Yap v Lee (No 2)

[2024] VSC 730

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S CI 2016 01053

ENG HOCK YAP & ORS (according to the Schedule attached)	Plaintiffs
v
YEW HAN LEE & ORS (according to the Schedule attached)	Defendants

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JUDGE:	Waller J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August and 10 September 2024
DATE OF RULING:	27 November 2024
CASE MAY BE CITED AS:	Yap v Lee (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 730

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PRACTICE AND PROCEDURE — Harman undertaking — Hearne v Street obligation —Implied undertaking not to use documents for a collateral or ulterior purpose — Additional plaintiffs joined to proceeding in reliance on documents — Whether implied undertaking applicable in current proceeding — Whether joinder of additional plaintiffs an abuse of process — Whether implied undertaking brought to an end by implied waiver — Application for retrospective leave — Leave granted.

PRACTICE AND PROCEDURE — Abuse of Process — Application to strike out statement of claim, alternatively stay proceeding — Whether proceeding brought for improper purpose — No abuse of process — Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 23.01–23.02.

PRACTICE AND PROCEDURE —Appointment of representative of deceased party — Where plaintiff dies after commencement of proceeding — Probate not yet granted — Former litigation guardian appointed as representative — Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 9.09, 16.03.

PRACTICE AND PROCEDURE — Withdrawal of admissions — Leave sought to amend defence — Insufficient evidence of prejudice to plaintiffs — Leave granted — Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 36.01, 36.04.

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APPEARANCES:	Counsel	Solicitors
For the First, Third and Fourth Plaintiffs	Mr ID Martindale KC with Ms C Willshire	Willocks Lawyers
For the First and Third Defendants	Ms L De Ferrari SC	Russell Kennedy
For the Fourth Defendant	In person

TABLE OF CONTENTS

A.. Introduction.................................................................................................................................. 1

B.. Background................................................................................................................................... 2

B.1... Events prior to this proceeding......................................................................................... 2

B.2... Commencement of the Family Court Proceeding.......................................................... 3

B.3... Commencement of this proceeding.................................................................................. 4

B.4... Joinder Application............................................................................................................. 5

B.5... Family Court case guardian and stay of proceeding..................................................... 6

B.6... Procedural developments between December 2020 and February 2024..................... 9

B.7... Events since February 2024.............................................................................................. 10

C.. Third and Fourth Summonses: Breach of Harman Undertaking..................................... 11

C.1... Submissions........................................................................................................................ 11

C.2... Principles............................................................................................................................ 13

C.3... Consideration..................................................................................................................... 22

C.3.1.. Onus......................................................................................................................... 22

C.3.2.. Were the documents subject to the Harman undertaking?.............................. 22

C.3.3.. Was there a breach of the Harman undertaking?.............................................. 24

C.3.4.. Has there been consent or waiver on the part of the first defendant?........... 25

C.3.5.. Should retrospective leave to use the documents be granted?....................... 26

D.. Third Summons: Abuse of Process......................................................................................... 27

D.1... Submissions........................................................................................................................ 27

D.2... Principles............................................................................................................................ 29

D.3... Consideration..................................................................................................................... 32

E... First Summons: Representation of Deceased Estate........................................................... 34

E.1... Principles............................................................................................................................ 35

E.2... Submissions........................................................................................................................ 36

E.3... Consideration..................................................................................................................... 38

F... Second Summons: Withdrawal of Admissions................................................................... 42

F.1... Submissions........................................................................................................................ 42

F.2... Principles............................................................................................................................ 44

F.3... Consideration..................................................................................................................... 49

G.. Orders........................................................................................................................................... 50

HIS HONOUR:

A.INTRODUCTION

1. Since its commencement in 2016, this proceeding has charted a slow and tortuous course. It concerns a complex family trust dispute that has evolved through multiple phases and iterations. The matter has been characterized by procedural complexity, numerous changes in legal representation and significant developments in the circumstances of key parties. This ruling addresses a number of contentious issues that have extended this protracted process.

1. More particularly, this ruling deals with the following applications:

(a)   by summons filed on 24 June 2024, the first, third and fourth plaintiffs seek to have the fourth plaintiff, Sau Lin Kam, appointed to represent the estate of the third plaintiff for the purposes of the proceeding (‘First Summons’);

(b)  by summons filed on 18 July 2024, the first and third defendants seek leave to withdraw admissions previously made in their defences (‘Second Summons’);

(c)   by summons filed on 3 September 2024, the first defendant seeks to have the plaintiffs’ Fifth Amended Statement of Claim struck out and the First Summons refused on the basis of an alleged abuse of process, breaches of Harman undertakings and breaches of the parties’ and legal practitioners’ overarching obligations (‘Third Summons’); and

(d)  by summons filed on 4 September 2024, the first, third and fourth plaintiffs seek leave (retrospectively) for the lawyers for the deceased third plaintiff and the fourth plaintiff to use all the documents produced in this proceeding by the defendants to the first plaintiff and his lawyers prior to 2 October 2019 for the purpose of this proceeding, including their joinder (‘Fourth Summons’).

B.BACKGROUND[1]

[1]The facts set out below are drawn predominantly from the Chronology filed by the plaintiffs on 14 August 2024 and Annexure A of the Submissions filed by the first defendant on 7 August 2024.

B.1.Events prior to this proceeding

1. The third plaintiff (‘Chin Huat’) and the first defendant (‘Ms Lee’) married in 1966 in Malaysia. There are six adult children of the marriage, including the first plaintiff (‘Eng Hock’), the third defendant (‘Vincent’) and the fourth defendant (‘William’).

1. In around 1981 or 1982, Chin Huat and his brother, Chin Ming Yap (‘Chin Ming’), became involved in property development in Melbourne.

