Plaintiffs v Defendant

1 This is a dispute among family members about the ownership of a modest house located at 113 Yarra Street, Abbotsford (the 'Property'). The Property was acquired by the plaintiffs in about December 1993 for $157,000, transferred to the defendant in July 1997 for $140,000 and is now valued at $865,000. It has at all relevant times been heavily mortgaged to the Westpac Bank. Notwithstanding the transfer of the title of the Property to the defendant in 1997, the plaintiffs claim to own the Property or to have an ongoing interest in it by reason of the manner and circumstances in which the transfer to the defendant was effected.

2 The dispute is among members of the Du family, who left Vietnam in the 1980s and 1990s to build new lives in Australia. The story presented to the Court was an inspiring but ultimately a sad one. Family members, having moved to Australia in difficult circumstances and with meagre resources, worked together to gain a foothold in Australia and pooled resources for the benefit of the family as a whole for many years. However, there are now deep divisions in the family. One sister is pitted directly against another, and less directly, against two other sisters. There is acrimony between siblings who once were close, and the anguish of family members caused by the present dispute was palpable in the courtroom.

3 The Du family is a large one. There are at least seven siblings.[1] The second plaintiff ('Hong') is one of the older siblings and the second oldest daughter. The defendant ('Huong') is Hong's younger sister by more than 11 years. The first plaintiff ('Hue') is Hong's husband, who came to Australia to marry Hong, having originally migrated to Canada. Two other sisters, Ngoc Du ('Ngoc') and Cuc Xuan Du ('Cuc') were also involved in the events leading to the dispute, and gave evidence in the proceeding.

4 In essence, the plaintiffs allege that they bought the Property using funds belonging to or borrowed by them and paid all expenses (the mortgage repayments and rates and charges) up until July 1997, when they ceased to do so, having entered into some kind of arrangement whereby Huong and the other family members living at the Property would take over the responsibility for the mortgage repayments and other outgoings.

5 In fact, on 1 July 1997, the plaintiffs executed documents transferring the Property to Huong. The plaintiffs say that they did not realise that the documents that they signed in July 1997 effected the transfer of the Property to Huong. They claim to have been under the misapprehension until early 2012 that they remained the registered proprietors of the Property.

6 The defendant, Huong, contends that the plaintiffs agreed to transfer the Property to her as part of an agreement between family members made in late 1996 or early 1997 for the division of family assets, the plaintiffs having decided to retain a family business rather than the Property, and that the ownership of the Property carried with it an obligation to care for the elderly parents, who would continue to live in the Property.

7 Large parts of the family story are uncontested and form relevant background to the events in issue.

8 The family ran small businesses in Vietnam. However, after the establishment of the communist regime in 1975, family members were keen to leave Vietnam. They left in piecemeal fashion as and when the opportunity arose, principally as refugees. The oldest sister, Ngoc, was the first of the sisters to arrive in Australia and she sponsored her younger sisters, Huong and Cuc, to join her in 1988. Hong came to Australia a year later. Initially, the sisters lived in Sydney, but moved to Melbourne when Ngoc and her husband bought a takeaway food business in Victoria Street, Richmond (the 'takeaway business'). Hong, Cuc and Huong lived briefly with Ngoc and her husband behind the takeaway business before moving into a flat of their own in Brunswick. Hong assisted in the takeaway business, but in December 1992 established her own business as a seamstress doing piecework from home. During this period, the younger girls, Cuc and Huong, attended school while Hong ran the sewing business. Hong did the bulk of the sewing work, but Cuc and Huong helped out after school. According to Huong, this sometimes meant working through the night.

9 It appears that each of the sisters received a government payment of some kind, as well as sharing the income from the sewing business.

10 In 1992, the parents arrived in Australia with a further sister, Thanh. The family moved together to a larger flat in Richmond. According to Huong, they shared dreams of buying a house for them all to live in.

11 In October 1993, Hue travelled from Canada to Australia to visit Hong, who he had first met in Vietnam and then again in a refugee camp in Pulau Bidong, Malaysia. Hong and Hue revived their romance and married on 20 November 1993.

12 Shortly before the marriage, family members agreed that a house should be acquired for the parents to live in. They looked for a suitable property in Richmond, where the parents would feel comfortable among other members of the Vietnamese community. At Ngoc's suggestion, the Property was inspected and, in December 1993, Hue and Hong entered into the contract for its purchase.

13 The purchase of the Property was completed on 21 March 1994 with the assistance of a loan of approximately $125,000 from the Westpac Bank. Following settlement, the parents and younger daughters, Cuc, Huong and Thanh, moved into the Property. In April 1994, Hong and Hue left for Vietnam to celebrate their marriage.

14 While Hong and Hue were in Vietnam, Ngoc decided that she could no longer run the takeaway business and suggested that other family members take it over. Upon the plaintiffs' return from Vietnam, it was agreed that the takeaway business should be run by them, with the assistance of Cuc and Huong, who had by this time left school. The takeaway business was acquired for $20,000 in July 1994 and, like the Property, the business was registered in the names of Hong and Hue. Over time, the purchase price was paid from the takings of the business. Ngoc had acquired the business for $85,000 but was content to sell it to family members for significantly less and on delayed terms.

15 While they were running the takeaway business, Hue, Hong, Cuc and Huong lived on the business premises. Hong did most of the food preparation, while Cuc and Huong served customers. The division of labour was due to the younger sisters having good English, whereas Hong did not. In October 1994, Hue obtained work as a welder at Hills Industries and had limited involvement in the day-to-day operation of the business until he resigned from his welding job in November 1996.

16 The takeaway business apparently prospered until late 1996. The takings from the business were distributed by Hong to family members in cash and were used to make the mortgage repayments on the Property and to pay expenses associated with it. The plaintiffs say that Hue's wages were also used for the purposes of the business and for the upkeep of the Property.

17 However, in November 1996, Hue resigned from his job as a welder, returned to the takeaway business and decided to make changes that involved abandoning the takeaway formula and operating the business as a café serving food to order. Cuc and Huong strongly disagreed with this strategy.

18 There is a dispute about why Cuc and Huong left the business and when precisely this occurred, but it is tolerably clear that in late 1996 there was a serious disagreement about the direction of the business and that by early to mid-1997 both Huong and Cuc had ceased working in the business and had returned to live with the parents and Thanh at the Property. The business was left in the hands of Hue and Hong.

19 According to Huong, in late 1996 or early 1997, her mother, the matriarch of the family, convened a family meeting at which it was decided that the family assets, comprising the Property and the takeaway business, should be divided between family members. Hong and Hue were given the choice as to which asset they wished to retain. They chose the takeaway business.

20 Hong and Hue strongly dispute that there was any such meeting or any such agreement. They say that they were left with the business when Huong and Cuc walked out, and that it was difficult for the business to survive without their assistance.

