Federal Court of Australia Le v Scott [2022] FCAFC 31 Appeal from: Scott (Trustee) v Le [2021] FCA 1364 File number: VID 688 of 2021 Judgment of: MORTIMER, SNADEN AND MCELWAINE JJ Date of judgment: 11 March 2022 Catchwords: BANKRUPTCY – appeal from judgment by which the appellant and his wife were found to be joint registered proprietors of a property – appellant contended that ownership in the property rested with his wife and his now-deceased brother – appellant and brother alleged to share similar names – existence of brother disputed – whether primary judge erred by concluding that the appellant had an interest in the property – whether primary judge's finding contrary to incontrovertible facts, glaringly improbable, or contrary to compelling inferences – appeal dismissed Cases cited: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Italiano v Barbaro (1993) 40 FCR 303 Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; 278 FCR 1 Lee v Lee [2019] HCA 28; 266 CLR 129 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 35 Date of hearing: 28 February 2022 Counsel for the Appellant: The appellant appeared in person with the assistance of an Interpreter Counsel for the Respondent: Ms CF Gobbo Solicitor for the Respondent: Piper Alderman ORDERS VID 688 of 2021 BETWEEN: CHANH TAM LE Appellant AND: ANDREW JOHN SCOTT THE TRUSTEE OF THE PROPERTY OF CHANH TAM LE, A BANKRUPT Respondent order made by: MORTIMER, SNADEN AND MCELWAINE JJ DATE OF ORDER: 11 March 2022 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The respondent's costs of the appeal are the proper costs of the bankruptcy of the appellant. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MORTIMER J: 1 I have had the advantage of reading the reasons of Snaden and McElwaine JJ in draft. I am grateful for their Honours' summary of the background, the reasons of the primary judge and the parties' arguments, which I respectfully adopt. I agree with their Honours' conclusion that the appeal must be dismissed, and with the costs order proposed by their Honours. 2 In Lee v Lee [2019] HCA 28; 266 CLR 129 at [55], the plurality re-stated the approach from Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 at [43] that a court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the primary judge's reasons for judgment, in order to determine whether the primary judge has erred in fact or law. The plurality clarified that the appellate restraint described in Robinson Helicopter, and also in Fox v Percy [2003] HCA 22; 214 CLR 118 at [25], concerns factual findings "which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence", rather than all fact finding. The plurality continued (at [55]): Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge". (Citation omitted.) 3 To similar effect see also Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 at [3] and Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; 278 FCR 1 at [410]-[411]. 4 In the present appeal, many of the findings by the primary judge at [33]-[40] involve inferences drawn from documents, sometimes in combination with other evidence. Overall, I do not consider that the primary judge's findings of fact in his core reasoning at [33]-[40] were based primarily on the adverse credibility findings at [19]. They were also based on a close assessment of the documentary evidence at trial, which this Court is in as good a position to assess. 5 In his oral submissions on the appeal, the appellant spoke with considerable emotion and wholeheartedness. He brought a picture of his deceased mother to show the Court. His focus was on persuading the Court that his brother did exist. While that is an understandable focus for a self-represented person in the appellant's circumstances, it was not the focus of the primary judge's fact finding. In particular, I would emphasise the primary judge's finding at [40] that the birth and death certificates produced by the appellant at trial (whose authenticity was not challenged by the Trustee) suggest the appellant's brother did exist. Despite this, the primary judge was "nevertheless satisfied that it was the first respondent, using the name Tam Chanh Le, who acquired the interest in the Property". That in turn led to the primary judge's core factual conclusion at [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. 6 While, as the primary judge found at [19], the appellant appeared honestly to believe what he was saying, the evidence as a whole, including the documentary evidence supports the factual findings made by the primary judge that the appellant, and the "Tam Chanh Le" named on the certificate of title, are one and the same person. There is no error discernible in those findings and the appeal must be dismissed. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate: Dated: 11 March 2022 REASONS FOR JUDGMENT SNADEN AND MCELWAINE JJ: 7 By notice filed 23 November 2021, the appellant appeals from the judgment of this court in Scott (Trustee) v Le [2021] FCA 1364 (Moshinsky J). By that judgment (the "Primary Judgment"), the court granted relief on the application of the respondent, who is the trustee of the appellant's bankrupt estate. That relief concerned a property located at 23 The Avenue, Sunshine, Victoria (the "Property"), at which the appellant resides with his wife (who was also a respondent to the proceeding below). 8 Prior to the judgment from which the appeal is brought, the Property was registered jointly in the names of the appellant's wife, Ms Hoa Tran Le, and "Tam Chanh Le". Before the primary judge, the respondent (hereafter, the "Trustee") maintained that "Tam Chanh Le" and the appellant (Chanh Tam Le) were and are the same individual; and that the Property was jointly owned as between the appellant and his wife. The appellant maintained that Tam Chanh Le was his late brother, and that the Property therefore did not form part of his (the appellant's) bankrupt estate. 