Chow v Chow (No 2) - [2016] NSWSC 994

Supreme Court

New South Wales

Medium Neutral Citation: Chow v Chow (No 2) [2016] NSWSC 994
Hearing dates: 15 July 2016
Decision date: 18 July 2016
Jurisdiction: Equity
Before: Robb J
Decision:
The parties are directed to bring in short minutes of order within 14 days to implement these reasons for judgment (having regard to par 35).

Catchwords: PRACTICE AND PROCEDURE – concerns directions to implement reasons for judgment on principal application –format of estate accounts in dispute – beneficiaries want trustees to reformat accounts from accounts prepared in accordance with current accounting standards to accounts prepared in a form suitable to be passed in probate – desirability of real issues in dispute being identified – whether beneficiaries could identify transactions of concern using accounts in current format – held court not satisfied that the annual financial statements are inadequate for the purpose of beneficiaries identifying real issues in dispute– form of short minutes of order proposed – no issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Chow v Chow [2016] NSWSC 908
Category: Procedural and other rulings
Parties:
Selwyn Sai-Him Chow (first plaintiff)
Jacqueline Wai Ying Chow (second plaintiff)
Evan Sai-Yiu Chow (third plaintiff)
Chow Kwok Chi (fourth plaintiff)
Chow Kwork Ching (as executor of the estate of Chow Cho Poon & co-trustee of the testamentary trust of the residuary estate of Chow Cho Poon) (first defendant)
Chan Pik Yun Peggy Chow (as co-trustee of the testamentary trust of the residuary estate of Chow Cho Poon) (second defendant)
Representation:
Counsel: PH Blackburn-Hart SC/DM Tucker
M Walton SC/MW Sneddon (defendants)
Solicitors: Arnold Bloch Leibler (plaintiffs)
Minter Ellison (defendants)

File Number(s): 2013/190172
Publication restriction: None

Judgment

I published my reasons for judgment on this application on 1 July 2016: see Chow v Chow [2016] NSWSC 908.
In essence, I declined to review a determination by Senior Deputy Registrar Studdert that the accounts prepared by the trustees for passing by a probate registrar were not in a proper format for that purpose.
However, I noted that the primary relief sought by the beneficiaries was an accounting by the trustees in Equity. I was unable to discern what the position was concerning the furtherance of that claim by the beneficiaries. For some reason that was not apparent, the trustees appear to have responded by seeking to have their accounts passed in the probate office. I made observations concerning the apparent lack of utility in the trustees taking that course, given that it would not necessarily decide the issues that would arise if the trustees are then required to undertake an accounting in Equity.
These issues caused me concern, because the trust estate was a very substantial one, and had been administered by the trustees over a period of about 15 years. The trustees had caused professional accountants to prepare annual financial statements for the trust, in accordance with conventional accounting standards, but accounts prepared in that way did not conform to the format historically used for the purpose…

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 Chow v Chow (No 2)

Details

AGLC: Chow v Chow (No 2) [2016] NSWSC 994
Case: [2016] NSWSC 994
Decision Date: 18 July 2016

CaseChat Overview and Summary

The case of Chow v Chow (No 2) involved a dispute between beneficiaries and trustees regarding the format of estate accounts. The dispute arose from the trustees' preparation of accounts in accordance with current accounting standards, which the beneficiaries found unsuitable for identifying real issues in dispute. The beneficiaries sought the court's direction to reform the accounts to a form that would be suitable for probate. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the beneficiaries could adequately identify transactions of concern using the accounts in their current format. The court needed to determine whether the form of the annual financial statements was inadequate for the purpose of identifying real issues in dispute. The court also had to consider whether the beneficiaries could identify real issues in dispute using the accounts in their current format. Another consideration was whether the court should direct the trustees to reformat the accounts in a form suitable for probate.

The court found that the annual financial statements were not inadequate for the purpose of beneficiaries identifying real issues in dispute. The court was not satisfied that the beneficiaries could not identify transactions of concern using the accounts in their current format. The court noted that the form of short minutes of order proposed by the beneficiaries did not raise any issue of principle. The court decided that it was not necessary to direct the trustees to reformat the accounts in a form suitable for probate.

The court made no orders regarding the reformatting of the accounts. The court found that the beneficiaries could adequately identify transactions of concern using the accounts in their current format. The court held that the annual financial statements were not inadequate for the purpose of beneficiaries identifying real issues in dispute. The court also found that the form of short minutes of order proposed by the beneficiaries did not raise any issue of principle.

Orders