Basten JA at [1]; Simpson JA at [74]; Payne JA at [75]
Decision:
(1) Dismiss the cross-appeal and order that the cross-appellant (Benedict Chan) pay the costs of the cross-respondent (Clement Chan) of the cross-appeal.
(2) In respect of the appeal, (a) Allow the appeal and set aside the order of Darke J made on 30 July 2015 dismissing the application by Clement Chan under the Succession Act 2006, with respect to the estate of his late father, August Ying Kiang Chan. (b) Set aside the orders made by Darke J on 16 September 2015 in relation to the costs of proceedings 2013/187391. (c) Extend the time for the making of the application until 18 June 2013. (d) Subject to (f) and (g) below, order that further provision be made out of the estate of August Ying Kiang Chan in an amount of $700,000 payable to the appellant, Clement Wai Shing Chan. (e) Refuse leave to the appellant to file an amended notice of appeal. (f) Remit the matter to the Equity Division to consider any application by either party pursuant to s.66(1) of the Succession Act 2006 for the provision ordered under (d) above to be held on a protective trust for the appellant and to be applied to the use of the appellant towards the repair and maintenance of the property at 10 Robert St, Gordon and otherwise for the appellant’s needs, with such powers of investment as are prescribed in Pt 2, Div 2 of the Trustee Act 1925 (NSW). (g) Stay the order for further provision in (d) above for 28 days or for such further time as may be ordered by a judge of the Equity Division to allow the determination of any application made in accordance with (f) above. (h) Order that the respondent, Benedict Chan, pay the costs of Clement Chan in this Court and in the Equity Division.
Catchwords:
SUCCESSION – family provision – claim by adult son – applicant suffering degree of functional impairment – history of financial dependence on testator – testator provided son with house and costs of maintenance during father’s lifetime – accommodation in significant disrepair – whether testator made adequate provision – adequacy of provision determined in context of pre-existing condition and station in life – relevant factors include size of estate, proportion conferred on respondent, respondent’s financial need – Succession Act 2006 (NSW), ss 59(1), 60(2)
PRACTICE AND PROCEDURE – cross-appeal – challenge to grant of leave to bring proceedings out of time – basis of challenge that application for provision lacked merit – if correct, cross-appeal unnecessary – if incorrect, extension of time within discretionary judgment of trial judge – whether discretion reviewable on facts
[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.
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Details
AGLC
Chan v Chan [2016] NSWCA 222
Case
[2016] NSWCA 222
Decision Date
CaseChat Overview and Summary
This case concerned a family provision claim brought by Clement Chan, an adult son, against the estate of his late father, August Ying Kiang Chan. Clement sought further provision from the estate, alleging that his father had not made adequate provision for his proper maintenance, education, and advancement in life. Benedict Chan, another son, cross-appealed against the primary judge's decision to grant Clement leave to bring proceedings out of time.
The Court of Appeal was required to determine whether the primary judge erred in granting Clement leave to bring his family provision claim out of time, and if so, whether the primary judge had made adequate provision for Clement from the estate. The legal issues also encompassed the principles governing the review of a judge's discretionary decision to extend time for bringing such a claim, and the factors to be considered when assessing the adequacy of provision, including the applicant's functional impairment, history of financial dependence, and the size and distribution of the estate.
The Court of Appeal dismissed Benedict Chan's cross-appeal, finding that the primary judge's discretion to extend time was not wrongly exercised. The Court then allowed Clement Chan's appeal, setting aside the primary judge's dismissal of his application. The Court found that the testator had not made adequate provision for Clement, considering his functional impairment and financial dependence. Consequently, the Court ordered that further provision of $700,000 be made from the estate to Clement, subject to the possibility of it being held on a protective trust for his benefit, particularly for the repair of his home and his ongoing needs. The Court also ordered Benedict Chan to pay the costs of both the appeal and the cross-appeal.
Orders
Orders of the court
(1) Dismiss the cross-appeal and order that the cross-appellant (Benedict Chan) pay the costs of the cross-respondent (Clement Chan) of the cross-appeal.
(2) In respect of the appeal,
(a) Allow the appeal and set aside the order of Darke J made on 30 July 2015 dismissing the application by Clement Chan under the Succession Act 2006, with respect to the estate of his late father, August Ying Kiang Chan.
(b) Set aside the orders made by Darke J on 16 September 2015 in relation to the costs of proceedings 2013/187391.
(c) Extend the time for the making of the application until 18 June 2013.
(d) Subject to (f) and (g) below, order that further provision be made out of the estate of August Ying Kiang Chan in an amount of $700,000 payable to the appellant, Clement Wai Shing Chan.
(e) Refuse leave to the appellant to file an amended notice of appeal.
(f) Remit the matter to the Equity Division to consider any application by either party pursuant to s.66(1) of the Succession Act 2006 for the provision ordered under (d) above to be held on a protective trust for the appellant and to be applied to the use of the appellant towards the repair and maintenance of the property at 10 Robert St, Gordon and otherwise for the appellant’s needs, with such powers of investment as are prescribed in Pt 2, Div 2 of the Trustee Act 1925 (NSW).
(g) Stay the order for further provision in (d) above for 28 days or for such further time as may be ordered by a judge of the Equity Division to allow the determination of any application made in accordance with (f) above.
(h) Order that the respondent, Benedict Chan, pay the costs of Clement Chan in this Court and in the Equity Division.