9 The primary judge accepted the Trustee's contentions. His Honour concluded that the "Tam Chanh Le" recorded on the Property's certificate of title was, in fact, the appellant, Chanh Tam Le; and that the Property therefore formed part of his (the appellant's) bankrupt estate. He made orders requiring that the appellant and his wife give vacant possession of the Property, and for the facilitation of its sale by the Trustee. 10 The appeal from those orders proceeds upon a single ground, which the appellant—who, at all times, appeared on his own behalf with the assistance of a Vietnamese interpreter—appears to have drafted without legal assistance. Intending no disrespect, the ground is difficult to follow and needn't here be replicated. It is apparent, not least from the helpful oral submissions that he advanced at the hearing of the appeal, that the appellant maintains that the "Tam Chanh Le" whose name appears on the Property's certificate of title is his late brother and that the primary judge made an error of fact in concluding otherwise. That is the sole issue to which the appeal is directed. 11 For the reasons that follow, the appeal must be dismissed. The Primary Judgment 12 It is convenient to trace the reasoning that led the primary judge to the conclusion that the appellant challenges. 13 Before laying out his consideration of the evidence that had been tendered before him, the primary judge made some observations about the appellant and his evidence (Primary Judgment, [19]): 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… 14 His Honour then proceeded to summarise facts that emerged without controversy from the evidence. They included the fact that the appellant was born in Vietnam on 10 November 1954, that he came to Australia in 1984, that he became an Australian citizen in 1986 and that such written records that exist of those events all record with consistency his name, Chanh Tam Le. His Honour then noted that "Tam Chanh Le" and the appellant's wife, Mrs Le, were registered on 18 March 1996 as "joint proprietors" of the Property. The certificate of title placed before his Honour records that both were, at that time, living at another address in Sunshine, Victoria. 15 His Honour went on to consider an array of records—including the appellant's driver's licence, Medicare card and passport—noting that all of them recorded the appellant's name as "Chanh Tam Le" and his date of birth as 10 November 1954. 16 As to the circumstances leading to the purchase of the Property in 1996, his Honour noted the appellant's evidence that it was his parents who funded a deposit for the purchase; and that his father insisted, at the time, that title in the property should not vest in him, apparently because he (the appellant) was a gambler. 17 Next, his Honour noted evidence led by the appellant to establish the existence of his brother. To that end, his Honour referred to: (1) a Vietnamese birth certificate pertaining to "Tam-Chanh-Le", born 10 November 1962 (eight years to the day after the appellant's birth); (2) a Vietnamese death certificate also pertaining to "tam chanh le", which indicated a date of death of 9 March 2017; (3) a statutory declaration apparently made by "Tam Chanh Le" on 3 May 2016, attesting to his being a co-owner of the Property; and (4) a photograph of an urn that the appellant said contained the ashes of his deceased brother and that bore a label noting his date of death as 10 March 2017. 18 In the lead up to the trial, a number of subpoenas were returned, which yielded many documents bearing the appellant's name and signature. In his reasons for judgment, the primary judge noted that it emerged from those documents that the appellant had, over the years, used two different forms of signature: one resembling the word "Tam", which appeared on numerous documents, predominantly prior to 2015; and one resembling the word "Chanh" from 2015 onwards. 19 His Honour the primary judge noted the obvious curiosity about the appellant's narrative: namely that "…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." Although acknowledging the explanation that the appellant had offered in that regard, his Honour concluded that the appellant's "…evidence generally lacked credibility, and [his] explanation was not supported by any other evidence". 20 It is convenient at this juncture to pause and note that the court did not receive any evidence from the appellant's wife (who, although not party to the present appeal, was the second respondent in the proceeding below). 21 The primary judge next observed that the signatures that appeared on the transfer of land and mortgage instruments relating to the purchase of the Property in 1996 both appeared to resemble the "Tam" signature that the appellant appeared to use with some regularity prior to 2015. Perhaps more tellingly, his Honour noted that there were two documents in evidence linking the appellant with the loan arrangements that were apparently established at the time that the Property was acquired. The first was a bank statement pertaining to a Westpac bank home loan account, apparently opened jointly in the names "mrs hoa tran le" and "mr tam chanh le". That document recorded a "Customer Number" for each of the joint account holders. During his cross-examination, the appellant conceded that the customer number corresponding with the name "mr tam chanh le" was, in fact, his customer number. A second document, also from the Westpac bank, recorded details of the home loan account holders. It noted that "mr tam chanh le", in respect of whom the same customer number was recorded, was born on 10 November 1954; the same day as the appellant. 22 The primary judge then noted that two documents were received into evidence in which the appellant had used the name "Tam Chanh Le". His Honour observed that it was "not clear why the [appellant] used that name on those occasions [and that h]is explanation in oral evidence was not convincing". 