Tong v Tong

This matter concerned an appeal and cross-appeal arising from a primary judge's decision concerning allegations of undue influence and the existence of a constructive trust. The appellant, Tong, sought to overturn findings that an inter vivos transfer of property was the result of undue influence and that certain property was held by the deceased's sister on trust for the deceased. The respondents cross-appealed seeking to amend the primary judge's orders. The appeal and cross-appeal were heard by Mossop ACJ, Loukas-Karlsson and Taylor JJ.

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.