21 In fact, the takeaway business ceased to operate shortly before or at about the time of the events presently in issue.

22 The events that are the subject of this proceeding occurred in late June 1997. It is common ground that there was an exchange of legal documents between Hue and Hong on the one hand and Huong on the other. Hue and Hong say that because of the problems experienced by the business, they were suffering financial hardship and could no longer afford to make the mortgage repayments on the Property. In addition, Hong was pregnant, and would not be able to continue working in the kitchen. They therefore retained solicitors to prepare a document to give the family members living at the Property permission to make the mortgage repayments and pay the other expenses for the Property on their behalf.

23 For her part, Huong retained a different firm of solicitors to prepare a contract of sale and related documentation (the 'transfer documents') to transfer for the Property from the plaintiffs to her.

24 The bare facts relating to the execution of the transfer documents are these. Hue and Hong first visited the family at the Property with the document that their solicitors had prepared. The family would not agree to the arrangement proposed. Hue and Hong left the Property distraught. A few days later, Huong visited the takeaway shop and left the transfer documents for Hong and Hue to sign. The transfer documents were executed by Hong and Hue on 1 July 1997.

25 No consideration was paid for the transfer, although the transfer documentation recorded a purchase price of $140,000.

26 Following these events, nothing was said about the ownership of the Property for many years. Huong, the parents, and more recently, Huong's husband and children, have lived in the Property and paid the mortgage and all outgoings since at least that time. Huong has borrowed against the Property on a number of occasions and has significantly increased the amount owing under the mortgage. Hue and Hong have made no further contribution to the Property, but have gone on to buy a number of other properties in their own right, including investment properties in the United States. The family as a whole has - until the present dispute - continued to get together regularly and happily for family occasions, often at the Property.

27 The present dispute arose in late 2011, when Huong told family members that she and her husband were thinking of selling the Property. When the prospect of sale was raised again, and a billboard erected at the front of the Property advertising its sale, Hue and Hong made inquiries of the Titles Office and, they say, learned for the first time that they had ceased to be the registered proprietors of the Property in mid-1997. They say that this was an enormous shock to them.

28 In the Statement of Claim, the plaintiffs plead simply that in or about December 1993, they purchased the Property, which was conveyed to them on 21 March 1994. They say that from about March 1994 until May or June 1997 they permitted Huong and other members of the family to live rent-free at the Property while they made mortgage repayments to the Westpac bank. In about May or June 1997, they requested Huong and other members of the family to take over responsibility for the mortgage repayments in return for being allowed to continue living at the Property rent-free. However, at about that time, Huong, without their knowledge, consent or authority, organised a transfer to be prepared by her solicitors documenting the transfer of the Property to her for the purchase price of $140,000. They allege that she procured their signatures on the purported transfer without disclosing to them that the document was to transfer the Property from them to her.

29 It is an essential part of the plaintiffs' case that they had very limited skills in reading and understanding written English and could not read or understand the nature of the transfer documents or the extent of the obligations they created. As a result, they allege that their execution of the transfer took place under a total mistake as to their nature, content and subject-matter and in the bona fide belief that they were signing documents to enable Huong to make mortgage repayments to Westpac Bank in respect of the Property. The plaintiffs allege that the transfer of the Property from them to Huong is void on the grounds of non est factum and is liable to be set aside.

30 In the alternative, the plaintiffs plead that they were under a special disadvantage, that when Huong presented the transfer documents to be signed by them, she knew or ought to have known that they were under a special disadvantage and that she unconscientiously took advantage of it. They allege that it was unconscionable for Huong to procure or accept their execution of the transfer documents and that they are entitled to have the transfer set aside.

31 The special disadvantage and the unconscientious taking advantage of the special disadvantage is pleaded at length, and will be considered in detail below.

32 It is Huong's defence, in substance, that the plaintiffs knew exactly what they were signing when they executed the transfer documents, as they had agreed to transfer the Property to Huong as part of a division of assets agreed by family members in late 1996 or early 1997.

33 In her Defence, Huong pleads that there was a common understanding between family members that the Property would be placed in the name of Hong and Hue but that the Property would be the property of them all. Likewise, the takeaway business was bought to be operated for the benefit of the family. However, in the first half of 1997, the plaintiffs told Huong, Cuc and the parents that they did not wish to continue with the joint arrangements and wished to live independently without Huong or Cuc being involved in the takeaway business. As a result, the parents convened a meeting attended by Hong, Hue, Huong, Cuc and Thanh at which the mother stated that it would not be fair for the plaintiffs to keep both the Property and the takeaway business as the money had been contributed by everyone and that Hong should have first choice as to which she wished to keep. Hong elected to retain the takeaway business and the family agreed that Huong would take the Property and look after the parents.

34 Huong pleads that, contrary to this agreement, the plaintiffs caused to be prepared a legal document that did not effect a transfer of the Property, and when Huong told the plaintiffs that it did not reflect what had been agreed, the plaintiffs told her that she would have to engage her own solicitor to prepare a transfer to give effect to the agreement. Huong pleads that in about June 1997, she advised the plaintiffs that the transfer had been prepared and that they needed to attend the solicitor's office to execute it but Hue said he was too busy to attend and asked Huong to deliver the documents to him. Huong delivered the transfer to Hue and left it with him, along with the details of the Vietnamese speaking solicitor who had prepared the transfer documentation.

35 The parties' contentions are therefore diametrically opposed. Hong and Hue assert that they signed the transfer of the Property under a total mistake as to the nature and effect of the documents they were signing and because Huong unconscientiously took advantage of the special disadvantage under which they laboured. By contrast, Huong asserts that Hong and Hue transferred the Property to her pursuant to an express agreement or common intention that this occur as part of a division of assets within the Du family and that the plaintiffs therefore well knew the nature and effect of the document or documents that they signed.

36 Much of the background to the execution of the transfer documents is uncontroversial. However, there remain a number of areas of dispute concerning the parties' intentions regarding the ownership of the Property when acquired by Hue and Hong and the respective contributions to its purchase and upkeep, including who raised the funds for the deposit, and who made the mortgage repayments and how. There is also a dispute as to whether Huong and Cuc were driven out of the business by the plaintiffs' desire to go their own way or whether they walked out over a disagreement, having refused to accept the changes that were proposed by Hue. In reality, these are subsets of the principal controversy, which is whether there was an agreement (as alleged by Huong) to divide and distribute family assets pursuant to which the plaintiffs executed the transfer documents. The resolution of this dispute is important, because if there was an agreement to transfer the Property to Huong in return for retaining the takeaway business, the plea of non est factum and allegation of unconscionable conduct must be assessed in an entirely different context from that alleged by the plaintiffs.

37 Huong contends that the Property was bought using pooled family funds and that it was understood to be a family property.

