Consideration
21 As outlined above, the issue to be determined is whether the first respondent is a joint proprietor of the Property.
22 There does not appear to be any issue that the Trustee, as the moving party, bears the onus of proof. Therefore, it is necessary for the Trustee to establish, on the balance of probabilities, that the first respondent is a joint proprietor of the Property. In deciding whether or not the Trustee has established this, the matters to be taken into account include 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: see Evidence Act 1995 (Cth), s 140(2).
23 I will start with setting out some basic facts, which do not appear to be controversial, and then refer to some aspects of the oral and documentary evidence. I will then set out my reasoning in relation to the issue to be determined.
24 The following basic facts and matters are established on the evidence:
(a) The first respondent was born in Vietnam on 10 November 1954. A copy of his Vietnamese birth certificate is in evidence (see the Trustee's affidavit, annexure "AJS-1", p 79). This shows his name as "Lê Chánh Tâm" and his date of birth as 10 November 1954. There are numerous references to 10 November 1954 being the first respondent's date of birth in the documents in evidence (see, for example, the documents produced by the Department of Veterans' Affairs, which are Exhibit A3).
(b) The first respondent came to Australia in 1984 and became an Australian citizen in 1986. That he arrived in Australian in 1984 is indicated by several documents in the bundle of documents produced by the Department of Veterans' Affairs (see Exhibit A3, Court Book, pp 58, 113, 194). The evidence includes a copy of the first respondent's Certificate of Australian Citizenship, which is dated 7 October 1986 (see Exhibit A3, Court Book, p 43). This records his name as "CHANH TAM LE" and his date of birth as 10 November 1954.
(c) On 18 March 1996, Tam Chanh Le and the second respondent were registered as "joint proprietors" of the Property (see the extract from the certificate of title at the Trustee's affidavit, annexure "AJS-1", p 2). The certificate of title records that they were "both of 569 Ballarat Road Sunshine 3020".
(d) The first respondent has usually used the name "Chanh Tam Le" since he came to Australia. The evidence includes numerous documents in that name, with the first respondent's date of birth recorded as 10 November 1954. For example, the first respondent's Victorian Driver's Licence records his name as "CHANH T LE" and his date of birth as 10 November 1954 (see Exhibit A3, Court Book, p 42). The first respondent's Medicare card records his name as "CHANH TAM LE" (see Exhibit A3, Court Book, p 42). The first respondent's Australian Passport (see Exhibit A5, Court Book, p 246), issued on 6 June 2017, records his name as:
LE CHANH TAM
and his date of birth as 10 November 1954. It appears from the passport application that "LE" is the family name and "CHANH TAM" are given names (see Exhibit A5, Court Book, p 249).
25 I now set out some aspects of the oral and documentary evidence.
26 The first respondent gave oral evidence that his name in Australia has always been "Chanh Tam Le" and not "Tam Chanh Le" (T24). The following exchange took place during the hearing (T46-47):
THE INTERPRETER: … My name in Australia is Chanh Tam Le. My Vietnamese is Le Chanh Tam. …
HIS HONOUR: … I just want to clarify one part of what Mr Le said in the last answer. Mr Le, when you were answering that last question, as part of your answer you referred to your Vietnamese name, and I'm not sure if I took a note of that correctly. Can you just repeat what you said: your Vietnamese name was?
THE INTERPRETER: Le Chanh Tam.
HIS HONOUR: Yes. Thank you.
THE INTERPRETER: So Vietnamese people would refer to me as Tam, but on my passport and in Australia, Chanh is my - Chanh become my given name.
27 During his oral evidence, the first respondent said that the deposit money for the Property came from his parents, and his father did not want the title in the first respondent's name as he was a gambler (T104). The first respondent also gave evidence that he was homeless and that he and his wife "do not live together much" (T26, T104).
