Lin v Lin (No 3) - [2024] VSC 17

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 and others (according to the schedule)	Plaintiffs
v
SHIH-HSIEN LIN and others (according to the attached schedule)	Defendants

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 April 2023
DATE OF JUDGMENT:	5 February 2024
CASE MAY BE CITED AS:	Lin v Lin (No 3)
MEDIUM NEUTRAL CITATION:	[2024] VSC 17

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COSTS – Trusts – Where controversy continued after proceeding was dismissed by consent – Dispute in relation to deed of variation of trust deed – Trustee appointed by consent – Defendants to pay the plaintiffs’ costs on a standard basis in respect of the period on and before 14 March 2023 – Plaintiffs to pay the defendants’ costs on an indemnity basis in respect of the period after 14 March – Supreme Court Act 1986, s 24 – Supreme Court (General Civil Procedure) Rules 2015 O 63 –Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 – Bailey v Marinoff (1971) 125 CLR 529 – Banksia Securities Ltd v Insurance House Pty Ltd (Costs) [2020] VSC 234 – Eckert v Roberts (2021) 405 ALR 515 – Lin & Ors v Lin & Ors (No 2) [2022] VSC 542.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr N Kaskani	Aitken Partners
For the First Defendant and the Seventh Defendant	Mr J Barber KC with Mr M Cenacchi	AUM Lawyers

HIS HONOUR:

This proceeding concerns an acrimonious dispute amongst members of a Taiwanese-Australian family about the control and administration of two family trusts: the Lin Family Trust and the Lin Family Trust No 2 (the trusts). In a judgment delivered on 16 September 2022, McMillan J described the proceeding, which commenced in 2018, as being characterised by a degree of ‘disorder’, with the parties filing multiple summonses seeking various types of relief resulting in significant delay and the utilisation of a great deal of the Court’s resources.[1] Regrettably, this state of affairs has continued, even after the proceeding was dismissed by consent.
[1]Lin & Ors v Lin & Ors (No 2) [2022] VSC 542, [6] (’Lin v Lin (No 2)’).

Fortunately, in order to determine the remaining controversy – liability for the costs of a summons filed by the plaintiffs – it is only necessary to examine in any detail the final phase of the history of this proceeding.

Relevant background and orders

After Mukhtar AsJ delivered judgment in relation to various procedural matters and applications in 2021,[2] the matter proceeded to trial over four days commencing on 17 February 2022. Judgment in respect of three of nine issues for determination was delivered on 16 September 2022.[3] The remaining six issues for determination were the subject of a further trial before McMillan J which commenced in January 2023. However, on the eighth day of the trial on 2 February 2023, 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 Lin v Lin (No 3)

Details

AGLC: Lin v Lin (No 3) [2024] VSC 17
Case: [2024] VSC 17
Decision Date: 5 February 2024

CaseChat Overview and Summary

The case of Lin v Lin (No 3) involved a dispute between the plaintiffs and defendants concerning the variation of a trust deed. The matter was heard in the Supreme Court of Victoria. The controversy persisted even after the original proceeding was dismissed by consent, leading to this subsequent litigation. The plaintiffs sought costs from the defendants under the Supreme Court Act 1986, section 24, and the Supreme Court (General Civil Procedure) Rules 2015. The defendants opposed this claim, arguing for a different allocation of costs under the same legislative framework.

The court had to determine whether the plaintiffs were entitled to their costs on a standard basis for the period on and before 14 March 2023 and if the defendants should bear their costs on an indemnity basis for the period after 14 March. The legal issues centred around the principles of costs in civil proceedings, particularly in cases where a proceeding has been dismissed by consent but the dispute continues. The court considered relevant case law, including Australian Hardboards Ltd v Hudson Investment Group Ltd, Bailey v Marinoff, Banksia Securities Ltd v Insurance House Pty Ltd, Eckert v Roberts, and Lin & Ors v Lin & Ors (No 2).

The court ruled that the plaintiffs were indeed entitled to their costs on a standard basis for the period up to and including 14 March 2023. This decision was based on the provisions of the Supreme Court Act 1986 and the Supreme Court (General Civil Procedure) Rules 2015, as well as precedents from cases such as Eckert v Roberts and Lin & Ors v Lin & Ors (No 2). The court found that the defendants should pay the plaintiffs' costs on a standard basis for the relevant period and that the plaintiffs should bear the defendants' costs on an indemnity basis for the period after 14 March. The court's reasoning was grounded in the need to ensure a fair and just outcome in light of the continuing dispute and the previous dismissal by consent.

The final orders of the court provided that the defendants were to pay the plaintiffs’ costs on a standard basis for the period on and before 14 March 2023. Conversely, the plaintiffs were to bear the defendants' costs on an indemnity basis for the period after 14 March. The court's decision was a balanced application of the relevant statutes and case law, ensuring that the allocation of costs reflected the nature and progression of the dispute.

Orders