Chang v Tjiong - [2023] NSWSC 823

Supreme Court

New South Wales

Medium Neutral Citation: Chang v Tjiong [2023] NSWSC 823
Hearing dates: 11 July 2023
Date of orders: 11 July 2023
Decision date: 11 July 2023
Jurisdiction: Equity
Before: Meek J
Decision:
Notice of motion dismissed

Catchwords:
ORDERS — Construction of orders — Reasons for Judgment address the question as to whether a trust had been determined by certain payments — Reasons conclude trust not so determined — Specific orders crafted with a view to trustees being appointed and reporting regarding the corpus and income of the trust and any claims for indemnity — Trustees issue interim report with qualifications — Process of issuance of interim report(s) contrary to the regime envisaged by Court’s orders and apt to give rise to unwieldy process of disputation — Queries of trustees to be addressed not by issuing interim report but by invoking liberty to apply for the Court’s direction prior to issuing of a final report
TRUSTS — Report to Court directed to be provided — Interim report provided raising qualifications such as (1) which of differing approaches in identifying corpus and income of trust is appropriate and (2) what assumptions are appropriate — Court orders do not envisage issuance of an interim report but rather for the trustees to seek direction on matters relating to the report prior to production of one final report

Cases Cited:
Chang v Tjiong [2022] NSWSC 1092

Category: Procedural rulings
Parties: Tzer Chin Chang (Plaintiff)
Katrina May Lan Tjiong (First Defendant)
Timothy Paul Heesh (Second Defendant)
Mark Kenneth John Everingham (Third Defendant)
Representation:
Counsel:
D Barlin (Plaintiff / Respondent)
Solicitors:
Commlex Pty Ltd (Plaintiff / Respondent)
O’Brien Lawyers (First Defendant / Applicant)
Carroll & O’Dea Lawyers (Second and Third Defendants)

File Number(s): 2020/217303

ex tempore JUDGMENT (revised)

HIS HONOUR: The application before the Court is a notice of motion filed by the first defendant seeking orders in relation to a report prepared by the second and third defendants who have been appointed as trustees of a trust described as the “Burwood Trust” and further for leave to issue subpoenas to the trustees and to others seeking production of documents.
The application, at least in part, has its genesis in reasons for judgment delivered by Henry J on 16 August 2022 in respect of proceedings concerning the Burwood Trust: Chang v Tjiong [2022] NSWSC 1092. Her Honour in those reasons dealt with a question as to whether or not the Burwood Trust had been determined by certain payments. Her Honour concluded that it was not so determined.
Her Honour made a number of orders as follows:

1. Declare that the income and corpus of the trust (Burwood Trust) that was identified by Justice Palmer in the decision of 4 March 2009 in Chang v Tjiong [2009] NSWSC 122 (Decision) has been held by:
(a) George Tat Loek Tjiong (Deceased) from 1976 until the Deceased’s death on 30 January 2004, noting that the Deceased lost…

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 Chang v Tjiong

Details

AGLC: Chang v Tjiong [2023] NSWSC 823
Case: [2023] NSWSC 823
Decision Date: 11 July 2023

CaseChat Overview and Summary

In the case of Chang v Tjiong, the dispute revolves around the construction of orders in relation to the trust fund, specifically whether certain payments resulted in the trust's determination. The matter was heard in the Federal Court of Australia. The central issue before the court was to determine whether the trust had been effectively determined by the payments in question, and if not, to craft specific orders that would facilitate the appointment of trustees and their reporting on the trust's corpus and income, as well as any claims for indemnity.

The court meticulously examined the legal arguments presented, focusing on the interpretation of the orders that had been previously issued. It concluded that the trust had not been determined by the payments in dispute. The court then proceeded to draft orders that would allow for the appointment of trustees who would subsequently report on the trust's assets and any potential claims for indemnity. The trustees were directed to issue an interim report, which, however, included several qualifications. These qualifications pertained to the appropriate approach to identifying the corpus and income of the trust, as well as the assumptions that should be adopted in the report.

In response to the trustees' interim report, the court found that the process of issuing such a report was contrary to the regime it had envisioned. The court explained that its orders did not anticipate an interim report, but rather a process where trustees would seek direction on matters pertaining to the report before producing a final report. This approach, the court noted, would prevent an unwieldy process of disputation and ensure a more streamlined resolution. The court therefore instructed that any queries the trustees had should be addressed by seeking the court's direction before issuing a final report, rather than through the issuance of an interim report.

The court's final orders reflect its intention to maintain a clear and efficient process for the trustees in reporting on the trust. It emphasised the importance of adhering to the court's envisioned regime to avoid unnecessary complications and ensure a timely and effective resolution of the matter. The court's directions to the trustees were designed to facilitate a transparent and efficient reporting process, avoiding the pitfalls of an interim report that could lead to further disputes and delays.

Orders