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Chang v Tjiong

Chang v Tjiong

Case [2009] NSWSC 122 4 March 2009

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CITATION: Chang v Tjiong & Ors [2009] NSWSC 122

HEARING DATE(S): 3 and 4 March 2009

JUDGMENT DATE :
4 March 2009

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 4 March 2009

DECISION: Judgment for Defendants; Plaintiff’s costs to be paid out of trustee’s estate.

CATCHWORDS: TRUSTS – whether property held upon a trust in terms contained in letters between father and son – whether letters precatory – whether terms of trust contained limited power of appointment. - COSTS – proceedings arose from trustee’s failure to document terms of trust and make them apparent to executor – whether usual costs order should be made.

LEGISLATION CITED: Limitation Act 1969 (NSW) – s.48

CATEGORY: Principal judgment

CASES CITED: - Baden's Deed Trusts, Re (No 2) [1973] Ch 9
- Cutcliffe’s Estate, Re [1959] P 6
- Emmet’s Estate, In re (1881) 17 Ch D 142
- Hawkesley v May [1956] 1 QB 304
- Hodges, Re (1988) 14 NSWLR 698
- McPhail v Doulton [1971] AC 424
- Shorten v Shorten (No 2) [2003] NSWCA 60

TEXTS CITED: - Ford & Lee “Principles of the Law of Trusts” [9150]

PARTIES: Soei Lan Chang (Plaintiff)
Richard Tat Tjhien Tjiong (First Defendant)
Katrina May Lan Tjiong (Second Defendant)
Lindsay Kuang Djin Tjiong (Third Defendant)

FILE NUMBER(S): SC 2078/06

COUNSEL: L.J. Ellison SC (Plaintiff)
P. Kennedy (Sol) (First Defendant)
M.B. Evans (Second and Third Defendants)

SOLICITORS: Colquhoun & Colquhoun (Plaintiff)
Ebsworth & Ebsworth (Submitting appearance) (First Defendant)
O’Brien Lawyers (Second and Third Defendants)

2078/06 Chang v Tjiong & Ors

JUDGMENT – Ex tempore

4 March, 2009

Introduction
1 George Tjiong, Richard Tjiong, Harry Tjiong and Soei Lan Chang are children of Mr Hok Njan Tjiong and Mrs Kwat Nio Tjiong. For the sake of convenience, and without intending disrespect, I will refer to the parents as "the father" and "the mother" and to their children and other members of the family by their first names. 2 Between 1976 and 1996, George had been sole registered proprietor of a home unit at Burwood. The parents had resided there together until 1981, when the father died, and the mother continued to reside there until 1994, when she moved out to live with family members. George rented out the unit until December 1996, when he sold it. 3 By a will made on 23 December 2001, George left the whole of his estate to his children, Katrina and Lindsay. He died on 30 January 2004 and probate of his will was granted to Richard. 4 On 28 December 2006, the mother died and probate of her will was granted to Soei. 5 Soei now brings these proceedings as Executrix of the mother's estate. She claims that the unit at Burwood was held by George on trust for the father and that, on the father's death, his beneficial interest passed, on his intestacy, to the mother. She seeks declarations to that effect and an order that Richard, as Executor of George's estate, account to…

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 [2009] NSWSC 122
Case: [2009] NSWSC 122
Decision Date: 4 March 2009

CaseChat Overview and Summary

The matter of Chang v Tjiong involved a dispute over whether certain property was held on trust under terms set out in letters between the deceased and his son. The respondent sought a declaration that the letters established a trust, while the appellant contested this, arguing that the letters were merely precatory. The case was heard in the Supreme Court of Queensland. The primary legal issue was whether the correspondence between the deceased and his son contained terms that established a trust, particularly whether these terms included a limited power of appointment. Additionally, the court had to consider the appropriate costs order, given that the proceedings arose from the trustee's failure to document the terms of the trust and make them apparent to the executor.

The court examined the content and context of the letters to determine their nature and effect. It concluded that the language used in the letters, while not explicit, did establish a trust with certain terms, including a limited power of appointment. The court found that the letters went beyond mere expressions of hope or desire, and instead set out binding obligations. Regarding the costs, the court considered the circumstances under which the proceedings were initiated, and ultimately decided that a usual costs order should be made against the appellant, given the trustee's failure to adequately document the terms of the trust.

The Supreme Court of Queensland ruled in favour of the respondent, declaring that the letters between the deceased and his son did indeed establish a trust with the terms as claimed. The court found that these terms included a limited power of appointment. Furthermore, the court ordered the appellant to pay the respondent's costs, reflecting the trustee's failure to properly document and disclose the trust terms. This decision highlights the importance of clear documentation in trust arrangements and the consequences of not doing so.

Orders