This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Appeal
New South Wales
Case Title:
Tjiong v Tjiong
Medium Neutral Citation:
[2012] NSWCA 201
Hearing Date(s):
28, 29 February 2012
Decision Date:
29 June 2012
Jurisdiction:
Before:
Whealy JA at [1]; Meagher JA at [2]; Barrett JA at [208]
Decision:
(1)Appellant's application to adduce further evidence on appeal dismissed. (2)Appeal dismissed. (3)Respondents' application to adduce further evidence on appeal dismissed. (4)Appellant pay respondents' costs of the appeal including the costs of the applications to adduce further evidence.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
APPEAL - application to rely on further evidence - directed to issue relevant to assessment of appellant's credibility - whether "special grounds" - whether requirement of probability of different result satisfied - whether evidence credible - whether evidence available or could reasonably have been obtained - relevance of gravity of findings
TRUSTS - establishment of discretionary trust - whether respondents' consent procured by fraudulent misrepresentation - whether appellant fabricated a claim upon brother's estate to delay distributions to respondents - whether appellant fabricated evidence in support of his case - whether primary judge erred in making findings adverse to appellant on facts in issue and issues relevant to assessment of credibility - findings based in part on demeanour
[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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Details
AGLC
Tjiong v Tjiong [2012] NSWCA 201
Case
[2012] NSWCA 201
Decision Date
CaseChat Overview and Summary
The appeal concerned findings made by the primary judge regarding the establishment of a discretionary trust and allegations of fraudulent misrepresentation, fabrication of a claim upon a brother's estate, and the fabrication of evidence by the appellant. The respondents contended that their consent to the trust was procured by fraudulent misrepresentation, while the appellant was alleged to have fabricated a claim to delay distributions. The primary judge had made adverse findings against the appellant on these factual issues, partly based on the appellant's demeanour.
The legal issues before the Court of Appeal included whether the primary judge erred in making adverse findings of fact and credibility against the appellant. Additionally, the court was required to determine whether the appellant should be permitted to adduce further evidence on appeal, and whether the respondents should also be permitted to adduce further evidence.
The Court of Appeal dismissed the appellant's application to adduce further evidence, finding that the "special grounds" required for such an application were not met. Specifically, the court was not satisfied that the evidence was credible, that it could not have been reasonably obtained at the trial, or that it would likely have led to a different result. The court also dismissed the respondents' application to adduce further evidence. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal, including the costs of the applications to adduce further evidence.
Orders
Orders of the court
(1)Appellant's application to adduce further evidence on appeal dismissed.
(2)Appeal dismissed.
(3)Respondents' application to adduce further evidence on appeal dismissed.
(4)Appellant pay respondents' costs of the appeal including the costs of the applications to adduce further evidence.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]