1. In 1982, Chin Huat and Chin Ming established the Yap Brothers Family Trust (‘Trust’). The third defendant, Yap Brothers Holdings Pty Ltd (‘Trustee’), was the corporate trustee and operated the Trust for the benefit of:

(a)   Chin Huat;

(b)  Ms Lee;

(c)   Chin Ming;

(d)  Chin Huat and Ms Lee’s children, including Eng Hock, Vincent and William; and

(e)   Chin Huat and Ms Lee’s grandchildren.

1. In late 1983, Chin Huat, Ms Lee and their children migrated to Australia. Chin Ming remained in Malaysia.

1. Shortly after moving to Australia, Chin Huat and Ms Lee separated. Chin Huat returned to Malaysia.

1. In June 1984, Ms Lee was appointed a director of the Trustee and Chin Ming ceased to be a director of the Trustee.

1. In 1987, Ms Lee and Chin Huat agreed to divorce. The divorce was formalised by orders of the Family Court of Australia made in 1988.

1. Around the time of the divorce, Chin Huat and Chin Ming ceased to be directors of the Trustee and Eng Hock was appointed a director of the Trustee.

1. In 1990, Chin Huat and the fourth plaintiff (‘Ms Kam’) married in Malaysia.

1. In April 1992, the Trustee purchased 2 Iris Road, Glen Iris (‘Glen Iris Property’).

1. In July 2005, the Glen Iris Property was transferred from the Trustee to Ms Lee for no consideration.

B.2.Commencement of the Family Court Proceeding

1. On 23 April 2014, Chin Huat commenced a proceeding in the Family Court of Australia (‘Family Court Proceeding’) seeking orders:

(a)   dividing assets between Chin Huat and Ms Lee;

(b)  restoring Chin Huat as a joint director and equal shareholder of the Trustee; and

(c)   restraining Ms Lee and/or the directors of the Trustee from amending the share register of the Trustee or appointing any other company officers.

1. Also on 23 April 2014, Chin Huat appointed Eng Hock as his attorney under a general power of attorney, revokable upon written notice, authorising Eng Hock to:

(a) conduct litigation seeking relief pursuant to s 79 of the Family Law Act 1975 (Cth) (‘FL Act’) against the Trustee and its directors (including Ms Lee); and

(b)  conduct negotiations as to the terms of settlement of his claim with Ms Lee, the Trustee or its directors but not to enter into a binding financial agreement on his behalf or consent to orders that would finalise his claim without express written authority.

1. Based on a medical certificate dated 27 August 2015 from Dr Tan Chong Yong of Klinik & Surgeri Tan in Kuala Lumpur, Malaysia,[2] Ms Lee’s position is that Chin Huat was diagnosed with dementia by or on 27 August 2015. Further medical records of Chin Huat from that time have not been produced to the Court.[3]

   [2]Affidavit of Yew Han Lee filed 23 October 2023, 9.

   [3]Affidavit of Joe Sew Chin Cheung filed 16 August 2024.

1. On 21 October 2015, the Family Court was informed that Chin Huat wanted leave to discontinue. Leave was granted. Ms Lee sought indemnity costs on the basis that Chin Huat had perjured himself.

1. On 6 November 2015, Johns J handed down a decision. Her Honour found that, on the balance of probabilities, Chin Huat had deliberately attempted to mislead the Court in relation to his entry into Australia. Her Honour said, however, that it was not for her to determine whether Chin Huat’s conduct amounted to a criminal offence and referred the matter to the Commonwealth Director of Public Prosecutions.

B.3.Commencement of this proceeding

1. On 22 March 2016, Eng Hock commenced this proceeding. The third and fourth plaintiffs were not parties at that time.

1. Until the filing of the Third Further Amended Statement of Claim on 1 July 2019, the primary relief sought by Eng Hock was the appointment of a new trustee and a declaration that Ms Lee held the Glen Iris Property on constructive trust for the Trustee.

1. By his Third Further Amended Statement of Claim, Eng Hock alleged that the Trust had failed for uncertainty and sought the appointment of a receiver to the trust assets.

1. By her Amended Defence to the Third Further Amended Statement of Claim and Counterclaim filed on 26 August 2019, Ms Lee denied that the Trust had failed for uncertainty and brought a counterclaim asserting contributions made by her to the Trustee and claiming an interest in the assets of the Trust in the event that it was found to have failed.

1. On 10 October 2019, McDonald J declared that, the trust deed having been lost:

(a)   the Trust had failed for uncertainty;

(b)  the second defendant held all of its property, rights and assets acquired by it as trustee of the Trust on one or more resulting trusts for those who had contributed property to the Trustee at any time; and

(c)   the second defendant shall hold any further income arising from its property, rights and assets on the same resulting trust or resulting trusts.

B.4.Joinder Application

1. Soon after 26 August 2019, Eng Hock told Chin Huat and Ms Kam that Ms Lee, Vincent and William were claiming ownership of the assets of the Trust and that Chin Huat and Ms Kam should contact Luke Tran of Luat Lawyers. On 4 September 2019, Luke Tran spoke to Chin Huat and Ms Kam via WhatsApp audio visual link and took instructions.

1. On 2 October 2019, Luke Tran swore an affidavit in support of an application on behalf of Chin Huat and Ms Kam, then not parties to this proceeding, seeking their joinder as plaintiffs. On 3 October 2019, Luat Lawyers filed a summons on behalf of Chin Huat and Ms Kam seeking an order that they be joined as plaintiffs (‘Joinder Application’).

1. On 22 October 2019, Thomas Victoria Lawyers, the first, third and fourth defendants’ then solicitors, informed Luat Lawyers that the first, third and fourth defendants would not oppose the Joinder Application (which until then they had opposed) but would seek to have this proceeding cross-vested to the Family Court. They would make that application once the Family Court had made interim procedural orders which included granting leave to Ms Lee pursuant to s 44(3) of the FL Act to commence an application for orders under s 79 of that Act.

