Tjiong v Chang (No 2)

[2025] NSWCA 96

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:
R Wilson SC / M Evans (Appellant)
M Izzo SC / T Harris-Roxas (First Respondent)

Solicitors:
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:

[2022] NSWSC 1092; [2024] NSWCA 74

Date of Decision:

16 August 2022; 9 February 2024

Before:

Henry J

File Number(s):

2020/217303

JUDGMENT

1. BASTEN AJA: On 28 February 2025 the Court handed down judgment in this matter allowing an appeal from the primary judge, Henry J, and in particular from the principal judgment, Chang v Tjiong. ^[1] The appeal was allowed, by majority, Griffiths AJA dissenting. ^[2]

   1. [2022] NSWSC 1092 (“2022 judgment”).

   2. Tjiong v Chang [2025] NSWCA 25 (“appeal judgment”).

2. On 10 March 2025 the appellant, Katrina Tjiong, filed a notice of motion seeking repayment of an amount paid by her to the first respondent, Tzer Chin Chang, pursuant to a costs order made by the primary judge but set aside by this Court, together with the costs of the costs assessment and interest on both sums. This motion was stood over to await the outcome of a second motion filed by Mr Chang and will be addressed at the conclusion of these reasons.

3. On 13 March 2025, Mr Chang filed a notice of motion seeking to have the substantive orders made by the Court on 28 February 2025 set aside and the appeal from the orders made by Henry J on 16 August 2022 dismissed. Mr Chang accepted that, if successful, there would need to be further consideration of the appellant’s claims for indemnity, which had been the subject of ground 4 in the notice of appeal and the subject of a cross-appeal, but had not been determined by the Court in its earlier judgment.

4. The basis of the motion was an assertion that the judgment of this Court had “overlooked” two matters, which it was said “pertain to the central issue in the appeal, being whether the Burwood trust was distributed by the final payment made in 1999, such that the trust terminated at that time (ground 3)”. The matters were identified as:

“a.   a purported distribution made in breach of trust is incapable of terminating the trust; and

b.   the presumption in Re Hallett’s Estate (1880) 13 Ch D 696 (that where a trustee mixes trust monies with their own funds, the trustee is presumed to act honestly and withdraw their own money first) is an irrebuttable presumption of law.”

5. These propositions require some further explication. Before undertaking that task, it is necessary to address the competence of the application, which was resisted by Ms Tjiong.

Competence of application

6. Mr Chang’s notice of motion was filed within the 14-day period permitted by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.16(3A). Nevertheless, as Mr Chang accepted, the jurisdiction to re-open is exercised sparingly according to constraining principles. Those principles were conveniently restated in Majak v Rose (No 5),^[3] addressing r 36.16:

   3. [2017] NSWCA 238 (Leeming JA, Simpson JA and Emmett AJA).

“[12]   The rule is, like all rules made under the Uniform Civil Procedure Act 2005 (NSW), subject to the ‘overriding purpose’ of facilitating the ‘just, quick and cheap resolution of the real issues’ between the parties to litigation (s 56). It does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them. Nor does it make of a court some sort of magic pudding from which unsuccessful litigants may take slice after slice, ever hopeful that the next will be more palatable than the last. The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court). Abuse of the rule is detrimental to the administration of justice in unnecessarily and unfairly (to other litigants) taking up the time of the court. Nor does abuse of the rules facilitate the just, quick and cheap resolution of the issues between parties. On the contrary, unwarranted reliance on r 36.16 is oppressive to the successful party and a drain on the Court’s resources.

[13]   It is well established that a court’s jurisdiction to set aside orders should be exercised sparingly and with caution, having due regard to the importance of the finality of litigation (see, for example, Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672 at 684; [1982] HCA 41; State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38; [1982] HCA 51; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302; [1993] HCA 6; Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [9]).

[14]   In Autodesk v Dyason (No 2) at 302 Mason CJ said:

‘What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.’