38 It is common ground that the property was acquired, at least in part, to provide a secure home for the parents. However, in her witness statement,[2] Hong states that she decided it would be better to own a property than to pay rent and that she and Hue looked around and decided to buy the Property. She states that the initial 10% deposit was paid out of $8,000 from Hue's savings brought in cash from Canada and the remainder from her savings from the sewing business. She gave evidence that she raised a further 10% from a 'Hoi' to which she had contributed $2,000. The Hoi is (or was) a commonly used method in the Vietnamese community of making funds available among a group of friends and relatives. Members would contribute a fixed amount and then make 'bids' for the pooled funds. Although she had access to the funds in the Hoi for the purpose of raising the deposit on the Property, Hong states that she knew that she and Hue would have to pay back the amount taken from the Hoi. This would occur initially from money that Hong received from her seamstress business and then from the earnings of the takeaway business.

39 For her part, Huong gave evidence that the family funded the purchase of the Property using a pool of funds of approximately $40,000 to $50,000 from three sources including:

(c) financial support from siblings in the United States of America.

40 According to Huong, Hue did not contribute to this pool of funds.

41 Cuc gave evidence of a 'family' contribution of around $30,000 to pay the deposit. She also stated that Hue did not contribute to the deposit, although Hong told her that Hue had brought 10,000 Canadian dollars into the country.

42 The mother, now deceased, made a statement to the defendant's solicitor on 6 June 2012 in relation to the proceeding (the 'mother's statement').[3] The mother's statement confirms that the family pooled money to purchase the Property and again to purchase the takeaway business. She received government benefits and all her money was pooled and went into the takeaway business and the Property.

43 I observe that in cross-examination, neither Cuc nor Huong professed to having much direct knowledge of the financial and other arrangements for the acquisition of the Property in 1993. However, Cuc gave evidence that she was aware of Hong's involvement in the Hoi. I think it likely that Hong made a significant contribution to the deposit for the Property. However, that is not to say that she contributed money that was exclusively hers in order to buy a property that would be exclusively hers (or hers and Hue's). It is apparent from the evidence of all the family witnesses that, in their early years in Australia, they worked together and pooled funds in order to establish themselves. Hong's savings from the sewing business were funds to which both Cuc and Huong contributed through their labour. Their contributions may have been smaller than Hong's contribution, but they were contributions nonetheless. The sewing business was also the source of the contributions to the Hoi. The monies taken from the Hoi had to be repaid, as Hong herself said, from the income from the sewing business and later, from the takeaway business, to which Huong and Cuc also dedicated their labour.

44 The pooling of funds was consistent with the way that the Du family conducted itself at this point in time. In relation to use of pooled funds, Huong said in her witness statement:[4]

It is common in Vietnamese culture, and specifically my family, to pool funds for a common benefit.

45 To similar effect, Ngoc said in her witness statement:[5]

Our family supports each other. It is part of our Vietnamese culture that we pool money to help the family. I agreed to sell the takeaway business for $15,000 because I was selling it to my family. I let them pay money over time to my ex-husband.

46 Hong agreed that the takeaway business was a family asset. When giving her evidence, Hong was asked whether, if there was going to be a separation, it would be reasonable to expect there to be some division of the assets given the pooling of effort. She said:

The house is mine that's for sure because I use my money to buy the house. The takeaway shop it was agreed that it's a family business and they will all agree that the expenses and the earnings are share among the members but the house that's mine because I use my money and if I hadn't bought the house they would have to pay rent anyway so here they didn't have to pay rent. The money from the business is shared but the house is mine.[6]

47 It was common ground that the takeaway business was the principal source of income for the family as a whole and, as Huong said, a means of creating jobs within the family. Hong agreed that up until late 1996, the business was generating enough money to meet the expenses of the family as a whole, although she also referred to Hue's income from his work outside the business.

48 The Property was put in the names of the plaintiffs jointly, which prima facie points to their ownership of it. However, Huong gave evidence that at the time the Property was purchased, Hue had just visited from Canada and was being sponsored by Hong. The family agreed that the Property would be registered in their names to assist with Hue's sponsorship but on the basis of the understanding that it would be family property. In the mother's statement, the mother also expressed her understanding that registering the Property in Hue's and Hong's names would help Hue's application for residency in Australia.

49 This too seems to me to be consistent with the manner in which the family approached the business of settling in Australia. They were pragmatic about what needed to be done to bring family members to live here and to assist them to establish themselves in Australia. Although there was in evidence part of an official form, described in the court book index as '2 pages from the immigration application (undated)' in which Hong has described her home and the place where her sponsored relative (Hue) would live as a rented house, I accept that family members might reasonably have believed that it would assist Hue's resettlement in Australia if he held property in his name and/or if he and Hong owned property jointly.

50 In any event, the Property had to be put in the name or names of one or more family members. Hong was the second oldest of the children living in Australia, and she and Hue were among what Huong described as 'the senior people' in the family. Cuc and Huong were not.

51 I do not consider the fact that the Property was in the names of the plaintiffs to be decisive. Hong agreed that the takeaway business was a family business, yet that too was registered in the names of Hong and Hue.

52 The evidence of the way in which family members worked together in the sewing business and then in the takeaway business, without wages except for the payment of living expenses from the income of the businesses, shows these enterprises to have been operated on the basis of common endeavour. These enterprises generated funds for the acquisition of the Property, that is, for the deposit and ongoing mortgage repayments. Moreover, given the dependency of the parents and the evidence that the children proposed to care for the parents by acquiring a property for them to live in, I find there was an intention that the Property provide a home for the parents and for whichever family members would care for the parents as they aged. The Property was intended to be a family asset, at least in this sense.

(a) Although the Property was acquired in the plaintiffs' names as joint tenants, other family members, particularly Huong and Cuc, contributed to the deposit and the repayment of the mortgage;

(i) contributed to saving the deposit by assisting Hong in the sewing business;

(ii) contributed to the payment of the mortgage from the proceeds of the takeaway business, in which they worked.

(c) Likewise, Huong and Cuc, made a significant contribution through their labour to the takeaway business.

54 The Property and the takeaway business were, until late 1996 or early 1997, family assets in that all members of the family contributed to their acquisition and upkeep or operation, and they were used for common purposes. While they probably made a larger contribution to the acquisition of those assets than either Cuc or Huong, Hue and Hong were significantly older than Cuc and Huong and were in a position to take greater responsibility for the fortunes of the family.

55 That both the Property and the takeaway business were understood to be family assets supports there having been an agreement about their division and distribution once family members ceased working together in the takeaway business and using the takeaway business to generate income for the family as a whole. It would be unfair in the circumstances for Hue and Hong to retain both the Property and the takeaway business when family members ceased engaging in the common enterprise. This coincided with Hue leaving his job as a welder and returning to run the business.

