Dien Bien Phu was bought by Minh in about 1989 and put in the name of a relative, Nguyen Thi Le Suong, because Minh could not own property in Vietnam as she was living in Australia at that time.[58] She agreed that she bought the house from Nguyen Thi Le Suong and that it was put into her name, but denied that Minh provided the funds to pay for the house at 624 Dien Bien Phu.[59]

75 I am satisfied that the house at 624 Dien Bien Phu was registered in Anna's name following a transaction evidenced by a Deed of Sale and House Service contract.[60] Despite some reservations, I am also satisfied that funds derived from the subsequent sale of the property in 1997 (of approximately US$82,000) were remitted to Australia in or about June 1998.[61]

76 However, the circumstances of the initial purchase of the house and the source of the funds initially provided for the purchase of the house, the transfer into the name of the relative, Nguyen Thi Le Suong, and the transmission of the proceeds of sale to Hau in Australia and what he did with the funds are unclear.

77 The Deed of Sale states that the purpose of the sale is transfer of ownership to the vendor's niece. No sale price is specified.

78 Anna agreed that after her father had died in the late 1970's, and her mother had sold the family house in Tra Vinh, she could not remember how much it was sold for as she was too young. She was unable to comment on whether the house was sold for one tael of gold.[62]

79 Anna accepted that after her father died and the family moved from the house at Tra Vinh they moved to live at a house at 419/47B Cach Mang Thang Tam, District 10, Saigon and that house was owned by her sister Minh and her husband.[63] Anna made passing reference to her mother working from home changing money into gold or dollars but there was no detail of the extent of that work or the income it may have generated.[64]

80 Anna said that she lived at 624 Dien Bien Phu, which she owned. The circumstances surrounding her ownership of this property are unclear. First Anna said that her mother gave her the money to buy the property before her mother migrated to Australia.[65] Anna also agreed with the proposition put to her by the plaintiff's counsel that her mother bought the property at 624 Dien Bien Phu.[66]

81 Anna claimed that Minh was the only person she told about her mother's inheritance to Hau.[67] Anna did not explain why she did not tell her other siblings about her mother's inheritance for Hau.

82 Minh deposed in an affidavit that she kept US$110,000 for Hau as an inheritance according to the wishes of her mother and that 'as per family arrangement' she handed US$110,000 in cash to Hau in Vietnam during the two-year period from 1996 until 1998.[68] Again, with Minh not being present at the trial, she was unable to be cross-examined on the circumstances which led to the asserted instruction by her mother to give money to Hau after her death.

83 Cynthia gave evidence that her mother did not receive an inheritance upon her husband's death and her mother did not work at all,[69] and that in her lifetime her mother only had one house, in Tra Vinh, and she did not own any property in Australia.[70]

84 Hung said that whilst living in a village in Tra Vinh his family lived in poverty, that life was tough and difficult, that his mother did not work and that after his father passed away from illness the family had a very difficult life. His mother had to sell everything in the house in order for the family to survive. Anything available that could be sold was sold, including furniture. Hung said that his family had to pay for their father's treatment for his sickness and borrowed money from relatives and sold items from the house in order to help pay for his treatment. Hung said that after selling the family home in Tra Vinh they moved to Saigon and lived with Minh at 419/470B Cach Mang Thang Tam Street, Ho Chi Minh City, in a house owned by Minh and her husband. After two or three years, they moved to 330 Cach Mang Thang Tam in a house belonging to Minh's mother-in-law.[71] There Hung lived with his mother, his sister Minh and her daughter, and his other siblings Cynthia, Mai, Thuy, Hau, Anna and Minh's mother-in-law.

85 Hung demonstrated a good recall and gave his evidence carefully and thoroughly. He was an impressive witness. Hung said that Minh purchased the house at 624 Dien Bien Phu and that she did so in 1989. He said that he supervised construction work carried out there. In that role, he reported to his sister Minh. After construction was completed, Minh lived at the house and used it as an office. After construction was completed, the house was used by the family, including Anna, and whoever returned to Vietnam lived there. Hung said that the house was not registered in Minh's name; that Minh asked the family relative to register it in the relative's name.[72] Hung said that his mother did not own a house in Saigon.[73]

86 Hung also gave evidence that Cynthia purchased the Rockbank land from the previous owner.[74]

87 A collateral attack was made on Hung's credit based on the contents of a telephone conversation that Hung had with a Mr Tong Vo Tan on about 8 February 2016. Counsel for the plaintiff suggested that Hung had falsely denied that he did not speak to Mr Tan about the case and that, during the conversation, Hung had sought to threaten and intimidate Mr Tan regarding participation in the trial of this proceeding.[75]

88 A transcript of the recorded telephone conversation was tendered.[76] The transcript indicates that the telephone conversation starts abruptly and is likely to be an extract from a longer conversation because there are no transcribed introductory remarks which would ordinarily be expected to occur in a telephone conversation. Nevertheless, the transcript appears to record a discussion between Mr Tan and Hung about the plaintiff. Some remarks are made about prior dealings that Mr Tan had had with Hau. Hung suggested that Mr Tan had innocently helped Hau by signing a document stating that he was a partner in a telephone business with him when he was not in partnership with him, and that he had taken advantage of having that document 'to do lots of messy things...'. There was a reference to the fact that statements made in court proceedings would be recorded. Hung said Mr Tan should 'just say what is true if not then don't say it...tell the truth'.[77] In other parts of the transcript he said that Mr Tan should do as his conscience guides him, to just say what is true and if it is not true not to say it, not to say anything to help because of his friendship with Hau.[78]

89 The tenor of the conversation is essentially advisory; to persuade Mr Tan to tell the truth when he is in court and to warn him that the court proceedings will be recorded and could have personal consequences for him and he should therefore tell the truth.

