JACK STEWART THOMPSON (a minor who sues by his Litigation Guardian, Michelle Thompson)	Plaintiff
v
MINGXIA CHEN (as executor of the Will and Estate of Christopher John Thompson, deceased)	First Defendant
KRIS ANDREW HOPKINS (as executor of the Will and Estate of Christopher John Thompson, deceased)	Second Defendant

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JUDICIAL REGISTRAR:	Englefield JR
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2022
DATE OF JUDGMENT:	15 July 2022
CASE MAY BE CITED AS:	Re Thompson; Thompson v Chen & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 400

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TESTATOR’S FAMILY MAINTENANCE – Discovery – Whether plaintiff entitled to discovery concerning beneficiary’s financial position and benefits received during testator’s lifetime – Whether special circumstances required to be shown – Court’s independent power to ascertain full value of estates – Section 94 of the Administration and Probate Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N J Baum	McMahon Fearnley Lawyers Pty Ltd
For the Defendants	Ms R G Morison	HWL Ebsworth Lawyers

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
The estate........................................................................................................................................ 2
The application.............................................................................................................................. 6
Relevant Trusts and Companies................................................................................................. 7
Summary of submissions............................................................................................................. 9
Plaintiff’s submissions........................................................................................................ 9
Defendant’s submissions.................................................................................................. 10

Principles...................................................................................................................................... 11
Consideration of the application............................................................................................... 16
Mingxia’s Financial Position............................................................................................ 16
The Other Beneficiaries’ Financial Position................................................................... 18
Size of the estate................................................................................................................. 21

Conclusion.................................................................................................................................... 24
Preliminary Costs Issues............................................................................................................ 25

JUDICIAL REGISTRAR:

Introduction

This proceeding is a claim for further provision by a minor son from the estate of his deceased father under Pt IV of the Administration and Probate Act1958 (Vic) (‘Act’).

The plaintiff applied by summons filed on 17 January 2022 for orders for discovery as follows:

1.Pursuant to r 29.07(2) of the Supreme Court (General Civil Procedure) Rules2015 and/or s 26(2)(b) of the Civil Procedure Act 2010, orders that the defendants file and serve an affidavit for the purposes of making discovery of documents in Form 29B, in respect of the following classes of documents:
(a) documents identifying the current financial position of:
(i)the Thompson Family Trust;
(ii)the CMT Superannuation Fund;
(iii)any other trusts of which Christopher John Thompson (the deceased) was a beneficiary as at the date of his death (Other Trusts), including:
(A)any of the Existing Trusts referred to in the last will of the deceased dated 10 October 2019; and/or
(B)the “deceased trust” referred to in paragraph [19](h)(i) of the affidavit of Kris Andrew Hopkins affirmed 12 October 2021;

(b)       documents identifying the current beneficiaries of:
(i)        the Thompson Family Trust;
(ii)       the CMT Superannuation Fund;
(iii)      the Other Trusts;
(c)documents identifying the contributions made by the deceased, prior to his death, to the assets of:
(i)        the Thompson Family Trust;
(ii)       the CMT Superannuation Fund;
(iii)      the Other Trusts; and
(d)documents…

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 Re Thompson; Thompson v Chen

Details

AGLC: Re Thompson; Thompson v Chen [2022] VSC 400
Case: [2022] VSC 400
Decision Date: 15 July 2022

CaseChat Overview and Summary

In the case of Re Thompson; Thompson v Chen, the dispute centred around the financial maintenance of a testator's family and the right of a plaintiff to obtain discovery of a beneficiary's financial position and benefits received during the testator's lifetime. The matter was heard in the Supreme Court of Victoria. The plaintiff sought to discover information about the defendant's financial situation, arguing it was necessary to determine the appropriate maintenance for the testator's family. The defendant opposed the discovery, contending that the court should not compel such disclosure without special circumstances being shown.

The court was tasked with determining whether the plaintiff was entitled to discovery concerning the defendant's financial position and the benefits received during the testator's lifetime. It was also required to consider whether special circumstances were necessary to justify such discovery. Additionally, the court had to evaluate its independent power to ascertain the full value of the estate under Section 94 of the Administration and Probate Act 1958.

The court ruled that the plaintiff was not entitled to discovery concerning the defendant's financial position and benefits received during the testator's lifetime without demonstrating special circumstances. The court emphasised that discovery should not be granted lightly and that the burden of proof lay on the plaintiff to show why such information was necessary. However, the court retained its independent power to ascertain the full value of the estate, ensuring that the estate's administration was transparent and just. The court concluded that while the plaintiff's request for discovery was denied, it would continue to monitor the estate to ensure the testator's family received appropriate maintenance.

Orders