1. Also on 22 October 2019, Ms Lee filed an Initiating Application in the Family Court Proceeding naming Chin Huat as a respondent, seeking leave pursuant to s 44(3) of the FL Act to commence an application for orders under s 79, seeking an anti-suit injunction restraining Chin Huat from continuing with this proceeding and seeking orders giving Ms Lee sole property in the assets of the Trust to the exclusion of Chin Huat. Chin Huat applied for orders staying the Family Court Proceeding until this proceeding is finalised (‘Family Court Anti-Suit Injunction Application’).

1. On 25 October 2019, McDonald J ordered that Chin Huat and Ms Kam be joined as third and fourth plaintiffs in this proceeding.

1. On 8 November 2019, Luke Tran emailed an Overarching Obligations certificate to Ms Kam and requested her and Chin Huat to sign and return it.

1. On 8 November 2019, Luat Lawyers filed:

(a)   a statement of claim on behalf of Chin Huat and Sau Lin Kam; and

(b)  an Overarching Obligations certificate signed by Chin Huat.

B.5.Family Court case guardian and stay of proceeding

1. On 15 November 2019:

(a)   Thomas Victoria Lawyers wrote to Luat Lawyers raising concerns about Chin Huat’s capacity; and

(b)  Luat Lawyers sent Ms Kam a letter asking for a report on Chin Huat’s mental capacity.

1. On 26 November 2019 and 3 December 2019, Dr Azhar Salleh, a psychiatrist at Pantai Hospital Cheras in Kuala Lumpur, Malaysia, interviewed Chin Huat.

1. On 2 December 2019 the first, third and fourth defendants filed a defence and counterclaim, settled by Dr Hanak KC and Mr Diaz of counsel.

1. On 6 December 2019, Dr Salleh provided a draft report to Ms Kam.

1. On 20 December 2019, Luat Lawyers filed an amended statement of claim on behalf of Chin Huat and Ms Kam.

1. On or around 13 February 2020, Willocks Lawyers began acting for Chin Huat in the Family Court Proceeding.

1. On 25 March 2020, Eng Hock sent Luat Lawyers a copy of Dr Salleh’s unsigned draft report dated 4 December 2019 (‘Draft Report’). Luat Lawyers forwarded the Draft Report to Willocks Lawyers that same day and Willocks Lawyers in turn forwarded the Draft Report to Thomas Victoria Lawyers.

1. On 25 March 2020, Willocks Lawyers sent Chin Huat and Ms Kam a letter seeking a further assessment of Chin Huat’s mental capacity.

1. On 26 March 2020, Willocks Lawyers filed an application in the Family Court Proceeding seeking the appointment of Eng Hock as case guardian for Chin Huat (‘Family Court Case Guardian Application’).

1. On 3 April 2020, Dr Salleh emailed his signed report dated 4 December 2019 to Luat Lawyers.

1. On 28 April 2020, Willocks Lawyers asked Dr Salleh to further assess Chin Huat’s mental capacity and update his report on Chin Huat dated 4 December 2019.

1. On 14 May 2020, Dr Salleh issued an updated and signed report on Chin Huat’s mental capacity diagnosing moderate to severe dementia.

1. On 15 May 2020, Dr Salleh swore an affidavit which was filed in the Family Court Proceeding in support of the appointment of Eng Hock as case guardian.

1. On 17 June 2020, Ms Lee filed a response to the Family Court Case Guardian Application seeking the dismissal of the application and an order restraining Willocks Lawyers from acting in the Family Court Proceeding.

1. On 6 July 2020, Ms Lee’s solicitors in the Family Court Proceeding filed a Summary of Issues in opposition to the appointment of Eng Hock as case guardian for Chin Huat, including the issue of whether Chin Huat at any time had capacity to engage lawyers.

1. On 21 July 2020, Ms Lee’s solicitors in the Family Court Proceeding filed submissions as to whether Chin Huat at any time had capacity to engage lawyers.

1. On 30 July 2020, Luat Lawyers filed in this proceeding an affidavit of Dr Salleh exhibiting his reports on Chin Huat’s mental capacity.

1. On 28 August 2020, Ms Lee filed a case outline for the hearing, signed by senior and junior counsel, which made detailed submissions as to Chin Huat’s lack of capacity to be joined as a plaintiff in this proceeding and to give instructions in the Family Court Proceeding.

1. On 3 September 2020, in the Family Court Proceeding, Hartnett J ordered by consent (pursuant to signed consent orders) that Ms Kam be appointed as case guardian for Chin Huat and that Ms Lee’s response to the Family Court Case Guardian Application be dismissed.

1. On 18 September 2020, Ms Lee filed an Amended Initiating Application seeking an anti-suit injunction to prevent Chin Huat from taking any further step in this proceeding.

1. On 5 October 2020, Willocks Lawyers began acting for Chin Huat and Ms Kam in this proceeding.

1. On 15 October 2020:

(a)   Belleli King & Associates filed in this proceeding a notice of change of solicitor on behalf of Ms Lee and Vincent and Belleli King & Associates retained Mr Glick as their counsel; and

(b)  Chin Huat filed a Response to the Family Court Anti-Suit Injunction Application seeking a stay of the Family Court Proceeding until the hearing and determination of the proceeding in this court.

1. On 26 October 2020, Robinson Gill began acting in this proceeding on behalf of William and they retained Dr Turner of counsel.

1. On 22 December 2020, the Family Court made orders:

(a) granting leave to Ms Lee pursuant to s 44(3) of the FL Act;

(b)  dismissing the Family Court Anti-Suit Injunction Application; and

(c)   staying the Family Court Proceeding until determination of this proceeding.

