Federal Court of Australia

Scott (Trustee) v Le [2021] FCA 1364

ORDERS

THE COURT ORDERS THAT:

1.    There be a declaration that the first respondent was, at the date of his bankruptcy, a joint registered and beneficial owner in fee simple of a one half share in the property situated at 23 The Avenue, Sunshine West, Victoria, more particularly described in certificate of title volume 10153 folio 183 (the Property), which rights vested in the applicant (the Trustee) upon the bankruptcy of the first respondent.

2.    The first respondent and the second respondent give vacant possession of the Property to the Trustee within 30 days of this order.

3.    The Trustee be appointed trustee for the sale of the Property, which is to be sold for such price and in such manner and on such terms as the Trustee may in his absolute discretion determine.

4.    The Trustee be appointed as attorney for the second respondent for the purposes of effecting the sale of the Property in accordance with the orders including (without limiting the generality of the foregoing) the contract of sale, vendor’s statement, appointment of selling agent and any declaration under the Duties Act 2000 (Vic) and is granted a power of attorney for that purpose.

5.    The Registrar of Titles be directed to accept the orders as evidence of the Trustee’s appointment as attorney.

6.    The Trustee apply the proceeds of the sale of the Property in the following manner:

(a)    first, in payment of any mortgage or encumbrance over or in respect of the title to the Property together with any outstanding rates, taxes, charges or other similar outgoings affecting the Property;

(b)    secondly, one half of the net balance to the second respondent;

(c)    thirdly, in payment of all costs, charges and expenses in selling the Property; and

(d)    fourthly, the balance to the Trustee.

7.    The Trustee be empowered to execute a “T1” Transfer of Land on behalf of the second respondent.

8.    The Registrar of Titles be directed to accept the proper execution by the Trustee of the T1 Transfer of Land on behalf of the second respondent as being sufficiently executed by the second respondent.

9.    The Trustee’s costs of the application are proper costs of the bankruptcy of the first respondent.

10.    Subject to further order, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), and on the grounds in s 37AG(1)(a) and (c) of the Federal Court of Australia Act, paragraphs 11 and 18 of the Court’s reasons for judgment of the date of these orders be and remain confidential to the parties and not be published.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, Andrew John Scott (the Trustee) is the trustee in bankruptcy of the bankrupt estate of the first respondent, Mr Chanh T Le. The initial “T” stands for Tam, such that the first respondent’s full name is Chanh Tam Le. The first respondent was born in Vietnam. He came to Australia in 1984 and became an Australian citizen in 1986. The second respondent, Ms Hoa Tran Le, is the wife of the first respondent.

2    The Trustee seeks a declaration that the first respondent is a joint proprietor of a residential property in Sunshine West, Victoria (the Property) and that his interest has passed to the Trustee as the trustee in bankruptcy. The Trustee also seeks orders for possession and for sale of the Property. The certificate of title for the Property lists the joint proprietors as:

3    The Property was registered in the above names in 1996.

4    As will be apparent, the first name on the certificate of title (Tam Chanh Le) does not match the name of the first respondent (Chanh Tam Le). While the surname, Le, is the same in both names, the order in which the other two names appear is different.

5    The Trustee contends that the first respondent and the person named on the title are one and the same person. Accordingly, he seeks a declaration that the first respondent is a joint proprietor of the Property and the other orders referred to above. The first respondent contends that the name on the certificate of title is that of his deceased brother rather than his name. The first respondent contends that he is not a joint proprietor of the Property.

6    The issue to be determined is whether the first respondent is a joint proprietor of the Property.

7    For the reasons that follow, I have concluded that the Trustee has established, on the balance of probabilities, that the first respondent is a joint proprietor of the Property.

Procedural background

8    This matter has had a lengthy procedural history. It is not necessary for present purposes to set out that history. It is sufficient to refer to the judgment of the Full Court of this Court in Le v Scott as trustee of the property of Chanh Tam Le, a bankrupt [2020] FCAFC 12. On 18 February 2020, the Full Court remitted the question whether the first respondent is or was at the relevant time the joint proprietor of the Property, together with any consequential orders arising from that determination, including the allocation of costs of the sale of the Property if applicable. It is that question that is currently before the Court.

9    The listing of this matter for hearing was delayed for some time due to the Coronavirus pandemic and the consequent restrictions which meant that an ‘in person’ hearing could not be scheduled for much of 2020. In circumstances where the first respondent was self-represented and needed the assistance of an interpreter, it was necessary to wait until the hearing could take place ‘in person’.

10    The hearing of the matter commenced on 3 February 2021 and continued on 5 February 2021. The hearing was completed on 28 April 2021.

11    [Redacted.]

12    The second respondent was present in the court room on the first hearing day, but indicated that she did not wish to appear in the proceeding. She did not attend on the second or third hearing days.