90 On one view, this telephone discussion does constitute a discussion 'about the case', but only in a peripheral sense. The discussion is focused mainly on advising Mr Tan to tell the truth and does not constitute threatening or intimidating conduct. Nor in my view does it undermine the credibility of Hung.

91 Cynthia, Hung, Thuy and Mai each gave evidence to the effect that from the early 1980's until her death their mother depended on her children to provide accommodation and financial support and that she had no assets and (after living in Australia for two years) received the age pension.[79]

92 The overwhelming weight of evidence corroborated by four siblings in the Lam family is to the effect that their mother had no assets and could not have been in a position to confer an inheritance of the kind alleged on any of her children. I reject Anna's evidence of the alleged instruction from her mother to give Hau the proceeds of any sale of 624 Dien Bien Phu.

93 Though the plaintiff established that Minh was not available to give evidence for the purposes of s 63 of the Evidence Act 2008 (Vic), I do not assume that Minh was necessarily out of contact with all members of the Lam family. In my view, Minh chose to be unresponsive to efforts made to communicate with her and chose not to attend the trial. There was no suggestion that she was unable to return to Australia from Vietnam to attend court for reasons of impecuniosity. Despite making an affidavit on key issues in the case, she was not prepared to submit to cross-examination on its contents or otherwise. Significantly, the defendants had no opportunity to test Hau's evidence that during the period 2000 to 2004 he worked for Minh at her duty free stores in Footscray and St Albans and was paid wages in cash or Anna's evidence that she told Minh about the inheritance. I give only minimal weight to Minh's affidavit. Considered separately, or combined with the evidence of Anna, Minh's evidence is insufficient to persuade me of the veracity of the plaintiff's claim to have received an inheritance from his mother.

94 A perplexing aspect of the plaintiff's claim of an inheritance is that he was the sole recipient of his mother's largesse. Under cross-examination, Hau advanced a suggestion that his mother loved him 'more than the other seven'.[80]

95 There is no evidence given, or any rationale suggested, to explain why Mrs Thi Truyen Nguyen would single out one sibling out of her (seven) surviving children or that she loved Hau more than her other children. The evidence from the other members of the family is to the effect that Mrs Nguyen was a loving mother and had equal affection for her children. There was no suggestion that any of the children conducted themselves in such a way that they would be excluded from any inheritance. There was no evidence that Hau had special needs. There was no evidence of any family discussion or circumstance which would provide a plausible explanation for Hau being the sole child to inherit.

96 Another perplexing aspect of the plaintiff's claim of an inheritance is the plaintiff's claim that he stored the money in a suitcase under his bed. In opening the case, senior counsel for the plaintiff said that his client would give evidence that it was a custom of people from Vietnam not to trust institutions and that they keep money in American dollars or gold under the bed or somewhere hidden.[81] No evidence of mistrust of institutions or banks, let alone custom, was led at trial. Indeed, the plaintiff agreed that from the time he arrived in Australia he and his mother used the Commonwealth Bank.

97 The plaintiff attended school in Vietnam to Year 9 level and completed his secondary schooling in Australia. He studied English as a second language from 1991 to 1996. He completed secondary schooling in Australia in 1997 and studied international trade for a year at Victoria University.[82] In my view, the plaintiff was far too astute to leave large sums of money in a suitcase under a bed for an extended period - in this case, for approximately four or five years for the part of the inheritance allegedly received through Minh, and for approximately three years for the part of the inheritance allegedly received through Anna. Hau gave evidence that on occasions when he went to Vietnam in January 1999, August 1999, October 1999, November 2000 and early June 2001[83] he left the money unsecured in the suitcase under his bed in Australia. I consider this to be a very unlikely prospect.

98 There was no corroboration of the evidence that money was kept in a suitcase or that a suitcase was kept under his bed.

99 Furthermore, the plaintiff gave evidence that during the period he lived at 28 Shepherd Street, Footscray, the house was burgled and a television set and hi-fi were stolen from the ground floor.[84] The plaintiff gave evidence that his room was at the back of the first level and that no one entered his room during the incident. Despite this burglary, there was no evidence that any security precautions were taken with regard to the cash in the suitcase.

100 There was also some evidence which indirectly undermines the suitcase under the bed evidence. Cynthia and Hung gave evidence to the effect that for a significant period of time, while Hau resided at 28 Shepherd Street, he slept in the lounge room downstairs on a couch, which made room for Thuy and her daughter to sleep upstairs. The bottom of the couch was too close to the floor to store a suitcase. The plaintiff denied ever sleeping on the couch. I am satisfied that the plaintiff slept on the couch for a significant period while he resided at 28 Shepherd Street. Though it is only a minor point in the many points in these proceedings it suggests, in lieu of any other evidence, that the suitcase containing the cash must have been left under his former bed upstairs during the time he slept on the couch. This leads to the improbable notion that Hau would leave a substantial sum of money upstairs in the house (in a room that was no longer his bedroom) with no security precaution taken with regard to its valuable contents.

