Chen & Ors v Chan & Ors

[2008] VSCA 280

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Appeal
3. › New points on appeal
4. › Issues not confined to pleadings
5. › Whether party may raise on appeal issues not contested at trial
6. › Whether pleadings conclusive of issues available on appeal
7. › Conduct of trial as determinative of issues litigated
1. Practice and Procedure
2. › Master
3. › Taking of accounts
4. › Order under R 52.01
5. › Independent judicial function
6. › Whether Master may adopt trial judge's credit findings
7. › Requirement for independent credibility assessment
1. Evidence
2. › Sufficiency of evidence
3. › Whether evidence sufficient to support findings against particular defendant
4. › Jones v Dunkel
5. › Rule cannot fill gaps in evidence or convert conjecture into inference
1. Contempt
2. › Civil contempt
3. › Breach of freezing orders
4. › Failure to serve orders personally
5. › Whether service prerequisite for monetary penalty
6. › Whether knowledge and understanding of orders sufficient
7. › Standard of proof beyond reasonable doubt

Quick Take

A Master conducting a taking of accounts exercises an independent judicial function and must make independent credibility assessments; it is impermissible for the Master to adopt the trial judge's credit findings. Pleadings do not conclusively determine the issues available on appeal; the actual conduct of the trial determines what issues were litigated and may be raised on appeal. The rule in Jones v Dunkel cannot fill gaps in the plaintiff's evidence or convert conjecture into inference against a defendant who did not give evidence.