Lam v Lam

[2017] VSCA 173

Victorian Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appeals from findings of fact
3. › Credibility-based findings
4. › Whether incontrovertible facts rendered trial judge's factual findings glaringly improbable
5. › Fox v Percy [2003] HCA 22 applied
1. Practice and Procedure
2. › Judgments and orders
3. › Sufficiency of reasons
4. › Obligation to deal with evidence and submissions
5. › Whether failure to refer to specific evidence or submissions constituted appellable error
1. Property
2. › Real property
3. › Fraud and forgery
4. › Allegations of fraudulent transfer of registered title
5. › Resulting trust
6. › Whether registered proprietor held property on trust for person who paid purchase price

Quick Take

Financial statements that do not record a cash extraction are not 'incontrovertible facts' in the Fox v Percy sense where the trial judge's finding was based on cash flow capacity rather than recorded transactions, and where the integrity of the financial records was not itself in issue. The evidence of a witness whose account is not necessarily inconsistent with the accepted account does not constitute an incontrovertible fact requiring rejection of the accepted account. The comprehensive summary of the law on sufficiency of reasons at paragraphs 106-113, drawing on Hunter v TAC and other authorities, provides a useful reference for practitioners.