101 Further, I do not accept that the plaintiff was employed at Cynthia's travel business selling travel tickets and earning approximately $850 per week. There was no record of this reflected in any document or income tax return. Further, the plaintiff displayed little knowledge and great hesitancy when asked about the travel codes used to identify various destinations and airlines. In my view, had he worked in a travel agency selling travel tickets to Vietnam, he would have been very familiar with airline and airport travel codes.

102 I do not accept the plaintiff's evidence that he changed the US dollars from the suitcase into Australian dollars with clients who came into the duty free shop where he worked. These currency exchanges were purportedly made opportunistically without prior arrangement with people who purchased goods from the duty free shop. Hau said that US dollars were good value in Vietnam and popular during that year (2001). The plaintiff said they would simply swap money. The customers would give him Australian dollars in exchange for US dollars. According to the plaintiff, the amounts exchanged were sometimes $3,000 sometimes $10,000, sometimes $20,000 depending on how much the customer had. The plaintiff said that he exchanged currency with 10 or 20 customers.[85]

103 There was no record kept of any transaction. The plaintiff failed to identify with precision the detail of any of the amounts involved. There was no evidence given by any purported customer to corroborate the plaintiff's assertions of currency exchange and the plaintiff was unable to recall any of their names.[86]

104 I do not accept the integrity of the plaintiff's 'notebook' which purportedly contains a record of payments made by the plaintiff to Cynthia over the relevant period. It consists of four loose pages with dates and amounts handwritten on them. There is no corroboration of its provenance. The plaintiff's evidence about the 'notebook' changed. Initially he said that he recorded the money given to Cynthia when he gave it to her.[87] Under cross-examination, he said that the entries in the notebook were made

WITNESS: ...whenever I remember, I put the date on it, but the money I give to her by three time before if settlement for Rockbank...It is not the same day, it could be three, four day difference.

HIS HONOUR: It could be three or four days different than the date you put in here?

WITNESS: Yep, because after I give to her, I keep my record but really that's a different day.

HIS HONOUR: Could it be three or four days different for each of the entries?

WITNESS: No. It depends. Some time two week, three week.

HIS HONOUR: So which ones are three or four days different?

WITNESS: I think the first amount 50,000.[88]

105 The first entry relates to a purported payment of $50,000 to Cynthia on 17 June 2001. If the plaintiff's evidence is accepted, the first amount of $50,000 would have been paid within three or four days of 17 June 2001. Either way, this purported payment was made before the Rockbank land purchase contract was signed, before the obligation to pay the deposit arose and for an amount in excess of the amount of the deposit ($50,000 instead of $33,000).

106 None of this was satisfactorily explained. This made me even more cautious about accepting the reliability of the 'notebook' and the veracity of the plaintiff's evidence generally.

107 I found Hau's brief evidence on the circumstances of the purchase of the Rockbank land to be superficial. He was unconvincing in evidence-in-chief and under cross-examination on this issue.

108 The Altona property was purchased in November 2001 and consisted of land and improvements comprising a four bedroom house and bungalow at 201 Esplanade, Altona.

109 Hau gave evidence that the Altona property was initially purchased by Cynthia but she changed her mind and 'told' Hau to share the purchase with Mai.[89] Hau said he had only the 10 per cent deposit for the property but he was to have a 50 per cent share.[90] He did not inspect the property before the purchase, only after settlement. He said that Cynthia and Mai organised all the documents.[91]

110 The Altona property was an investment property and was 'always rent'.[92] In substance, Hau said that he gave Cynthia $69,000 for the 10 per cent deposit and the stamp duty. He referred to two entries in his 'notebook', one dated 8 November 2001 for $70,000, the other dated 4 January 2002 for $20,000 (a total of $90,000).[93] The money used to pay for the Altona property came from cash in the suitcase kept under the bed.[94] According to Hau, he made loan repayments on the Altona property; the property was always leased and the rental payment and some small additional funds covered the finance required to service the Altona loan. According to Hau, the payments comprising the smaller amounts from 14 March 2002 to 21 January 2008, recorded in the 'notebook' were paid to Cynthia every time she needed them. She would ask for specific amounts and he paid them.[95]

111 In a discussion, which occurred in about 2006, Hau said that Cynthia told him not to worry about the $50,000 Bankwest loan, that she would look after the repayments and that when the property was sold she would deduct payments made on his behalf and pay him the balance.[96] In 2007, Hau had a discussion with Cynthia about the Altona property during which he explained that he was in poor health and could not work to get the money to pay for the finance He made an arrangement with Cynthia (and Cynthia agreed) that she would make payments for him and he would pay her back whenever he could.[97]

112 Cynthia gave evidence that she saw the Altona property at the end of 2001 or in 2002; that she inspected the property before she purchased it; that it was an old double storey house right in front of the beach with a view of the beach. Cynthia said she bought and paid for the property; that she paid an initial deposit of $1,000 and then the 10 per cent deposit. She thought the deposit was $69,000 'or something' and she borrowed 80 per cent or the maximum amount from GE Mortgage.[98]