56 It is common ground that in the second half of 1996, Hue decided to leave his welding job and return to the takeaway business, and that he announced his decision to change the way that it operated. Huong gave evidence that when this occurred, Hong and Hue told her and Cuc to leave. As a result, in late 1996 or possibly early 1997 there were many family discussions concerning the current and future ownership of the Property and the takeaway business. According to Huong, her mother said that because of the amount of money that had been collectively contributed to purchase the Property and the takeaway business, those assets had to be split between Hong and Hue on the one part, and Cuc and Huong on the other. Hong and Hue would be allowed to choose which they wanted to keep. In her witness statement, Huong states:

Our family then agreed that the Plaintiffs would keep the takeaway business and that Cuc and I would have the Property and look after mother and father who would live in the Property. Whoever had the Property had the obligation of looking after mother and father.

57 It was not disputed that as a matter of fact, Huong continued to look after the parents and the parents continued to live in the Property.

58 In her witness statement Cuc states that about the time that Hue said he wanted to work in the takeaway business himself, Hong encouraged her to leave the business and find another job in order to have a social life. Cuc told her mother what Hong had said and the mother called a family meeting. Cuc's witness statement continues:

In that meeting, my mother said to Hong that she had to choose between the takeaway business or the Property. She said that if she chooses the takeaway business she had to give up the Property, otherwise if she chose the Property, she had to give up the takeaway business. This conversation took place at the takeaway business. My mother was talking to Hong and Hue. I was working in the front of the shop and I was very close to the meeting so I could hear what was being said. Huong was working with me in the front of the shop. Hong and Hue said that they chose to keep the takeaway business.

59 In her oral evidence, Cuc was much less clear about whether there was an agreement as alleged. The plaintiffs submit that in cross-examination, Cuc unequivocally testified that no discussion in fact took place to transfer the Property and that the Court should accept that there was no meeting or discussion between the parties in which a division of assets was discussed.

60 It is true that Cuc's oral evidence was inconsistent in parts with her witness statement. She gave evidence that Hong said the Property would be transferred to her, Cuc. The following exchange took place during cross-examination:

As I understand your evidence, you say that there was an arrangement whereby the business would stay in Hue and Hong's name but the property had to be transferred to your sister Huong? --- It was supposed to be transferred to me.

I see, and when you say it was supposed to be, where was that first discussed? --- When - when living in the shop.

And who was present at those discussions? --- No, that's what he said and they volunteered to put it in my name.

....

The question was who was present at those discussions? --- What do you mean? I don't understand.

Which people took part in the discussions about transferring the property? --- There was no discussions about transferring the property. She - they said they didn't want the house and that's what happened.

Why wasn't the property transferred to you? --- Because at that time my mum wanted to live with my younger sister, and my younger sister also wanted to live with my mum, and that house wasn't worth much at that time. I said, 'If you want to, if you want it, that's OK. You can have it, because you live with mum so'[7]

61 Cuc explained that her parents were very healthy at that time and did not need anyone to look after them, but that the family all wanted to have someone live with the parents so that they would be looked after when they got older.

62 I reject the proposition that Cuc gave unequivocal evidence that there were no discussions of the kind alleged by Huong. Cuc said there was discussion about the transfer of the Property to her when they were living in the shop. However, in the next breath she said there were 'no discussions' about transferring the Property. It is necessary to consider this statement in context. In the following sentence Cuc said 'She - they said they didn't want the house and that's what happened.' Having regard to her previous evidence that there had been discussions about transferring the Property (at least to her), when she said there were no 'discussions' Cuc may have meant no 'debate' or 'argument'. Her evidence was that when told they must choose between the Property and the business, Hong and Hue said they did not want the house and that is what happened: that is, there was no debate or argument about it. This would be consistent with 'them' volunteering to put the Property in Cuc's name.

63 Cuc also gave evidence that there was no discussion about the Property being transferred to the parents. When it was put to Cuc that the reason there was no discussion about the property being transferred to the parents was because the plaintiffs at all times intended to maintain ownership of the Property, Cuc said:

No, that's not correct. They just said they didn't want to live with my parents, so that's why we lived there with them. Because they said they wanted to live separately. They wanted to have their own family.[8]

64 Cuc's oral evidence was that she, Huong and the parents were told to 'go' (leave the business) because Hue and Hong had their own plans. She gave evidence that her mother said to Hue and Hong, 'If you have your own plans, that's all right. That's OK. We'll go.' Cuc's evidence was to the effect that she thought it unfair that 'he' - Hue - took the shop, because she had put in a lot of labour and effort, and it was the shop that earned the family income. She said as much to her mother, who replied that it was 'all right' if Hue wanted to do his own things.

65 This was a consistent theme in Cuc's evidence. Later, Cuc gave evidence that she suggested that she should take the shop and Hong should keep the Property so that Hong could stay and look after the parents. However, Hong would not agree to this because Hue had his own plans. Cuc said that she really wanted to keep the takeaway shop because it was very busy at that time.

66 There was evidence from other witnesses that they were told in 1996 or 1997 about the family agreement to divide the assets. That evidence is relevant to rebut a suggestion of recent invention. Ngoc gave evidence that she was told in 1997 that Hong and Hue had chosen to keep the business and Huong would receive the Property. She said she was told about the discussions and arrangement when she went to visit the parents at the Property. Likewise, Huong's former boyfriend, Mr Tran, gave evidence that in around 1996 or 1997, Huong told him that Hue and Hong had been asked to choose between the Property and the takeaway business and that they had chosen the latter, which they were going to convert into another business later.

67 The existence of the family agreement that is alleged by Huong is also supported by the mother's statement.

68 The plaintiffs submit that it is inherently improbable and illogical that they should have agreed to transfer the Property to Huong without any payment or consideration. In this regard, they submit that the contemporaneous written records show that the business had ceased to operate on 30 April 1997 and it is therefore improbable and illogical that the plaintiffs should have chosen a defunct business over the Property.

69 The record in question is a 'Notice of Cessation of Business Under Business Name' under the Business Names Act 1962 (Vic) signed by Hue and Hong that nominates 30 April 1997 as the date on which the business ceased to operate under the name that had been registered. However, both Hue and Hong gave evidence in their witness statements that the business ceased to operate at the end of June 1997.

70 Whether the business closed its doors at the end of April 1997 or at the end of June 1997, the family agreement is alleged to have been made in late 1996 or early 1997 shortly after Hue left his welding job and returned to run the business. There was no suggestion from any of the witnesses that the business was not doing well when Hue left his job on 8 November 1996. It is unclear when the business started to do badly and why. The salmonella scare involving Vietnamese 'pork buns' given as the reason for changing the business model occurred on 23 March 1997, which was well after Huong had left the business, well after the disagreement about the business model and well after the family agreement is said to have been made.