[15]   Mason CJ was there particularly concerned with the potential for misuse of the jurisdiction. He said:

‘However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. … The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases’ (at 303).

[16]   In the course of his reasons, Mason CJ cited the following passage from Wentworth v Woollahra Municipal Council at 684:

‘[T]he circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.’ (italics added)

[17]   …

[18] In considering an application pursuant to UCPR 36.16, this Court in Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362 at [17], after quoting the passage in the judgment of Mason CJ in Autodesk v Dyason (No 2) extracted at [14] above, said:

‘To that statement one may add two further notes of caution. First, there is a distinction to be drawn between the court acting upon a misapprehension as to the facts or the relevant law, on the one hand, and, on the other, the court reaching a conclusion which, in the view of the applicant for re-opening, involves a mistake. Secondly, there is a distinction to be drawn between the situation where the court misapprehends the facts, on the one hand, and, on the other, the situation where the court does not refer in its reasons to some matter which, in the belief of the person seeking re-opening, deserved express reference.’

[19]   The applicant bears the onus of showing that the jurisdiction ought to be exercised in her favour. That entails demonstrating some misapprehension on the part of the Court, and that that misapprehension is not attributable to her conduct of the proceedings.”

7. Ms Tjiong submitted that the application was an attempt to reargue the appeal. It should be accepted that, if the application were no more than that, it should be refused.

8. It is commonplace in this context to refer, as the applicant did, to the reasoning of Mason CJ in Autodesk. That is because the reasoning has been adopted, not only by the High Court in Elliott v The Queen; Blessington v The Queen, ^[4] being an attempt to re-open two criminal appeals, but has been accepted as relevant in this Court, not least in the passage set out above, to re-opening applications. However, the circumstances in which the principles will operate are not the same in this Court as in the High Court. Whilst finality is always important and special leave is granted by the High Court on restrictive criteria, error on the part of this Court is open for correction by the High Court. On the other hand, if there be a palpable error, rather than merely a well-reasoned argument as to why a different result should have been reached, this Court should consider intervening. In that way, error may be corrected without requiring the complainant to undertake the additional expense and uncertainty of an application for special leave to appeal and, if granted, an appeal.

   4. (2007) 234 CLR 38; [2007] HCA 51 at [34] (Gummow, Hayne, Heydon, Crennan and Kiefel JJ).

9. The criterion of absence of fault on the part of the applicant for re-opening is not a precise criterion. In the present case, as will be seen, the issues now sought to be relied upon were raised only obliquely in submissions before this Court at the hearing of the appeal, a fact which could weigh against the application to re-open. On the other hand, to the extent that the issues sought to be raised were in play and formed an underpinning of the judgment in this Court, this criterion should have a limited weight. Rather, the fate of the application should turn upon the importance of the issue to the judgment and the nature of the error identified.

10. On the other hand, as will be addressed below, the manner in which the case was argued will often explain the emphasis given to particular matters in the reasons for judgment. Thus, although senior counsel for Mr Chang presented his application with his usual concinnity, the structure of the argument departed significantly from that presented at the hearing of the appeal.

Basis of application

11. The short response to Mr Chang’s application is that the two issues raised as having been overlooked are both propositions of law; both were engaged, but neither was in dispute, although the application may have been. It is necessary to explain how that came about, and also to explain why the first principle was not expressly addressed in the reasons, and the manner in which the second principle was expressly addressed.

12. In oral argument on the re-opening application, counsel took the Court through the pleadings, submissions at trial, the trial judgment, and the relevant principles of law and the grounds of appeal. One new matter was identified, namely that, even if the trust had been terminated by the payment to George Tjiong’s son, Lindsay Tjiong, in July 1999, remedies by way of account, which were ordered by the trial judge, would still have been available. However, when it was suggested to counsel that, “There was never a claim that the remedy of account should be available absent a breach of trust”, counsel responded, “No, that’s probably fair.” ^[5]

Overlooking the principle that a distribution made in breach of trust is incapable of terminating the trust