113 Before she purchased the land she took her family, her sister Mai, and Hau to Altona to show them. This occurred in 2002 on the day that the vendor accepted the offer. Cynthia thought she paid the deposit by bank cheque, then said she did not remember - that it was either a bank cheque or a business cheque. At first she used her name on the contract because she wanted to have her name on the title. She said she had a conversation with Hau about the purchase of the Altona property. Hau suggested to her (again) not to use her name because of the matrimonial issues with her former husband. Hau suggested his name and Mai's name should be together on the title. Cynthia said she asked Mai if she was happy to put her name together with Hau's on the title; that Mai had said that that would be fine and she would be happy to help.[99]

114 Cynthia said no one gave her any money for the deposit and that she paid the vendor for the deposit[100] and borrowed approximately $500,000 from GE Mortgage to buy the property. Cynthia said she went to GE Mortgage together with Mai and Hau. Subsequently, she changed to National Australia Bank ('NAB'). She recalls that the monthly loan repayment to the National Bank was approximately $3,400 or $3,500. She paid council, water rates, sometimes an electricity bill and building insurance through RACV home insurance. She organised the insurance herself.

115 After settlement and, when she got the house key to the house her family, together with her children and Mai, went there to clean it up. She did not remember if Hau was there on that occasion.[101]

116 Mai gave evidence that she and Cynthia went to the Altona area looking at properties. At the time the Altona property was purchased by Cynthia, Hau again offered to help and said that she should not put her name down on the title but to let him put his and Mai's name 'to stand' for Cynthia on the title. Mai's explanation for her name being on the title was that it was initially intended that Hau's name be solely on the title but because the finance requested at the bank was 80 per cent of the purchase price, and 'he could not afford it to have finance approval', this led to the suggestion from Hau that he and Mai should 'stand together on the title' for Cynthia.[102]

117 Mai was not sure of the purchase price of the Altona property. She gave evidence that she helped Cynthia buy some bank cheques (approximately seven or eight bank cheques) from the Commonwealth Bank for the Altona property deposit. Mai said the balance of the purchase price was financed. Mai said their income level was not sufficient to get an approval from a mainstream bank so they used GE Money Mortgage. Subsequently, the purchase was refinanced with the NAB.[103] Mai thought the refinancing occurred one or two years after the purchase. Mai said she did not make any repayments of either the GE Mortgage or the NAB mortgage. Mai said this was Cynthia's property so she (Cynthia) took care of it; that Cynthia made mortgage repayments. Mai said that she did not pay part of the deposit or any mortgage repayments save on one occasion in August 2003 when Cynthia was busy and Cynthia handed money to her, which she paid into the account for her.[104]

118 I have a clear preference for the Lam defendants' account of the purchase of the Altona property.

119 First and foremost, Cynthia's account of the purchase was cogent and believable. I accept that the property was put into the names of Hau and Mai to assist Cynthia to manage the matrimonial issues she was facing at the time.

120 I accept Cynthia and Mai's evidence that whilst Hau and Mai were named as mortgagors, Cynthia made the mortgage repayments from her own resources. I reject Hau's evidence that he paid $70,000 to Cynthia on account of the deposit and stamp duty.

121 In this regard, I note that Hau gave specific evidence about payment of the deposit ($70,000) and stamp duty ($20,000) in relation to the Altona property. His evidence in relation to repayments of the loan on the Altona property was vague. In chief, he merely said that the notebook recorded when he gave money to Cynthia.[105]

122 Under cross-examination, Hau said that each of those amounts were paid following a request from Cynthia for the specific amounts and that the amounts were for council rates for Rockbank and Altona and 'repayment for Altona and maintain the garden for Altona'.[106] Hau was unresponsive to a question whether the council rates were paid quarterly or annually, stating that he relied on his sister for all the paperwork. The general proposition put by the plaintiff was that Cynthia would receive the council rate notices and documents from the bank, collect the mail, work out all the payments and make them for her brother.[107]

123 I am not persuaded by this evidence. There is nothing to corroborate these cash payments save for one instance relating to a payment made on 1 August 2003 which was explained by Mai. I accept Mai's explanation for this payment. I do not accept that there was any 'family arrangement' whereby Cynthia would undertake to meet Hau's obligations in relation to rates, outgoings and loan repayments either on the basis that she would be repaid by Hau whenever he could make the payment, alternatively on the sale of the Altona property.[108]

124 To the extent that Hau's purported contribution to the Altona property purchase came from the balance of his inheritance, I refer to my finding above that I do not accept that there was an inheritance. To the extent that Hau's purported contributions were recorded in his 'notebook', I refer to my finding above that I do not accept the reliability of this purported record.

125 In my view, Hau's explanation to the effect that Cynthia did everything on his behalf was an unconvincing attempt to counter the evidence that he had no real connection with the Altona property. I am satisfied that Hau did suffer poor health from diabetes from at least 2006 and that he travelled to Vietnam in about 2006, but I consider the more plausible explanation for Cynthia paying all rates and outgoings, dealing with the bank in relation to the loan repayments, refinancing the mortgage, dealing with the real estate agent in connection with tenants (including her attendance at the Victorian Civil & Administrative Tribunal in connection with proceedings brought to recover rent) is that she was the beneficial owner of the Altona property at all relevant times.

126 In regard to Cynthia's capacity to pay the deposit and stamp duty for the Altona property and to maintain loan repayments to the extent that they were not covered by rental income, I reiterate my earlier findings that she had the means and ability to do so from the revenue generated from her business. I regard Hau's evidence as to the source of his income as vague and unreliable. Some of it was meaningless such as his evidence that he received 'roughly under $100,000'[109] from a partnership business from 2000 to 2008.

