Tjiong v Chang

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.