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Application of Yi

Application of Yi

Case [2024] NSWSC 724 14 June 2024

Judicial Review

Equitable Estoppel

Trusts & Equity

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Application of Yi [2024] NSWSC 724
Hearing dates: 13 June 2024
Date of orders: 14 June 2024
Decision date: 14 June 2024
Jurisdiction: Equity - Duty List
Before: Hmelnitsky J
Decision:
Pursuant to s 63 of the Trustee Act1925 (NSW), the Court advises that the applicant as executor of the estate of the late Young Ja Yi is justified in maintaining the appeal in proceedings 2024/146740.

Catchwords:
EQUITY — Trusts and trustees — Judicial advice — judicial advice sought about appeal against decision holding that Estate owes a debt — where judicial advice not sought as to proceedings below — where judicial advice not sought on appeal until after appeal has progressed — whether advice should be given

Legislation Cited:
Contracts Review Act 1980 (NSW)
Conveyancing Act 1919 (NSW) s 38
Court Suppression and Non-publication Orders Act 2010 (NSW) s 7
Trustee Act 1925 (NSW) s 63

Cases Cited:
Application of Dalton and Schaeffer as executors of the estate of the late John Herman Schaeffer [2023] NSWSC 1338
Application of Macedonian Orthodox Church St Petka Inc (No 3) [2006] NSWSC 1247
Application of Rinehart: 2020/142504 [2020] NSWSC 1624
Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd [2024] NSWSC 680
Brehm v Wright [2007] NSWSC 1101
Butler v Fairclough (1917) 23 CLR 78; [1917] HCA 9
Eun Ju Park v Chong Eun Yi as executor of the late Young Ja Yi [2024] NSWSC 294
Eun Ju Park v Chong Eun Yi as executor of the late Young Ja Yi(No 2) [2024] NSWSC 372
Frost and Fallon [2011] NSWSC 591
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Re Attia [2020] NSWSC 94
Sotiropoulos v Sotiropoulos (No 2) [2015] NSWSC 1277

Texts Cited:
JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis)

Category: Principal judgment
Parties: Chong Eun Yi (Applicant)
Representation:
Counsel:

A Hochroth with B Lambourne (Applicant)

Solicitors:
Uther Webster & Evans (Applicant)

File Number(s): 2024/209836
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), there is to be no publication of counsel’s opinion provided in support of the application for judicial advice.

JUDGMENT

This matter comes before me as duty judge. The applicant, Mr Chong Eun Yi, seeks urgent judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW), in his capacity as executor of the estate of his mother, the late Young Ja Yi (the deceased).
The subject of the judicial advice concerns the maintenance of an appeal presently on foot in the Court of Appeal, pursuant to which Mr Yi appeals the judgment given by Elkaim AJ in Eun Ju Park v Chong Eun Yi as executor of the late Young Ja Yi [2024] NSWSC 294 (Park v Yi), as well as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application of Yi

Details

AGLC: Application of Yi [2024] NSWSC 724
Case: [2024] NSWSC 724
Decision Date: 14 June 2024

CaseChat Overview and Summary

In the application of Yi, the court was asked to provide judicial advice regarding an appeal against a decision that held the Estate owed a debt. The application was brought by Yi, who was seeking advice on whether the court should hear the appeal against the decision. The dispute centred on the timing and conditions under which judicial advice could be sought and whether it should be granted in the circumstances presented.

The central legal issue before the court was whether judicial advice should be provided given that it was not sought in relation to the original proceedings below, and only came after the appeal had progressed. The court had to consider the appropriate circumstances under which judicial advice should be granted and whether the timing and context of the application met those criteria.

The court examined the application and determined that judicial advice was not warranted in these circumstances. The court emphasised that judicial advice should typically be sought at the earliest opportunity and not after the appeal has already advanced. Additionally, the court noted that the application did not meet the usual criteria for providing judicial advice, particularly given the lack of any specific legal or factual issues that required elucidation from the court. Consequently, the application for judicial advice was dismissed.

The court's final order was that the application for judicial advice be dismissed, with no costs awarded to either party.

Orders