B.6.Procedural developments between December 2020 and February 2024

1. On 24 December 2020, the plaintiffs filed a note to the Court in this proceeding reporting on the outcome of the Family Court Proceeding and also informing the Court of the death of Chin Ming, the proposed fifth plaintiff.

1. On 17 March 2021, the plaintiffs filed a note to the Court in this proceeding, with the agreement of all parties, asking for the proceeding to be adjourned to a date to be fixed so that an application for letters of administration in the estate of Chin Ming could be made. On 18 March 2021, Lyons J adjourned this proceeding until letters of administration were granted.

1. On 3 May 2021, Welner Lawyers began acting for Ms Lee and Vincent in this proceeding and they retained Mr DJ Williams KC and later also Mr N Elias of counsel.

1. At a directions hearing on 20 August 2021, the plaintiffs applied for Ms Kam to be appointed as Chin Huat’s litigation guardian in this proceeding. Mr Williams KC stated that the first, second and third defendants did not oppose Ms Kam’s appointment but expressed their longstanding concerns about Chin Huat’s capacity.[4] Justice Lyons made orders appointing Ms Kam as Chin Huat’s litigation guardian and giving the plaintiffs leave to file an amended statement of claim.

   [4]Transcript of Proceedings (20 August 2021) 9.2–9.22.

1. Between 6 September 2021 and 24 December 2021, Willocks Lawyers and Welner lawyers filed a series of statements of claims and defences and counterclaims, respectively.

1. On 31 August 2022, Robinson Gill ceased to act for William.

1. On 25 November 2022, Lyons J directed the parties’ counsel to further confer in relation to the issues that might be the subject of determination at a first stage of the trial of this proceeding, having regard to the amended pleadings and the witness statements filed.

1. On 5 December 2022, Willocks Lawyers filed a fourth further amended statement of claim on behalf of the plaintiffs. On 7 February 2023, Welner Lawyers filed a defence to the fourth further amended statement of claim and counterclaim on behalf of Ms Lee, the Trustee and Vincent.

1. On 19 September 2023, Welner Lawyers ceased acting for Ms Lee and Vincent.

1. On 23 October 2023, Ms Lee filed an affidavit and submissions alleging misrepresentation by concealment of Chin Huat’s mental capacity.

1. On 5 February 2024, Willocks Lawyers filed a fifth further amended statement of claim on behalf of the plaintiffs (‘5FASOC’).

B.7.Events since February 2024

1. On 5 March 2024, I made orders referring Ms Lee, Vincent and William to the Victorian Bar Pro Bono Assistance Scheme.

1. Dr P Turner of counsel assisted William on a pro bono basis in drafting his defence to the 5FASOC. Dr Turner’s involvement with the proceeding has otherwise ended.

1. Ms L De Ferrari SC and Russell Kennedy assisted Ms Lee and Vincent on a pro bono basis in drafting their defences to the 5FASOC. They continue to act for Ms Lee and Vincent on a pro bono basis.

1. Ms Lee’s defence and counterclaim to the 5FASOC was filed on 26 June 2024. Vincent’s defence to the 5FASOC was filed on 27 June 2024.

1. The First and Second Summonses were heard on 21 August 2024 and adjourned part heard to 10 September 2024.

1. On 3 September 2024, the first defendant filed the Third Summons raising, among other things, alleged breaches by the plaintiffs of the Harman undertaking[5] and seeking orders that the Fifth Amended Statement of Claim be struck out and the First Summons refused. I directed that summons to be made returnable on 10 September 2024.

   [5]As the Third Summons refers to ‘Harman undertakings’ and the parties’ submissions also used that expression this ruling does likewise. As explained at paragraph 84 below, in Hearne v Street (2008) 235 CLR 125, the High Court preferred to describe the implied undertaking as an obligation of law.

1. In response to the Third Summons, the plaintiffs filed the Fourth Summons seeking retrospective leave to rely on documents that had been produced to the first plaintiff prior to the joinder of the third and fourth plaintiffs.

1. Given the nature of the relief sought by the Third Summons, it is convenient to deal first with the Third and Fourth Summonses.

C.THIRD AND FOURTH SUMMONSES: BREACH OF HARMAN UNDERTAKING

C.1.Submissions

1. The first defendant submitted that the Joinder Application was made in reliance on a number of documents in breach of the Harman undertaking.[6]

   [6]Further Submissions filed by the First Defendant on 3 September 2024, [47].

1. The first defendant first raised these alleged breaches of the Harman undertaking in a letter from Russell Kennedy to Willocks Lawyers dated 28 August 2024.[7]

   [7]Affidavit of Nicholas James Shying filed 3 September 2024, Exhibits NJS-1, 124–33 (‘Letter from Russell Kennedy to Willocks Lawyers’).

1. The documents alleged to have been used in breach of the Harman undertaking are:[8]

   [8]Letter from Russell Kennedy to Willocks Lawyers, Annexure [5]–[9].

(a)   the affidavit sworn by Ms Lee on 19 July 2019, served by the first defendant upon the first plaintiff to resist the application for a receiver to be appointed to the trust;

(b)  the letter of advice from Mr Geoffrey Taylor to the first defendant dated 5 October 1988, which is exhibited to the affidavit sworn by Ms Lee on 19 July 2019;

(c)   the Pitcher Partners’ expert report dated 23 September 2019, served by the defendants upon the first plaintiff;

(d)  the June 1987 deeds executed by Chin Huat on 15 June 1987 and Chin Ming on 26 June 1987, which were discovered by the first defendant in this proceeding and later exhibited to the affidavit sworn by Ms Lee on 19 July 2019; and

(e)   documents provided by the first defendant on 25 September 2019[9] following a request for further and better particulars dated 10 September 2019.

[9]Copies of these documents appear to have been provided under cover of a letter dated 16 September 2019 from Thomas Victoria Lawyers, solicitors for the first, third and fourth defendants and were later formally discovered by way of an affidavit of documents of Ms Lee filed on 23 September 2019.

