Basten AJA at [1]; Griffiths AJA at [199]; Price AJA [480]
Decision:
1 Grant the appellant an extension of time to appeal from the first judgment delivered on 16 August 2022 and to the extent necessary leave to appeal from the second judgment delivered on 9 February 2024.
2 Allow the appeal and set aside orders (1)-(11), (14), (15) and (17) made by the trial judge on 16 August 2022 and orders (1)- (3) made on 9 February 2024.
3 Declare that the trust created by Hok Njan Tjiong upheld by Palmer J in Chang v Tjiong [2009] NSWSC 122 was determined by a distribution by the then trustee George Tjiong to his son Lindsay Tjiong on 19 July 1999.
4 Order that the plaintiff/cross-defendant pay the first defendant/cross-claimant’s costs of the trial.
5 Order that the first respondent pay the appellant’s costs of the appeal.
6 Direct that, within seven days hereof,
(a) the proposed cross-appellants file and serve an amended summons seeking leave to cross-appeal naming the first respondent in the appeal as an applicant for leave to cross-appeal; and
(b) a notice of cross-appeal naming the first respondent in the appeal as a cross-appellant.
7 Grant leave to cross-appeal in respect of grounds 1, 2 and 3 of the draft notice of cross-appeal.
8 Dismiss the cross-appeal.
9 Direct that any party seeking an order as to the trustees’ costs of the trial, or in this Court file and serve a notice of motion, affidavit and written submissions within 28 days hereof.
Catchwords:
TRUSTS – existence of trust – funds comingled with personal funds of trustee – intended beneficiaries were wife of settlor and other members of settlor’s family in need – whether payment to trustee’s son during life of settlor’s wife constituted distribution of corpus of trust – evidence of trustee’s intention – original trustee deceased and administrator of estate new trustee – burden of proof that trust existed
TRUSTS – trustee replaced by court order – retiring trustee’s claims for indemnity for costs incurred in protecting comingled funds – relevance of trustee’s subjective belief that trust no longer existed – whether indemnity available where trust obtained material benefit from expenditure – whether apportionment of costs appropriate according to ratio of trust funds to the general estate under administration
[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.
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AGLC
Tjiong v Chang [2025] NSWCA 25
Case
[2025] NSWCA 25
Decision Date
CaseChat Overview and Summary
This case concerned an appeal from decisions of the Supreme Court of New South Wales regarding the existence and determination of a trust. The appellant, Mr. Tjiong, sought to appeal against findings made by the trial judge concerning a trust allegedly established by Hok Njan Tjiong for the benefit of his wife and other family members in need. The dispute involved whether funds placed into a comingled account with the trustee's personal funds constituted a trust, and whether a payment made by the trustee to his son during the lifetime of the settlor's wife amounted to a distribution of the trust corpus, thereby determining the trust. The appeal was heard by Basten AJA, Griffiths AJA, and Price AJA.
The primary legal issues before the appellate court were whether the trial judge erred in finding that a trust existed and, if so, whether the trust had been validly determined by a distribution of its corpus. Further issues arose concerning the claims of a retiring trustee for indemnity for costs incurred in protecting the comingled funds, and whether such indemnity was available, particularly in light of the trustee's subjective belief that the trust no longer existed and whether the trust had obtained a material benefit from the expenditure. The court also considered the appropriateness of apportioning costs based on the ratio of trust funds to the general estate.
The Court of Appeal allowed the appeal, setting aside the orders of the trial judge. It declared that the trust created by Hok Njan Tjiong was determined by a distribution made by the then trustee, George Tjiong, to his son Lindsay Tjiong on 19 July 1999. The court found that the evidence supported the conclusion that this distribution constituted a determination of the trust. The court also granted the appellant an extension of time to appeal and leave to appeal from the trial judgments. The cross-appeal was dismissed.
Orders
Orders of the court
1 Grant the appellant an extension of time to appeal from the first judgment delivered on 16 August 2022 and to the extent necessary leave to appeal from the second judgment delivered on 9 February 2024.
2 Allow the appeal and set aside orders (1)-(11), (14), (15) and (17) made by the trial judge on 16 August 2022 and orders (1)- (3) made on 9 February 2024.
3 Declare that the trust created by Hok Njan Tjiong upheld by Palmer J in Chang v Tjiong [2009] NSWSC 122 was determined by a distribution by the then trustee George Tjiong to his son Lindsay Tjiong on 19 July 1999.
4 Order that the plaintiff/cross-defendant pay the first defendant/cross-claimant’s costs of the trial.
5 Order that the first respondent pay the appellant’s costs of the appeal.
6 Direct that, within seven days hereof,
(a) the proposed cross-appellants file and serve an amended summons seeking leave to cross-appeal naming the first respondent in the appeal as an applicant for leave to cross-appeal; and
(b) a notice of cross-appeal naming the first respondent in the appeal as a cross-appellant.
7 Grant leave to cross-appeal in respect of grounds 1, 2 and 3 of the draft notice of cross-appeal.
8 Dismiss the cross-appeal.
9 Direct that any party seeking an order as to the trustees’ costs of the trial, or in this Court file and serve a notice of motion, affidavit and written submissions within 28 days hereof.