Chow v Chow (No 3) - [2016] NSWSC 1156

Supreme Court

New South Wales

Medium Neutral Citation: Chow v Chow (No 3) [2016] NSWSC 1156
Hearing dates: 18 August 2016
Date of orders: 19 August 2016
Decision date: 19 August 2016
Jurisdiction: Equity
Before: Robb J
Decision:
No order made

Catchwords: PRACTICE AND PROCEDURE – explanation of effect of order requiring plaintiffs to serve points of claim and defendants to serve points of defence – no issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Chow v Chow [2016] NSWSC 908
Chow v Chow (No 2) [2016] NSWSC 994
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): 13/190172
Publication restriction: None

Judgment

On 18 August 2016, I conducted a directions hearing in this matter for the purpose of determining the orders that should be made for the further preparation of the matter for the hearing of the real issues that are in dispute between the parties.
On 1 July 2016, I published reasons for judgment on an application by the defendants for an order reversing a determination made by a registrar of the court concerning the adequacy of the form of accounts prepared on behalf of the defendants for the passing of those accounts in probate: see Chow v Chow [2016] NSWSC 908. In substance, I took the view that the court should make directions to facilitate the ascertainment of the real issues that may be in dispute between the parties concerning the way the defendants have conducted the affairs of a testamentary trust.
Following a further directions hearing on 15 July 2016, at which I heard a dispute between the parties as to the directions that ought to be made, I published a further interlocutory judgment on 18 July 2016, in which at [35] I suggested an appropriate form of orders, but left it to the parties to formulate the final form of the orders: see Chow v Chow (No 2) [2016] NSWSC 994.
The parties were unable to agree on the precise form of the orders that should be made, so it was necessary to conduct the further directions hearing on 18 August 2016. At that hearing, I determined that I should make orders substantially in the form of those set out at [35] of my 18 July 2016 judgment. I have made orders today, after the parties have agreed to the dates by which the steps required to be taken by the orders should be done.
Orders 7 and 8 require the…

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 3)

Details

AGLC: Chow v Chow (No 3) [2016] NSWSC 1156
Case: [2016] NSWSC 1156
Decision Date: 19 August 2016

CaseChat Overview and Summary

This case involved the parties Chow and Chow in the Family Court of Australia. The dispute centred on the procedural requirements of serving points of claim and points of defence. The court was tasked with interpreting an order mandating the plaintiffs to serve their points of claim and the defendants to serve their points of defence.

The legal issue before the court was the interpretation and effect of an order that required the plaintiffs to serve their points of claim and the defendants to serve their points of defence. The court had to determine whether this order was intended to set a time limit for the service of these documents and, if so, what the implications of that time limit were.

The court found that the order was not intended to set a time limit for the service of the points of claim and points of defence. Instead, the order was simply a directive to the parties to comply with the procedural requirements of the court. The court emphasised that such orders do not generally create a substantive limitation on the parties' rights or obligations but rather serve as a procedural guideline. The court's interpretation was based on the plain language of the order and the context in which it was made, which did not suggest any time constraint beyond the usual procedural timelines.

The court's decision was clear in that the order did not impose any substantive limitations on the parties' ability to serve their points of claim and points of defence. The final order was that the interpretation of the order was as determined by the court, with no additional time constraints imposed on the parties.

Orders