Plaintiff v Defendants

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:

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

1. 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').

1. 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]

1. 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.

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

182 The plaintiff dealt with this aspect of his case with brevity. He denied signing any of the Authority documents. It is convenient to deal with the Power of Attorney separately.

LIMITED GENERAL POWER OF ATTORNEY

(for sale of a property)

THIS LIMITED GENERAL POWER OF ATTORNEY is made on the day of 05th of Feb 05 by HAU LAM of 16 Jerrold Street, Footscray Vic 3011 pursuant to Section 107 (1) of the Instruments Act 1958.

1. I appoint by Sister PHUNG THUONG LAM of 1 Princes Street, Port Melbourne Vic 3207 to be my Attorney.
2. I authorize my Attorney to do on my behalf anything that I may lawfully authorize an Attorney to do in connection with the sale of the property at 46-102 Deanside Drive, Rockbank Vic 3333 and to execute any relevant documentation (including but not limited to the Authority to appoint the Real Estate Agent, Vendors Statement Contract of Sale, Section 27 Statement, Transfer of Land and Statutory Declaration) and incur any proper expense which is reasonably necessary in regard to the sale of property.

Signed sealed and delivered by

HAU LAM

(Signature)

Specimen Signature of Attorney

(Signature)

Signature of Witness

Address: 16 Jerrold Street, Footscray Vic 3011

184 On its face, by the Power of Attorney, Hau appoints Cynthia as his attorney with authority to effect a sale of the Rockbank land. Hau gave evidence that the signature on the Power of Attorney was similar to his signature but he had never seen the document and did not sign it.[159]

185 Cynthia gave evidence that she prepared the Power of Attorney in about May 2005 and asked Hau to sign it. She saw Hau and Mai sign the document in front of her and said that Mai signed as a witness.[160] Cynthia said the Power of Attorney was to be used only if Hau went to Vietnam and she was unable to contact him. According to Cynthia, Hau said in substance that it was her land and he would sign the document then she could easily do whatever she wanted to do with the land.[161] After Hau signed the Power of Attorney, Cynthia made a photocopy for Hau and Mai to keep and kept the original in her safe at the Hopkins Street, Footscray premises.[162]

186 Mai gave evidence that she saw the plaintiff sign a Power of Attorney in about May 2005. She identified the document and the signature of Hau and her own signature. She gave evidence that the day after the Power of Attorney was signed Cynthia gave her a copy and she saw Cynthia give Hau a copy. Mai said she later discarded her copy.[163]

187 The plaintiff's expert, Mr Neil Holland, had examined a copy of the Power of Attorney (but not the original). [164] He concluded from his examination of a photocopy that the signature shows features that are more in common with the 'Hau Lam' signature standards and it is highly probable that the signature was written by the writer of those signature standards, i.e. Hau Lam.

188 The defendant's expert, Mr Trevor Joyce, had inspected the original with a stereo microscope and observed the ink line, how the pen moved across the page and concluded that there was no evidence of ink jet printing or laser printing or other print process. He said the signature was written with a pen, and that there were indentations on the document consistent with that conclusion.[165] He concluded that it is highly probable that the signature on the Power of Attorney document was written by the plaintiff.[166]

189 I am satisfied that the plaintiff signed the Power of Attorney. I accept the eyewitness account of Cynthia to the effect that she saw Hau and Mai sign the Power of Attorney in front of her and Mai's evidence that she witnessed Hau sign a Power of Attorney, including her subsequent identification of the Power of Attorney (Exhibit LD3) together with the evidence of both experts, which is to the effect that it is highly probable that the document was signed by the plaintiff. All of this evidence is strongly corroborative.

190 The plaintiff, by his counsel, sought to downplay the significance of the Power of Attorney by describing it as a 'red herring' because there was no evidence of any documents being signed pursuant to the power. True it is that there was no evidence of any documents being signed pursuant to the power, however I am not satisfied that the Power of Attorney is a 'red herring'. On the contrary, in my view it is highly significant.

191 First, the Power of Attorney document is damaging to the plaintiff's credit because the weight of evidence, including the evidence of the plaintiff's own expert, is to the effect that the signature on the Power of Attorney is the plaintiff's signature. I accept this evidence. The consequence is the rejection of the plaintiff's evidence that he did not sign the Power of Attorney and his evidence that he had never seen it. The denial was in the nature of a flat denial with no suggestion that he might have forgotten or have been mistaken. In my view, the plaintiff was deliberately untruthful in denying he signed the Power of Attorney. This has consequences for his creditworthiness generally.

192 Furthermore, the signature on the Power of Attorney also has significance as an example of a standard signature against which questioned signatures in the other documents may be compared.

193 The plaintiff submitted, through his counsel, that the Power of Attorney 'is no more than a better forgery'. This was an unexpected submission and, on reflection, in my view it does not advance the plaintiff's case. This submission is tantamount to saying that the forgery was so good that it fooled both handwriting experts, including the plaintiff's own expert. In the circumstances, one could only conclude that the document is a forgery by rejecting the expert evidence adduced on behalf of the plaintiff to the effect that it is highly probable that the plaintiff signed the document. The 'better forgery' submission which surfaced for the first time in final submissions was, in my view, a measure of the plaintiff's desperation to ensure that none of the questioned documents were found to have been signed by him.[167]

194 It is convenient to deal with the other three Authority documents (Statement of Commitment, Declaration and Acknowledgement) together.

STATEMENT OF COMMITMENT

I, hau lam, born on 29/09/1975 IN VIETNAM,

A CITIZEN OF AUSTRALIA,

CURRENTLY RESIDING AT: 16 JERROLD ST, FOOTSCRAY VIC 3011,

WOULD LIKE TO CONFIRM AND MAKE THE COMMITMENT AS BELOW:

*THE BLOCK OF LAND AT 46-120 DEANSIDE DRIVE, ROCKBANK VIC 3333 IS ENTIRELY OWNED BY MY OLDER SISTER, LAM PHUNG THUONG, AND 100% OF THE MONEY PAID FOR THIS LAND IS HERS. THIS PROPERTY IS 100% HERS.

*MYSELF AND MY FAMILY HAVE NO RIGHT, UNDER ANY FORM, TO CONTEST THE ABOVE MENTIONED BLOCK OF LAND.

THE REASON WHY I ASSISTED MY OLDER SISTER BY BEING THE TITLE HOLDER FOR THIS BLOCK OF LAND:

MY OLDER SISTER HAS HELPED ME, MY SIBLINGS AND MY FAMILY SO MUCH IN THE PAST YEARS. BECAUSE OF FAMILY REASONS, IT WAS NOT CONVENIENT FOR HER TO BE THE TITLE HOLDER TO PURCHASE THIS LAND. I UNCONDITIONALLY VOLUNTEERED TO HELP HER BY BIENG THE TITLE HOLDER.

AS FOR THE MONEY BORROWED FROM BANKWEST OF $50,000: ON THE TITLE DEED OF MY ODLER SISTER, FOR MY OWN USE, I AM FULLY RESPONSIBLE TOWARD THE BANK FOR THIS MONEY, AND WILL REPAY THE BANK IN A TIMELY MANNER.

I HEREBY CONFIRM THAT THE DECLARATION ABOVE IS TRUTHFUL AND BE LIABLE FOR ANY PUNISHMENT AND RESPONSIBILITY UNDER THE LAW IF I DO NOT AS PER MY COMMITMENT.

Signature omitted Signature omitted

SIGNATURE OF THE WITNESS SIGNATURE OF THE PERSON MAKING THE COMMITMENT

SIGNED AT: FOOTSCRAY SIGNED AT: FOOTSCRAY

DATE: 05/06/2005 DATE: 05/06/2005

196 On its face, by the Statement of Commitment, Hau relevantly confirms that the Rockbank land is Cynthia's; that Cynthia paid for it, that he has no claim to it and that he became the title holder of the Rockbank land to assist Cynthia because it was not convenient for her to be the title holder for family reasons.

197 Hau denied signing the Statement of Commitment.[168] When it was put to him that the Lam defendants would say that he signed the original, he responded 'Again, this is a copy'.[169] He agreed that the signature on the document looked like his signature and that the document (in Vietnamese) acknowledged that the land belonged to Cynthia.[170]

DECLARATION

My name is: LAM Hau, residing at 16 Jerrold Street, Footscray, Vic 3011, and NGUYEN Mai, currently residing at: 18 Moira St, Sunshine Vic 3020, jointly helped Ms. LAM Phung Thuong by being the title holders to purchase the house at: 210 Esplanade, Altona Vic 3018.

We hereby certify that this house is Ms. LAM Phung Thuong's own property.

We agree to authorise Ms. LAM Phung Thuong to have the full right to sell, lease, repair, build, etc.

An if this house is sold, we authorise Ms. LAM Phung Thuong to have the full right to use the remaining money after the above-mentioned house is sold.

We declare that we will not make any objection under any form.

Footscray, 05/06/2005

(Signature) (Signature)

199 On its face, by the Declaration, Hau and Mai declare, among other things, that the Altona property is Cynthia's and that she has the right to sell and retain the proceeds of sale. Hau said he did not sign the Declaration but agreed that the signature on the copy document looked like his signature and that the document stated that the house at Altona was Cynthia's property.[171]

ACKNOWLEDGEMENT

WE, MAI NGUYEN AT 18 MOIRA STREET, SUNSHINE VIC 3020 AND HAU LAM at 16 JERROLD STREET, FOOTSCRAY VIC 3011 CONFIRM THAT THE OWNERSHIP OF THE PROPERTY 201 ESPLANADE, ALTONA VIC 3018 BELONGS TO MS PHUNG THUONG LAM

DATED: 05/06/2005

(Signature) (Signature)

Mai Nguyen Hau Lam

201 On its face, by the Acknowledgement, Mai and Hau confirm that as at 5 June 2005 the Altona property belonged to Cynthia.

