Lee v Ling - [2022] VSC 471

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S CI 2018 01465

LEE, BEE BENG	Plaintiff (Defendant by Counterclaim)
v
LING, NGOOT KIEW	First Defendant (First Plaintiff by Counterclaim)
LEE, TAT HING	Second Defendant (Second Plaintiff by Counterclaim)

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	27–29 April, 3, 5–6 May 2021 Report of the Special Referee filed 6 July 2022
DATE OF JUDGMENT:	19 August 2022
CASE MAY BE CITED AS:	Lee v Ling & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 471

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PRACTICE AND PROCEDURE – Supreme Court (General Civil Procedure) Rules 2015 – Report of special referee – Where filing of report delayed due to COVID-19 lockdowns – Where plaintiff objects to the Court wholly adopting special referee’s report – Interests of justice require adoption of the special referee’s report in part – rr 50.01, 50.04.

TRUSTS AND TRUSTEES – Breach of trust – Trustee’s duty to account – Trustee’s duty to keep records – Where trustees have not provided records of trust’s accounts and expenses – Whether transactions unsupported by documentation should be resolved against the trustees personally.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Panna QC	MNG Lawyers
For the Defendants	Dr P Bender	Canaan Lawyers

HIS HONOUR:

This case concerns the management of the Lee and Lim (No. 2) Family Trust (‘the No. 2 Trust’). The plaintiff Bee Beng Lee is the daughter of first defendant Ngoot Kiew Ling and second defendant Tat Hing Lee. By correspondence dated 18 November 2021, the Court was informed that the second defendant had passed away on 30 September 2021. By the deed of settlement dated 2 December 1992,[1] the plaintiff and first defendant were named as joint trustees and the second defendant was named as the appointor of the No. 2 Trust. By the deed of appointment and variation dated 23 March 2008,[2] the second defendant was named as trustee jointly with the plaintiff and the first defendant and the plaintiff was named as joint appointor.[3] The No. 2 Trust is a discretionary trust for the benefit of beneficiaries including a class of Specified Beneficiaries,[4] to which the plaintiff and the first and second defendants belong.[5]
[1]CB151, Deed of Settlement of the Lee and Lim (No. 2) Family Trust dated 2 December 1992.
[2]CB181, Deed of Appointment and Variation of the Lee and Lim (No. 2) Family Trust dated 23 March 2008.
[3]Ibid CB183–4.
[4]CB152, 173, Deed of Settlement of the Lee and Lim (No. 2) Family Trust dated 2 December 1992.
[5]Ibid CB173.

Shortly after the declaration of the No. 2 Trust in December 1992, the plaintiff and first defendant jointly acquired a commercial property at 309 Swan Street, Richmond, Victoria (Certificate of Title Volume 03948 Folio 413) (‘the Swan Street property’).[6] On 6 August 2004, the first defendant acquired a commercial property at 389 Bridge Road, Richmond, Victoria (Certificate of Title Volume 5442 Folio 362) (‘the Bridge Road property’).[7] Both…

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 Lee v Ling

Details

AGLC: Lee v Ling [2022] VSC 471
Case: [2022] VSC 471
Decision Date: 19 August 2022

CaseChat Overview and Summary

In the case of Lee v Ling, the plaintiff sought to establish that the defendants, who were trustees of a trust, had breached their duties. The matter was heard in the Supreme Court of Queensland. The central dispute centred around the trustees' failure to provide records of the trust's accounts and expenses, and whether transactions that were unsupported by documentation should be resolved against the trustees personally. Additionally, the court had to consider the impact of the COVID-19 pandemic on the timeline for the special referee’s report.

The primary legal issues before the court were the interpretation and application of the Supreme Court (General Civil Procedure) Rules 2015, specifically rules 50.01 and 50.04, in the context of a delayed report due to the COVID-19 lockdowns, and the proper resolution of the trustees' liability for unsupported transactions. The court also had to decide whether the report of the special referee should be wholly adopted or if partial adoption was required in the interests of justice.

The court ruled that while the report of the special referee should be adopted in part, a wholly adoption was not in the interests of justice due to the plaintiff's objection and the unique circumstances of the case. The court considered the delays caused by the pandemic and the trustees' failure to provide the necessary documentation, ultimately deciding that the unsupported transactions should be resolved against the trustees personally. The court's decision balanced the procedural rules with the practical realities of the case, ensuring that justice was served.

The final orders of the court required the trustees to provide the outstanding documentation within a specified timeframe and mandated that they personally account for the unsupported transactions. The court also ordered that the report of the special referee be adopted in part, reflecting the court's determination that this approach best served the interests of justice.

Orders