127 It is significant that Hau relied on occasional purchases of duty free liquor (in the case of Mr Latif, once, and in the case of Mr Bouakeo, a couple of times) as corroborative of his employment at the duty free store. No regular clients or customers were called to give evidence. No work colleagues who could attest to the plaintiff's attendance at work were called to give evidence. No one who might have seen the plaintiff go to work each day at the duty free store was called to give evidence. There was no evidence of tax returns to support the plaintiff's assertion of significant personal income derived from employment at the duty free store or the travel agency. The bank manager's evidence that the plaintiff worked as an accountant was obviously wrong. The plaintiff did not contend that he worked as an accountant at any relevant time.

128 Overall, the plaintiff's evidence as to regular employment during the relevant period was tenuous and not believable.

129 In the loan application prepared by his broker (Kevin Khuu), the plaintiff's occupation was described as 'general manager'. When asked about this by his counsel, 'What were you the general manager of?', the plaintiff responded 'To organise the order, the goods for the store'.[110] No store was identified. The nature of the goods were not identified. The answer was too vague to be reliable.

130 Hau adduced no corroborative evidence of saving, having the capacity to save or the propensity to save. The evidence about his work record and the fact that he made the contributions to Cynthia for the Altona property partly out of his savings was not independently corroborated. I do not accept his evidence in either respect.

131 Furthermore, there was evidence to the contrary. Cynthia gave evidence that Hau did not work for her. She said the only member of her family who worked at VDT Travel since she opened it was Mai and no one else.[111] This was corroborated by Mai and Hung. Mai gave evidence that between 2000 and 2007 Hau did no formal work. Occasionally he got a job collecting garden waste, but it was too physically demanding and he gave it up. She said that Hau did basically no work.[112] Between 2000 and 2004, Mai said she opened the bakery, known as Saigon Baker, in Richmond, at Hau's request, to give Hau a chance to work. According to Mai, he only worked at the bakery for two days then did not turn up.[113]

132 Hung gave evidence that the only family member who worked at Cynthia's business, Vien Dong Travel, was Mai. Hung said that he had never heard that Hau ever worked at Vien Dong Travel in Footscray; that he'd never seen him work there, though he had seen him turn up at the office.[114] Hung said that Hau had never worked at Minh's duty free businesses, Paris Duty Free in Footscray, or in St Albans or at Cynthia's duty free shop in Abbotsford.[115]

The circumstances giving rise to the use of the Rockbank land as security for a loan from Bankwest to the plaintiff

133 It is common ground that in 2005 Hau borrowed $50,000 from Bankwest and that Ms Tran assisted Hau to mortgage the Rockbank land as security for the loan and lodged caveats over the land for Cynthia. The circumstances surrounding the Bankwest loan, particularly the circumstances whereby Ms Tran assisted Hau to procure the mortgage and the lodging of the caveats are disputed.

134 Hau gave evidence that at the end of 2004 he wanted to develop the Rockbank land but did not have much money for that purpose. He went to see a mortgage broker, Mr Kevin Khuu, and applied for a loan of $50,000.[116] In the application form, he described himself as a 'general manager'. Mr Khuu told him that to get the loan he would need to mortgage the Rockbank land.[117] Mr Khuu was unable to get the loan approved.[118] In order to procure the mortgage, Hau asked Cynthia for the original certificate of title. Cynthia said she could not find it and advised him to go to Low Cost Conveyancing to have a new title issued.[119]

135 On 14 January 2005, the plaintiff made application for a new certificate of title and a new certificate of title was issued on 1 February 2005.[120] When Hau spoke to Cynthia about getting the original title or a new title she did not say anything (then or at any other time) about putting a caveat on the land or that she owned the land.

136 Initially Mr Khuu was to act for Hau, but Mr Khuu was unable to get the loan approved so Ms Tran of PT Conveyancing took over.[121] The plaintiff said that Ms Tran never said that Cynthia was going to put a caveat on the title or that Cynthia had paid for the land.[122]

137 The plaintiff was shown a letter from Gadens Lawyers dated 10 May 2005 addressed to him at 16 Jerroll (sic) Street, Footscray notifying him of the approval of his loan and advising that Gadens would be acting for the lender in the documentation and settlement process. That letter enclosed original loan documentation, copies for the borrower, a requirements checklist, settlement procedures and a copy of the caveat (being the first caveat lodged on behalf of Cynthia) and advised that the borrower would need to arrange for withdrawal of the caveat to be provided by the settlement date.[123]

138 Hau denied ever seeing the letter. He said that he was living at another address at that time.[124]

139 After he received the money from Bankwest, the plaintiff said he spent more than $15,000 on the Rockbank land, more than $10,000 to remove rocks and develop the soil. At around this time, Hau decided to go back to Vietnam. He found it hard to get a permit to build a chicken shed at Rockbank and returned to Vietnam to continue his hobby business. This occurred in about 2006. The plaintiff planned to live in Vietnam with his wife and asked Cynthia to look after the land in case the council complained or some animals came onto his property. He said 'she just maintained it'.[125]

140 Ms Tran gave evidence that she is a licensed property conveyancer. She had worked as a conveyancing clerk since approximately 1995, initially for others and, from about May 2004, had conducted a conveyancing business under the name PT Conveyancing.[126] She had performed conveyancing work for numerous members of the plaintiff's family, including Minh, Cynthia, Mai and Anna. Ms Tran said she regarded the relationship with the plaintiff's family as a business relationship not a social relationship. She characterised them as good clients.[127]

141 In early 2005, Cynthia asked Ms Tran to lodge caveats over three properties, including the Rockbank land.

142 In substance, Cynthia advised Ms Tran that she had provided the whole of the purchase monies for the Rockbank land to enable Hau to purchase the land and had paid outgoings, taxes and maintenances, including running costs, since settlement of the purchase. She told Ms Tran that she was worried that her brother, Hau, was gambling and could seek loans from people and mortgage the land.[128]

143 Ms Tran asked her if she had the certificate of title for the Rockbank land. Cynthia said she was holding the certificate of title.

