Lin v Lin - [2021] VSC 53

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S CI 2018 02053

TSAI MEI CHUAN LIN (in her own capacity and as administrator of the estate of WEN CHIH LIN, deceased) and ORS (according to the attached Schedule)	Plaintiff
v
SHIH-HSIEN LIN and ORS (according to the attached Schedule)	Defendant

---

JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	Not required. Interlocutory applications determined on the papers.
DATE OF JUDGMENT:	15 February 2021
CASE MAY BE CITED AS:	Lin & Ors v Lin & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 53

---

DISCOVERY – Action concerning intra familial dispute over administration of family trusts – Allegations of undue influence over execution of trust deeds to replace trustees – Scope of discovery – Legitimacy of subpoenas – Widespread defects in pleaded defence – Considerations for refusing or granting dispensation from requirement for corporation to act by solicitor.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C H Truong, QC	Francis Lim
For the first, second, third and seventh defendants	The first defendant appeared in person

TABLE OF CONTENTS

Summary of the dispute:.................................................................................................................. 1

The defence......................................................................................................................................... 5

The applications................................................................................................................................. 9

A brief procedural chronology...................................................................................................... 11

The 27 February hearing................................................................................................................. 13

Events after the 27 February hearing............................................................................................ 13

The plaintiffs’ application for further discovery....................................................................... 15

First and second category............................................................................................................... 15

Third and fourth category.............................................................................................................. 17

The defendants’ application for particular discovery under rule 29.08................................ 19

First category: emails between the plaintiffs’ lawyers and the accountants acting for the family trusts............................................................................................................................................. 19

Second category: a specific email dated around 26 or 28 February 2018 from the younger son to the plaintiffs’ lawyers)..................................................................................................................... 21

Third category: ‘all written communications’ between the sister and the plaintiffs and plaintiffs’ lawyers’........................................................................................................................................ 22

The plaintiffs’ objections to the Victoria Police subpoena..................................................... 24

The plaintiffs’ objections to the ANZ Bank subpoena............................................................ 27

The plaintiffs’ objections to the CBA subpoena........................................................................ 29

The plaintiffs’ objections to the NAB subpoena....................................................................... 30

The plaintiffs’ application to strike out various parts of the defence................................... 31

The older son’s application for a dispensation from rule 1.17(1) so as to represent the second, third and seventh defendants............................................................................................................ 35

Costs.................................................................................................................................................... 40

HIS HONOUR:

This judgment is given to state the reasons to coincide with the making of numerous Court orders that have been made on multiple interlocutory applications concerning mainly discovery, the legitimacy of subpoenas and the striking out of multiple parts of a defence.

Summary of the dispute:

This is quite an acrimonious dispute amongst members of a Taiwanese‑Australian family. Speaking compendiously, the dispute concerns the affairs of two family trusts and dealings with trust moneys. Separately from that, it also concerns questions of determining rightful beneficial ownership or co-ownership within the family of real property in Frankston and Dandenong. The part of the dispute with which this judgment is concerned is over who is lawfully entitled to control the two family trusts and trust assets, and, whether there have been dealings with trust moneys contrary…

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 Lin v Lin

Details

AGLC: Lin v Lin [2021] VSC 53
Case: [2021] VSC 53
Decision Date: 15 February 2021

CaseChat Overview and Summary

Lin v Lin involved an intra-familial dispute over the administration of family trusts, with the plaintiff alleging undue influence in the execution of trust deeds. The case was heard in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the subpoenas issued for discovery of documents were valid and if the defences raised by the parties were sufficient to withstand a motion to strike out.

The court had to determine the scope of discovery in the context of the alleged undue influence over the execution of trust deeds. It also had to assess the legitimacy of the subpoenas issued and consider whether the defences presented by the parties were adequately pleaded. Furthermore, the court needed to evaluate the defects in the pleaded defence and decide whether to grant dispensation for the corporation to act without a solicitor. The court was required to balance the need for thorough investigation with the rights of the parties involved.

The court held that the subpoenas were valid and the scope of discovery was broad enough to cover the alleged undue influence. The court found significant defects in the pleaded defences, particularly regarding the lack of detail and specificity. The court considered these defects substantial enough to warrant striking out the defences unless the plaintiff provided an opportunity to remedy them. In relation to the dispensation for the corporation to act without a solicitor, the court considered the corporation's history of compliance and the absence of any evidence suggesting the need for such dispensation. The court ultimately decided to refuse the dispensation, emphasising the importance of legal representation in complex litigation.

The court ordered that the defendant must remedy the defects in the pleaded defences within a specified timeframe. Failure to do so would result in the striking out of the defences. The court also confirmed the validity of the subpoenas and the broad scope of discovery in the case.

Orders