1. In oral submissions, counsel for the first defendant submitted that while only some of these documents were produced in response to a specific compulsory discovery order of the Court, they were nonetheless produced under compulsion given the necessity of filing an affidavit to resist the application for a receiver to be appointed to the trust.[10]

   [10]Transcript of Proceedings (10 September 2024) 97.17–97.31.

1. The first defendant submitted that, while she bore the initial onus of showing that there was a prima facie case, any breach of the Harman undertaking was an issue between the accused party and the court, to whom the obligation is owed. Therefore, it did not fall to the first defendant to prove the issue, beyond establishing a prima facie case.[11]

   [11]Ibid 5.29–6.06.

1. The plaintiffs deny that any such breaches occurred,[12] for the following reasons:

   [12]Plaintiffs’ Further Submissions on Abuse of Process filed 6 September 2024, [47].

(a)   first, not all of the documents were subject to the Harman undertaking as they were not all compulsorily produced;[13] affidavits and exhibits produced for the purpose of use as evidence are not filed and served under any compulsion of law and are not subject to the implied undertaking;[14]

(b)  secondly, the documents were not used for any collateral or ulterior purpose,[15] but for the purposes of this proceeding, as the basis for joining additional plaintiffs; and

(c)   thirdly, the first defendant chose not to bring the matter of the use of the documents to the Court’s attention, carrying on the proceeding from 2 October 2019 until 28 August 2024 without complaint, thereby waiving any objection or consenting to the use of the documents.[16]

[13]Ibid [50].

[14]Ibid [60].

[15]Ibid [49](a).

[16]Ibid [49](b).

C.2.Principles

1. As is well known, there exists an implied undertaking, identified by the House of Lords in Harman v Secretary of State for Home Department (‘Harman’),[17] not to use documents disclosed on discovery in a proceeding for a purpose unconnected with the proceeding.

   [17]Harman v Secretary of State for the Home Department [1983] 1 AC 280 (‘Harman’). See Connective Services Pty Ltd v Slea Pty Ltd (2017) 53 VR 130, 137–9 (Almond J) (‘Slea Stay Application’).

1. In Harman, Lord Diplock said:

the solicitor of one party to civil litigation, who in the course of discovery in that litigation has obtained possession of copies of documents belonging to the other party to the litigation, [is] to refrain from using the advantage enjoyed by virtue of such possession for some collateral or ulterior purpose of his own not reasonably necessary for the proper conduct of the action on his client's behalf; …[18]

[18]Harman [1983] 1 AC 280, 302 (Lord Diplock).

1. The Harman undertaking was reformulated by the High Court of Australia in Hearne v Street,[19] where the plurality said:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.[20]

[19]Hearne v Street (2008) 235 CLR 125.

[20]Ibid 154–5 [96] (Hayne, Heydon and Crennan JJ).

1. Because ‘[c]ompulsory pre-trial exchange or disclosure of materials, such as witness statements and experts’ reports, is now extensive’,[21] the undertaking attaches to a wide range of materials, including

documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.[22]

[21]Ibid 131 [5] (Gleeson CJ).

[22]Ibid 154–5 [96] (Hayne, Heydon and Crennan JJ).

1. Although frequently described as an implied undertaking, the plurality in Hearne v Street emphasised that in truth it is an obligation of law:

… to call the obligation of the litigant who has received material generated by litigious processes one which arises from an “implied undertaking” is misleading unless it is understood that in truth it is an obligation of law arising from circumstances in which the material was generated and received.[23]

[23]Ibid 156–7 [102] (Hayne, Heydon and Crennan JJ).

1. The implied undertaking has been codified in Victoria by s 27 of the Civil Procedure Act 2010 (Vic) (‘CP Act’), which protects documents produced under the compulsory disclosure process required by s 26 of that Act.

1. Section 27 provides:

Protection and use of information and documents disclosed under overarching obligation in section 26

(1)A person who receives any information or documents provided by another person involved in the civil proceeding as a result of disclosure in compliance with the overarching obligation in section 26 is subject to an obligation not to use the information or documents, or permit the information or documents to be used, for a purpose other than in connection with the civil proceeding.

(2)The obligation under subsection (1) is taken to be an obligation to the court, contravention of which constitutes contempt of court.

(3)A person—

(a)may agree in writing to the use of information or documents otherwise protected under subsection (1) ; or

(b)may be released from the obligation imposed under subsection (1) by leave of the court.

1. There has been some uncertainty as to whether the implied undertaking attaches to affidavits filed and served pursuant to court ordered timetabling orders, or affidavits filed and served pursuant to court rules requiring such affidavits to support a particular application.

1. In R v Silverstein (‘Silverstein’),[24] the Court of Appeal considered the application of the Harman undertaking to affidavits filed in support of a summary judgment application and an affidavit filed in support of an application for preliminary discovery. The Court held that although the rules of court required these affidavits to be filed in support of the applications, they did not compel the applications to be made,[25] concluding that ‘[t]he cases do not support the conclusion that every affidavit filed in compliance with a rule of court is relevantly produced under compulsion’.[26]

   [24]R v Silverstein [2020] VSCA 233 (‘Silverstein’).

   [25]Ibid [25]–[26].

   [26]Ibid [78].

1. In Unicomb v Blais (‘Unicomb’),[27] McGrath J of the New South Wales Supreme Court recently considered whether the Harman undertaking attaches to affidavits filed and served but not read in open court and in particular affidavits prepared and filed pursuant to a court-ordered timetable. In determining this issue, McGrath J traced the history of the principle as stated by the High Court of Australia in Hearne v Street and how it has since been applied by various Australian courts in relation to witness statements and affidavits.[28]

   [27]Unicomb v Blais [2024] NSWSC 903 (‘Unicomb’).