28 The first respondent has produced a copy of a Vietnamese birth certificate and a copy of a Vietnamese death certificate for "Tam Chanh Le", who the first respondent says is his deceased brother. The Trustee did not object to the tender of these documents or challenge their veracity (in the sense that the Trustee did not put to the first respondent during cross-examination that the underlying documents were not genuine or that the copies produced by the first respondent were not true copies). I note the following matters:
(a) The birth certificate is in the name of "Tam-Chanh-Le" and indicates that he was born on 10 November 1962 (the document is located on the second page of the annexures to the first respondent's first affidavit). I note that the day and the month of the date of birth (10 November) are the same as the day and month of the first respondent's date of birth. I note also that the evidence includes what appears to be a partial translation into English of the birth certificate, prepared in 1987 by the Commonwealth Department of Immigration and Ethnic Affairs. This is located at p 83 of annexure "AJS-1" to the Trustee's affidavit. It appears to have been an attachment to a letter from the second respondent to the Trustee. There was no explanation in the evidence of how this translation came to be prepared.
(b) The death certificate is in the name of "TAM CHANH LE" and indicates that his date of death was 9 March 2017 (the document is located on the third page of the annexures to the first respondent's first affidavit). There is no translation of the death certificate. Curiously, it includes the word "Australia". There was no explanation in the evidence as to why that appears on the death certificate.
29 The evidence includes a purported statutory declaration of Tam Chanh Le dated 3 May 2016 (see the Trustee's affidavit, annexure "AJS-1", p 154). In this document, Tam Chanh Le states that his date of birth is 10 November 1962 and that he is the co-owner of the Property. The declaration was witnessed by a constable at the Sunshine Police station. The first respondent accepted in cross-examination that he wrote out the document, but said that his brother told him to do so and maintained that his brother signed the statutory declaration (T29-30).
30 The evidence includes a photograph of an urn that the first respondent says contains his brother's ashes (Exhibit R9, Court Book, p 853). I admitted this photograph into evidence after the first respondent gave evidence that he had seen the urn on an altar when he was visiting Vietnam, and the photograph was subsequently given to him. The urn bears the following label:
TAM CHANH LE
DOB: 10/11/1962
DIED: 10/03/2017
I note that there is a difference of one day between the date of death recorded on the death certificate and the date of death on the urn.
31 The evidence includes a large number of documents produced by government agencies in response to subpoenas served by the Trustee. There are, therefore, many documents signed by the first respondent in evidence. The first respondent was taken to many of these documents in the course of cross-examination, in particular to the signatures on the documents. It appears that the first respondent has, over the years, used two different forms of signature. One form, which was referred to in the course of evidence as the "Tam" signature, and resembles the word "Tam", appears on many documents in the period before about 2015 (and on some documents after that date). The other form of signature, referred to in the course of evidence as the "Chanh" signature, which resembles the word "Chanh", appears on many documents from about 2015 onwards.
32 I now turn to my reasoning on the issue to be determined. The following facts and matters are noted.
33 First, there is the significant fact that the Property is registered in the name of Tam Chanh Le and the second respondent as "joint proprietors". On the face of things it would seem to be surprising for the Property to be jointly registered in the names of the first respondent's brother and the first respondent's wife. While the first respondent provided an explanation (noted above), his evidence generally lacked credibility, and this explanation was not supported by any other evidence.
34 Secondly, the name of the first respondent (Chanh Tam Le) and the name on the title (Tam Chanh Le) contain the same words, albeit arranged in a different order. There is no expert evidence as to any convention for converting Vietnamese names into English names. Although the first respondent has usually used Chanh Tam Le as his name in Australia, as reflected in official documents such as his citizenship certificate and driver's licence, there does not seem to be any reason why Tam Chanh Le would not be an available way to convert his Vietnamese name (Le Chanh Tam) into English, noting his evidence that Vietnamese people would refer to him as Tam, and his usual signature for many years appears to have been the word "Tam".