71 I do not consider it to be implausible that, at the end of 1996 or in early 1997, Hong and Hue should decide to keep the business rather than the Property. The business was by then the only source of income for the family (other than government benefits) and remained an asset from which they derived income and for which they had plans.

72 No explanation was given as to why Hue left his welding job, although Hong stressed its importance to their ability to pay the expenses of the business and make mortgage repayments on the Property. It is open to infer that Hue's return to the business placed strains upon family and business relationships. Hue and Hong wanted to make changes to the business that were strongly opposed by the other family members. The shared arrangements broke down, whether Huong and Cuc chose to leave or were asked to leave by Hue and Hong. The parents, too, ceased to be involved in the business at this time. There was clearly a parting of the ways.

73 I accept Cuc's evidence that the mother thought that Hue and Hong should be able to have their plans and 'do their own things'. I also accept Huong's evidence that the mother initiated discussions and that there was an agreement or understanding to divide and distribute the family assets pursuant to which Hong and Hue would keep the business but transfer the Property to one or other or both of the younger sisters, who would remain in the Property to look after the parents.

74 Hong and Hue gave evidence that they were paying the mortgage on the Property throughout the first half of 1997 but could not afford to continue to do so once the takeaway business closed. As a consequence, they decided to have a legal document drawn up permitting the other family members to make the mortgage repayments on their behalf.

75 In the absence of the discussions and agreement or understanding between family members alleged by Huong, this makes no sense to me. I see no reason for a 'legal' document to be prepared permitting family members to pay the mortgage and outgoings on the Property. The evidence was that, like everything else, the mortgage repayments were made in cash, with one or other of the persons working in the takeaway business delivering the cash to the bank each month. I see no purpose in a document that does no more than to 'permit' or authorise family members to do what they were not in any way restrained from doing, that is, going to the bank every month to make mortgage repayments to ensure that they could continue living in the Property.

76 It was the evidence of both Huong and Cuc that they and the parents were paying the mortgage by this time. Huong gave the following evidence:

By the end of 1996 we made it very clear that they are responsible for the Victoria Street business. We are responsible for the house in Abbotsford [the Property], even though they - we are responsible of Abbotsford but they are still the owner. Their name still the ownership. They stop paying for expenses in the Abbotsford property since then when the decision was made.[9]

77 I accept this evidence, as it forms part of a consistent and plausible account of events given by Huong.

78 However, it is common ground that in about June 1997, Hong and Hue presented a legal document to Huong, Cuc and the parents at the Property. That document no longer exists and none of the parties could say precisely what it did or purported to do. Huong and Cuc complained that the document did not represent or reflect what had been agreed in relation to the distribution of the family assets. The document proposed - or the proposal that it contained was predicated on - Hong and Hue retaining ownership of the Property. In my view, the fact that Hue and Hong considered it to be necessary to have a legal document drawn up to present to family members suggests that they were proposing to change arrangements that had been previously agreed but to which they no longer wished to be tied. Huong and Cuc refused to accept the new arrangements that were proposed. However, it has not been suggested that they did not make the mortgage repayments, at least after June 1997.

79 In the light of the family agreement and the refusal by family members to accept the (alternative) arrangement proposed by Hong and Hue, I consider it to be very likely that the plaintiffs knew the documents delivered to the takeaway business by Huong to be documents effecting the transfer of the Property and that when they executed the transfer documents on 1 July 1997, the legal consequence would be to transfer the Property to Huong. I do not accept their evidence that they believed themselves to be the owners of the Property up until early 2012.

80 I am supported in this view by the existence of a letter that Hue sent to the State Revenue Office in September 2009 after he had received a land tax assessment for the Property. The letter is dated 21 September 2009 and reads as follows:

TO WHOME IT MAY CONCERN

I'm Hue Dieu Luong at 1 Kinnane Crescent Sunshine Vic 3020. Currently I owned a house at above address. The Property at 113 Yarra St Abbotsford Vic 3067 was sold in 1998, it is not belong to me anymore since then. So this 2009 land tax assessment notice is not related to me. Please double check again.

Yours truthly

Hue Dieu Luong

81 In his witness statement,[10] Hue states that he received a land tax assessment in 2001. He did not know what the notice was about but he just paid it, thinking it was a bill. He did not see any reference to the Property. He received another land tax notice in 2009 for a larger amount. Again, he did not know what it was about or what he had to pay for. He showed the notice to Hong, who said he should see a lawyer or ask a friend. Hue noticed that it was for a payment to be made in relation to the Property and he therefore contacted Huong to tell her that he had received a notice that should have been sent to her, as she was living in the Property. Huong told him to contact the State Revenue Office and tell them that the house had been sold. Hue's witness statement continues:

Following my conversation with the defendant, I typed a letter to the State Revenue Office, on my cheap computer which I had just purchased. I thought I would use it to practice my typing skills and was very proud of it. The contents of the letter is incorrect as I always believed the Abbotsford Property always belonged to us, however at that time I did not want to be paying for any of the expenses of the Abbotsford Property as I was not living there.

I did not show my wife the letter but just sent it out by post and told her I had dealt with the matter. I did not have to pay for the land tax for the Abbotsford Property and received no notices after that.

82 According to Hong, in about 2009, Hue received a letter from the State Revenue Office requiring the payment of land tax for the Property. She and Hue discussed it but neither of them knew what the notice was about. Hong called Huong about the letter to ask why she and Hue should be paying land tax when they had authorised Huong to pay the mortgage and other expenses related to the Property. According to Hong, Huong told her to tell Hue that the house had been sold. This did not make sense to Hong and she thought Huong must be joking. Hue later told Hong that he had sent a letter and the matter had been sorted out.

83 I find these attempts to explain away Hue's letter to the State Revenue Office to be entirely unconvincing. Hue's letter states in clear terms that the Property has not belonged to him since 1998, when it was sold. Hue's request to 'please double check again' the ownership of the Property reveals his belief that the records would show that he was not the owner of the Property. In my view, the letter shows that Hue well knew that he was not the owner of the Property and that he had not been its owner for many years. I find that Hong also knew that she was not the owner of the Property because, apart from the improbability that Hue neglected to say anything to her about the sale of the Property, her account that she simply passed over as a joke Huong's advice that she should tell Hue to say the Property had been sold is implausible.

84 Hong was cross-examined at length about further acquisitions of property by her and Hue, and applications made by them to borrow money to fund these acquisitions. In June 2000, Hue purchased a property in Sunshine and borrowed money from the ANZ Bank to do so. In 2006, further moneys were borrowed from the ANZ Bank in order to open up a $2 shop. In 2009, Hue bought a further property in Braybrook and again borrowed money from the ANZ Bank. Although none of the loan application documentation was available, Hong confirmed that the ANZ Bank was not informed of the existence of the Property and the plaintiffs' interests in it at the time of taking out the loans.