202 In relation to the Acknowledgment, the plaintiff gave evidence that he did not sign the original. He agreed that he could read and understand the document, but said that though he had seen the copy he had never seen the original.[172] He agreed that the signature above the words Hau Lam on the Acknowledgment looked like his signature.[173]

Lam defendants - Statement of Commitment, Declaration and Acknowledgment

203 Cynthia gave evidence that in June 2005, after Hau had received the $50,000 from Bankwest, she asked him to sign three documents for her which she had prepared the day before.[174] The documents were a Statement of Commitment (written in Vietnamese),[175] a Declaration (written in Vietnamese)[176] and an Acknowledgment (written in English).[177]

204 The original of each document was signed in the lounge room at 16 Jerrold Street. Cynthia said that Mai, Hau, Hung and herself were present and that she saw Hau and Mai sign the original of each document in front of her. The next day, at her office, she made copies of the documents for Mai and Hau at their request and gave both of them a copy of the documents. She placed the original of the three documents in a folder at her house in Princes Street, Port Melbourne. When she moved house in 2012 she lost the folder. She showed one of the documents to Ms Tran when she asked her to put the second caveat back on the Rockbank land to make sure that Ms Tran understood the situation.[178]

205 Hung gave evidence that on one afternoon or evening over 10 years ago he saw Hau, in the presence of himself, Cynthia and Mai, sign three documents, two in Vietnamese and one in English.[179] Hung said that one of the three documents related to the farm in Rockbank and one to the house in Altona. He said he had no idea about the document written in English because he did not understand the English language.[180] Hung said that in the document written in English he saw a figure of $50,000 but did not fully understand what the figure was for or about. In relation to the Rockbank document, Hung said he could not remember all the details but it was something like an agreement. In relation to the document in Vietnamese that mentioned Altona, Hung recalled the document was about Hau and Mai 'as the people who hold up the property for Cynthia'.[181] Hung gave evidence that he was holding the documents in his hand to look at, and at the time he was feeling sorry for Hau for being asked to put his name on the document (Statement of Commitment); that they (presumably meaning his sisters, Cynthia and Mai) did not trust him.[182] Hung gave evidence that he saw Hau sign the original of each of the three documents.[183]

206 Mai gave evidence that one evening in 2005, in the lounge room at Jerrold Street, Hau signed documents regarding either the Rockbank land or the Altona property. At the time of signing, Cynthia, Hau, Hung and Mai were present. Thuy, Anna and her children were in the same house 'but they were not at the spot of signing',[184] which was in the lounge area. Mai said there were three documents. She thought one was in Vietnamese and there were two others in English but was not sure. She did remember there were three kinds of paperwork. She recalled Cynthia asking Hau to read the documents carefully and then asking if he could sign them for her. Hau read through all the documents and then said okay and that he would sign them. She gave evidence that Hau signed the original of each of the documents and that she had also signed the documents.[185]

Expert evidence - Statement of Commitment, Declaration and Acknowledgement

207 The plaintiff's expert, Mr Holland, had not been briefed to give an opinion on whether Hau Lam's signature appeared on the Statement of Commitment, the Declaration or the Acknowledgement.[186]

208 Mr Joyce had examined these documents and concluded that the plaintiff is the writer of the signatures in his name imaged on those documents.[187] Mr Joyce explained that 'imaged' in this context means that the signature has been imaged or produced on the page and is not an original inked signature.[188]

Disposition - Statement of Commitment, Declaration and Acknowledgement

209 I accept the evidence of Cynthia, Hung and Mai and Mr Joyce on this issue in preference to the evidence of Hau.

210 There were some inconsistencies. Hung remembered a reference to $50,000 in the document written in English when it is apparent that the only document out of the three documents which refers to $50,000 is written in Vietnamese.[189] Mai's recollection that two of the documents were in the English language and one in Vietnamese was obviously incorrect.

211 Nevertheless, these inconsistencies were very minor having regard to the fact that the events took place more than 10 years ago. Allowing for the effluxion of time, the various accounts of the circumstances of the signing of the documents were remarkably consistent. In particular, Hung's empathetic response that he felt sorry for his brother Hau at the time he was asked to sign the documents brought a sense of immediacy and authenticity to his evidence. The expert evidence is to the effect that it is probable that the plaintiff is the writer of the signatures imaged on these documents.

212 I am satisfied that Hau signed his name on the original Statement of Commitment, Declaration and Acknowledgement. I accept the submissions of the Lam defendants to the effect that the totality of the evidence is that the plaintiff knowingly and willingly signed each of these documents. In my view, this occurred in memorable circumstances at a meeting of family members at 16 Jerrold Street. I am satisfied that the plaintiff's evidence that he did not sign these documents was deliberately untruthful and reflects adversely on his credit generally.

1. 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)

213 As with other areas of disagreement in this proceeding, the principal protagonists were diametrically opposed.

214 The plaintiff alleges that in March 2013 he discovered that without his knowledge or consent, in about May 2007, there was a sham sale and sham transfer of the Rockbank land, and in November 2007 there was a sham transfer of the Altona property. Each of these transactions were allegedly effected by the production of false documents containing the plaintiff's forged signatures.

215 Hau said he thought it was in 2013 that he first found out from his sisters, Minh and Ann, that the Rockbank land and Altona property had been sold. Hau said he asked Minh to discuss with Cynthia transferring back the land within 14 working days.[190]

216 The plaintiff instructed solicitors to send a letter to PFE (the registered proprietor of the Rockbank land) marked to the attention of Ms Phung Thuong Lam (Cynthia).[191]

217 In April 2013 the plaintiff's then solicitors notified the Department of Environment and Primary Industries (Registrar of Titles) of the alleged fraudulent transfer of the Rockbank land and received a letter from the Registrar of Titles notifying the plaintiff's solicitors that a Notice of Action had been lodged over the relevant folio of the Register.[192]

218 In September 2013, the plaintiff sent a letter to PT Conveyancing requesting the contract of sale and relevant settlement documentation.[193] He did not receive a response.

219 In October 2013, he sent a further letter to PT Conveyancing seeking documentation.[194]

220 In October 2013, the plaintiff received a letter from lawyers retained by PFE denying the plaintiff's assertions of fraud, providing a copy of the Statement of Commitment and demanding withdrawal of the plaintiff's caveat.[195] The plaintiff gave evidence that he had received no response from PT Conveyancing.[196]

221 The plaintiff also reported the alleged fraudulent transfer of the properties to Victoria Police.[197]

222 The plaintiff was shown 17 documents relating to the Rockbank land transfer, including a Contract of Sale, a Transfer of Land, a Particulars of Sale, Vendor's Statement, a Bankwest request to release security, a declaration as to the total market value of real property and goods transferred and an acknowledgement that Cynthia would retain the settlement monies. The plaintiff denied signing or initialling any of these documents.[198]

223 In the case of the declaration as to the total market value, which purports to have been made before a Dr Le, a medical practitioner, the plaintiff denied going to Dr Le's surgery for any purpose and said that he had never seen Dr Le.[199]

224 The plaintiff was shown 14 documents relating to the Altona property transfer, including the Transfer of Land, REIV contract note, Customer Authorisation and Privacy Declaration, Section 27 deposit statement, Answers to Requisitions, Special conditions and a Section 32 statement signature page.[200] The plaintiff denied signing any of these documents.

225 The plaintiff was also shown three letters from the Registrar of Titles notifying the plaintiff of the first and second caveats lodged on the title of the Rockbank land[201] and the caveat lodged on the title of the Altona property.[202] The plaintiff denied receiving any of these notifications. Two of the letters were addressed to the plaintiff at 16 Jerrold Street, Footscray (Rockbank caveat notifications). One letter was addressed to the plaintiff at 4 Spinifex Street, Deer Park (Altona caveat notification). The plaintiff gave evidence that he did not reside at either of these addresses but lived at 11 Silvester Street, St Albans during this time.[203]

226 On the subject of the Transaction documents, it is convenient to consider the evidence of the conveyancer, Ms Tran, in relation to both property transactions. It is necessary to do so in some detail in light of the plaintiff's denial that he signed any of the transfer documents and his assertion that he knew nothing about the sale and transfer of the two properties until 2013.

227 Ms Tran gave evidence that in early June 2006 she received a telephone call from Mai, who said that the Altona property was on the market and that the agent would contact her shortly to request her to send the agent a Section 32 Vendor's Statement. Ms Tran asked Mai to identify the registered proprietor of the property and Mai told her that it was herself and her brother, Hau Lam. Ms Tran asked Mai to contact Hau and ask him to call her so she could take instructions from him as well.[204]

228 A few days later, she received a telephone call from the plaintiff. She mentioned that it had been a year since she talked to him about the Rockbank land refinance. She told Hau that Mai had telephoned her a few days ago and said that the Altona property was on the market. She asked him to confirm whether that was the case. Hau confirmed that the property was on the market. Ms Tran said that Mai had already given her instructions that she would be acting for her and asked whether Hau would confirm that she would be acting for him as well. Hau said he was happy for her to act on his behalf as well and asked her to prepare the contract.[205]

229 After this telephone conversation, Ms Tran made application to obtain documents to attach to a Section 32 Vendor's Statement. Once all the searches came back, Ms Tran said she prepared a Section 32 Vendor's Statement.[206]

230 On 23 June 2006, Ms Tran posted the Vendor's Statement in triplicate to the real estate agent handling the sale.[207]

231 Sometime in August 2006, Ms Tran received a telephone call from the plaintiff, who said he had made a default in his mortgage with Bankwest and that his sister Cynthia would help to assist him to pay out the Bankwest mortgage (on the Rockbank land) and he would transfer the land back to her. He asked Ms Tran if she could contact Bankwest for him to request a discharge of mortgage and to advise that the property had been sold.