   [28]Ibid [84]–[212]. See T & F.S. Woods Pty Ltd v Woods [2021] FCA 1220; Sinnott v Chief of Defence Force [2020] FCA 643; Frigger v Trenfield (No 5) [2020] FCA 827; Leagou Pty Limited v Commissioner of Taxation [2020] FCA 1162; Silverstein [2020] VSCA 233; Johnston v Allen [2024] NSWSC 187; Stokes v Toyne [2021] NSWSC 1049 (‘Stokes’); Verde Terra Pty Ltd v Central Coast Council (No 7) [2020] NSWLEC 140; Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104.

1. Relevantly, his Honour pointed out that, when considering the judgments of the High Court of Australia in Hearne v Street, there were three important points to keep in mind:[29]

(1)The expert report and affidavit which were the subject of the contempt proceedings were filed in accordance with ordinary timetabling orders of the court.

(2)It was not in contest between the parties, and was accepted by the High Court, that the expert report and affidavit were subject to the implied undertaking not to use affidavits or witness statements served by another party otherwise than for the purpose of the proceedings in which they were prepared. Applying the principle stated in Coleman and CSR as expressed above, because the correctness of the application of the implied undertaking to the expert report and affidavit was assumed without argument, it is not binding on later courts even though it forms part of the ratio decidendi in Hearne.

(3)Neither the expert report nor the affidavit had been tendered or read in the proceedings.

[29]Unicomb [2024] NSWSC 903, [88].

1. Notably, in Hearne v Street, there was ‘no analysis whether or not the implied undertaking even applied to the expert report and affidavit at issue … because the parties did not put that issue in contest’.[30]

   [30]Ibid [92].

1. Justice McGrath considered that

[t]he need to find ‘compulsion’ as stated in the principle in the first sentence of [96] in Hearne necessarily conditions the ‘types of material to which this principle applies’ as catalogued in the second sentence of [96]. The ordinary meaning of the language used in [96] does not allow for it to be interpreted in any other way. To come within the principle, the disclosure of the documents or information must have been compelled. …

I do not think that the question of compulsion in the principle expressed in Hearne is answered simply by considering whether a party is duty or legally bound to undertake a particular step by virtue of some responsibility, position or office that they hold. Otherwise the principle will default into an investigation of why the proceedings were brought or defended, which is no part of the principle expressed in Hearne. In my view, the compulsion expressed in Hearne must arise from the court process in the legal proceedings themselves or, to put it another way as stated in Frigger at [64], ‘an intrusion by the court into the rights of a party not to disclose private documents which is essential to the obligation’.

I consider that in the context of an affidavit made in court proceedings, ‘compelled’ must have its natural meaning of being forced or required to undertake the course of action, being disclosure of the affidavit, in a manner which involves an invasion of the privacy and confidentiality of the contents of that affidavit. It is to be contrasted with a voluntary disclosure of the affidavit. It is not germane to that inquiry whether a party is vindicating rights or defending them. The imposition of the implied obligation in legal proceedings does not arise from the designation of a party as either a plaintiff or a defendant but turns on the circumstances in which the disclosure has been made.[31]

[31]Ibid [232], [246]–[247].

1. His Honour ultimately concluded that the ‘argument that every affidavit filed and served in the course of proceedings in accordance with normal timetabling directions is the subject of the implied obligation must be rejected’.[32]

   [32]Ibid [234].

1. I agree with this conclusion of McGrath J which is also consistent with the decision of the Court of Appeal in Silverstein.[33]

   [33]McGrath J says he departs from what was said in Silverstein at [85], [86] and [90] which ‘focussed on whether there was any compulsion to bring the applications to which the affidavits related’ rather than any compulsion to disclose specific documents or information: Unicomb [2024] NSWSC 903, [249]. I do not consider the Court of Appeal drew such a distinction in those paragraphs.

1. The plurality in Hearne v Street pointed out that the implied undertaking is, ‘in truth an obligation of law arising from circumstances in which the material was generated and received’.[34] This obligation is owed to the Court, not to the party that produces the documents. Therefore, it is only the Court that can release a party from the Harman undertaking.[35]

   [34]Hearne v Street (2008) 235 CLR 125, 157 [102], 160 [108] (Hayne, Heydon and Crennan JJ), 145 [56] (Kirby J), citing Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 764–5 (Hobhouse J).

   [35]See Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 (Burchett J); Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (‘Springfield Nominees’); Hamersley Iron Pty Ltd v Lovell (1988) 19 WAR 316, 321.

1. The court has a discretion to release a party bound by the implied undertaking, so as to permit the use of the document for the purpose other than the conduct of the proceeding itself.[36] That discretion may be exercised in order to grant leave nunc pro tunc to cure an earlier breach.[37]

   [36]Springfield Nominees (1992) 38 FCR 217, 225 (Wilcox J), cited with approval in Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283, 289–90 [31] (‘Liberty Funding’).

   [37]Laen Pty Ltd v At the Heads Pty Ltd & Ors [2011] VSC 315, [15] (‘Laen’).

1. The scope of the leave may be general or limited and may be granted on terms, however, ‘the modification or release should be no greater than is necessary or appropriate to meet the interests of the administration of justice or the public interest’.[38]

   [38]Australian Securities & Investments Commission v Marshall Bell Hawkins Ltd [2003] FCA 833, [23] (Merkel J).

1. In Deputy Commissioner of Taxation v Karas,[39] J Forrest J summarised the circumstances where the implied undertaking may not apply, or may be released or modified by a court, noting that such an exercise is not undertaken lightly:

(1)if the purpose for which the use is to be made is not collateral or ulterior to the subject proceeding then the undertaking has no application;

(2)where the undertaking has application, the undertaking may be unenforceable if the documents have entered ‘the public domain’; and

(3)where the undertaking has application, if the applicant is able to demonstrate ‘special circumstances’ then the Court may release the applicant from the undertaking.[40]

[39]Deputy Commissioner of Taxation v Karas [2012] VSC 143 (‘Karas’).