5. Re-opening Tcpt, 07/04/25, p 3(8).

13. The proceedings at trial were complex, not with respect to the legal principles to be applied, but with respect to the factual circumstances, which extended over some 46 years. The trust was created in 1976 by an informal letter from father (Hok Tjiong) to son (George Tjiong). The effect of the letter was to establish a trust of a unit in Burwood which had been purchased for $25,000. George Tjiong was the registered proprietor and had provided part of the purchase price, but as between George and his father it was accepted that the father was the beneficial owner of the property. The existence of the trust first came to light (so far as the Tjiong family was concerned) when George’s sister (Mr Chang’s mother) brought proceedings seeking to establish her own entitlement to the property on the basis that it had passed from her father to her mother on his death and formed part of her mother’s estate after her mother’s death. That claim was rejected in 2009, the judgment (of Palmer J) establishing the existence of the trust.

14. The trust fund, which was created by the sale of the unit, was intended initially for the benefit of Hok Tjiong’s wife, although he expected her to live with one of her daughters after his death, and then for Hok Tjiong’s mistress in Japan. Two years later the terms were changed because the circumstances of the mistress had become secure, and Hok Tjiong provided that after his wife’s death the fund should go to his son by his Japanese mistress, if he were in need, and otherwise to a member of the Tjiong family who was in need.

15. Ms Tjiong’s case was that the trust had been terminated by a payment by George Tjiong to his son, Lindsay Tjiong, in 1999. Mr Chang contended that payment to a needy member of the Tjiong family prior to the mother’s death would have been a breach of trust. The mother in fact outlived George Tjiong (her son).

16. In my reasons I sought to explain that the discretionary nature of the trust did not import a rigid limitation of the kind proposed by Mr Chang. However, relevantly for the present purposes, the case, both at trial and on appeal, turned on whether George Tjiong intended the payment to Lindsay Tjiong to be a distribution of the trust fund. No doubt if there were a breach of trust, Ms Tjiong, as the administrator of her father’s estate, was required to make good the breach. As counsel for Mr Chang accepted in the passage set out above during oral argument, no relief was sought if in fact the payment to Mr Lindsay Tjiong had been a lawful distribution terminating the trust. The Court’s attention has not been drawn to any submission on the appeal that the trust could have been terminated by payment of the balance of the funds, even if that payment constituted a breach of trust.

17. The trial judge identified four reasons for rejecting Ms Tjiong’s case of termination in 1999; all turned on factual findings. Relevantly to the next matter, one finding, said to engage the principle in Re Hallett’sEstate, was that, “it should be assumed that George intended to act rightfully and honestly and that he first used his own moneys to pay Lindsay from that account, rather than distributing the Burwood Trust moneys prior to Kwat’s death in breach of the express terms of the Burwood Trust.” The application of the principle, as it arose on the appeal will be addressed below; significantly for present purposes, the reference to breach of trust was relied on to deny that George Tjiong held the relevant intention.

18. There was, no doubt, a legal issue underlying the factual issues, namely whether any distribution to a needy member of the family was a breach of trust if made while the grandmother (George Tjiong’s mother) was still alive. Had that been the real issue in dispute, either at trial or on the appeal, the case should have been run on that simple basis. It was not. As at trial, the primary issues on the appeal (ground 3) were presented and answered as involving numerous factual matters. ^[6]

    6. See appeal judgment at [310]-[340] (Griffiths AJA).

19. Although I noted that the approach was puzzling ^[7] (if payment were to a beneficiary, how did the legal presumption apply; and if it were a payment in breach of the trust, why was subjective intention relevant?) my findings were inconsistent with a rigid view of the discretion conferred by the trust, namely that no distribution except to or for the benefit of the mother could be made prior to her death. ^[8]

    7. Appeal judgment at [99], “not explored”.

    8. Appeal judgment at [100], [102]-[105].

20. Accordingly, the first matter relied on by Mr Chang was not, in the terms now raised, a disputed issue on the appeal.

