SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Tong v Tong |
Citation: | [2024] ACTCA 27 |
Hearing Date: | 20 February 2024 |
Decision Date: | 29 August 2024 |
Before: | Mossop ACJ, Loukas-Karlsson and Taylor JJ |
Decision: | 1. The appeal is dismissed with costs. 2. The affidavit of Suqin Zhu Tong affirmed 12 October 2023 and Edmund Hao Wen Tong affirmed 12 October 2023 are admitted into evidence on the cross‑appeal. 3. The cross-appeal is dismissed with costs. |
Catchwords: | APPEAL – EQUITY – Undue influence – appeal on ground that primary judge erred in finding that inter vivos transfer was result of undue influence – where primary judge found relationship gave rise to presumption of undue influence – where presumption was not rebutted – whether open to primary judge to find presumption of undue influence – consideration of combined force of circumstances – no error established – appeal dismissed APPEAL – TRUSTS – Constructive trusts – appeal on ground that primary judge erred in finding that property was held by the deceased’s sister on trust for the benefit of the deceased – where primary judge found the deceased considered property to be his own – where primary judge found the deceased to have paid his sister amount equal to his equity in the property – whether open to primary judge to find existence of constructive trust – no error established – appeal dismissed STATUTES – INTERPRETATION – Interpretation of r 5413 of Court Procedures Rules 2006 (ACT) – where respondents’ cross‑appeal sought to “amend” orders of primary judge – whether reference to “amend” is different to “appeal” – whether rule places lesser burden on respondent seeking to amend – whether seeking to amend requires party to establish error – establishment of error required – no error established – cross‑appeal dismissed |
Legislation Cited: | Administration and Probate Act 1929 (ACT), s 32(2) Court Procedures Rules 2006 (ACT), rr 5413, 6906 Federal Court Rules 1979 (Cth), O 52 r 22 Supreme Court Act 1933 (ACT), s 37N(3) Supreme Court Rules 1937 (ACT), O 86 r 30 Trustee Act 1925 (ACT), s 70 |
Cases Cited: | Allcard v Skinner (1887) 36 Ch D 145 Armouti v Nenes [2022] ACTCA 3; 17 ACTLR 237 Bank of Montreal v Stuart [1911] AC 120 Baumgartner v Baumgartner (1987) 164 CLR 137 Belhaven and Stenton Peerage [1875] 1 App Cas 278 Fox v Percy [2003] HCA 22; 214 CLR 118 Goldsworthy v Brickell [1987] Ch 378 House v The King (1936) 55 CLR 499 Johnson v Buttress (1936) 56 CLR 113 Jones v Dunkel (1959) 101 CLR 298 Jovanovic v The Queen [2015] ACTCA 29 Leighton v The Queen [2017] ACTCA 55 National Westminster Bank plc v Morgan [1985] AC 686 Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; 41 WAR 353 Quek v Beggs (1990) 5 BPR 11,761 R v Hillier [2007] HCA 13; 228 CLR 618 Richardson v Richardson [2022] ACTSC 363; 20 ACTLR 37 |
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- AGLC
- Tong v Tong [2024] ACTCA 27
- Case
- [2024] ACTCA 27
- Decision Date
CaseChat Overview and Summary
The legal issues before the appellate court included whether the primary judge erred in finding that a presumption of undue influence arose from the relationship between the parties and that this presumption was not rebutted. Further, the court was required to determine whether the primary judge erred in finding that property was held by the deceased's sister on a constructive trust for the benefit of the deceased, based on the deceased's belief that the property was his own and his payment of an amount equivalent to his equity in the property. Finally, the court considered the interpretation of rule 5413 of the Court Procedures Rules 2006 (ACT) in the context of the respondents' cross-appeal, specifically whether seeking to "amend" orders under this rule required the establishment of error.
The appellate court found no error in the primary judge's findings. Regarding the undue influence claim, the court held that the circumstances, when considered together, supported the primary judge's conclusion that the presumption of undue influence arose and was not rebutted. On the constructive trust issue, the court affirmed the primary judge's reasoning that the deceased's conduct and intentions established the necessary elements for a constructive trust. The court also determined that the respondents' cross-appeal, which sought to "amend" orders, required the establishment of error, and as no error was demonstrated, the cross-appeal was dismissed.
Consequently, the appeal was dismissed with costs. The court also admitted certain affidavits into evidence on the cross-appeal, which was itself dismissed with costs.
Orders
Orders of the court
1. The appeal is dismissed with costs.
2. The affidavit of Suqin Zhu Tong affirmed 12 October 2023 and Edmund Hao Wen Tong affirmed 12 October 2023 are admitted into evidence on the cross‑appeal.
3. The cross-appeal is dismissed with 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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