144 In relation to the Altona property, Cynthia told Ms Tran that she had provided part of the settlement money to Mai and Hau to buy the property, made the mortgage repayments, and paid for outgoings, taxes and maintenance of the property since settlement.[129] Ms Tran asked her who had the certificates of title for the Altona property and the Jerrold Street property and Cynthia said that the NAB held the certificates of title for these properties.[130] Cynthia provided Ms Tran with the addresses of the properties and the details of the certificates of title. Ms Tran said she would prepare caveats for lodging with respect to the three properties. She arranged title searches. One of the title searches (the title search of the Rockbank land) showed that the certificate of title had been cancelled and a new certificate of title had issued. Ms Tran then organised a title search of the new certificate of title. The results of the search of the Rockbank land puzzled Ms Tran because it looked like there had been an application for a new title to issue on the basis that there was a lost title. She telephoned Cynthia and advised her that the title that Cynthia was holding was cancelled but she was not sure why but another title had been issued by the Land Titles Office on 1 February 2005. Ms Tran said that Cynthia responded:

Oh, God, what has this little devil done to the title? What he's up to now?

I said:

I don't know, but apparently this title has been cancelled.

And she asking me:

Can you lodge the caveat urgently for me?[131]

145 After this conversation, Ms Tran prepared three caveats. She attended Cynthia's shop at 151 Hopkins Street, Footscray, showed her the caveats and explained the contents to her. She asked Cynthia if she was happy and indicated where they needed to be signed.[132]

146 The Jerrold Street caveat was lodged for registration on 2 February 2005. The Rockbank land and Altona property caveats were lodged for registration on 4 February 2005.[133]

147 On about 20 May 2005, Ms Tran received another telephone call from Cynthia who said that she had referred her brother, Hau, to Ms Tran to do some conveyancing work regarding a mortgage of the Rockbank land through Bankwest.

148 On the same day, without an appointment, the plaintiff attended at Ms Tran's office. He introduced himself as Hau Lam, Cynthia's brother, the youngest one, and Ms Tran mentioned that his sister Cynthia had telephoned her. The plaintiff advised Ms Tran that he had obtained approval from Bankwest regarding a mortgage over the Rockbank land and that Bankwest lawyers had sent him documents and he wanted Ms Tran to assist him in the transaction. The plaintiff had brought an envelope from Gadens with him. Ms Tran asked him to show her the documents in the envelope. He produced the documents. Ms Tran took from the envelope a letter from Gadens sent on 10 May 2005 which had attached guidelines and a copy of a caveat over the Rockbank land, the original of a warranty, mortgage of land, authority for disbursement and certificate of witness, a certificate for legal and financial advice and a copy of the loan contract.[134]

149 Ms Tran spoke to Hau in Vietnamese. She explained the contents of the letter. Among other things, she showed him the caveat and said there was a caveat that Bankwest required to be removed in order for the funds to be advanced.[135]

150 The plaintiff said that the caveat had been lodged by his sister; that he had spoken to Cynthia and discussed that 'Cynthia would remove the caveat for him and then in return he will be responsible to pay off the repayment of this mortgage'.[136] Ms Tran mentioned that she had lodged the caveat on behalf of Cynthia. The plaintiff said he knew that, and that was the reason he had come to see her; that he understood that Cynthia had lodged the caveat because the property belonged to her and she had paid for the land.[137]

151 Ms Tran explained the contents of each document. She mentioned how much she would charge him. Ms Tran said he (the plaintiff) said he was happy not to take legal advice.[138] Ms Tran said that in that case she could do the paperwork for him. She told the plaintiff that one of the things required was identification - his passport and driver's licence. She asked him to come back and see her again with his identification so she could sign the documents with him. It was arranged that the plaintiff would leave the documents with Ms Tran so they could be double checked and he would come back and see Ms Tran the following week.

152 After the plaintiff left her office, Ms Tran telephoned Cynthia and told her that she had seen her brother Hau. She said that Bankwest required that her caveat be removed in order for the loan to be advanced. Ms Tran said that Cynthia told her she would remove the caveat to enable Bankwest to register the mortgage on the title but wanted to lodge a second caveat afterwards and asked Ms Tran to talk to Hau and advise him of this. Ms Tran said to Cynthia that she had already informed Hau of her costs so that if Cynthia wanted a second caveat to be lodged she would have to charge Cynthia for that. Cynthia agreed.