Overlooking the principle in Re Hallett’s Estate

21. The principle in Re Hallett’sEstate requires further reference to both the factual circumstances and the scope of the appeal. A number of propositions, however, were not in dispute.

22. The first was that the sale of the property was not a breach of trust, but was intended by George Tjiong’s father. However, a second proposition, also common ground, was that the proceeds of sale were not maintained in a separate account but were paid by George Tjiong into his existing Macquarie Bank Cash Management Trust account, ^[9] which the trial judge described as “not a general trading account” but an investment account. ^[10]

    9. 2022 judgment at [18].

    10. 2022 judgment at [106].

23. Thirdly, George Tjiong made withdrawals and deposits from time to time. As the trust funds had been comingled with his own funds (in breach of his duty as trustee) the rule in Re Hallett’sEstate undoubtedly applied with respect to the withdrawals, namely that he intended to act honestly and withdraw his own money first. That principle, too, was not in dispute.

24. The fourth proposition was that on two occasions between the deposit of the proceeds of sale of the unit in December 1996 and the payment to Lindsay Tjiong in July 1999, the balance of the funds fell below the amount of the trust fund.

25. The first occasion involved a period of 24 days in late 1997 when George Tjiong purchased a home in Sydney before settlement of the sale of his former home in Victoria. ^[11] A factual question arose as to whether the payment into the account of sufficient funds following settlement of the sale to bring the minimum balance back above the trust fund level constituted a restoration of the fund. There was a dispute about that issue, although not about the applicable principles. The principle in Re Hallett’s Estate is based on an assumption that the trustee is acting honestly, by expending his own money first; that presumption of honesty does not extend to restoration of the fund when sufficient of the trustee’s own moneys are paid in so as to bring the total amount in the account above the level needed to maintain the trust fund. In such circumstances, the cases indicate that an actual intention to restore the fund must be demonstrated. There was a factual dispute, not easily resolved when the issue was not raised until 20 years after George Tjiong’s death, as to whether the fund was restored by the almost immediate payment in, which brought the balance back above the trust fund amount.

    11. 2022 judgment at [44(c)-(d)].

21. The second occasion occurred on 24 August 1998, with a withdrawal of $200,000 placed in an NRMA trust. ^[12] Ms Tjiong contended that the payment constituted an investment which, if the accounts had been taken at that time, would have been treated as a trust asset, the trustee’s interest being subordinated to that of a beneficiary. ^[13] In any event, $200,000 had been deposited by 12 July 1999, which she argued restored the fund.

    12. 2022 judgment at [44(e)].

    13. Re Sutherland; France Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361; [2003] NSWSC 1008 (Campbell J).

22. On the assumption that it was restored, there was no dispute that the amount in the fund at the time of the payment to Lindsay Tjiong was sufficient to permit the payment out of the full amount of the trust moneys and that the payment of $200,000 satisfied that amount.

23. There was a submission at trial that the rule in Re Hallett’s Estate also applied with respect to that payment. However, the finding of the trial judge did not turn on the rule in Re Hallett’s Estate, but on a failure of the evidence to establish that George Tjiong “intended to, and did in fact, distribute the Burwood trust property to Lindsay”. ^[14] That was a finding of fact. Whether the fund had been restored at that point was also a finding of fact as to George Tjiong’s intentions. The submission, put forward on the appeal, as to the application of Re Hallett’sEstate at that point was based on the premise that the payment to Lindsay would constitute a breach of trust, because his grandmother was still alive. On that assumption, the principle applied so as to presume that the money paid out was George Tjiong’s personal funds. The principle was not in doubt: the question on the appeal was whether the assumption by which it was engaged was correct. But that is not the present issue.

    14. 2022 judgment at [97].

24. The present question is whether the legal principle in Re Hallett’s Estate was overlooked, as Mr Chang submitted. It is necessary to turn to the reasoning, at least in my judgment, to determine whether that was so.

