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Chang v Tjiong

Chang v Tjiong

Case [2011] NSWSC 1614 23 December 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Chang v Tjiong; Estate of Hok Njan Tjiong [2011] NSWSC 1614
Hearing dates: 30 November 2011
Decision date: 23 December 2011
Jurisdiction: Equity Division - Probate List
Before: White J
Decision:
Refer to paragraph [42] of judgment.

Catchwords: PRACTICE AND PROCEDURE - costs - costs orders to be made upon discontinuance of proceedings - probate - where plaintiff sought a grant of letters of administration with will annexed - Uniform Civil Procedure Rules 2005, r 42.19 - whether plaintiff should have appreciated when commenced proceedings that no real prospect of success - whether prima facie rule that on discontinuing proceedings plaintiff should pay costs on ordinary basis - whether plaintiff acted reasonably in filing the summons seeking grant of letters of administration with the will annexed - special rules about costs apply to probate actions - some sound positive ground or reason for making an order to displace the operation of Uniform Civil Procedure Rules 2005, r 42.19 - order that each party bear their own costs
Cases Cited: Chang v Tjiong & Ors [2009] NSWSC 122
Tjiong v Tjiong [2010] NSWSC 578
Re The Minister for Immigration & Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Burnside v Mulgrew & Anor; Re the Estate of Grabrovaz [2007] NSWSC 550
Ortner v Mewjork; Estate of Shing [2009] NSWSC 1381
Colgate-Palmolive Pty Ltd v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; (1993) 118 ALR 248
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Australiawide Airlines Ltd v Aspirion Pty Limited [2006] NSWCA 365
Altium Limited v APGF Property Limited [2010] NSWSC 732
Category: Principal judgment
Parties: Soei Lan Chang (Plaintiff)
Katrina Tjiong (Defendant)
Representation: L Ellison SC (Plaintiff)
M B Evans (Defendants)
Glass Goodwin (Plaintiff)
O'Brien Lawyers (Defendant)

File Number(s): 2011/98337

Judgment

HIS HONOUR : This application concerns the costs orders to be made upon the discontinuance of the plaintiff's application for the grant of letters of administration with the will annexed. The proceedings relate to the estate of Hok Njan Tjiong who died on 18 May 1981. No application for probate or letters of administration was made in the period immediately following his death because it was not perceived that the deceased had any assets.

The application for letters of administration with the will annexed was filed by the plaintiff, Soei Lan Chang, on 25 March 2011. The alleged will is a document that Mrs Chang says she discovered in mid July 2009. Her evidence was that she found the document in an envelope together with an unsigned copy in the course of cleaning out a cupboard in which she found a jacket belonging to the deceased's son, George, who himself died in 2004.

The document purportedly bore the signatures of the deceased and of two attesting witnesses, namely a Mr Brown, and the deceased's son, George Tjiong. The document had been torn…

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 [2011] NSWSC 1614
Case: [2011] NSWSC 1614
Decision Date: 23 December 2011

CaseChat Overview and Summary

The case of Chang v Tjiong involved a dispute over costs following the discontinuance of probate proceedings. The plaintiff sought a grant of letters of administration with the will annexed, but the proceedings were ultimately discontinued. The central legal issue before the court was whether the plaintiff should have appreciated at the outset that there was no real prospect of success in obtaining the grant of letters of administration with the will annexed. Additionally, the court had to consider whether there is a prima facie rule that upon discontinuing proceedings, the plaintiff should pay costs on the ordinary basis. Another consideration was whether the plaintiff acted reasonably in filing the summons, and if special rules about costs apply to probate actions.

The court examined the relevant provisions under the Uniform Civil Procedure Rules 2005, particularly rule 42.19, which generally mandates that a party who discontinues proceedings should bear the costs of the other party. The court noted that special rules about costs apply to probate actions and considered whether there was sound positive ground or reason to displace the operation of rule 42.19. The court found that the plaintiff had acted reasonably in filing the summons and that the circumstances of the case warranted an exception to the usual cost-bearing rule. The court concluded that each party should bear their own costs, rather than the plaintiff bearing the costs of the other party.

In light of the above, the court made an order that each party bear their own costs, reflecting the special circumstances of the case and the need to consider the principles of fairness and reasonableness in the context of probate proceedings.

Orders