The evidence

13    The Trustee relies on the following evidence:

(a)    an affidavit of the Trustee dated 28 August 2017 (Exhibit A1) (the Trustee’s affidavit);

(b)    an affidavit of Florian Ammer, the solicitor acting for the Trustee, dated 8 October 2019 (Exhibit A2);

(c)    documents produced in response to subpoenas served by the Trustee, as follows:

(i)    documents produced by the Department of Veterans’ Affairs (Exhibit A3), comprising pp 1-199 of a folder of documents prepared by the Trustee for the purposes of the hearing (the Court Book);

(ii)    documents produced by the Department of Home Affairs (Exhibit A4), comprising pp 200-236 of the Court Book;

(iii)    documents produced by the Department of Foreign Affairs and Trade (Exhibit A5), comprising pp 237-258 of the Court Book;

(iv)    documents produced by the Roads Corporation trading as VicRoads (Exhibit A6), comprising pp 259-271 of the Court Book;

(v)    documents produced by the Commonwealth Bank of Australia (Exhibit A7), comprising pp 272-377 of the Court Book;

(vi)    documents produced by Westpac Banking Corporation (Exhibit A8), comprising pp 378-846 of the Court Book; and

(d)    a letter from the Department of Home Affairs to the Registrar of this Court, dated 17 July 2020 (Exhibit A9).

14    There was no cross-examination of the Trustee’s witnesses.

15    The first respondent relies on the following evidence:

(a)    two affidavits of the first respondent, dated 28 October 2019 and 12 November 2019 (Exhibits R1 and R2);

(b)    a medical certificate (on a Centrelink form) for Chanh Tam Le dated 17 March 2012 (Exhibit R3), located at p 854 of the Court Book;

(c)    a partially typed and partially hand-written statement of the first respondent dated 13 September 2018 (Exhibit R4), located at p 855 of the Court Book;

(d)    a Westpac bank statement for the period 29 September 2017 to 29 December 2017 (Exhibit R5);

(e)    two letters from the Australian Taxation Office dated 21 November 2018 and 26 October 2018 (Exhibits R6 and R7);

(f)    an affidavit of the first respondent dated 19 July 2020, but not the annexures thereto (Exhibit R8) – this affidavit is unsworn, but was adopted by the first respondent during his oral evidence;

(g)    a photo of an urn said to contain the ashes of the first respondent’s deceased brother (Exhibit R9), located at p 853 of the Court Book; and

(h)    a medical certificate for the first respondent dated 4 August 2015 (Exhibit R10).

16    The first respondent was cross-examined by counsel for the Trustee.

17    All of the first respondent’s evidence was given with the assistance of an interpreter. It appeared that the first respondent’s ability to speak English was very limited or non-existent.

18    [Redacted.]

19    I consider that great care (and sensitivity) needs to be taken in assessing the first respondent’s affidavit and oral evidence. There were several parts of his evidence that were simply not credible and that cannot be accepted. For example, the first respondent denied signing some documents that the context makes clear were signed by him. However, I do not consider that the first respondent was lying (as was put to him on occasion during cross-examination). Rather, I consider that the first respondent honestly believed what he said during cross-examination. Further, parts of his evidence were not coherent. Generally, I consider that the first respondent’s evidence lacked credibility and very little weight can be placed on his evidence. However, it also needs to be kept in mind that the first respondent’s ability to present evidence that would help his case was limited by his personal circumstances (as well as being a self-represented litigant).

20    Neither party led any expert evidence.

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.

Conclusion

43    It follows that, subject to one qualification, orders should be made as sought by the Trustee in the application. I will make a declaration that the first respondent was, at the date of his bankruptcy, a joint registered and beneficial owner in fee simple of a one half share in the Property, which rights vested in the Trustee upon the bankruptcy of the first respondent. I will also make the orders for possession and sale.

44    The qualification concerns the costs of the sale of the Property, a matter reserved by the Full Court for further consideration. It is apparent from the reasons of the Full Court at [10] that there was a concern that the orders proposed by the Trustee allocated some of these costs to the second respondent, rather than the costs of sale being borne by the bankrupt’s share of the proceeds. In the Trustee’s application dated 31 August 2017, paragraphs 6 and 9 are in the following terms:

An order that the Trustee apply the proceeds of the sale of the Property in the following manner:

6.1    first, in payment of all costs, charges and expenses in selling the Property;

6.2    second, in payment of any mortgage or encumbrance over or in respect of the title to the Property together with any outstanding rates, taxes, charges or other similar outgoings affecting the Property;

6.3    third, one half of the net balance to the Trustee; and

6.4    fourth, and subject to Order (9), the remainder of the net balance to the Second Respondent.

…

9.    An order that the Applicant’s costs of the application are proper costs of the bankruptcy of the First Respondent.

45    In the Trustee’s outline of submissions dated 29 October 2020, it is stated that the Trustee “consents to an order that the costs of sale of the Property are to be borne by the estate of the first respondent such that the words ‘and subject to Order (9)’ are deleted from paragraph 6.4 of the relief sought in the application dated 31 August 2017”. I do not consider the proposed deletion of the words “and subject to Order (9)” from paragraph 6.4 to be sufficient to achieve the position that the costs of sale are borne by the estate of the first respondent. In order to ensure that the costs of sale are borne by the estate of the first respondent, and not by the second respondent, I propose to frame the relevant paragraph of the order as follows:

The Trustee apply the proceeds of the sale of the Property in the following manner:

(a)    first, in payment of any mortgage or encumbrance over or in respect of the title to the Property together with any outstanding rates, taxes, charges or other similar outgoings affecting the Property;

(b)    secondly, one half of the net balance to the second respondent;

(c)    thirdly, in payment of all costs, charges and expenses in selling the Property; and

(d)    fourthly, the balance to the Trustee.

Associate:

Dated:    5 November 2021