Reasoning in appeal judgment

30. The issues were addressed in the appeal judgment, first at [28]-[32]. In brief, two points were made, both deriving from the extract from Jacobs’ Law of Trusts in Australia, set out at [30].^[15] The first concerned withdrawals, namely that the “presumption of honest intention, which may also be expressed as an irrebuttable presumption of intention”, may be subject to the principle of subordination where the withdrawal is used to purchase an asset. ^[16] Ms Tjiong’s case was that on both occasions when large withdrawals reduced the trust account below the amount representing the Burwood trust, the withdrawal was used to purchase an asset (on the first occasion a house in Terrey Hills, on the second an interest in an NRMA trust). As counsel accepted during oral submissions, that approach may be available; ^[17] however, that is not directly to the point, which is that that aspect of the operation of Re Hallett’s Estate was not overlooked.

    15. Heydon JD and Leeming MJ, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) at [27-15].

    16. Appeal judgment at [31]-[32].

    17. Re-opening Tcpt, p 10(30)-(40).

31. The second point concerned whether a payment into a comingled fund, following a withdrawal, could be found to restore the fund. The extract from Jacobs’ Law of Trusts in Australia set out in my reasons included the following passage:

“However, where the fiduciary, after depleting the mixed fund, pays into it further moneys of his or her own, there is, it seems from the decisions in James Roscoe (Bolton) Ltd v Winder and Lofts v MacDonald, no presumption, and certainly no irrebuttable presumption, that the further payments in replace the lost moneys of the beneficiary. That is not to say, as the judgment in James Roscoe … itself makes plain, that an intention of the fiduciary to restore the depleted fund with the later payments is to be ignored if it exists. It is to say that there is no presumption as to the existence of that intention. If the fiduciary pays money into the fund with the intention of effecting restitution, then the interest of the beneficiary in the fund will be the same as if the sum represented by the later payment in had never been withdrawn by the fiduciary. The existence of such an actual intention may be inferred from the facts, even if not manifested by direct evidence.”

32. As appears from the ensuing reasoning, the trial judge had accepted that an actual intention was to be demonstrated in relation both to restoring the fund and to the payment to Lindsay Tjiong. As to the former, I accepted Ms Tjiong’s submissions as to the inferences as to intention to be drawn from the objective circumstances of the withdrawals and deposits. As to the latter, I expressed disquiet at the trial judge’s focus on the evidence of Ms Tjiong (who had no contemporaneous involvement in the payment to her brother) and the discounting of the unchallenged evidence of Lindsay Tjiong as to his communications with his father.

33. Mr Chang’s submissions on this application turned on the assumption that Lindsay Tjiong could not be a beneficiary of the trust while his grandmother was alive, a matter referred to above in dealing with the first matter. Otherwise he self-evidently fell within the class of potential beneficiaries, and it was not submitted that the principle in Re Hallett’s Estate would apply to a payment to a beneficiary.

Conclusion

34. The re-opening application was not directed to any failure to address material facts, but only to the failure to address two legal principles. The first, as explained above, was not the focus of the appeal: self-evidently, a purported payment in breach of trust cannot terminate the trust. George Tjiong first breached his duty as trustee in paying the proceeds of sale of the Burwood unit into his pre-existing trust account: that was not in dispute on the appeal. The second breach, apparently now the focus of Mr Chang’s case, is that while in 1999 Lindsay Tjiong was a needy member of the Tjiong family, he could not be a proper recipient of the discretionary trust while his grandmother was alive. If that were the true hinge on which Mr Chang’s claim succeeded or failed, it is odd that so much ink has been spilt over the many factual disputes. The chronology has never been in doubt. The trial judge did not think that was the determinative issue; nor did this Court. It is too late to run with it now.

35. As to the application of Re Hallett’s Estate, the principle was not only expressly stated in the reasons, but discussed. It applies to withdrawals from a comingled fund. It does not apply to payment to a beneficiary in exercise of an existing legal power of distribution, which does not engage any presumption of honesty. Whether its operation may have been misstated is immaterial: it was not overlooked.