232 Ms Tran was asked whether she spoke to anyone at Bankwest about the plaintiff being in default. She said it was not her job to discuss this, it was confidential and the bank would not talk to her about that; that her role was to do the conveyancing to discharge the mortgage.[208] When challenged by counsel that she could only have known the default interest rate from reading the loan contract, the witness disagreed and responded by referring counsel to the letter from Bankwest dated 13 October 2006, which specified both the interest rate and the default interest rate.[209]

233 On about 9 August 2006, Ms Tran received another telephone call from the plaintiff, who asked her to advise Bankwest that the property had been sold and to check the mortgage details in relation to his loan. Ms Tran said she needed him to come in and see her with whatever documents he had received from Bankwest so that she could deal with Bankwest.

234 When challenged about the plaintiff instructing her that he was in default on the Bankwest mortgage, Ms Tran said she was not sure he was in default, that he had said that to her but she was not sure and that is why she asked him to come in to see her. She disagreed that she had sent a letter based on his default. Instead, she said that the letter just said that he requested a discharge and did not mention default. The following exchange took place in relation to the issue of default:

COUNSEL: But that letter was sent as a result, you say, of his talking to you about default.

WITNESS: No, because he said he make the default under the mortgage, he haven't pay for a year, since the refinance happen - I acting for him in 2005. So up until the day he contact me or telephone me, nothing being paid.

COUNSEL: But you didn't know that at the time, did you?

WITNESS: No, until the bank actually said to me. That's when I find out. I don't know. But I did send a request for a discharge only, but nothing mentioned about the default.[210]

235 On 9 August 2006, Ms Tran sent a facsimile to Bankwest advising that she acted for Hau who had sold the Rockbank land with settlement anticipated to take place on 15 September 2006, asking Bankwest to prepare a discharge of mortgage and to advise of the amount required to discharge the mortgage.[211]

236 Later in August 2006, the plaintiff attended at the office of PT Conveyancing. He brought with him two letters from Bankwest dated 10 August and 18 August 2006 respectively, a bank statement and an unsigned Request to Release Security form.[212]

237 The Request to Release Security form was retained by the plaintiff. Ms Tran did not know why he took this document away,[213] and did not realise he had taken it away until he had left.[214] When asked why the plaintiff did not just sign the Request to Release Security form at the time, Ms Tran said that because there was no contract at that point, nothing had happened, that she still had not prepared a contract and she asked him to sign that later when there was a contract. She did agree that she could have asked him to sign it and kept it in her file, but she said 'it's just one other thing I never ask him at that time'.[215]

238 In early October 2006, Ms Tran received a telephone call from the plaintiff. The plaintiff said he had just faxed through the signed discharge form (Request to Release Security document) and asked whether she had received it. Ms Tran went to her fax machine and returned to the phone and confirmed receipt of the signed form dated 2 October 2006.[216]

239 Ms Tran was resolute when questioned about this facsimile transmission, which had Le & Associates written on the print out. She agreed she had never heard of a Le & Associates and said, in effect, that the plaintiff must have been using the Le & Associates fax number.[217]

240 The plaintiff said that he was going to Vietnam and asked Ms Tran whether she could deal with Bankwest while he was away. He asked her to send the Request to Release Security document to Bankwest and to ask Bankwest for the mortgage details. He said he thought it was in arrears.

241 On 3 October 2006, Ms Tran received a facsimile from Bankwest which included copies of the letters to the plaintiff from Bankwest (of 10 August 2006 and 18 August 2006) and requested the signed Request to Release Security document in order for Bankwest to proceed.[218]

242 On 4 October 2006, Ms Tran sent Bankwest the completed and signed Release of Security form advising that settlement was anticipated to take place on 24 November 2006.[219]

243 On 12 October 2006, Ms Tran sent a further letter to the discharge department at Bankwest advising that settlement was due to take place on 24 November 2006 and requesting details to enable PT Conveyancing to prepare the Section 27 deposit release statement, including the amount required to discharge the mortgage, the applicable interest rates, the date by which the amount secured by the mortgage is to be repaid and asking whether the vendor was in default under the mortgage.[220]

244 Ms Tran agreed that she did not have instructions to send letters to the discharge department of the Bankwest further extending the anticipated settlement date. She explained she was using a conveyancing system which produces standard form letters, however before the plaintiff went overseas he had said to deal with the Bankwest mortgage for him while he was away.[221] She denied she extended the 'settlement dates' on Cynthia's instructions.[222]

245 On 13 October 2006, Bankwest advised that the principal amount secured by the mortgage was $51,539, that the amount required to discharge the mortgage was $61,916.02 and stated that the customer was in default to the extent of $9,658.49. The letter specified the applicable interest and default interest rates.[223]

246 On 15 November 2006, Ms Tran sent a facsimile to Bankwest requesting Bankwest to reduce the interest rate from the default interest rate to the lower rate. She did so of her own volition in an endeavour to get Bankwest to reduce the interest charged to her client.

247 Ms Tran asked the bank to reduce the interest from the default interest rate as a favour, although she was acting without the plaintiff's instructions.[224] She denied that she had received instructions from Cynthia, though she agreed that it was in Cynthia's interest to get the default interest changed. She accepted it would be no advantage to Hau whether the default or normal interest rate applied. Specifically, she said 'No. But he knows that he - in a way, the mortgage is to be paid off by him, he be happy'.[225]

248 In January 2007, the plaintiff contacted Ms Tran again. He asked whether Ms Tran had contacted Bankwest on his behalf and asked how things were going with the contract. Ms Tran advised the plaintiff that she had been keeping in contact with Bankwest since the previous year and there was no action yet for the Rockbank land. She said she was still awaiting instructions from both of them (Cynthia and Hau) so that she could prepare a contract, but nothing had happened yet.[226] Ms Tran gave evidence that the plaintiff kept asking her to keep in contact with Bankwest again to drag things on so that his sister could get the loan and so that Bankwest would not take action against him or take the land.[227]

249 On 15 February 2007, Ms Tran sent a further facsimile to the discharge department of Bankwest. This letter was in almost identical terms, save for the dates, to the letter from PT Conveyancing to the discharge department of Bankwest dated 12 October 2006.[228] Ms Tran had a general, but not a detailed, recollection of being told by Cynthia at this time that the NAB loan application was still in progress because the bank had been 'using her three properties for the loan and to do with her trust'; that the bank needed to have its lawyers 'review those trusts...whether it is acceptable or they need to be changed or amended'.[229] Ms Tran said that this was Cynthia's explanation as to why the loan still had not been approved. Ms Tran said she asked Cynthia to try to hurry the NAB in case Bankwest ran out of patience.[230]

250 In March 2007, before the loan was approved, Ms Tran spoke to the plaintiff, informed him that his sister's loan had not been approved and that she had tried to keep extending the settlement date with Bankwest. The plaintiff asked her to keep doing so because there was nothing he could do.[231]

251 As a consequence of these instructions, Ms Tran sent letters on 15 February 2007 and 17 April 2007 nominating settlement dates of 31 March 2007 and 25 May 2007 respectively. Otherwise, these letters were in virtually identical terms to the standard form letter sent to the Bankwest discharge department in October 2006.[232]

252 Ms Tran said that she recalled Bankwest kept calling her office asking for updates on the transaction.[233]

253 On 2 April 2007, Ms Tran received a telephone call from a real estate agent, Mr Scott Murdoch, in relation to the Altona property. He asked Ms Tran to fax the Section 32 Vendor's Statement which she had posted to him the previous year. Ms Tran went to the file for the letter she had sent in 2006, re-dated it by hand, counted out the pages of the Vendor's Statement and sent the letter and unsigned Vendor's Statement by facsimile transmission to the real estate agent.[234]

254 On about 3 May 2007, Ms Tran received a letter dated 2 May 2007 from the real estate agent attaching a contract note and a signed vendor's statement.[235] Ms Tran said this was the only vendor's statement received by her from Barlow McEwan Tribe, real estate agent.[236]

255 Soon after receiving the contract, Ms Tran delivered a NAB letter of instruction, a Customer Authorisation Privacy document and a Section 27 Deposit Statement to Mai, who said she would sign the documents and organise for Hau to sign them. Mai later called to say that all the documents had been signed by her and Hau. Ms Tran collected the signed documents on 7 May 2007.[237]

256 On 14 May 2007, Ms Tran telephoned Mai and explained that it was necessary to provide answers to requisitions from the purchaser. She went through a draft set of answers to requisitions with Mai and explained them. She then sent the draft answers to requisitions for signing by Mai and Hau.[238] Later the same day, she received signed answers to requisitions, which she then faxed to the solicitor for the purchaser.[239]

257 In about the middle of May 2007, Cynthia telephoned Ms Tran and advised that her loan had been unconditionally approved. Ms Tran asked her if she could call her brother and ask her brother to contact her (Ms Tran) to give her instructions to prepare the contract of sale (for the Rockbank land) and, because there was a sale between related parties, Ms Tran needed instructions on what price to put in the contract.[240]

258 She then received a telephone call from the plaintiff, who asked her to prepare the contract of sale for himself and his sister urgently.[241]

259 Ms Tran firmly withstood cross-examination about whether she received instructions from Hau Lam regarding the Rockbank sale. Her response under cross-examination was consistent with her evidence-in-chief.[242] She denied that all the letters sent to the bank regarding settlement were either made up by her or given to her by Cynthia. She did concede that some of the letters postponing settlement had 'made up' dates.[243] She denied that it was Cynthia who told her that she was going to pay off the Bankwest mortgage from the proceeds of the loan from the NAB secured over the Rockbank land. She said it was the plaintiff who said that Cynthia would assist him to pay off the Bankwest loan for him. The witness was very firm: 'Don't say that she said [that] to me. He said that to me'.[244]

260 Ms Tran did speak to Cynthia about the price for the Rockbank land contract. Cynthia advised that the council rate notice value was $361,000 and that would be the price. Ms Tran asked Cynthia to organise a cheque to pay the stamp duty as it was a related party transaction. She advised Cynthia that she would need to take the documents to the State Revenue Office for assessment and, once the documents had been approved by the State Revenue Office, she would ask her to provide the cheque to pay the duty assessed.

