Legal Research
Cases
Lennan v Chao (No 2)

Lennan v Chao (No 2)

Case [2025] VSC 513 25 August 2025

Costs

Limitation Periods

Unconscionable Conduct

Civil Litigation & Procedure

Family Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2023 00410

ANTHONY LENNAN	Plaintiff
V
TAT WOON CHAO and FAY LIN CHAO (who are sued in their capacity as Executors of the Estate of FAY PING CHAO Deceased)	Defendants

---

JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2025
DATE OF JUDGMENT:	25 August 2025	(First Revision (26 August 2025): [11], [49])
CASE MAY BE CITED AS:	Lennan v Chao (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 513

---

PROCEDURE – Costs – Plaintiff unsuccessful in family provision claim – Plaintiff seeks defendants’ costs from estate – Defendants seek plaintiff pay costs on standard basis and on indemnity basis following offer of compromise – Where plaintiff not in need and relationship with deceased of limited duration – Usual order as to costs – Plaintiff’s case not borderline – Plaintiff unreasonably failed to accept offer of compromise – Plaintiff not impecunious as a result of costs order – Plaintiff to pay defendants’ costs on standard basis up to offer of compromise and indemnity costs thereafter – Administration of Probate Act 1958 Part IV – Supreme Court (General Civil Procedure) Rules 2015 rr 26.02, 26.08(4), ord 63 – Supreme Court Act 1986 ss 24, 97(60), 97(7) – Justice Legislation Amendment (Succession and Surrogacy) Act 2014 s 6(7) – Lennan v Chao [2025] VSC 220 – Re Schlink; Keane v Corns (No 2) [2020] VSC 417 – Innes-Irons & Anor v Forrest (Costs) [2017] VSC 10 – Webb v Ryan (No 2) [2012] VSC 431 – McCusker v Rutter (2010) 7 ASTLR 137 – Haertsch v Whiteway (No 2) [2020] NSWCA 287.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Rizzi	Moores
For the Defendants	Mr J Smith	Nathan Yii Lawyers

HIS HONOUR:

In this proceeding, I determined to dismiss the plaintiff’s application under Part IV of the Administration of Probate Act 1958 (the Act) for provision from the estate of his former domestic partner, Fay Ping Chao.[1] The remaining issue for determination is the liability for the successful defendants’ costs of the proceeding.
[1]See Lennan v Chao [2025] VSC 220 (the reasons). These further reasons for judgment should be read in conjunction with the reasons. Except where otherwise apparent, I have used the abbreviations defined in the reasons.

The unsuccessful plaintiff seeks that the defendants’ costs be paid from Ping’s estate. The defendants seek that the plaintiff pay their costs on a standard basis until after the making of an offer of compromise in accordance with r 26.02 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules), and on an indemnity basis thereafter.

Costs in Part IV claims: general principles

The Court has a general discretion in respect of costs which is to be exercised judicially and in accordance with Order 63 of the Rules.[2] There are no fixed rules as to the appropriate costs order to be made in particular circumstances;…

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 Lennan v Chao (No 2)

Details

AGLC: Lennan v Chao (No 2) [2025] VSC 513
Case: [2025] VSC 513
Decision Date: 25 August 2025

CaseChat Overview and Summary

The case of Lennan v Chao (No 2) involved a family provision claim by the plaintiff, seeking costs from the estate of the deceased. The defendants opposed the plaintiff's claim and sought costs on both a standard and indemnity basis, following an offer of compromise that the plaintiff had unreasonably rejected. The dispute was heard in the Supreme Court of Victoria.

The court had to determine the appropriate allocation of costs in light of the plaintiff's unsuccessful family provision claim. The issues included whether the plaintiff was in need, the nature and duration of the relationship with the deceased, and whether the plaintiff's case was borderline or unreasonably rejected the offer of compromise. The court also had to consider if the plaintiff was rendered impecunious by the costs order.

The court found that the plaintiff was not in need and that the relationship with the deceased was of limited duration. The court also ruled that the plaintiff's case was not borderline and that the plaintiff had unreasonably failed to accept the offer of compromise. The plaintiff was not rendered impecunious by the costs order. Consequently, the court ordered the plaintiff to pay the defendants' costs on a standard basis up to the amount of the offer of compromise and on an indemnity basis thereafter. The court relied on relevant statutes and previous cases to reach its decision.

The final orders required the plaintiff to pay the defendants' costs on the specified basis, in accordance with the relevant legislation and rules.

Orders