85 The evidence was that Hong and Hue entered into a number of property transactions and borrowed money after 1997 without ever mentioning their ownership of the Property. The ownership of the Property - and the existence of the mortgage to the Westpac Bank - would have been highly relevant to obtaining further loans. However, Hue and Hong remained silent about the Property. Again, this strongly suggests that they knew that they did not own it.

86 For the most part, where the evidence of Huong conflicts with that of Hue and Hong, I have accepted the evidence of Huong. The plaintiffs submit that the Court should not accept the evidence adduced on behalf of Huong for a number of reasons:

(a) Huong and 'her' witnesses made self-serving speeches and gave the impression of sticking to a script rather than telling the truth. Moreover, Huong admitted to reading over her witness statement prior to resuming her evidence and Cuc spoke to members of the family over the weekend, even though she was under cross-examination and was directed not to;

(b) Huong presented false documents when applying for the loan and increases to the loan and relied on the same documents in the proceeding;

(c) Likewise, the amount of consideration inserted in the contract of sale was entirely fictitious;

(d) Huong challenged Hong's evidence about the Hoi even though Cuc freely admitted that she knew Hong participated in the Hoi to have money to buy the Property and withdrew money from the Hoi to purchase the Property;

(e) Neither Huong nor Cuc had any real involvement in the financing and negotiation for the purchase of the Property, even though they testified with apparent certainty to financial matters in their witness statements;

(f) Huong's explanation as to why the Property was transferred to her name alone (to the exclusion of Cuc) does not withstand scrutiny as Cuc did not have the alleged plans or intentions at the relevant time. It was only some years later that she met her husband and moved to Queensland.

87 There was a fundamental problem with much of the evidence before the Court, quite apart from the weakening of recollections with the passing of time. The Du family's financial and other arrangements were essentially pragmatic, based on cash transactions with little or no record keeping and made with an eye to securing whatever advantages or benefits were available. Huong's application for mortgage finance in 1997 is replete with inaccuracies. Her 'work history' in the business of her boyfriend, Mr Tran, is dubious. However, the evidence of Hong and Hue about the letter to the State Revenue Office, if accepted, also reveals a preparedness to lie about arrangements to secure an advantage. If the evidence of any particular family member had to be discounted or disregarded because he or she mis-stated facts or failed to make accurate disclosure to a lender or an agency, then it would be necessary to discount or disregard much of the evidence given by members of the Du family.

88 The 'fictitious' consideration recorded on the transfer documents falls into this category. I accept the evidence that the amount was a nominal amount given for the purpose of minimising stamp duty. The Property was worth considerably more than $140,000 at the time it was transferred to Huong. The consideration for the transfer was that family members gave up any claim on the business.

89 As to Cuc discussing the questions in issue in the proceeding with family members while still under cross-examination, I have cast a critical eye on her evidence as a result but have decided nonetheless to accept parts of it as truthful and accurate.

90 Further, if the evidence of Huong was self-serving, then the same may be said of the evidence of both Hong and Hue. According to Hong's witness statement she supported the family almost single-handedly until 1996: she earned the gold to enable family members to escape Vietnam; she secured accommodation for and worked tirelessly to support her younger sisters while they attended school and enjoyed themselves; she put in punishing hours at the takeaway business while the others did much less. Hong said in her statement:

I have given my youth and everything to ensure that my family did not suffer while I worked hard to pay for everything that they wanted to do.

91 I have no doubt that Hong worked hard in the sewing and takeaway businesses and that, as the one of the older sisters, she was required to and did take responsibility for her younger sisters, particularly in the absence of the parents. I accept that Hong's contribution to the acquisition of the Property probably exceeded the individual contributions of her younger sisters. However, her evidence significantly overstates her contribution to the family fortunes by ignoring or understating the contributions of Huong, Cuc and other family members.

92 As to why the Property was transferred to Huong rather than to Cuc or to Cuc and Huong, I accept the explanation given by Cuc that Huong had agreed to take on the responsibility for the parents and that the mother favoured this arrangement. I accept that the ownership of the Property was tied to the responsibility to care for the parents.

93 In the final analysis, based on the objectively established facts (such as they are) and more particularly upon the logic of events, I have preferred the evidence of the defendant to that of the plaintiffs. I find Huong's explanation for what occurred between late 1996 and the middle of 1997 to be much more cogent and plausible than the narrative put forward by the plaintiffs. In respect of the latter, I do not accept that after years of family involvement in the takeaway business, and the use of the income from the business to acquire the Property, that family members would be content for Hue and Hong to keep both the business and the Property. The most plausible explanation is that once the family members stopped working together in the takeaway business, an arrangement was agreed for the distribution of the two principal family assets, the Property and the business, on an equitable basis, having regard to the contributions of Cuc and Huong to the business and the need to provide ongoing care and support to the parents.

94 The plaintiffs plead that as they had very limited skills in reading and understanding written English and could neither read nor understand the transfer documents or the extent of the obligations they created before signing them, they did so under a total mistake as to their nature, content and subject-matter and in the bona fide belief that they were signing a document to enable Huong to make mortgage repayments to Westpac in respect of the Property. They plead that the transfer of the Property is void on the ground of non est factum or, alternatively, that the defendant holds the property on trust for them because of her unconscionable conduct in securing the execution of the transfer documents.

95 In order to consider the claims, it is necessary to consider more closely the evidence as to how precisely the execution of the documents came about.

96 The immediate background to the execution of the transfer documents is the unsuccessful attempt by the plaintiffs to have Huong and the family members living at the Property agree to accept a document permitting them to make the mortgage repayments on their behalf. It is common ground that the family rejected the proposal contained in the document prepared by solicitors retained by Hue and Hong.

97 According to Hong's witness statement, Huong came to the shop soon after June 1997 and handed over a few papers which she asked Hue and Hong to sign. Hong thought to herself that everything had been resolved and her family was willing to assist with the repayments because they had realised the situation she and Hue were in. The papers were in English, and Hong could not understand what they were for. Huong did not explain what the papers were about, but just left them with Hong and asked that Hong and Hue sign them. Hong's witness statement continues:

I had trusted my family and the defendant, thinking that they could never do anything wrong to us. Although Hue and I had very limited skills in reading and understanding written English and could not read nor understand the papers which the defendant had provided to us, based on the trust and faith I had in her we signed it, without thinking twice that we should see a lawyer or anyone else about it. Further, we thought at the time as the papers had come after our discussion with the family home, it was just papers giving my family members permission to pay the mortgage on behalf of Hue and I. I never thought that the defendant would prepare any papers selling the house which belonged to Hue and I to herself.

We didn't ask anyone about the papers because of our trust in my family and the defendant. Hue and I both signed the papers. The defendant then came to collect the papers from the business premises a few days after. Hue and I did not pay for the mortgage after that.