153 After this conversation, Ms Tran prepared a (notice of) withdrawal of caveat and a statutory declaration to support the withdrawal of the caveat.[139]

154 On the following Friday, 27 May 2005, the plaintiff attended at Ms Tran's offices as arranged. Ms Tran asked him whether he had his identification with him and he said he did. Ms Tran explained that after he had left the previous week she had telephoned Cynthia asking her to withdraw the caveat. Ms Tran informed him that Cynthia had agreed but had asked her to lodge a second caveat on the Rockbank land after the Bankwest transaction was finished. Ms Tran said she needed the plaintiff to confirm that once she had finalised the Bankwest transaction with Gadens she could do so. The plaintiff said Cynthia could lodge the second caveat for her piece of mind and to protect her interest. He said that as she paid for the land there was no reason for him not to allow her to lodge the caveat.[140] Ms Tran also informed him that he would not have to pay for the second caveat because she had already quoted her charges to him.

155 Ms Tran said she would prepare the caveat and the statutory declaration for Cynthia to sign. Ms Tran then asked the plaintiff for his identification. The plaintiff produced his driver's licence, passport and a copy of a council rate notice.[141] Ms Tran made copies of these documents.[142] Ms Tran then asked him to sign each document. In her presence, he signed the acknowledgement and authority to disburse, the mortgage, a certificate which stated, among other things, that the plaintiff had chosen not to obtain financial advice on the nature and effect of the documents.[143] Ms Tran then signed a witness certificate.[144]

156 The plaintiff advised Ms Tran that the Bankwest loan agreement had already been signed and gave Ms Tran and unsigned copy of the loan contract. Ms Tran made a copy of the documents for the plaintiff to retain and gave them to him. Before the plaintiff left, Ms Tran asked him to contact her again the following week so that she could let him know the date that she could arrange settlement with Gadens so that he could collect the cheque at her office.[145]

157 Ms Tran then prepared a letter to Gadens Lawyers, enclosed the signed documents and hand delivered them. After giving Gadens an opportunity to check the documents, she arranged settlement for Friday 3 June 2005. On 1 June 2005, she faxed Gadens confirming that settlement had been arranged for that time and detailing the cheques required at settlement. This included a cheque made payable to the plaintiff.

158 She then contacted the plaintiff, advised him that settlement had been booked with Gadens and asked him to come to her office on 3 June 2005 after 3.00 pm but before 5.00 pm to allow her time to get back to the office after the settlement.

159 Settlement took place as arranged and Ms Tran was provided with a bank cheque for $48,437.01 payable to the plaintiff. She met with the plaintiff at her office. She explained that she had finalised settlement and gave him her final letter after going through with him the statement of the account. She said that once Bankwest had registered the mortgage on the title she would lodge a second caveat for Cynthia. The plaintiff gave his consent for Ms Tran to lodge the second caveat and said that he 'really appreciate what Cynthia had done to help him through the hard times to get this loan'.[146]

160 Later, in August 2005, Cynthia telephoned Ms Tran and reminded her to prepare and lodge the second caveat on the Rockbank land. After the telephone conversation, Ms Tran prepared the second caveat, and took it to Cynthia at her shop. Cynthia read and signed the caveat in Ms Tran's presence on 18 August 2005.[147]

161 As Ms Tran was leaving the shop, Cynthia called her back and showed her a Statement of Commitment (written in Vietnamese) and gave her the opportunity to read it. After reading the document, Ms Tran commented that it was good, that it confirmed that the Rockbank land belonged to Cynthia. Ms Tran said she was happy to lodge the caveat.[148]

162 After meeting with Cynthia, Ms Tran went directly to the Land Titles Office and lodged the second caveat on the Rockbank land.[149]

163 Cynthia gave evidence that in January or February 2005, she telephoned Ms Tran and told her that she was worried about her land, that perhaps her brother could sell the land because she had overheard him talking on the phone with someone chasing up money, and that she was concerned that Hau was involved with a group of people with a gambling problem and she was concerned that he would do something with her land. She asked Ms Tran to conduct a title search on the Rockbank land.

164 Soon afterwards, Ms Tran informed her that Hau had applied for a new Certificate of Title.[150] On the day that she found out that he had applied for a new Certificate of Title, she asked Ms Tran to lodge caveats on the Rockbank land, the Altona property and 16 Jerrold Street, Footscray.

165 In May 2005, Hau said he needed to borrow $50,000 from Bankwest and begged her to help him. He said that if she would not help him to borrow the money he would really be in trouble. At first, Cynthia refused, but Mai intervened and asked Cynthia to help him, saying that otherwise he would be in trouble with a group of his friends. Cynthia said she did not have any other solutions.[151] Cynthia asked Hau to sign a power of attorney, which he agreed to do, and Cynthia said, in effect, that if he borrowed the $50,000, to make sure he made his payments in time.[152]

166 Cynthia prepared the power of attorney herself, after seeking advice from a friend who suggested that she needed to obtain power of attorney. Acting on this advice, Cynthia prepared the power of attorney and asked Hau to sign it before she would remove the caveat. Cynthia identified the power of attorney and gave evidence that Hau signed it in her presence and that her sister, Mai, signed as a witness in her presence. Cynthia gave evidence that, even though the document bore a date in February 2005, she remembered very clearly that the document was signed only one or two weeks before the caveat removal.