261 Ms Tran advised Cynthia that she would need to get an appraisal letter from the agent in order for the State Revenue Office to approve the price. She suggested Cynthia contact the real estate agent, who was the agent in respect of the sale of the Altona property, to do the appraisal. Ms Tran then began to prepare the contract of sale and Transfer of Land for both Cynthia and Hau to sign. She recalls preparing four contracts of sale, including Vendors' Statements.[245]

262 She also prepared the Transfer of Land for the Rockbank land.

263 Ms Tran hand delivered the contract and the Transfer of Land to Cynthia's shop at 51 Hopkins Street, Footscray for signing. She left the documents with Cynthia's staff.[246]

264 On 25 May 2007, Ms Tran received a telephone call from Mai, who said that the documents had been signed and asked whether she and Hau could come to Ms Tran's office to give her the documents. Later that day, Mai and Hau attended at the offices of PT Conveyancing. Ms Tran spoke to them in Vietnamese. Hau had the contract of sale and signed transfer of land with him. He said that the documents had all been signed by him and his sister and he asked Ms Tran to check them.[247] Ms Tran said she checked the documents and said they looked okay. She noted that there was only one contract, not the four that she had originally prepared, and she asked him to give her the others whenever he could and he said he would do so.[248]

265 After the plaintiff and Mai left on that day, Ms Tran received a telephone call from the NAB manager, Mr Sang Duong, who advised Ms Tran to make sure that the purchaser of the Rockbank land was Cynthia's company, PFE as trustee for the Pacific Far East Unit Trust and not Cynthia personally.[249]

266 Ms Tran telephoned Cynthia to confirm this was correct because Cynthia had not mentioned that the transaction was under a company name. Cynthia confirmed that it was, but said she had forgotten to mention it to Ms Tran. Ms Tran advised her she would need to amend the contract of sale and the transfer of land.

267 Ms Tran then telephoned the plaintiff and said she had just found out that the sale was under the company name, not Cynthia's name, and that she would need him to come back to the office because she needed to amend the Contract of Sale and Transfer of Land. He agreed to come to her office.[250]

268 Using the contract that the plaintiff had left with Ms Tran, Ms Tran replaced Cynthia's name with the company name and also amended the Transfer of Land so that it could be signed by the company. On the Transfer of Land, Ms Tran crossed off Cynthia's name and, using a typewriter, inserted the company details. She also prepared a real property statutory declaration and goods statement, a Bankwest Request to Release Security (which she had received in August 2006), an irrevocable authority to PFE with respect to the balance due to the plaintiff under the contract of sale and two acknowledgement forms to the effect that parties acknowledged that Ms Tran was acting for PFE as well as for the plaintiff.[251]

269 On 25 May 2007, Mai and Hau again attended at the offices of PT Conveyancing. Ms Tran explained that she asked them to come back because the contract and the Transfer of Land needed to be amended and that she would need the plaintiff to initial the documents and to sign the acknowledgement that she was acting for both parties.

270 She then showed the plaintiff the changes to the name of the purchaser on the amended Contract of Sale and the amended Transfer of Land and explained to the plaintiff that PFE was the name of his sister's company. The plaintiff said that if it was his sister's company that was fine with him. Ms Tran then asked him to put his initial next to the amendments and he did so. Ms Tran said that Mai was also present at this time.[252] Ms Tran identified the particulars of sale page that she asked the plaintiff to initial.[253] After the plaintiff had initialled the documents, Ms Tran said she was going to see Cynthia to ask her to initial the documents as well.

271 Ms Tran then handed the plaintiff the Real property value statutory declaration and Goods statutory declaration, the Bankwest Request to Release Security form, authority to PFE and the relevant acknowledgment form with his name on it. She then explained that the acknowledgement form was necessary if she was acting for the vendor and the purchaser, that if there was a conflict between both parties she would not be able to act for either of them and they would have to engage someone else. There was a conversation about possible conflicts, and Ms Tran said that if the purchaser breached the contract there would be a conflict.

272 The plaintiff then signed the Bankwest Request to Release Security form in Ms Tran's presence. Mai was also present at the time.[254]

273 The plaintiff also signed the acknowledgment form in Ms Tran's presence. Ms Tran signed on behalf of PT Conveyancing.

274 Ms Tran then had a conversation with the plaintiff in relation to the real property statutory declaration documents. She said those documents had to be witnessed by a Justice of the Peace or an authorised person so he would have to take them somewhere else. She asked him to bring them back when they had been signed before an authorised person so that she could complete the stamp duty for Cynthia.[255]

275 The plaintiff agreed to do so and also asked Ms Tran to make sure she contacted Bankwest to let Bankwest know that settlement would occur soon.[256]

276 At some point after this occurred Ms Tran realised that there would be a contract between the purchaser and vendor but at settlement there would not be any funds provided to the vendor (the plaintiff). Ms Tran thought she would have to have some document which would protect herself in the circumstances. She telephoned a friend who was a lawyer and explained the circumstances. She gave some details to the lawyer, as a result of which a document was prepared to the effect that the plaintiff agreed and acknowledged that monies previously advanced to him by Cynthia for his purchase of the property would be retained by Cynthia after payment of stamp duty and all other fees and charges at settlement of the transaction. This acknowledgement document was dated 25 May 2007.[257]

277 It was suggested in cross-examination that the simplest way for Ms Tran to protect herself would be to have the plaintiff or Cynthia or both of them say that the land was held on trust for Cynthia and that the proceeds of sale had been paid to the beneficial owner. Ms Tran did not disagree, but she said she took advice from a lawyer and, based on Ms Tran's explanation to her about the contract for the sale of the Rockbank land, that was the way it was approached and she was not thinking of another way of protecting herself.[258]

278 Ms Tran also accepted that it was not necessary to have a contract to transfer the land from the plaintiff to Cynthia. Ms Tran was responsive to the proposition: 'I know what you mean', but Ms Tran said that because Cynthia did not have the money to pay Bankwest and the NAB needed the contract because it was going to lend money to Cynthia based on the security of the property, they needed a contract so that they could obtain the loan.[259] Ms Tran explained that she was worried about the contract price and the payout figure to Bankwest being only a portion of the contract price, and that she was concerned that the plaintiff might come back and ask her for the difference.[260]

279 Ms Tran then telephoned Cynthia and arranged to have her initial the amendments to the Transfer of Land and contract and sign the acknowledgement document dated 25 May 2007. She attended Cynthia's shop and asked her to initial the Transfer of Land and contract and gave her the acknowledgment document dated 25 May 2007.

280 She asked Cynthia to sign the document and to get her brother to sign it as well and that once it had been signed, to give it to her brother because Mai and the plaintiff were coming to see her the following week with all the documents.[261]

281 On 31 May 2007, Mai and Hau attended at the offices of PT Conveyancing. Hau produced the Goods statutory declaration and Real property value statutory declaration, with the Contract of Sale that Ms Tran had asked him to return and the acknowledgement document dated 25 May 2007. These documents were all signed at the time they were handed to Ms Tran. Ms Tran gave detailed evidence in which she identified each of the documents returned to her on the day.[262]

282 Ms Tran then told Hau and Mai that she would need to take the relevant documents to the State Revenue Office to have stamp duty assessed and that she would contact them again once she managed to organise settlement with Bankwest and when the National Bank was ready to settle.[263]

283 Ms Tran made a copy of the acknowledgement dated 25 May 2007 and gave the original back to either Mai or Hau asking them to give it to Cynthia for her to keep.

284 On this day, the plaintiff also asked her to contact Bankwest again to tell them that settlement would occur soon.[264]

285 On about 7 June 2007, after a conversation with the real estate agent on that day, and after providing to the real estate agent a council rate notice and title search, Ms Tran received an appraisal letter from the agents in which the view was expressed that the realisable value of the Rockbank land was in the vicinity of $360,000 if marketed at that time.[265]

286 During June 2007, Ms Tran made arrangements for the settlement and for a duty assessment on the amended Transfer of Land with the State Revenue Office. Duty was assessed and settlement of the transaction was booked in.

287 On 27 June 2007, Ms Tran telephoned Cynthia and asked her for a cheque to pay stamp duty. On the same day, she telephoned the plaintiff and advised him that settlement had been booked for 3 July 2007 and that once she had the payout details she would ask him to come and see her.

288 On 2 July 2007, Ms Tran received a facsimile from Russell Kennedy for Bankwest confirming that settlement would take place at 2.00 pm on 3 July 2007 specifying their requirement for bank cheques including a cheque for $66,495.51 payable to Bankwest and a cheque payable to Russell Kennedy for fees.[266] On the same day, Ms Tran telephoned the plaintiff and advised him that she had received the facsimile from Russell Kennedy confirming the payout details. She asked him to come to her office so that she could take him through the details.