98 In her oral evidence, Hong's recollection was that Huong came to the shop while it was closed and put some papers down in front of her and said, 'Here, sign it'.[11] Huong did not tell Hong what the documents were and Hong did not ask. Hong said she did not know what the documents were. When asked how she knew where to sign, she said that perhaps there was a note or a mark for her to sign. When it was put to her that when she saw the documents that Huong gave her, she must have realised that they were not the same documents she had given to Huong, she said that she did not think anything about that. She said it was similar to what she gave her sister. Hong said: 'As I said - she said, "sign here". I didn't look at it'.[12]

99 Hong's evidence was that Huong simply left the documents with her to sign and then left. At some point over the next few days, she and Hue signed the documents. She confirmed that she did not speak to anybody about the documents before she signed them.

100 Hue's witness statement describes the circumstances of signing the transfer documents as follows:

On about June 1997, I was asked by my wife to sign some documents. I did not know the contents of the papers that I signed and neither did my wife. All I knew that it was provided by the defendant.

Both Hong and I had very limited skills in reading and understanding written English in June 1997 and could not read nor understand the nature of the papers provided by the defendant nor the extent of the obligations created by the papers before signing it. Under the belief that the papers given to my wife by the defendant were only to provide authority to the defendant and family members to pay the mortgage repayments and related expenses on our behalf for the Abbotsford property, both my wife and I signed the papers and the defendant collected it from my wife. From then on, we did not pay any of the mortgage repayments in relation to the Abbotsford property.

I did not know at that time that we had signed papers to "sell" the Abbotsford property to the defendant. Neither Hong nor I received any payments for the sale of the Abbotsford property after the signing of the documents, or in fact received any payment for the sale of the Property from the date of signing the papers until today.

We trusted and relied on the defendant and the rest of the family to provide us with papers authorizing (sic) her and the remaining family members to pay the mortgage on our behalf. We signed the papers without seeking legal advice on the consequences of signing the papers. We trusted the defendant. Further, there was no witness present at the time we signed the papers.

101 Hue gave evidence that when papers were provided to him and Hong to sign there were no contracts or section 32 statements. He said he recalled contracts for sale being thick documents with lots of pages and said that he and Hong only received a few pages to sign. He said there were no other signatures on the papers. The person who purported to witness the signatures, Huong's boyfriend, Mr Tran, was not present when Hue and Hong signed the papers.

102 Hue stressed that he and Hong did not engage lawyers to act on their behalf to prepare any documents for the transfer of the Property. They did not ask Huong or anyone else to have contracts prepared to sell the Property to Huong. He said that the Westpac Bank was not authorised by him or Hong to discharge the mortgage and that the transfer falsely stated that an amount of $140,000 was paid to him and Hong for the Property. In fact, no money has ever been paid for the Property. Had he intended the Property to be sold, he would have sold it for its proper value, which was higher than the original purchase price of $157,000.

103 In Petelin v. Cullen,[13] the High Court laid down the ambit of the plea of non est factum in Australia. The Court said:

The class of persons who can avail themselves of the defence is limited. It is available to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document.[14]

To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact and that, at least against innocent persons, his failure to read and understand it was not due to carelessness on his part. Finally, it is accepted that there is a heavy onus on a defendant who seeks to establish the defence.[15]

106 The High Court referred with approval to Saunders v. Anglia Building Society.[16] In Saunders, Lord Reid said as follows:

The plea cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisers without making any inquiry as to their purpose or effect. But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on the circumstances of each case.[17]

107 A critical element of the plea is therefore the person's belief that the document he or she signed had a particular character when in fact it had an entirely different character. However, each of Hong and Hue professed to not knowing the character of the documents that they signed and to having no belief as to what they were.

108 It was Hong's evidence that Huong did not say whether the documents that she delivered were the same as or different from documents that had previously passed between them. Huong put the documents down and left and Hong did not ask what the documents were. Her evidence was that she really did not have any idea what the documents were.

109 Hue's evidence was that Hong brought the documents to him and asked him to sign them. He had had no discussion with Huong about the documents and Hong did not tell him where the documents had come from. In response to the question, 'You didn't have any belief in your head about what the document was about?' Hue said:

I just sign it. I just sign it without noticing what it was about.[18]

110 When asked again whether he had any belief about the content of the documents, Hue said:

I just have a kind of thinking that it may be that my wife family now agree to pay the mortgage but I'm not quite sure about the content. I just sign it.[19]

When I sign I had no idea what I was signing but as I said earlier, maybe it's a document that they agree to pay the mortgage for us.[20]

112 Hue conceded that his English was good enough to understand the words 'contract of sale' where it appeared on the document and that he was able to understand something of written English communications. I therefore find it highly unlikely that Hue held the belief that the documents that he executed were documents in which the family agreed to pay the mortgage. He knew them to be different from the document that he had caused to be drafted, which did not require a signature and was not accepted by the family. In fact, Hue agreed that he had no reason to imagine that the documents he was signing might be an agreement for his wife's family to pay the mortgage. At best, Hue did not know what they were.

113 The substance of Hue's evidence was that he did not have any belief as to the character or content of the documents.

114 There is therefore no basis upon which to conclude that either Hue or Hong signed the transfer documents in the belief that they had a particular character when in fact they had an entirely different character.

115 The plea of non est factum cannot not be made out by the plaintiffs on the evidence given by the plaintiffs themselves. It is not available to a person who has simply signed a document put in front of him or her with no belief whatsoever as to the contents of the document.

116 Of course, if one factors into this scenario the evidence that I have accepted of a family agreement that Hong and Hue would keep the takeaway business and the Property would be transferred to Huong, then it is highly improbable that Hong and Hue signed the transfer documents under total mistake as to what they were signing. Given the family agreement, the family's refusal to countenance the alternative proposal put by Hong and Hue in their legal document and Hue's ability to understand the words 'contract of sale' where they appeared in a document, I find that Hong and Hue knew the nature and effect of the documents that they signed.

117 The claim based on the plea of non est factum is not made out in respect of either Hue or Hong.

118 In Commercial Bank of Australia Ltd v Amadio,[21] the High Court considered the equitable jurisdiction to set aside a transaction on the ground of unconscionable conduct where a party to the transaction, who suffers detriment by reason of the transaction, is suffering from some special disability or is placed in some special situation of disadvantage at the time of the transaction. Mason J set out the applicable principles:

It almost goes without saying that it is impossible to describe definitively all the situations in which relief will be granted on the ground of unconscionable conduct. As Fullagar J said in Blomley v Ryan:

The circumstances adversely affecting a party, which may induce a court of equity either to refuse its aid or to set a transaction aside, are of great variety and can hardly be satisfactorily classified. Among them are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage vis-à -is the other.

Likewise Kitto J spoke of it as 'a well-known head of equity' which -

... applies whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands.

