Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Tjiong v Chang (No 2) [2025] NSWCA 96 Hearing dates: 7 April 2025 Date of orders: 8 May 2025 Decision date: 08 May 2025 Before: Basten AJA at [1];
Griffiths AJA at [45];
Price AJA at [48]Decision: (1) Dismiss the first respondent’s motion filed on 13 March 2025.
(2) Order the first respondent to pay the appellant’s costs of the motion.
(3) Order that the first respondent repay the appellant the sum of $154,116 paid by the appellant on 5 January 2025 by way of costs, together with interest from that date.
(4) Order that the first respondent pay the appellant the sum of $4,451.70 paid by her as the costs of a costs assessment on 8 November 2023, together with interest from that date.
(5) Otherwise dismiss the appellant’s amended notice of motion filed on 17 March 2025, with no order as to costs.
Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – application under Uniform Civil Procedure Rules 2005 (NSW), (UCPR) r 36.16(3A) – application made within time and competent – motion to re-open judgment and set aside orders – whether Court overlooked two relevant legal principles – first issue not a focus of appeal or trial which turned on factual disputes – second issue dealt with in appeal judgment and not overlooked – application dismissed
JUDGMENTS AND ORDERS – amending, varying and setting aside – application under UCPR, r 36.16(3A) – original application in time – proposed amendment to challenge different order out of time – Court lacks power to entertain further application
JUDGMENTS AND ORDERS – application for reimbursement of costs paid under order set aside – failure to seek order under UCPR r 51.19 – application to vary orders made in time – orders generally made as of right
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited: Autodesk Inc v Dyason (No2) (1993) 176 CLR 300; [1993] HCA 6
Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111
Elliott v The Queen; Blessington v The Queen (2007) 234 CLR 38; [2007] HCA 51
Majak v Rose (No 5) [2017] NSWCA 238
Re Hallett’s Estate (1880) 13 Ch D 696
State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283
Texts Cited: Heydon JD and Leeming MJ, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths)
Category: Consequential orders Parties: Katrina May Lan Tjiong (Appellant)
Tzer Chin Chang (First Respondent)
Timothy Paul Heesh (Second Respondent)
Mark Kenneth John Everingham (Third Respondent)Representation: Counsel:
Solicitors:
R Wilson SC / M Evans (Appellant)
M Izzo SC / T Harris-Roxas (First Respondent)
O’Brien Lawyers (Appellant)
Commlex Pty Ltd (First Respondent)
File Number(s): 2024/61464 Publication restriction: N/A Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity
- Citation:
- Date of Decision:
- 16 August 2022; 9 February 2024
- Before:
- Henry J
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- Case
- [2025] NSWCA 96
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether it had the power to re-open its previous judgment and set aside the orders under rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW). This involved determining if the grounds raised by the applicant, specifically the alleged overlooking of legal principles, were sufficient to warrant such an intervention, and whether a proposed amendment to the application, which sought to challenge a different order, was made within the permissible time limits.
The Court found that the first legal principle the applicant argued had been overlooked was not a central focus of the original trial or appeal, which had primarily turned on factual disputes. Regarding the second legal principle, the Court determined that it had been dealt with in the appeal judgment and had not been overlooked. Consequently, the Court concluded it lacked the power to entertain the proposed amendment to challenge a different order, as this would be out of time. The Court also addressed applications for reimbursement of costs paid under orders that were sought to be set aside, noting the failure to seek specific orders for reimbursement under UCPR r 51.19.
The Court dismissed the first respondent's motion filed on 13 March 2025 and ordered the first respondent to pay the appellant's costs of that motion. The Court further ordered the first respondent to repay the appellant the sum of $154,116 paid by way of costs, with interest, and to pay the appellant the sum of $4,451.70 for the costs of a costs assessment, with interest. The appellant's amended notice of motion filed on 17 March 2025 was otherwise dismissed with no order as to costs.
Orders
Orders of the court
(1) Dismiss the first respondent’s motion filed on 13 March 2025.
(2) Order the first respondent to pay the appellant’s costs of the motion.
(3) Order that the first respondent repay the appellant the sum of $154,116 paid by the appellant on 5 January 2025 by way of costs, together with interest from that date.
(4) Order that the first respondent pay the appellant the sum of $4,451.70 paid by her as the costs of a costs assessment on 8 November 2023, together with interest from that date.
(5) Otherwise dismiss the appellant’s amended notice of motion filed on 17 March 2025, with no order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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