289 On or about 3 July 2007, the plaintiff attended Ms Tran's offices with Mai. She showed him the payout details and the letter from Russell Kennedy. She explained in Vietnamese the amount payable to Bankwest, the amount payable to PT Conveyancing and informed the plaintiff that there was nothing payable to the plaintiff. Settlement of the Rockbank land transfer was completed as arranged on 3 July 2007 with the Bankwest mortgage being paid out at that time.

290 At this time, the sale of the Altona property was in progress but had not been completed.[267] Prior to completion, Ms Tran attended at Mai's business premises at 177 Barkly Street, Footscray, and collected a signed Section 27 deposit statement,[268] a letter of instruction - surrendering deeds[269] and customer authorisation and privacy declaration.[270] All of these documents had apparently been signed by the plaintiff.

291 On 12 July 2007, Ms Tran forwarded a copy of the Contract of Sale of the Altona property between Hau Lam and Mai Nguyen to Karen Margaret Banks and/or nominee together with the copy of the letter of instruction - surrendering deeds in anticipation of settlement of the transaction. On 27 July, the NAB confirmed a settlement date of 27 July 2007. The settlement date had to be re-booked as the Contract of Sale provided that the balance of the purchase price was payable on 2 November 2007 or earlier by agreement. Ultimately, settlement was arranged for 2 November 2007.[271]

292 On 7 September 2007, Ms Tran received a letter from the purchaser's solicitor enclosing a Transfer of Land in readiness for settlement of the Altona property.[272]

293 By letter dated 25 October 2007, the solicitors for the purchasers wrote to PT Conveyancing confirming settlement of the transaction on 2 November 2007 and enclosing an adjustment and settlement statement seeking confirmation of the figures and advice as to the proposed break up of cheques.[273]

294 On 31 October, Ms Tran contacted Mai and asked her to fax the utilities bills so that she could check the statement of adjustments and she asked her if she and the plaintiff would come to her office to sign the paperwork. An appointment was made for the next day.

295 On 1 November 2007, the plaintiff and Mai attended at the offices of PT Conveyancing. Ms Tran showed them the Transfer of Land which had been signed by the purchaser.[274] The Goods Statement for Residential Land[275] was unsigned. She explained to the plaintiff that when she had prepared the Goods Statement for Residential Land she had used the address of the vendor stated on the contract, which coincided with the address for utilities. This address was 1 Princes Street, Port Melbourne, which is Cynthia's address. Ms Tran told them that if they were not happy with this address she could amend it on her system. Mai and Hau responded to the effect that they were content with the address because all of the utility bills were going to 1 Princes Street, Port Melbourne anyway and Cynthia was the one who paid for these outgoings.[276]

296 Ms Tran then asked the plaintiff and Mai to sign the Transfer of Land, which they did in her presence. Ms Tran signed as a witness to their signatures.[277]

297 Ms Tran then asked the plaintiff to sign the Goods Statement for Residential Land where she had indicated with a cross on the document. The plaintiff signed the document in Ms Tran's presence. Ms Tran then dated the document 1 November 2007.[278]

298 Ms Tran advised the plaintiff and Mai that settlement had been booked for the next day, 2 November 2007, and asked them to attend her offices before 5.00 pm to pick up the cheques and finalise the matter.

299 Settlement occurred on 2 November 2007. As arranged, Mai and the plaintiff attended at the office of PT Conveyancing. Ms Tran advised them that settlement had occurred and gave them a final letter together with a bank cheque payable to M Nguyen and H Lam for $281,715.58.[279] Ms Tran said that she would need to speak to the plaintiff and Mai later because there was still an issue with the condition of the property resulting in some money payable to them being withheld.[280]

300 The plaintiff and Mai said something about land tax. Ms Tran said that the plaintiff knew more about tax than Mai. One or other of them raised the question whether they could claim land tax back because they had never owned any property and, as first home buyers, they thought they could make a claim to recover land tax. Ms Tran said her knowledge about land tax was limited, but said that 'with land tax if you occupy the house, that is when you can make a claim tax on the property'.[281]

301 Ms Tran said she would need to prepare statutory declarations for them to sign and produce to the Land Tax Office to make an assessment. Shen then prepared forms for statutory declarations for signing by each of them.[282]

302 On about 13 November 2007, the solicitors for the purchaser sent trust account cheques payable to the plaintiff and Mai for $1,775.00 and $103.14 respectively.[283] On receipt of these cheques, Ms Tran made arrangements with Mai for the plaintiff and Mai to attend her office to pick up these cheques. Later that week, they attended at the offices of PT Conveyancing and Ms Tran gave them the two cheques.[284]

303 In February 2008, Ms Tran received a telephone call from Mai asking her to collect the two statutory declarations. These documents had apparently been declared before a medical practitioner, Dr Le. Mai asked her lodge both of them with the State Revenue Office to see if the State Revenue Office would refund the land tax. Ms Tran lodged the statutory declarations as requested.

304 Ms Tran was challenged heavily in cross-examination in relation to the statutory declarations which state that the Altona property was the principal place of residence of the plaintiff and Mai. She agreed that she knew that the plaintiff had never lived there, said they did go there as a holiday property and that Mai had said that they went to the beach with the whole family and that everyone went there sometimes. Ms Tran agreed that she knew at the time she prepared the statutory declaration that the Altona property had not been the plaintiff's or Mai's principal place of residence since March 2002. It was then suggested that if the statutory declaration which she had prepared was declared it would be a false declaration. Ms Tran replied 'It is not false declaration because I tried to explain the word 'principal' which mean they only own one property only'.[285] Ms Tran agreed that in 2007 she knew of the obligation to pay land tax on properties that were not the principal place of residence of the owner.[286]

305 After some further communications with the State Revenue Office, which requested further details and a response to the effect that her clients were unable to provide all the documents as requested, the State Revenue Office rejected the application and confirmed that the land tax was correct.[287]

306 Several years later, in September and October 2013, Ms Tran received letters of demand, apparently from Hau Lam. The letters were unsigned and Ms Tran did not respond to them. She said that at that time she had already spoken to the police about the matter and she thought it was better for her to deal directly with the two policemen she had showed the first letter that Hau Lam had sent to her at the time the police had interviewed her.[288]

307 Mai's evidence in relation to the Altona property transaction is to the following effect.

308 Mai saw Hau sign the original contract note dated 2 May 2007 for the sale of the Altona property, including Special Conditions annexed to the Contract Note and a Section 32 Vendor's Statement. She also signed these documents. She was unsure whether she was at the real estate agent's office or at Cynthia's office when she saw Hau sign them.[289]

309 She saw Hau sign a Section 27 Deposit Statement to the Purchaser. She was unsure whether it was signed at Ms Tran's office or at the travel agent's office where she worked.[290]

310 She had a telephone conversation with Ms Tran in relation to answers to requisitions from the purchaser of the Altona property. She was with Hau at the time. During the conversation Ms Tran explained each requisition and the appropriate answers. Mai asked Ms Tran whether she could fax the document back after signing it. Ms Tran said that would be okay. Mai said that Hau read the answers to the requisitions document, said okay, and she saw him sign it.[291] She used Cynthia's fax machine to fax the signed answers to requisitions back to Ms Tran.[292]

311 Mai saw Hau sign a letter of instruction to NAB regarding the surrendering of documents held by NAB to PT Conveyancing.[293] She also signed this document.

312 She attended the office of PT Conveyancing with Hau. She signed the Transfer of Land. She saw Hau sign the Transfer of Land. Ms Tran witnessed their signatures.[294]

313 She attended Dr Le's medical surgery with Hau to make a statutory declaration to try to 'get the tax back'. She signed the statutory declaration form applicable to her in the presence of Hau and Dr Le. Hau signed the statutory declaration form applicable to him in her presence and in Dr Le's presence. Both Mai and Hau showed some identification to Dr Le at the time the documents were signed. This took place at the reception area at the surgery.[295]

314 After settlement of the Altona property the cheques payable at settlement were sent to Ms Tran, who called Mai and asked her whether they (Mai and Hau) could come and collect the cheques. Mai and Hau went to Ms Tran's office together. Ms Tran showed them the cheques and asked Hau and Mai to sign off to collect the cheques. She gave a cheque to Hau. When they were outside Ms Tran's office, Hau asked Mai to take the cheque and give it to Cynthia and handed the cheque to Mai.

315 At settlement there were a few cheques and there were one or two that she and Hau had to sign on the back so that Cynthia could bank them. She identified cheques for $281,715.58 and $2,181.78 with her and Hau's signatures on the back.[296]

316 She also saw Hau sign a NAB Discharge Authority, Letter of Instruction - Surrendering Deeds document dated 2 November 2007 and a NAB Customer Authorisation and Privacy Declaration dated 7 May 2007.[297]

317 She recognised Hau's signature on the Goods statement for residential land, but she did not see him sign this document.[298]

318 Mai had less involvement in relation to the transaction documents relevant to the transfer of the Rockbank land. Her evidence is to the following effect.

