(1) Any rent received following the death of the Deceased by the third defendant (the Deceased’s sister) in respect of the property located in Richardson and occupied by the plaintiffs (Richardson property) is to be repaid to the fifth plaintiff.
(2) Within 28 days of the making of these orders, the first defendant is to deliver up the assets and records of the Estate of the late Quoc Khai Tong (Estate) and to do all things necessary to give effect to the vesting of the property and assets of the Estate in the ACT Public Trustee and Guardian (Public Trustee).
(3) Within 28 days of the making of these orders, the fourth defendant is to deliver up the assets and records of the Tong Family Trust, and to do all things necessary to give effect to the vesting of property and other assets of the said Trust in the Public Trustee.
(4) Notwithstanding any power to the contrary in the Deed of Trust executed on 10 May 2019 (Trust Deed) creating the Tong Family Trust, the Public Trustee is named as the appointer of the Trust and the appointment clause in the Trust Deed is deemed to have been varied to that effect.
(5) Order 6 of the orders made on 30 June 2023 is varied to read as follows:
Within 14 days of any request by the ACT Public Trustee and Guardian following the issue of a grant of probate in respect of the Estate, the third defendant is to do all things and sign all documents necessary to transfer the title to the property in Richardson referred to in Order 1 above free of any encumbrance to the fifth plaintiff as to a 50% share and to the ACT Public Trustee and Guardian as to a 50% share to be held on trust for the first to fourth plaintiffs.
(6) The plaintiffs’ costs are to be paid:
(a) by the first defendant (out of the Estate fund) as to 50%,
(b) by the second defendant as to 25%, and
(c) by the third defendant as to 25%.
(7) Pursuant to r 1732 of the Court Procedures Rules (2006) (ACT):
(a) 50% of the Estate’s assessed legal costs are to be paid by the second defendant and 50% are to be borne by the fund of the Estate; and
(b) 50% of the fourth defendant’s assessed legal costs are to be paid by the second and third defendants, and 50% are to be borne by the Tong Family Trust fund.
Catchwords:
PRACTICE AND PROCEDURE – COSTS – Deceased Estate – where parties had mixed success on overlapping issues – whether costs ought to be paid out of estate or by defendants personally – whether interests of justice served by…
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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AGLC
Tong v Tong (No 2) [2023] ACTSC 336
Case
[2023] ACTSC 336
Decision Date
CaseChat Overview and Summary
Tong v Tong (No 2) [2023] ACTSC 336 involved a dispute between the plaintiffs, the surviving family members of the late Quoc Khai Tong, and the defendants, who included the Deceased's brother, sister, and corporate trustees of his estate and family trust. The primary judgment had already addressed claims of undue influence, family provision, and constructive trust, leading to orders that declared the property in Richardson held on trust for the plaintiffs, set aside a gift of $360,000 to the Deceased's brother, and made family provision for the plaintiffs. This case dealt with further orders and costs arising from the primary judgment.
The court addressed several issues, including whether interest should be awarded on the $360,000 sum set aside, whether the eldest child of the Deceased should replace the Public Trustee as executor and trustee, whether the Deceased's sister should be removed as a back-up executor and trustee, whether the defendants should account for the assets of the Estate and Tong Family Trust, and how costs should be apportioned.
The court ruled that interest should be awarded on the $360,000 sum set aside to ensure the Estate benefits from the sum from the date it was paid to the Deceased's brother. It found that orders substituting the eldest child or his mother as executor and trustee were outside the liberty granted to the parties and declined to make such orders, citing the need for an independent trustee to avoid conflicts. The court also ruled that removing the Deceased's sister as a back-up executor and trustee was not necessary for enforcing the orders made. While the court declined to order accounts at this stage, it left the matter to the discretion of the Public Trustee.
Regarding costs, the court found that the plaintiffs were substantially successful in their claims and were entitled to their costs on the ordinary basis. However, it decided to apportion costs by reference to issues, considering the partisan stance taken by the second and third defendants. The court ordered that the plaintiffs' costs be paid 50% by the Estate, 25% by the second defendant, and 25% by the third defendant. The defendants' costs were apportioned between the Estate, the Tong Family Trust, and the second and third defendants, depending on whether the costs related to the Estate or the Trust and whether the litigation was reasonably defended.
Ultimately, the court made orders for the repayment of rent, delivery of assets and records to the Public Trustee, variation of the Trust Deed to name the Public Trustee as appointer, and apportionment of costs between the parties.