It is not to be thought that relief will be granted only in the particular situations mentioned by their Honours. It is made plain enough, especially by Fullagar J, that the situations mentioned are no more than particular exemplifications of an underlying general principle which may be invoked whenever one party by reason of some condition of circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created. I qualify the word 'disadvantage' by the adjective 'special' in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasize that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.[22]

119 According to the Court of Appeal, the quoted passages from Amadio emphasise two threshold requirements before the principle can operate. First, the need for the suggested disability or disadvantage to affect the ability of the party said to be suffering from it 'to make a judgment as to his [or her] best interests'. Second, the need to demonstrate that the special disability or disadvantage was known or 'sufficiently evident' to the other party. It is only if these two threshold requirements are established that the court then considers the third requirement: whether or not the other party acted unconscionably so as to be deprived in equity of the benefit of the transaction in issue. However, the evidence concerning the three requirements will often overlap. [23]

120 Although the plaintiffs plead a large number of matters in respect of special disadvantage, the special disadvantage that they claim is essentially based on the following:

(a) their limited skills in reading and understanding written English;

(b) their belief that the document was only authorising Huong and other family members to make the repayments of the Westpac mortgage on their behalf;

(c) the fact that they were not legally represented and did not receive any legal advice on the consequences of signing the purported transfer; and

(d) the fact that the plaintiffs trusted and relied upon Huong.

121 The plaintiffs rely on the fact that Huong was able to comprehend and understand written English and knew the nature of the purported transfer and the extent of the obligations created by it, that Huong has not paid and did not intend to pay the consideration referred to in the purported transfer, and that she at no time disclosed or informed them that the purported transfer was to transfer the Property from them to her.

122 Although the plaintiffs' had limited skills in English, the claimed special disadvantage arising from the factors in (b) and (d) cannot withstand the finding that there was a family agreement that the Property would be transferred to Huong. The transfer documents reflected this agreement. I have found, as a consequence, that Hong and Hue must have known the nature and effect of the documents that were delivered to them by Huong and that they signed.

123 The fact that Hong and Hue had a limited capacity to read and understand documents written in English does not mean that they were incapable of making a judgement about their bests interests. I accept that Hong had poor English and was not capable of reading the documents or of understanding them without assistance. However, I have already dealt with Hue's concessions about the extent of his understanding of English. He conceded that he could have read the transfer documents and/or obtained legal advice from his solicitor about them. Each of Hue and Hong was well capable of making further inquiries about the transfer documents.

124 The availability of legal advice to the plaintiffs is important. Part of the special disadvantage contended for by the plaintiffs was that they were not legally represented and did not receive any legal advice on the consequences of signing the transfer documents. However, the plaintiffs were legally represented in that, on their own account, they had consulted solicitors to have their own documents drawn up in respect of the arrangements for the Property only a short time earlier. Hue gave evidence that consulting a solicitor was something that he regularly did when he felt the need.

125 As to whether plaintiffs placed trust and reliance in Huong, there is no evidence to support the proposition that either Hue or Hong was dependent or reliant upon Huong in dealing with their affairs. Hong's evidence, as I have previously observed, was to the effect that she supported the younger family members both in Vietnam and later in the sewing business that she established and ran; the evidence was that while family members were running the takeaway business, Hong (and the mother) made decisions about the distribution of income and Hue looked after the legal and accounting matters. Generally, the evidence suggests that Hue was a careful and thorough man who took good care of his affairs and those of Hong.

126 In the circumstances, the fact that Huong had a far better ability to communicate in written and oral English than the plaintiffs did not seriously affect their capacity to assess and protect their own interests. I do not accept that the first threshold requirement identified by the Court of Appeal has been satisfied: the suggested disability or disadvantage arising from their limited command of English did not affect the ability of the plaintiffs to make a judgement as to their best interests in the circumstances of this case.

127 Nor am I persuaded that Huong acted unconscionably in having the transfer documents drawn up by solicitors retained by her and delivering them to the plaintiffs without explanation. As I have found, the documents delivered by Huong to the plaintiffs gave effect to the family agreement. The plaintiffs knew the character and legal effect of the documents.

128 Much was made of the fact that the solicitors described as the 'vendors' solicitors' who prepared the transfer documents were in fact solicitors retained by Huong and were not the solicitors used by Hue and Hong. However, Huong explained that when the family refused to accept the arrangement proposed by Hue and Hong, Hue told her that she would have to have the transfer documents prepared and that he gave her a limited period in which to do so. In these circumstances, it is unsurprising that the transfer documents were drawn up by solicitors retained by Huong.

129 The plaintiffs do not allege that Huong caused or contributed to their conduct in signing documents in the manner that they say they did, that is, alone and without advice. Whilst it may be that the plaintiffs did not seek any legal advice on the consequences of signing the documents, Hong and Hue do not allege that Huong said or did anything that might have discouraged them from seeking legal advice.

130 As to the failure to pay the consideration nominated in the transfer documents, I have found that the family agreement was for Hue and Hong to retain the takeaway business and for the Property to be transferred to Huong (or to Huong and Cuc). This was considered to be a fair distribution of the family assets and no further consideration was required for the transfer of the Property. In other words, it was not part of the agreement that, in addition to walking away from the business, Huong pay $140,000 for the Property.

131 It follows that while I accept that both Hong and Hue had poor English when compared to that of Huong, I do not accept that this seriously affected either Hue's or Hong's ability to protect their own interests in the circumstances described. Moreover, I do not consider that Huong took advantage of any opportunity presented by the plaintiffs' poor English, let alone that she did so in an unconscionable way.

132 In these circumstances, the elements of unconscionable conduct are not made out in respect of either Hue or Hong.

133 The plaintiff's claims are not made out. The transfer documents were executed by the plaintiffs pursuant to an agreement about the distribution of assets within the Du family. The transfer of land is not void and there is no constructive trust in the Property in favour of the plaintiffs. Furthermore, Hue and Hong do not have an equitable lien on the Property on the basis of a vendor's lien for unpaid purchase money.

[1] One of the witnesses referred to seven siblings, another to nine.

[3] The mother's statement is set out in the witness statement of Coralee Elsum dated 1 August 2013.

[6] Transcript of Proceedings, Luong & Anor v Du (Supreme Court of Victoria, S CI 2012 2540, Emerton J, 30 July 2013 - 2 August 2013; 5 August 2013; 16 August 2013) ('Transcript'), 122-123.

[9] Transcript 280. See also Transcript 290.

[13] [1975] HCA 24; (1975) 132 CLR 355.

[16] [1970] UKHL 5; [1971] AC 1004 ('Saunders').

[21] [1983] HCA 14; (1983) 151 CLR 447.

[23] Mackintosh v Johnson [2013[ VSCA 10, [11] - [12].