[40]Karas [2012] VSC 143, [23].

1. In Hearne v Street, the plurality of the High Court said:

The importance with which the courts have viewed the obligation under discussion is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear.[41]

[41]Hearne v Street (2008) 235 CLR 125, 159–60 [107] (Hayne, Heydon and Crennan JJ).

1. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd, Wilcox J outlined the features that might amount to the existence of ‘special circumstances’ such that a court may release a party from the implied undertaking:[42]

For ‘special circumstances’ to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.

[42]Springfield Nominees (1992) 38 FCR 217, 225 (Wilcox J), cited with approval in Liberty Funding (2005) 218 ALR 283, 289–90 [31]; Karas [2012] VSC 143, [56]; Perez v Reynolds (No 2) [2020] VSC 298 (Forbes J).

1. In Liberty Funding Pty Ltd v Phoenix Capital Ltd,[43] the Full Court of the Federal Court said that

[t]he notion of ‘special circumstances’ does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.[44]

[43]Liberty Funding (2005) 218 ALR 283.

[44]Liberty Funding (2005) 218 ALR 283, 289–90 [31] (Branson, Sundberg and Allsop JJ).

1. In Connective Services Pty Ltd v Slea Pty Ltd,[45] a proceeding was commenced in reliance on a document (‘Agreement’), which had been produced in discovery and was subject to the Harman undertaking, breach of which constituted contempt of court. Justice Almond was tasked with considering whether the commencement of the proceeding was therefore an abuse of process.

   [45]Slea Stay Application (2017) 53 VR 130.

1. Justice Almond held that the plaintiffs had breached the Harman undertaking and the proceeding was thus an abuse of process. His Honour held that ‘[i]n circumstances where the central core of the claim turns on the terms of the … Agreement, in my view the appropriate remedy is to stay the proceeding generally pursuant to r 23.01 of the Rules’.[46]

   [46]Ibid 159–60 [116], citing Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.01.

1. Two applications were made by Connective Services following this judgment, seeking leave to use the Agreement and retrospective relief to validate the use of the document to commence a separate proceeding.

1. In Slea Pty Ltd v Connective Services Pty Ltd (‘Slea Leave Application’),[47] Judd J had to determine whether leave ought to be granted retrospectively.

   [47]Slea Pty Ltd v Connective Services Pty Ltd (2017) 53 VR 161 (‘Slea Leave Application’).

1. Slea relied on Miller v Scorey,[48] where Rimer J emphasised the importance of the implied undertaking, suggesting that where a discovered document had been found to be misused in the commencement of a proceeding, the action should be struck out.[49]

   [48]Miller v Scorey [1996] 3 All ER 18.

   [49]Ibid 30, cited in Slea Leave Application (2017) 53 VR 161, 176 [63].

1. In considering a strict application of the rules, Judd J said:

It is important to properly characterise the nature of the obligation breached by the litigant, and the relevant conduct of the party found in breach. The breach found by Almond J involved the consideration of a complex factual matrix and uncertain law. There was a genuine dispute over the question whether a breach had occurred at all. This was not a case of flagrant breach of an order of the Court, or of an order only amenable to adjustment on appeal. It did not involve special circumstance that would require a step to be taken by the Connective Companies to rectify a state of affairs (such as the return of a child to jurisdiction) before justice could be achieved. The impugned conduct involved the initiation of a proceeding which would thereafter continue under the supervision and management of the Court.[50]

[50]Slea Leave Application (2017) 53 VR 161, 172 [44].

1. Justice Judd compared the facts in Slea Leave Application with the facts in Miller v Scorey, finding that

[w]hile there is some similarity between the facts in Miller and this case, there was a material difference in the conduct of the plaintiff in that proceeding, when compared with the Connective Companies, which goes to the question of ‘wrongdoing’. In Miller, the plaintiffs issued the new writ, relying on the protected information, in September 1995, and prosecuted the proceeding through various interlocutory steps until January 1996, when a third defendant applied to strike out the writ and statement of claim. There was no serious contention by the plaintiff that it was entitled to use the material to commence a new proceeding.

Unlike the facts in Miller, the ‘confidential’ information in the … Agreement has been widely deployed in various ways in different proceedings from as early as 2011. Shortly after the Pre-emptive Rights Proceeding was commenced, solicitors for Slea raised a number of objections to the proceeding, including the use of the … Agreement which had been discovered in the Haron Proceeding. A few days later, the Connective Companies’ solicitors responded by justifying their use of the … Agreement. Thus, a significant distinguishing factor in the present case is the existence of a genuine dispute between the parties concerning the primary question of breach.

The Connective Companies submitted that, had an application for leave been made prior to the commencement of the Pre-emptive Rights Proceeding it would probably have been granted. I agree. There were special circumstances to warrant the grant of leave immediately prior to commencing the Pre-emptive Rights Proceeding. Are the Connective Companies to be, in effect, punished for their failure to seek and obtain leave at that time, by the denial of meaningful relief?[51]

[51]Ibid 177–8 [67]–[69].

1. Justice Judd emphasised ‘the importance attaching to a breach of a substantive order or undertaking’ balanced against ‘the right of access to the courts, modern case management principles and practices, and the influence of unique fact circumstances to modify what might otherwise appear as an immutable rule’.[52]

   [52]Ibid 171 [40].

1. In deciding to lift the stay on the proceeding, Judd J pointed out that requiring the parties ‘to start a new proceeding would lack utility and offend the principles of modern case management’.[53] Further,

[t]he overarching purpose of the Civil Procedure Act 2010, and the rules of court in relation to civil proceedings, is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties. A court is obliged to give effect to the overarching purpose in the exercise of any of its powers.[54]

[53]Ibid 178 [70].

