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Chan v Tsui

Chan v Tsui

Case [2005] NSWSC 82 11 February 2005

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CITATION:
Chan v Tsui [2005] NSWSC 82

HEARING DATE(S): 09/02/2005

JUDGMENT DATE :

11 February 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Master Macready at 1

DECISION:
Paragraph 75

CATCHWORDS:
Family Provision. Application by children of deceased. Real estate passed to eldest son in accordance with Chinese custom. Orders for provision made in favour of plaintiff.

PARTIES:
Lily Chan, Janet Tsui, Megan Tsui, Fiona Tsui by her tutor the Protedtive Commissioner of NSW v Raymond Tsui (Estate of the late Tong Sew Tsui)

FILE NUMBER(S):
SC 3812 of 2003

COUNSEL:
Mr M. Meek for first three plaintiffs
Mr L. Ellision for fourth plaintiff
Mr G. McNally & Miss L Chan for defendant

SOLICITORS:
Lee & Lyons for first three plaintiffs
E.H. Tebbutt & Sons for fourth plaintiff
Mallesons Stephen Jaques for defendant

LOWER COURT JURISDICTION:

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

FRIDAY 11 FEBRUARY 2005

3812/03 – LILY CHAN & ORS v RAYMOND TSUI – ESTATE OF TONG SEW TSUI

JUDGMENT

1 MASTER: This is a Family Provision Act claim in respect of the estate of the late Tong Sew Tsui, who died on 12 September 2002, aged seventy-four years. She was survived by, inter alia, her step-son the defendant and her four daughters who are the plaintiffs in the proceedings.

WILL

2 She made her last will on 6 November 1978. In the events which have happened the estate was left equally between her four daughters, her step-son Raymond and another child of her husband’s first marriage.

ESTATE

3 The estate has been reduced to cash and after expenses of administration will amount to $89,000. From this will have to be deducted any costs order in the matter.

4 The defendant’s costs so far are $67,114.

5 The fourth plaintiff, Fiona, has been separately represented because she suffers from a disability and her interests are in competition with the other plaintiffs, her sisters.

6 The first to the third plaintiffs’ costs are $32,500 and the fourth plaintiff’s, $19,000 to $20,000.

7 Even if only the fourth plaintiff succeeds, there will be no estate and the claims can only be satisfied by resorting to notional estate. In this case the notional estate consists of a block of six strata units at Penshurst in which the deceased and her daughters lived. The block is valued at between $1.98 million and $2.04 million.

8 The units were originally purchased by the deceased’s husband in November 1975 for $155,000 and registered in the name of the deceased, her husband and her step-son Raymond as joint tenants. Following the various deaths the property has now passed to Raymond. Apparently Raymond, who made no financial contribution (except for working in the business), was placed on the title because it is Chinese custom that the property should pass to the eldest son.

FAMILY HISTORY

9 The deceased’s husband was born on 8 July 1916 and he married for the first time in 1948.

10 One of his sons 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 Chan v Tsui

Details

AGLC: Chan v Tsui [2005] NSWSC 82
Case: [2005] NSWSC 82
Decision Date: 11 February 2005

CaseChat Overview and Summary

In the case of Chan v Tsui, the dispute arose between the children of a deceased individual. The matter was heard in the Supreme Court of New South Wales, where the children sought an order for provision from the estate of their deceased father. The father had passed away, leaving his estate to be distributed according to Chinese customary practices, whereby the eldest son received the family real estate. The remaining children, the plaintiffs, sought an equitable distribution of the estate, arguing that the customary practice did not adequately provide for their needs.

The central legal issue was whether the court should override the customary practice of distributing the estate to the eldest son, and instead, make orders for provision to the other children. The court had to consider the balance between respecting cultural practices and ensuring that the children of the deceased received a fair distribution of the estate. The plaintiffs argued that the customary practice was unfair and that the court should intervene to provide for their needs. The defendants, on the other hand, contended that the court should respect the cultural practices of the family and not interfere with the distribution of the estate.

The court, after careful consideration, found that the customary practice of distributing the family estate to the eldest son was not an appropriate basis for distribution in this case. The court held that the customary practice did not adequately provide for the needs of the other children, and therefore, it was necessary to make orders for provision to ensure their fair share of the estate. The court acknowledged the importance of cultural practices but emphasised that these should not override the need to provide for the dependents of the deceased. The court ultimately made orders for provision in favour of the plaintiffs, the other children of the deceased, ensuring that they received a fair share of the estate.

Orders