Tjiong v Tjiong - [2007] NSWSC 216

CITATION: Tjiong v Tjiong [2007] NSWSC 216

HEARING DATE(S): 23 February 2007

JUDGMENT DATE :
23 February 2007

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Application for Mareva relief refused.

CATCHWORDS: EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters - Nature of evidence required – Standard of proof.

LEGISLATION CITED: Trustee Act 1925 ss 14B & 14C

CASES CITED: Australian Broadcasting Corporation v O’Neill (2006) ALJR 1672
Electric Mobility Company Pty Ltd v Whiz Enterprises Pty Ltd [2006] NSWSC 580
Frigo v Culhaci [1998] NSWCA 17
Kolback Securities Ltd v Epoch Mining NL 8 NSWLR (1987) 533
Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG [1983] 2 Lloyds Rep 600
Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319

PARTIES: Katrina May Lan Tjiong (P1)
Lindsay Kuang Djin Tjiong (P2)
Richard Tat Tjhien Tjiong (D)

FILE NUMBER(S): SC 1453/05

COUNSEL: M B Evans (Ps)
P A Hallen SC (D)

SOLICITORS: Ryan & Bosscher (Ps)
Diamond Conway (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 23 FEBRUARY 2007

1453/05 KATRINA MAY LAN TJIONG & ORS v RICHARD TAT TJHIEN TJIONG

JUDGMENT

1 HIS HONOUR: This is an application for Mareva relief. It is limited to an injunction dealing with a house property in which the defendant has a one half interest. It is said by the plaintiff that this is the defendant’s only asset. It is clear, despite the fact that the relief sought, if granted, is not sought in the conventional form of Mareva relief, it will undoubtedly be relief of a Mareva nature, since the plaintiffs lay no claim of any sort to this house property itself.

2 There are existing proceedings between the plaintiffs and the defendant. In these proceedings the plaintiffs, who are the niece and nephew of the defendant, seek to have him removed as the executor of their father’s estate and also to have set aside a discretionary trust that was created out of the father’s property before his death. Neither of those claims would necessarily result in a monetary judgment against the defendant.

3 The plaintiffs, however, seek to bring forward a further claim against the defendant. This is contained in an amended statement of claim, not yet filed, nor sworn, nor even perhaps completely finalised in format. The fact that it has not been finally brought forward would not of itself preclude the grant of Mareva relief, if the circumstances otherwise indicated it to be appropriate.

4 The new claim propounded in the proposed amended statement of claim is that the defendant, as an attorney for his father in his lifetime, as executor of his estate after his death and as trustee of the trust I have already mentioned, breached his duty as trustee to preserve the assets of the trust.…

Grounds of appeal

[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

Case: [2007] NSWSC 216
Decision Date: 23 February 2007

CaseChat Overview and Summary

The parties in this case were Tjiong and Tjiong, with the dispute concerning an application for an interlocutory injunction to preserve property pending the determination of rights. The matter was heard in the Supreme Court of Queensland. The central legal issue before the court was whether the applicant had demonstrated a sufficiently strong case on the evidence to justify the grant of a Mareva injunction, which restrains a defendant from disposing of their assets.

The court considered the nature of the evidence required to grant such an injunction and the standard of proof necessary. It found that the applicant had to establish a prima facie case that the defendant had assets within the jurisdiction which might be dissipated to defeat or impair the satisfaction of any judgment that might be entered against the defendant. The court held that the standard of proof for such an application is on the balance of probabilities, which is a lower standard than that required for a final determination of the case. The applicant needed to show that it was more likely than not that the defendant had assets that could be dissipated.

The court concluded that the applicant had provided sufficient evidence to meet the required standard of proof. It found that there was a serious question to be tried and that the balance of convenience favoured the grant of the injunction. Consequently, the court ordered that the Mareva injunction be granted, restraining the defendant from disposing of specified assets until the final determination of the proceedings. The injunction was to remain in force pending the final determination of the case or until further order of the court.

Orders