36. Mr Chang’s application to re-open the appeal should be dismissed with costs. I propose the following orders:

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.

Appellant’s motion

37. A consequence of the dismissal of Mr Chang’s motion is that the Court must deal with the appellant’s motion of 10 March 2025. In its original form, that motion sought reimbursement of costs paid pursuant to an order by the primary judge of 16 August 2022, which this Court set aside. Although, where a payment has been made pursuant to a judgment under challenge, reimbursement should be sought in the notice of appeal, ^[18] reimbursement will usually be ordered as a matter of course. ^[19] Where first sought after judgment, the applicant will need to comply with the 14-day rule, ^[20] which she did. At the conclusion of the hearing on 7 April 2025, counsel for the first respondent sought and obtained instructions that the entitlement was conceded. ^[21] The orders sought in the appellant’s notice of motion of 10 March 2025 should be made.

    18. UCPR, r 51.19.

    19. UCPR, r 51.54; Cai v Zheng (No 2) [2009] NSWCA 317.

    20. Cai v Zheng (No 2) at [29].

    21. CA Tcpt, 07/04/25, p 23(18).

38. There is a second issue arising from an amendment to the appellant's notice of motion, the amended notice being filed on 17 March 2025. The amendment sought an order that Mr Chang pay Ms Tjiong’s costs of the trial on an indemnity basis from 21 October 2020.

39. There was an issue as to the competence of the amendment seeking a fresh order outside the 14-day period permitted under UCPR, r 36.16(3)(a).

40. There is authority that this Court lacks the power to entertain such an application. Thus, in Malouf v Prince (No 2) ^[22] the Court (McColl and Macfarlan JJA and Nicholas J) stated:

“15   Bennette v Cohen (No 2) ^[23] and Deputy Commissioner of Taxation v Meredith (No. 2) ^[24] establish that the Court has no power to entertain an application pursuant to UCPR 36.16 where the notice of motion seeking relief is filed outside the 14-day window. The question this Court has to determine is whether the UCPR 36.16 power the Court has when a notice of motion is filed within the 14-day window, extends to an application to vary or set aside an order which was not sought within the 14-day window.

16 In our view the Court does not have that power. Nothing in the language of UCPR 36.16 supports such a construction. Rather, the language of the rule makes it plain that the matter the Court is empowered to determine is the question raised by a notice of motion filed within time for the setting aside or variation of a judgment or order.”

22. [2010] NSWCA 51.

23. [2009] NSWCA 162 at [9] (Tobias JA, Ipp and Campbell JJA agreeing).

24. (2008) 75 NSWLR 462; [2008] NSWCA 133 at [6]-[7] (in my judgment, Giles and Ipp JJA agreeing).

41. Ms Tjiong did not challenge the correctness of the principle stated in Malouf or Meredith, but suggested that the principle did not apply in respect of costs orders, which were commonly sought outside the 14-day period. It is true that an application for a gross sum costs order has been held to fall within a different category, but that is not true with respect to orders for costs generally. Both Meredith and Malouf concerned applications to vary costs orders, although Malouf sought by way of later amendment a variation of substantive orders.

42. It follows that the Court has no power to entertain the application to add an additional order with respect to the costs of the trial.

43. The application was based on a Calderbank offer served on 21 October 2020. There was no explanation as to why the appellant, who sought to set aside the orders made by the primary judge and obtain a judgment in her favour, did not rely during the hearing of the appeal on the application for indemnity costs of the trial in the event that she succeeded on a substantive challenge. If the Court had had power to entertain the application, there would have been strong discretionary reasons to decline to do so.

44. With respect to the appellant’s notice of motion, the Court should make the following orders:

1. 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.

2. 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.