35 Thirdly, the signatures on the transfer of land and the mortgage of the Property signed in 1996 (see the Trustee's affidavit, annexure "AJS-1", pp 4 and 9) appear to be the same as the first respondent's "Tam" signature. During the course of cross-examination, the first respondent was taken to a large number of documents that bore the name "Chanh Tam Le" and were signed with the "Tam" signature (see, eg, Court Book, pp 38, 56, 84, 102, 133, 149, 150, 165, 177, 185, 191, 219, 221, 223, 224, 225, 226, 256, 258). The context of these documents makes clear that they were signed by the first respondent. These include documents from both before and after 1996: see, eg, Court Book, p 219 (1994), p 221 (1995) p 223 (2000), p 224 (2002). Although there is no expert handwriting evidence, the signatures on the transfer of land and the mortgage of the Property in 1996 appear to be the same as the signatures on the other documents signed by the first respondent. There is no evidence that the first respondent's brother, if he had one, was in Australia at that time or as to what his signature looked like. It is likely that these documents were signed by the first respondent.
36 Fourthly, there are two documents linking the home loan for the Property (which was in the names of Tam Chanh Le and Hoa Tran Le) with the first respondent:
(a) There is a Westpac statement for the home loan (account 97-8132) in the name of Mrs Hoa Tran Le and Mr Tam Chanh Le (see the Trustee's affidavit, annexure "AJS-1", p 148) for the first quarter of 2016. The customer number for Tam Chanh Le is a number ending in 358, which the first respondent accepted in evidence was his customer number (T120).
(b) There is a document produced by Westpac Banking Corporation, dated 25 August 2020, which provides details for accounts (including the home loan for the Property) for "Mr Tam Chanh Le" (see Exhibit A8, Court Book, p 387). The document states that the customer's date of birth is 10 November 1954 (which is the first respondent's date of birth). The document also has the same customer number, ending in 358, as the previous document.
These documents strongly suggest that the first respondent was operating the home loan account for the Property.
37 Fifthly, there are two documents in evidence where the first respondent used the name "Tam Chanh Le". The documents are both Centrelink forms with the heading "Medical Report - Disability Support Pension" (see Exhibit A3, Court Book, p 84 and p 92). In each case, the form was received in November 2011. It is not clear why the first respondent used that name on those occasions. His explanation in oral evidence was not convincing.
38 Sixthly, despite requests from the Trustee during 2016, the first respondent did not provide contact details for his brother, or a photograph of his brother. The first respondent's explanation was that his brother was "missing" (T28). However, I do not consider this explanation to be persuasive in circumstances where (on the first respondent's case) the brother was in Australia in 2016 to sign the statutory declaration.
39 Seventhly, the statutory declaration dated 3 May 2016, purportedly signed by the first respondent's brother, appears to have the same signature as many documents signed by the first respondent (namely, the first respondent's "Tam" signature). I therefore consider that no weight can be placed on that statutory declaration. I also consider that little weight can be given to the photograph of the urn, said to contain the ashes of the first respondent's deceased brother. This flows from my general assessment of the first respondent's credibility. I note that the first respondent was cross-examined on the topic of his alleged brother having passed away. It was put to him that it was not until late 2019 that he first informed the Trustee of this matter.
40 Eighthly, while the birth and death certificates for Tam Chanh Le provide prima facie objective evidence that the first respondent did have a brother of that name, who has now passed away, and it was not put to the first respondent that either of these documents was not genuine, I nevertheless consider that the evidence as a whole supports the view that the Property was acquired by the first respondent, using the name Tam Chanh Le, and the second respondent. That is, even if, as the birth and death certificates suggest, the brother did exist, I am nevertheless satisfied that it was the first respondent, using the name Tam Chanh Le, who acquired the interest in the Property.
41 Having regard to the evidence as a whole, I find that, while the first respondent has usually used the name Chanh Tam Le since he arrived in Australia, he has also used the name Tam Chanh Le on some occasions. I find that, in connection with the purchase of the Property, the first respondent used the name Tam Chanh Le. In other words, I accept the Trustee's case that the first respondent and the "Tam Chanh Le" named on the certificate of title are one and the same person.
42 I therefore conclude that the first respondent is a joint proprietor of the Property.