23 Next, the primary judge observed that, although asked to, the appellant had not provided the Trustee with any contact details for, nor any photographic evidence of, his brother. The appellant apparently attempted to explain that failure by noting that his brother was "missing" but his Honour "[did] not consider this explanation to be persuasive in circumstances where (on the [appellant's] case) the brother was in Australia in 2016 to sign the statutory declaration". 24 As to that statutory declaration, his Honour observed that the signature that it bore appeared to be the same signature as had been used on many documents signed by the appellant, particularly prior to 2015. He considered that "no weight" could be placed upon it. Similarly, his Honour placed "little weight" upon the photograph of the urn that the appellant had tendered. 25 Although willing to entertain the possibility that the appellant might have had a now-deceased brother named Tam Chanh Le, the primary judge nonetheless concluded that "…the evidence as a whole supports the view that the Property was acquired by the [appellant], using the name Tam Chanh Le, and [his wife]." 26 It was on that basis that his Honour granted the relief in respect of which the present appeal is brought. Submissions on the appeal 27 On appeal, the appellant continued to represent himself with the assistance of a Vietnamese interpreter. His contentions were cogent and helpful. He submitted, simply enough, that the primary judge was wrong to conclude that he had acquired an interest in the Property using the name "Tam Chanh Le". He maintained that "Tam Chanh Le" was, in fact, his now-deceased brother. 28 In seeking to make good on that narrative, the appellant's oral submissions on appeal sought to revisit aspects of the evidence that was before the primary judge. He maintained that the Property was properly registered in the name of his brother, Tam Chanh Le; and that he did not have an interest in it, nor contribute to the repayment of the loan with which it was acquired. That reality, he explained, reflected a position adopted by his local government, Brimbank City Council, which regarded Tam Chanh Le, not Chanh Tam Le, as the owner and occupier of the Property. He submitted that, however similar they might have appeared to be, his signature and that of his late brother were not one and the same. 29 The Trustee submitted that the bulk of the evidence before the primary judge tended to establish that the appellant and Tam Chanh Le were, in fact, one and the same person. He contended that the primary judge was correct so to conclude; and that nothing advanced by the appellant in his oral appeal submissions should suffice to warrant the opposite conclusion. Consideration: Did his Honour err? 30 The task of the court on appeal is well-established. The court will only interfere with a primary judgment if it is the product of error: Allesch v Maunz (2000) 203 CLR 172, 180 [23] (Gaudron, Gummow, McHugh and Hayne JJ). Here, the error alleged is one of fact: the appellant maintains that he is not Tam Chanh Le and did not acquire any interest in the Property under that name (or at all). He submits that the primary judge was wrong to draw those conclusions. 31 In Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 (French CJ, Bell, Keane, Nettle and Gordon JJ), the High Court described the task of an appeal court as follows (at 686-687 [43]): A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences". 32 Findings of fact that are based, in part, upon a trial judge's impression of a witness or the credibility of his or her evidence are not beyond the reach of correction on appeal: Fox v Percy (2003) 214 CLR 118, 128 [29] (Gleeson CJ, Gummow and Kirby JJ). Furthermore, factual conclusions reached by inference do not command the same level of appellate deference: Lee v Lee (2019) 266 CLR 129, 148-149 [55] (Bell, Gageler, Nettle and Edelman JJ). Nonetheless, if a trial judge's finding "…depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'": Devries v Australian National Railways Commission (1993) 177 CLR 472, 479 (Brennan, Gaudron and McHugh JJ). In this court, it has been said that such findings are "nearly invulnerable": Italiano v Barbaro (1993) 40 FCR 303, 326 (Neaves, Burchett and Whitlam JJ, Black and Beazley JJ agreeing in the result). 33 Having considered the evidence for ourselves, it is apparent that the conclusion to which the primary judge was drawn was very much open to be drawn. Indeed, even leaving to one side the caution with which his Honour was moved to regard the appellant's oral evidence, the circumstances of the present case point very strongly in favour of the finding that his Honour made. Although not beyond explanation, there is (and was) an inherent implausibility to the appellant's narrative. Why, it might rhetorically be asked, for example, would the appellant's brother be installed as the joint owner of a house that the appellant lived in with his wife? Why was there no photographic evidence of the appellant's brother? Why would the appellant sign documents in a style bearing his brother's name? Why didn't the appellant's wife give evidence at the trial to corroborate his account? 34 What is already, on the evidence, an inherently unconvincing account is all the more ripe for rejection when regard is had to the primary judge's assessment of the appellant's credibility. Whatever might be said of his Honour's conclusion (and, to be clear, we regard it as correct), it could not be said to be contrary to incontrovertible facts or uncontested testimony, nor was it glaringly improbable or contrary to compelling inferences. 35 Those realities acknowledged, there is no moment for this court to interfere on appeal with his Honour's conclusion or with the relief that was granted in consequence of it. The appeal must, for that reason, be dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Snaden and McElwaine. Associate: Dated: 11 March 2022