Aun v Vitim Pty Ltd - [2025] VSC 265

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 01202

HENRY YUN LYE AUN	Plaintiff
v
VITIM PTY LTD (ACN 008 573 224) in its capacity as trustee of the AUN FAMILY TRUST & ORS (according to the attached schedule)	Defendants

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JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2024 (Hearing of the originating motion) 21 March 2025 (Return of the further amended summons)
DATE OF JUDGMENT:	16 May 2025
CASE MAY BE CITED AS:	Aun v Vitim Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 265

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TRUSTS – Distribution of assets to trusts under a will – Lost trust deeds – Secondary evidence available to declare the terms of the trusts – General class of beneficiaries under the lost trusts do not extend to siblings – Lost trusts each contain an appointer clause – Supreme Court (General Civil Procedure) Rules 2015, O 54.

WILLS AND ESTATES – Application for judicial advice – Where trusts specified as beneficiaries in the will are uncertain – Armchair principle – Consideration of extrinsic circumstances – Irreconcilable uncertainty in one named beneficiary, certainty in the other –Trust cannot be established after the testator’s death to fit the description of a named beneficiary – Wills Act 1997 (Vic) s 36 – Re Niall [2019] VSC 423 – Craven v Bradley (2021) 63 VR 567 – Greenham v Greenham [2020] VSC 749 – Bullock v Bennett (1855) 7 De G M&G 283 – Radford v Wills (1871) Ch App 7.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Sparke KC	Mazzeo Lawyers
For the First to Fourth Defendants	Mr P Pascoe	Hicks Oakley Chessell Williams
For the Fifth Defendant	Mr S T Pitt KC	Hall & Wilcox

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Family members and the trusts (the subjects of the proceeding)............................................. 2

Henry’s originating motion.............................................................................................................. 3

Relevant principles....................................................................................................................... 3
Secondary evidence relevant to the AFT2 and the AFT3........................................................ 4
Parties’ submissions.................................................................................................................... 14
Analysis and determinations..................................................................................................... 17

Julia’s summons............................................................................................................................... 20

Legislation and relevant principles.......................................................................................... 22
Henry’s family trust.................................................................................................................... 23
Analysis and answer......................................................................................................... 27

The AFT1...................................................................................................................................... 32
Submissions, analysis and answer.................................................................................. 32

Proposed orders................................................................................................................................ 32

HER HONOUR:

Introduction

This proceeding relates to the distribution of assets in the estate of Mrs Chan Wai King[1] (the deceased), who died on 7 September 2014, leaving a will dated 28 July 2005 (the Will). The estate has not yet been administered.
[1]The deceased is identified as Wai King Chan on the probate parchment.

The plaintiff, Henry Tun Lye Aun, is one of the deceased’s children.[2] The fifth defendant, Julia Ma, is also one of the deceased’s children, and the sole executrix of the Will.
[2]In the interests of clarity and without intending any disrespect, I will refer to the deceased’s children by their first names.

Prior to her death, the deceased and her husband had established various trusts. Under the Will, the deceased bequeathed some of…

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 Aun v Vitim Pty Ltd

Details

AGLC: Aun v Vitim Pty Ltd [2025] VSC 265
Case: [2025] VSC 265
Decision Date: 16 May 2025

CaseChat Overview and Summary

The dispute in Aun v Vitim Pty Ltd involved the interpretation of a will and the distribution of assets among various trusts. The matter was heard and determined by the Supreme Court of Victoria. The will specified several trusts as beneficiaries, but the original trust deeds were lost. The primary issue was whether secondary evidence could be used to declare the terms of these lost trusts and determine the appropriate distribution of the assets.

The legal issues before the court included the admissibility of secondary evidence to reconstruct the terms of the lost trust deeds and the identification of the beneficiaries of the trusts. The court had to consider whether the general class of beneficiaries under the lost trusts extended to the siblings of the testator, and whether the trusts contained appointer clauses that could influence the distribution. The court also needed to assess whether the trusts could be established posthumously to fit the description of a named beneficiary.

The court found that secondary evidence could be used to declare the terms of the lost trusts, provided it was reliable and the terms could be ascertained with certainty. The general class of beneficiaries under the lost trusts did not extend to the siblings. The court further held that each lost trust contained an appointer clause, which allowed the appointment of new beneficiaries by the testator's executors. Based on these findings, the court concluded that the trusts could not be established after the testator’s death to fit the description of a named beneficiary. The court's reasoning was grounded in established principles of will construction and the application of extrinsic evidence under the Wills Act 1997 (Vic).

The final orders of the court directed the executors to distribute the trust assets in accordance with the terms established through the secondary evidence, excluding the siblings from the class of beneficiaries. The court also directed the executors to exercise their powers under the appointer clauses to appoint new beneficiaries where necessary.

Orders