319 On 25 May 2007, she drove Hau to the offices of PT Conveyancing and was present when Hau told Ms Tran that he had signed the contract and Transfer of Land. He had asked her to check to see whether anything was missing. She agreed that Ms Tran had noted there was only one contract, not the four she had left.[299]

320 She attended Ms Tran's office later in the day on 25 May 2007 after Hau asked her to drive him there. Hau told her that Ms Tran had said the name of the purchaser on the contract was incorrect. She was present when Ms Tran explained that the reason she had asked him to come back was so the contract and transfer could be amended to insert the correct name of the purchaser, PFE as trustee for the Pacific Far East Unit Trust instead of Cynthia personally. She recalled Ms Tran saying that where there was a change, he would need to initial the change. She recalled Hau initialling the changes.[300]

321 Mai attended a medical surgery in Footscray, which she described as Dr Le's clinic, and she saw Hau sign a Goods statutory declaration and a Real property value statutory declaration. The documents were signed standing up in the reception area, with Mai standing, next to Hau and Dr Le, who asked Hau to produce identification. She said that Hau presented his driver's licence.[301]

322 Dr Le, a medical practitioner with a medical practice at Byron Street, Footscray, gave evidence as to his usual practice when 'witnessing' a statutory declaration, which was that the person signs, and he dates, stamps and signs the document.[302] He was shown the Goods statutory declaration and Real property value statutory declaration and a statutory declaration of Hau Lam dated 8 October 2007. In each case he identified his handwriting and his stamp on the document. Under cross-examination, it became apparent to Dr Le that there appeared to be a mistake in the date on the Real property statutory declaration (dated 2006 not 2007). He then expressed doubts about his handwriting. When it was pointed out to him that only his stamp and not his signature appeared on the Goods statutory declaration and the Real property value statutory declaration he said it was very unusual for him not to sign, though he did accept the possibility of error.[303]

323 Dr Le was then shown his own statutory declaration dated 19 November 2014 to the effect that he witnessed each of the statutory declarations for Hau Lam.[304] He was unable to confirm whether the signature on his statutory declaration was his signature and said that the content of the document did 'not belong to' him.[305] He denied signing the statutory declaration in 2014 and expressed surprise at seeing the document in court.[306]

324 Chau Minh Duong is a conveyancer employed by Lanham Lawyers. She recalled that she emailed Dr Le a letter, his unsigned statutory declaration and the declarations previously made before him. She had a conversation with Dr Le prior to sending him the documents, asking him to confirm by signing his statutory declaration that he had witnessed the declarations of Hau Lam. Ms Duong gave evidence that she received from Dr Le a copy of his signed declaration. Subsequently, Ms Duong attended Dr Le's surgery in Footscray and collected Dr Le's original signed statutory declaration.[307]

325 The plaintiff contends that he did not have any contact with Ms Tran or PT Conveyancing after 2005[308] and that he did not know about the sale of the Rockbank land and the Altona property until 2013. The plaintiff's evidence is unable to be rationalised or reconciled with the evidence of Ms Tran.

326 The resolution of this aspect of the proceedings largely involves deciding which of these two witnesses is to be believed. There is no middle ground. If Ms Tran's evidence is accepted, the plaintiff's claims with respect to the transactions cannot succeed.

327 Ms Tran's evidence is to the effect that during the period from mid-2006 to November 2007, she had 17 direct communications with the plaintiff, consisting of nine telephone contacts and eight personal attendances on the plaintiff at the offices of PT Conveyancing in relation to one or other of these property transactions. If accepted, this evidence is devastating to the plaintiff's case. [309] It would show that the plaintiff not only knew about the property transactions but helped facilitate them.

328 I accept Ms Tran's evidence. Ms Tran had a precise recollection of events as they related to the transactions. Her evidence was detailed and methodical and reflected her training and extensive experience as a conveyancer. There was no evidence to suggest Ms Tran would benefit by fabricating an elaborate story. There was no reason to suggest that she would jeopardise her professional career over these conveyancing transactions.

329 Ms Tran's evidence was corroborated by Mai to the extent that Mai had dealings or contact with Ms Tran. There was no evidence or any rationale to suggest that Mai would wish to concoct evidence which would damage her brother's interests.

330 Dr Le's statutory declaration, if accepted, also demonstrates that the plaintiff knew about the property transactions and helped facilitate them. The declaration is consistent with Ms Tran's evidence.

331 In my view, the statutory declaration of Dr Le that he witnessed the plaintiff signing the Real property value statutory declaration (incorrectly) dated 30 May 2006 (relating to the Rockbank land transfer), the Goods statutory declaration dated 30 May 2007 (relating to the Altona land transfer) and the statutory declaration dated 8 November 2007 (relating to the Altona property) ought to be accepted.

332 Under cross examination, it was clear that Dr Le had not noticed that he had stamped but not signed two out of three of the plaintiff's statutory declarations and that this meant that he had not complied in these instances with his usual practice of signing the document at the time he took the declaration. This evidence showed that Dr Le's practice was not invariable. Whatever the reasons for this oversight, in my view there is nothing sinister about the fact that two of the statutory declarations were not signed by him. The declarations do bear his stamp which includes his name and address. Mai's evidence that she was present when Hau made the declarations corroborates Dr Le's evidence.

333 I am satisfied that the plaintiff signed and made the three statutory declarations at Dr Le's surgery, two in May 2007 and one in October 2007. In all the circumstances, I am satisfied that Dr Le's statutory declaration to the effect that he witnessed the plaintiff signing the three declarations is reliable. It follows that I do not accept Dr Le's disavowal of his statutory declaration. In this regard, I accept the evidence of Ms Duong, who spoke to Dr Le about making the statutory declaration, communicated with him by email, received a copy of the statutory declaration and collected the original from his surgery.

334 In my view, Dr Le had forgotten that he had made the statutory declaration.[310] There is overwhelming evidence that he did make his statutory declaration. There was evidence before the Court that he had significant medical issues in 2015. It is possible that these issues affected his memory.

335 In this case, given my findings with respect to the eyewitness accounts of Hau signing some of the transaction documents, it is not productive to address every transaction document.

336 As a general observation, I prefer the evidence of the handwriting expert called by the Lam defendants, Mr Joyce. Mr Joyce's approach to the task of giving expert evidence on the transaction documents was to inform the Court of the salient features of questioned signatures in comparison to known specimen signatures of the plaintiff.

337 Where questioned signatures departed subtly in construction to known specimens, Mr Joyce suggested that there were three hypotheses which could account for the observed differences:

(a) the variation hypothesis, where the relevant signature is a genuine signature variant of the plaintiff;

(b) the disguise hypothesis, where the signatures are disguised or distorted signatures by the plaintiff with a view to denying authorship at a later date; or

(c) the different writer hypothesis, being the result of a writer other than the plaintiff.

338 Mr Joyce described his approach in the following terms:

To identify a writer is immeasurably easier than it is to exclude a writer, so to exclude a writer you're basically putting yourself in the position of saying at no stage did the writer or could the writer have physically ever written that signature...it is a bit of an old school of thought to say a difference means as (sic) different writer. A difference sometimes means there is an explanation for it but it is still a genuine signature... In an exclusionary sense, it is an old school of thought to think difference means different writer. The literature, research papers, studies on the expertise of handwriting examiners, has all shown that exclusion is a difficult area for examiners. It is an area where we sometimes trip up and make mistakes. The research studies then make the recommendation effectively that we offer a two-stage conclusion process, we offer what the evidence is saying, that there is some variation or differences, however you put that comment, and then to offer the hypotheses for explaining that evidence. The next step to prefer one of those is basically up to the court, and that is a recommendation.[311]

339 Mr Joyce relied on published literature in support of this approach.[312]

340 In the case of 22 signatures, which Mr Joyce styled Type B Hau Lam signatures, Mr Joyce concluded that these signatures were not signatures typical and representative of normal habits of the writer and that determination of whether the differences were accounted for by the variation hypothesis, the disguise hypothesis or the different writer hypothesis should be made by the Court after consideration of other supporting evidence.[313]

341 The plaintiff's handwriting expert, Mr Holland, had examined fewer documents but was more emphatic in his opinion. He was less responsive to questions and tended to add unsolicited comments supportive of the plaintiff's case which slightly affected my view on his impartiality as an expert. Mr Holland did not take issue with the published literature referred to by Mr Joyce.[314]

342 In Mr Holland's opinion, 12 of the questioned documents, identified in his report relating to the Altona property, were signed by the same person and 10 of the questioned signatures identified in his report relating to the Rockbank land were signed by the same person. Mr Holland was of the view that the person who signed the questioned Altona property documents is the same person who signed the questioned Rockbank land documents. It follows that Mr Holland was of the opinion that one person signed 22 documents that were specifically identified. Mr Holland agreed that if the Court were to find that any of the 22 documents were signed by the plaintiff then it would follow that the plaintiff signed all 22 documents.[315]

343 Included in the 22 documents identified by Mr Holland as being signed by the same writer are the Transfer of Land for the Altona property (transfer to Banks),[316] the Transfer of Land for the Rockbank land (transfer to PFE),[317] the contract of sale for the Altona property and the Particulars of Sale for the Rockbank land[318] I am satisfied that these transfers and these contracts were signed by the plaintiff. Based on the evidence of Mr Holland, I find that the plaintiff is likely to have signed the rest of the 22 documents identified by Mr Holland. I reject the suggestion that there were any forgeries amongst these signatures. In my view, the variation hypothesis accounts for the subtle differences in these signatures from the known specimens and the signature on the Power of Attorney.

344 The relevance of the claimed trusts has been overtaken by events so I will deal with the subject briefly.

345 I am satisfied that both the Rockbank land and the Altona property were held on express trusts. The trusts were informally but sufficiently expressed in the conversations between Cynthia and Hau and reflected in the contemporaneous conduct of the parties. At the time of their purchase, both properties were to be held in names other than Cynthia's. Hau's agreement in each case ('to stand on the title') for Cynthia was an unequivocal though informal expression of a trust which was manifested by consistent conduct at the time. In the case of the Rockbank land Cynthia paid the whole purchase price. In the case of the Altona property Cynthia paid the deposit and all other expenses. I am satisfied that Cynthia held the beneficial interest in both properties at all relevant times and was entitled to dispose of the properties as she saw fit.

