JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2024
DATE OF JUDGMENT:	10 December 2024
CASE MAY BE CITED AS:	Lin v Lin (No. 4)
MEDIUM NEUTRAL CITATION:	[2024] VSC 759

---

PROCEDURE – Courts and judges generally – Jurisdiction to discharge party from undertaking not to exercise power to appoint or remove trustee – Where proceeding dismissed – Where undertakings given on final basis – Application by appointor to be discharged from undertaking – Grant of liberty to apply – Where independent trustee not party to proceeding – Where independent trustee seeks to stay or strike out application as abuse of process – Court retains jurisdiction – Application to stay or strike out application dismissed - Russell v Russell [1956] P 283 - Bailey v Marinoff (1971) 125 CLR 529 - Kensington Housing Trust v Oliver (1998) 30 HLR 608 - Birch v Birch [2017] 1 WLR 2959 - Commonwealth Bank v The Law Debenture Trust Corporation PLC [No 4] [2018] WASC 165 - Application of Rinehart 2020/142504 (No 2) [2021] NSWSC 364 - Lin & Ors v Lin & Ors (No 2) [2022] VSC 542 - Lin v Lin (No 3) [2024] VSC 17.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Kaskani	Hunt & Hunt
For the First Defendant	Mr D Farrands KC with Ms Z Anderson	AUM Lawyers
For the Independent Trustee	Mr P Pascoe	Hicks Oakley Chessell Williams Lawyers

HIS HONOUR:

The central issue raised for determination by this application is whether, in a proceeding which has been dismissed, the Court has jurisdiction to discharge a party from an undertaking given to the Court as part of the final relief granted in the proceeding. For the reasons which follow, the Court retains jurisdiction in the circumstances described.

Background

This proceeding, which was commenced on 1 June 2018, concerns a dispute over the control and administration of two family trusts, the Lin Family Trust and the Lin Family Trust No 2 (collectively, the Trusts), and the beneficial ownership of certain real properties. One matter in dispute concerned the validity of the first defendant’s appointment as appointor of the Trusts; in Lin & Ors v Lin & Ors (No 2),[1] McMillan J upheld the validity of that appointment.
[1][2022] VSC 542 (‘Lin v Lin (No 2)’).

In Lin v Lin (No 3),[2] I summarised the relevant procedural history of the matter as follows:[3]

… 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.[4] The remaining six issues for determination were the subject of a further trial before McMillan J which commenced…

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. 4)

Details

AGLC: Lin v Lin (No. 4) [2024] VSC 759
Case: [2024] VSC 759
Decision Date: 10 December 2024

CaseChat Overview and Summary

The parties involved in the case were Lin and Lin, with the dispute centering on the jurisdiction of the court to discharge a party from an undertaking not to exercise their power to appoint or remove a trustee. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether it retained jurisdiction to discharge a party from such an undertaking, particularly in cases where the proceeding had been dismissed, and the undertakings were made on a final basis. This was further complicated by the fact that the independent trustee, who was not a party to the proceeding, sought to stay or strike out the application on the grounds that it was an abuse of process.

The court examined the principles established in various cases, including Russell v Russell, Bailey v Marinoff, Kensington Housing Trust v Oliver, Birch v Birch, Commonwealth Bank v The Law Debenture Trust Corporation PLC [No 4], Application of Rinehart 2020/142504 (No 2), and Lin & Ors v Lin & Ors (No 2). It was noted that the court retained jurisdiction to make orders to discharge a party from an undertaking, even if the proceeding had been dismissed. The court found that the independent trustee's application to stay or strike out the application was dismissed, as the court retained the authority to manage the terms of undertakings and ensure that the interests of all parties were protected.

In reaching its decision, the court held that the principles established in the precedents were applicable to the current case. The court found that the application to stay or strike out the application was an abuse of process, as the party seeking discharge of the undertaking had a legitimate interest in being relieved from the terms of the final undertaking. The court's reasoning was based on the need to balance the interests of all parties involved and to ensure that the court's jurisdiction to manage undertakings was not unduly restricted.

The final orders of the court were that the application to stay or strike out the application by the independent trustee was dismissed. The court found that it retained jurisdiction to discharge the party from the undertaking not to exercise their power to appoint or remove a trustee. This decision underscores the importance of the court's ability to manage undertakings and ensure that the interests of all parties are protected, even in the context of dismissed proceedings.

Orders