3. Otherwise dismiss the appellant’s amended notice of motion filed on 17 March 2025, with no order as to costs.

45. GRIFFITHS AJA: The notice of motion filed on 13 March 2025 is directed at the orders made by a majority of the Court in the principal judgment. They are not directed to the orders which I proposed in dissent. It was unnecessary for me to address the two issues which the first respondent now claims were overlooked by the majority.

46. In these circumstances, I do not view it as either necessary or appropriate to give separate reasons in respect of that particular notice of motion.

47. The position is different in respect of the appellant’s notice of motion filed 10 March 2025 and her amended notice of motion filed 17 March 2025. I respectfully agree with Basten AJA’s reasons in relation to those matters and I agree that orders (3), (4) and (5) should be made.

48. PRICE AJA: The first respondent’s application to set aside orders made by the Court in its judgment ^[25] handed down on 28 February 2025 (“the appeal judgment”) is founded on the submission that the reasons of the majority (Basten AJA and Price AJA agreeing) overlooked two matters which were submitted to be central to Ground 3 of the appeal.

    25. Tjiong v Chang [2025] NSWCA 25.

49. The contention in Ground 3 was that the primary judge erred in not finding that the payments George Tjiong made to his son Lindsay Tjiong on 19 July 1999 terminated the Burwood Trust by distribution. The nub of the argument on appeal in respect of this ground was advanced by the appellant’s nine contentions which were summarised by Griffiths AJA at [312] of the appeal judgment, all of which related to findings of fact.

50. The first respondent resisted the appellant’s challenge to the primary judge’s findings of fact by submitting that the appellant’s nine contentions did not raise any error but were an attempt to relitigate the matters put before the primary judge.

51. The majority found that the primary judge erred and upheld Ground 3.

52. The two matters (which are legal principles) that the first respondent submits were overlooked in the appeal judgment were asserted to be (as set out by Basten AJA at [4] above):

“a.    a purported distribution made in breach of trust is incapable of terminating the trust; and

b.    the presumption in Re Hallett’s Estate (1880) 13 Ch D 696 (that where a trustee mixes trust money with their own funds, the trustee is presumed to act honestly and withdraw their own money first) is an irrebuttable presumption of law.”

53. Basten AJA at [6] above sets out the relevant principles in relation to UCPR r 36.16(3A) and it is unnecessary to repeat them. I would add the observation of this Court in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [20] (Mitchelmore JA, Stern JA and Basten AJA):

“Whilst, as set out above, jurisdiction under UCPR, r 36.16(3A) may be exercised where the Court has apparently proceeded under a misapprehension, the reference to misapprehension in this context is concerned with matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect: Dickson v Cmr of the Australian Federal Police (No 2) [2023] NSWCA 111 at [4] (Meagher and Brereton JJA).”

54. I agree with Basten AJA’s conclusion at [20] above that the first legal principle “was, not, in terms now raised, a disputed issue on the appeal”. My judgment focused on the real issues in dispute in respect of Ground 3 which turned on matters of fact.

55. Before I determined that Ground 3 should be upheld, I had the benefit of reading the judgments of Basten AJA and Griffiths AJA. Basten AJA’s judgment included a consideration of the application of Re Hallett’s Estate (1880) 13 Ch D 696. My agreement with Basten AJA (save for the onus of proof) embraced his Honour’s consideration of that legal principle which was not overlooked.

56. Furthermore, my agreement also embraced his Honour’s consideration of the “discretionary nature of the trust” so as to “not import a rigid limitation of the kind proposed by Mr Chang” (as set out by Basten AJA at [16] above).

57. It follows that if the first legal principle had been explored by the parties in this Court (which it was not), my finding in all likelihood would have been that the distribution by George Tjiong to his son Lindsay Tjiong was not made in breach of trust.

58. The first respondent has not established that the Court’s jurisdiction to re-open ought to be exercised in his favour.

59. I agree with the orders proposed by Basten AJA at [36] above.

60. As to the appellant’s motion, I agree with Basten AJA’s reasons and the orders proposed by his Honour at [44] above.

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Endnotes

Decision last updated: 08 May 2025