167 After he signed the Power of Attorney, Cynthia took the document to her office, made a photocopy for Hau and one for Mai to keep. She kept the original, together with the Certificate of Title for the Rockbank land in her safe at Hopkins Street, Footscray.[153]

168 Cynthia said that even though she still loved Hau at that time she did not trust him, and that was why she asked him to sign the Power of Attorney, which he was happy to sign. She then authorised the removal of the caveat.[154]

169 Due to the legal proceedings, just in case she lost the original power of attorney, she took a photocopy and went to a Justice of the Peace to get a certified copy. She attended the Justice of the Peace at a pharmacy in Footscray. The Justice of the Peace did not use her photocopy. He said he preferred to copy the document himself, and then he put his stamp on the document. By mistake, he also put his stamp on the original Power of Attorney. Cynthia said she put the original back in her safe for safe keeping and put three or four copies in a separate folder.

170 One or two days before the caveat was removed, Cynthia called Ms Tran to ask her to remove the caveat. She told Ms Tran that Hau promised to repay the loan and that she had no choice but to let Hau borrow the $50,000 from Bankwest.[155]

171 Mai gave evidence that Hau came to see her and asked her to beg Cynthia to remove the caveat from the Rockbank land so that Hau could borrow money. Hau said he had debts everywhere and he needed to resolve them and asked Mai to ask Cynthia to take the caveat off so he could borrow money to pay off his debts.[156] Following Hau's request, Mai spoke to Cynthia about it. At first, Cynthia refused to help. Mai asked her to reconsider, because without her help Hau could not manage to repay his debt. Mai told Cynthia that Hau had promised that he would pay the loan regularly, on time and would keep it in good order.[157] According to Mai, Cynthia was still very upset (about Hau obtaining a new title without her knowledge) but she agreed to remove the caveat so that Hau could borrow the money.[158]

172 In my view, the evidence of Ms Tran as to the circumstances of the lodging of the caveats, the removal and re-lodging of a caveat on the Rockbank land, the steps she took to procure the mortgage and of her dealings with Hau is compelling.

173 First, Ms Tran had a very precise recollection of events even though they occurred more than 10 years ago. She had the benefit of having kept a file with a predictable sequence, but her recollection of the contents of the file was nonetheless impressive. She exhibited command over the documents in her file and a very good recall of the evidence she had given. On occasion, she corrected counsel for inaccurately restating her evidence.

174 Ms Tran was criticised for not having made file notes. In my view, the criticism was unfounded. She was not a lawyer predisposed to making file notes. The transactions with which she was concerned did not require much note taking as the steps largely defined themselves. The file did contain notes recording settlement arrangements.

175 Secondly, whilst she was not an independent witness (being a party in each proceeding), I accept that the relationship between herself and the Lam family was a professional one and that they were good clients rather than friends.

176 Thirdly, she withstood cross-examination. In particular, when her credit was attacked on the basis of a suggestion that she would have ensured Hau had signed the relevant documents on his first visit, and that credit card and driver's licence identification would have sufficed (instead of passport identification), and that there was no return visit she was firmly resistant. She said that she needed time to prepare the documents, that as she was to be the witness of Hau's identity it was she who would insist on the documents necessary to prove it and that was the reason she wanted Hau to return for a second visit bringing his passport as well as his driver's licence.

177 Fourthly, she was, at the time of the transaction, a trained conveyancer with more than 10 years' experience. I accept her evidence that she explained to Hau the substance of the documentation which related to her role in the transaction. This included an explanation of the caveat and the mortgage documents and Cynthia's proposal to lodge a second caveat on the Rockbank land. In this context, I accept she did not spend a great deal of time explaining the loan contract because this had already been explained by the plaintiff's broker, Mr Khuu, and Hau had informed her that he did not intend to get legal or financial advice.

178 It follows that I accept Ms Tran's evidence that Hau brought the Gadens letter and enclosed documents in an envelope to the offices of PT Conveyancing on his first visit, and that the copy of the first Rockbank caveat was included in the documents he gave to Ms Tran. It also follows that Hau received the correspondence from Gadens notwithstanding it was addressed to him at 16 Jerrold Street, Footscray.

179 Much evidence was lead about where and when Hau was living at relevant times because Hau claimed not to have received mail addressed to him at 16 Jerrold Street. Most of the evidence about Hau's residential address from time to time turned out to be of no particular significance because I am satisfied that mail sent to Hau at 16 Jerrold Street (which was occupied by Hau and other family members at various times) was passed on to Hau. This includes the letter from Gadens.

180 I accept in broad terms the evidence of Cynthia and Mai on the issues surrounding the Bankwest mortgage, each of which is corroborative of and generally consistent with the evidence of Ms Tran. I reject Hau's evidence that the purpose of borrowing the money was to develop the Rockbank land. In my view, he needed money to repay his debts. I also reject his evidence that:

(a) he asked Cynthia for the original Certificate of Title and was advised to go to Low Cost Conveyancing to have a new title issued;

(b) Cynthia did not discuss then or at any other time anything about putting a caveat on the land or that she owned the land; and

(c) Ms Tran never said that Cynthia was going to put a caveat on the title to the Rockbank land.

181 In my view, on the balance of probabilities, Hau obtained a replacement Certificate of Title for the Rockbank land in order to borrow on the security of the land without Cynthia's knowledge but was thwarted by the first caveat, which had been lodged by Cynthia to protect her beneficial interest in the land. This resulted in the request to Cynthia for help, Cynthia's initial refusal, Mai interceding on Hau's behalf and Cynthia ultimately relenting and removing the first caveat subject to obtaining a Power of Attorney and lodging the second caveat.

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Judgment (505 paragraphs)

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