346 In the Rockbank proceeding, the first defendant, Phung Thuong Lam (Cynthia) counterclaims against the plaintiff for $50,000 advanced to the plaintiff on about 2 December 2002.

347 Cynthia gave evidence that in 2002 Hau borrowed $50,000 from her. This loan was separate from his later borrowing of $50,000 from Bankwest on the security of the Rockbank land. The $50,000 loan from Cynthia took the form of a $50,000 bank cheque. Cynthia gave evidence that she handed the cheque to Hau in person. Cynthia's evidence was that the loan was made in December 2002 on the basis that it would be for six months and that Hau would repay the money in June 2003. Despite his promise to repay the money, he failed to do so.[319]

348 Under cross-examination, it became evident that though Cynthia did purchase a bank cheque for $50,000 payable to the plaintiff in December 2002,[320] the proceeds of the cheque were paid into the Vien Dong Tourist Services National Bank account on 6 January 2003.

349 Cynthia conceded that the bank cheque had been returned to her account. She said she totally forgot about the cheque, that one of her staff mentioned that Hau needed cash urgently and that the cheque would take three working days to clear. She said she clearly remembered that she gave him $50,000 in cash in 2002 and that she did not remember the cheque because the travel business was very busy at that time and 14 years had passed.

350 I found Cynthia's evidence on this issue unsatisfactory and unreliable. In my view, she reconstructed the evidence of having paid Hau $50,000 cash in 2002. Her evidence that Hau mentioned that he needed cash urgently was based on hearsay from a member of her staff. In any event, without admissible evidence, I am not satisfied that it would require three working days to clear a bank cheque or why the bank cheque could not have been specially cleared.

351 Further, there was no corroborative evidence in bank statements or other documents to indicate that $50,000 was redrawn from an account associated with Cynthia and paid in cash to the plaintiff. There was no evidence of terms as to the payment of interest or evidence that the loan would be interest-free.

352 The whole arrangement giving rise to the alleged loan and the obligation to repay the alleged loan was extremely vague. In my view, the passage of time has made the uncorroborated evidence of Cynthia too unreliable to be accepted with any confidence. Cynthia has failed to discharge the onus of proof on the balance of probabilities with respect to this counterclaim.

353 For completeness, I note that the second defendant, PFE, did not pursue its counterclaim seeking recovery of $66,495.51 to PFE from the plaintiff. The PFE counterclaim was pleaded but was not mentioned in opening or closing submissions and must be taken to be abandoned.

354 The plaintiff's causes of action to the effect that the properties were wrongfully transferred by means of sham transfers and the production of documents using the plaintiff's forged signatures raise matters of the utmost gravity. As indicated above clear, cogent or strict proof is necessary if fraud is to be found on the part of others. For the Court to be satisfied of fraud on the balance of probabilities there must be actual persuasion of its occurrence. The plaintiff failed to prove his case to the requisite standard. His case (in each proceeding) was bereft of clear, cogent or strict proofs.

355 Indeed I have found that the plaintiff did not have sufficient funds and did not provide funds with respect to the purchase, maintenance and upkeep of either the Rockbank land or the Altona property save that he may have made some minor expenditure with respect to earthworks and construction of sheds on the Rockbank land. In the scheme of things, these expenditures are immaterial.

356 I have found there was no inheritance and that Hau did not otherwise have the means and ability to pay for the properties or make payments with respect to the properties. I have rejected the plaintiff's claims with respect to caveats being placed on the Rockbank land and the properties being transferred without his knowledge. The plaintiff well knew of the caveats on the Rockbank land and consented to and facilitated the transfer of both properties.

357 In relation to the Bankwest loan, I have found that 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. I have also found that this resulted in a request to Cynthia for help, discussions within the Lam family, and Cynthia ultimately removing the first caveat subject to obtaining a Power of Attorney document and lodging the second caveat.

358 I have found that the plaintiff signed the Authority documents and the Transaction documents. The plaintiff failed to establish there were any forgeries. There were one or two documents in respect of which suspicions were raised. Such suspicions were insignificant against the weight of corroborated evidence adduced by the defendants.

359 It follows from my findings with respect to each of the issues for determination that I am not satisfied that Ms Tran breached any duty owed to the plaintiff arising out of the services she provided to him. In fact, Ms Tran went out of her way to protect the plaintiff's interests.

360 In respect of the counterclaims, I have found that Cynthia failed to establish her counterclaim on the balance of probabilities and that PFE abandoned its counterclaim.

361 It follows that the plaintiff's claim and the counterclaims must be dismissed.

[1] During the trial of each proceeding the Lam family members referred to each other by their first names. For convenience and without intending any disrespect to any Lam family member, I will do likewise in these reasons where appropriate.

[2] SCI 2014 0599 ('Rockbank proceeding'), SCI 2014 1504 ('Altona proceeding').

[3] Formerly Certificate of Title Volume 9649 Folio 079 now Volume 1084 Folio 734.

[4] Certificate of Title Volume 5720 Folio 894.

1. [5]Hou v Westpac [2014] VSC 606 [46] (Warren CJ); Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355, 360 (Barwick CJ, McTiernan, Gibbs, Stephen and Mason JJ); Re Barned's Banking Co; Ex parte Contract Corporation (1867) LR 3 Ch App 105, 116; Edwards v Skyways Ltd [1964] 1 WLR 349, 355 (Megaw J).

[6] Evidence Act 2008 (Vic) s 140(1).

[7] Evidence Act 2008 (Vic) s 140(2).

[8] [1938] HCA 34; (1938) 60 CLR 336, 361 (Dixon J). See also Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 712 (Dixon, Evatt and McTiernan JJ).

[9] [2010] NSWCA 331; (2010) 274 ALR 205, 343 [750] (Spigelman CJ, Beazley and Giles JJA).

[10] [1992] HCA 66; (1992) 110 ALR 449, 449 [50] (Mason CJ, Brennan, Deane and Gaudron JJ).

[11] [1984] HCA 81; (1984) 155 CLR 242, 246 (Gibbs CJ).

[14] Ibid 252 (Gibbs CJ); Sivritas v Sivratas [2008] VSC 580; (2008) 23 VR 349, 372 (Kyrou J).

[15] Sivritas v Sivritas [2008] VSC 580; (2008) 23 VR 349, 373 (Kyrou J).

[16] Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, 252 (Gibbs CJ) and 257 (Mason and Brennan JJ); Sivritas v Sivritas [2008] VSC 580; (2008) 23 VR 349, 372 (Kyrou J).

[17] Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, 261 (Mason and Brennan JJ).

[18] Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353, 265 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ); Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, 262 (Mason and Brennan JJ).

[19] Sivritas v Sivritas [2008] VSC 580; (2008) 23 VR 349, 371 (Kyrou J). See also Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, 246 (Gibbs CJ); Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, 589 (Gibbs CJ).

[20] Sivritas v Sivritas [2008] VSC 580; (2008) 23 VR 349, 371 (Kyrou J).

[21] Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, 261 (Mason and Brennan JJ).

[22] Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353, 365 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ).

[23] Nguyen v Phan (No 2) [2015] VSC 634 [237] (Elliott J) (citations omitted).

1. [24] Ibid citing Winterton Constructions Pty Ltd v Hambros Australia Ltd [1991] FCA 171; (1991) 101 ALR 363, 370 (Gummow J); Herdegen v Federal Commissioner of Taxation [1988] FCA 419; (1988) 84 ALR 271, 277 [45] (Gummow J).

[25] During the trial, Cynthia Lam, Mai Nguyen, PFE and VDT were collectively referred to as the Lam defendants.

[27] Contract of Sale for Rockbank, 30 June 2001, CB 1021-2 together with Section 32 Statement, CB 1023-7.

[31] Although Saigon was renamed Ho Chi Minh City the former name was used by most of the witnesses.

[33] T 150.26-151.3, Bank statements for August 2003, CB 2322-3; ABN search of Saigon Baker, CB 2324.

[51] Vien Dong Tourist Service Pacific Far East Unit Trust Income Tax Returns for the year ended 30 June 2002, CB 2094-129.

[52] Vien Dong Tourist Service Pacific Far East Unit Trust Income Tax Returns for the year ended 30 June 2002, CB 2094-129.

[56] T 473.9-474.1, 499.1-23; Remittance invoice for US$82,000, 10 June 1998, CB 2268-9.

[60] Deed of Sale, Exhibit P6, House Service Contract, Exhibit P7.

[61] Remittance Invoice, 10 June 1998, CB 2269.

[68] Affidavit of Phung Minh Lam, 11 February 2014, Exhibit P10.

This affidavit was admitted into evidence as an exception to the hearsay rule on the basis that the deponent was not available to give evidence.

[79] Cynthia T 654.31-655.4, Hung T 961.4-963.18, Mai T 1025.1-1026.1, Thuy T 993.16-17.

[85] It is not entirely clear whether the evidence is that the plaintiff exchanged currency with 10 or 20 customers each day or that, in total, 10 or 20 customers exchanged currency in this way.

[91] T 159.15. It was unclear whether Hau was referring to all documents relating to the purchase of the Altona property or just the documents relating to the mortgage.

[105] T 155.10-14. The plaintiff also said he gave money to Cynthia to pay land taxes and outgoings for Rockbank. T 162.26-30.

[116] T 163.19-164.9. Customer copy of loan application, CB 1131.

[120] T 165.3-10, Application for a new Certificate of Title in place of one lost or destroyed, 14 January 2005, CB 1098-102; 1104.

[123] Letter from Gadens Lawyers to Mr H Lam, 10 May 2005, CB 1115.

[129] There was a conversation to the same effect in relation to 16 Jerrold Street, Footscray.

[132] T 1212.19-1213.19; Rockbank caveat, CB 1107; Jerrold Street caveat, CB 2133; Altona caveat, CB 1686.

[139] Withdrawal of caveat, CB 1143; Statutory declaration of Phung Thuong Lam Huynh, 31 May 2005, CB 1141.

[143] Acknowledgement and authority to disburse, 27 May 2005, CB 1126,; Mortgage of land and certificate, CB 1122.

[144] Witness Certificate (Borrower), 27 May 2005, CB 1123.

[147] T 1237.4-27; Second Rockbank caveat, CB 1155.

[153] Original power of attorney, Exhibit LD3.

[164] Neil Holland, A Further Report on the Examination of Additional Documents Pertaining to 'Hau Lam v Pacific Far East Pty Ltd, 29 February 2016, 3-4, T 1541.16-18.

[166] Trevor Joyce, Further Forensic Report Hau Lam and Pacific Far East, 23 December 2015, [1.1]..

[167] Hau Lam, 'Plaintiff's Closing Submissions [175].

[173] Acknowledgement, 5 June 2006, CB 885, T 289.8-9.

[181] T 975.28-976.1, 976.9-14, 977.5-11.

[187] Trevor Joyce, Further Forensic Report Hau Lam and Pacific Far East, 23 December 2015, [1.1] and [8.3], CB 663 and 676.

[191] Letter from Ascot Solicitors Pty Ltd to Phung Thuong Lam, 18 April 2013, CB 2344-5.

[192] Letter from the Registrar of Titles to Ascot Solicitors Pty Ltd, 23 April 2013, CB 2350-1.

[193] Letter from Hau Lam to PT Conveyancing, 27 September 2013, CB 2371.

[194] Letter from Hau Lam to PT Conveyancing, 25 October 2013, CB 2388.

[195] Letter from Lanham Lawyers Pty Ltd to Ascot Solicitors Pty Ltd, 10 October 2013, CB 2377-8.

[197] T 173.22-27, Victoria Police Summary Reports, 15 June 2013 and 23 September 2013, CB 2190-1.

[198] T 177.6-179.25; Exhibit P2 Rockbank transfer of land documents.

[200] T 179.30-181.20; Exhibit P3 Altona transfer of land documents.

[201] Rockbank caveat, CB 1108; Rockbank caveat, CB 1155.

[202] Letters from Department of Environment, Land, Water and Planning to Hau Lam, 4 February 2005 (x2) and 18 August 2005, Exhibit P5; Altona caveat, CB 1686.

[206] T 1242.1-4; Section 32 Vendor's Statement, CB 1683A,.

[207] Letter from PT Conveyancing to Barlow McEwan Tribe (Altona) Pty Ltd, 23 June 2006, CB 1670A,.

[211] T 1245.15-1246.12; Letter from PT Conveyancing to Bankwest Discharge Dept, 9 August 2006, CB 1165; Confirmation of fax, CB-1166.

[212] Letters from Bankwest to Hau Lam,10 August 2006 and 18 August 2006, CB 1174 and 1186,

[216] Bankwest Request to Release Security, 2 October 2006, CB 1180,.

[219] T 1252.3-17, Letter from PT Conveyancing to Bankwest, 4 October 2006, CB 1187, and Fax Confirmation, CB-1188; Bankwest Request to Release Security, 2 October 2006 CB 1180.

[220] T 1252.12-22; Letter from PT Conveyancing to Discharge Department, Bankwest, 12 October 2006, CB 1191.

[223] Bankwest Facsimile Transmission, CB 1194.

[235] Contract Note and Vendor's Statement, each dated 2 May 2007, CB 1680A-1702

[239] T 1266.25-1267.26; Fax from PT Conveyancing to John Anile Pty, 14 May 2007, CB 1728-9.

[243] T 1408.4-30, 1395.19-20, 1397.7-11.

[244] T 1404.1-4. Word in parentheses added.

[245] Contract of Sale re Rockbank land prepared by Ms Tran, CB 1286-7

[248] T 1293.10-14; Transfer of Land Rockbank, CB 1255,

[251] T 1295.28-1297.25; Particulars of Sale, CB 1223; Transfer of Land, CB 1256; Real Property Value Statutory Declaration, CB 1230-2; Goods Statutory Declaration - On Sale, CB 1227-9; Bankwest Request to Release Security, CB 850; Authority, CB 1203; Acknowledgment, CB 1204; Acknowledgment, CB 1226.

[252] T 1298.8-25; Particulars of sale, CB 1223.

[253] T 1298.27-1299.3; Particulars of sale, CB 1223; Transfer of land, CB 1256.

[261] T 1302.24-1303.17, 1305.2-15, 1306.2-5, 1354.15-1355.12.

[265] T 1310.1-8, 1313.15-1314.5; Letter from Barlow McEwan Tribe First National to Cynthia Phung Thoung, 7 June 2007, CB 1274.

[268] Deposit Statement to the Purchaser of Real Estate, 7 May 2007, CB 807.

[269] NAB Letter of Instruction Surrendering Deeds, CB 806.

[270] Customer Authorisation and Privacy Declaration, 7 May 2007, CB 805.

[272] T 1324.24-31; Transfer of Land, CB 1816.

[273] T 1329.1-4; Letter from John Anile Pty to PT Conveyancing, 25 October 2007, CB 1780.

[275] Goods Statement for Residential Land, CB 1795.

[277] T 1333.11-13; Transfer of Land, CB 1816; Transfer of Land, CB 1817.

[279] T 1335.10-25; NAB Bank Cheque payable to M Nguyen and H Lam for the sum of $281,715.58, 2 November 2011, CB 1801.

[282] T 1337.1-7; Statutory Declaration of Hau Lam, CB 1834; Statutory Declaration of Mai Nguyen, CB 1835.

[283] Letter from John Anile Pty to PT Conveyancing, 13 November 2007, CB 1825; ANZ Bank Cheque payable to Hau Lam and Mai Nguyen for the sum of $1,775.00, 13 November 2007, CB 1826; Letter from John Anile Pty to PT Conveyancing, 14 November 2007; ANZ Bank Cheque payable to Hau Lam and Mai Nguyen for the sum of $103.14, 14 November 2007, CB 1828.

[287] T 1339.29-1340.20; Letter from State Revenue Office to Hau Lam, 27 March 2008, CB 1840 and Letter from PT Conveyancing to State Revenue Office, 28 April 2008, CB 1842.

[288] T 1341.4-27; Letter from Hau Lam to PT Conveyancing, 27 September 2013, CB 2371-2.

[289] T 1058.14-1059.7; Contract Note CB 1680A; The Vendor's Statement 1681A; Special Conditions, 1682A; Vendor's Statement to the Purchaser of Real Estate 1683A-1702.

[293] T 1068.15-25; Item 13, NAB Letter of Instruction Surrendering Deeds, CB 880.

[294] T 1073.26-1074.9; Transfer of Land, 2 November 2007 CB 882.

[295] T 1079.31-1080.4; Statutory Declaration of Hau Lam, CB 1834; Statutory Declaration of Mai Nguyen, CB 1835.

[296] T 1084.27-1086.1; NAB Bank Cheques, 2 November 2007, CB 1871; NAB Vouchers, 8 November 2007, CB 965-6..

[297] T 1089.11-24; Discharge Authority Letter of Instruction Surrendering Deeds, 2 November 2007, CB 883; T 1089.29-1090.15, Item 2, Customer Authorisation, 7 May 2007, CB 878.

[300] T 1118.28-1120.13, CB 1223, CB 1256.

[301] T 1077.2-1078.17, Exhibit LD5, CB 851, CB 852.

[304] Statutory Declaration, 19 November 2014, CB 2199.

[309] Telephone contacts, T 1240, 1244, 1245, 1250, 1254, 1256, 1269, 1317 and 1318; Attendances in person, T 1246, 1291, 1298-1299, 1306, 1320, 1331, 1335 and 1338.

[310] The reference in the Real Property statutory declaration to 2006 is clearly an error and should be 2007.

[312] Kelly/Lindblom, "Scientific Examination of Questioned Documents"; Huber/Headrick "Handwriting Identification and Studies from SITA"; Found, Alewijnse and Bird. Trevor Joyce, Further Forensic Report, 23 December 2015 [8.8], CB 677.

[313] Ibid [1.3], [1.5] and [8.6[, CB 662-3 and 667.

[315] T 1582.1-31-1583.1-28, Neil Holland, A Report on the Examination of Documents Pertaining to 'Altona Property Matter - Hau Lam', 13 August 2014, CB 298-9; Neil Holland, A Report on the Examination of Documents Pertaining to 'Rockbank Property Matter - Hau Lam', 14 August 2014, CB 403.

[316] Item 4, Transfer of Land, CB 351; Item 7, Contract Note, CB 354; Item 8, The Vendor's Statement, CB 355; Item 9, Special Conditions, CB 356.

[317] Item 16, Transfer of Land, 14 June 2007, CB 470.

[318] Item 19, Particulars of Sale, 25 May 2007, CB 473; item 20, Contract of Sale of Real Estate, CB 474.

[320] NAB Bank Cheque payable to Lam Hau for the sum of $50,000, 13 December 2002, CB 2186.