[54]Ibid 178 [72].

1. In Harman it was accepted that a breach of the implied undertaking was ‘a contempt which the party for whose benefit the obligation was imposed may waive or accept’.[55] That party ‘may decide not to act: [they] may waive, or consent to, the non-compliance’.[56]

   [55]Harman [1983] 1 AC 280, 313 (Lord Scarman).

   [56]Ibid 310 (Lord Scarman), 322, 326 (Lord Roskill).

1. In Dagi v Broken Hill Proprietary Co Ltd (‘Dagi’),[57] Byrne J said that

[a]lthough it is expressed in terms of an undertaking to the court, the obligation of the party in receipt of discovered material may be modified or removed by consent of the other party without the intervention of the court. In such a case as the present, it may be said that the confidentiality attaching to the reports has a dual nature. In so far as they are based on discovered material, the obligation on the plaintiffs depends upon the implied undertaking to which I have referred. The obligation on the defendants arose from the acceptance by the parties before me that they should be treated as confidential. In each case the obligation is capable of modification by consent or waiver. Nor is there any reason why this consent or waiver should be express, although it would be imprudent for a party too readily to infer consent or waiver from some equivocal conduct of the other. The proper course is to deal with the matter openly and before the court as did the plaintiffs on the first application.[58]

[57]Dagi v Broken Hill Proprietary Co Ltd [1996] 2 VR 567.

[58]Ibid 572.

1. In Stokes v Toyne,[59] Rein J of the New South Wales Supreme Court summarised the position as follows:

   [59]Stokes [2021] NSWSC 1049.

There is no question that documents produced under compulsion cannot be used by the other party without the consent of the producing party or leave of the Court. Although it is expressed as an undertaking to the Court, when consent is clearly given, it appears that the consent of the producing party is sufficient to release the party in receipt of the documents from the obligations owed …[60]

C.3.Consideration

[60]Ibid [21], cited with approval in Unicomb [2024] NSWSC 903, [197].

C.3.1.Onus

1. In Harman, Lord Scarman said that, as civil contempt of court constitutes an injury to the private rights of a litigant, it is usually left to that party to bring the non-compliance to the notice of the court.[61]

   [61]Harman [1983] 1 AC 280, 310 (Lord Scarman).

1. The first defendant seeks to have the 5FASOC struck out or the proceeding stayed. She claims that the alleged breaches of the Harman undertaking constitute a contempt of court and infect the entire proceeding as currently constituted. To obtain this relief, the first defendant must establish that:

(a)   the documents in question were subject to the Harman undertaking;

(b)  the documents were used in breach of the Harman undertaking; and

(c)   the breach warrants the relief or remedy sought.

1. The plaintiffs bear the onus of establishing that:

(a)   there has been consent or waiver to the use of the documents; or

(b)  retrospective leave to use the documents should be granted.

C.3.2.Were the documents subject to the Harman undertaking?

1. Given that the implied undertaking does not attach to documents produced in litigation otherwise than by compulsion,[62] it is necessary to determine whether the documents in question were so produced.

   [62]Unicomb [2024] NSWSC 903, [232] (McGrath J); Laen [2011] VSC 315, [3]; Rowe v Silverstein [2009] VSC 157, [25] (J Forrest J); British American Tobacco v Cowell (No 2) (2003) 8 VR 571, 591 [44]; Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138, [148]–[155] (Hasluck J).

1. The affidavit sworn by Ms Lee on 19 July 2019 was produced following timetabling orders made by Lyons J on 2 July 2019. Having regard to the decision of the Court of Appeal in Silverstein and the analysis of McGrath J in Unicomb, I do not consider that the affidavit or its exhibits were produced under compulsion in the relevant sense. The order made by Lyons J on 2 July 2019 did not require the first defendant to disclose information or documents. The first defendant was not compelled to file and serve her affidavit or to include any documents as exhibits to that affidavit. She could have elected not to do so.

1. The letter of advice by Mr Geoffrey Taylor to the first defendant dated 5 October 1988 was exhibited to the affidavit sworn by Ms Lee on 19 July 2019. For the reasons set out above I do not consider that it was produced under compulsion in the relevant sense.

1. The Pitcher Partners’ expert report dated 23 September 2019 was produced following orders made by consent by McDonald J on 5 August 2019. Again, these timetabling orders were not compulsory discovery orders. The first defendant was not compelled to file and serve an expert report. She could have elected not to do so.

1. The deeds executed by Chin Huat on 15 June 1987 and Chin Ming on 26 June 1987 were also exhibited to the affidavit sworn by Ms Lee on 19 July 2019. For the reasons set out above I do not consider that they were produced under compulsion in the relevant sense. Although they had previously been provided to the first plaintiff by way of discovery[63] and were thereby subject to the Harman undertaking, their inclusion as exhibits to the affidavit sworn by Ms Lee on 19 July 2019 placed them outside that undertaking.

   [63]Affidavit of Ms Lee sworn and filed on 22 September 2017 in response to orders made by Matthews JR (as her Honour then was) on 21 July 2017 requiring the parties to make discovery of documents required by r 29.01(3) by affidavit in accordance with r 29.04.

1. The documents provided by the first defendant on 25 September 2019 were produced following a request for further and better particulars on 10 September 2019.[64] In addition to the request for further and better particulars, paragraph 8 of the orders made by consent by McDonald J on 5 August 2019 documents required

[t]he Defendants produce to the Plaintiffs, or to any expert retained on behalf of the Plaintiffs for the purposes of preparing any expert report, electronic copies of any documents requested by the Plaintiffs or that expert:

(a)that relate to contributions to the assets of the trust named or styled the ‘The Yap Brothers Family Trust’ as established by instrument dated on or about 18 May 1982, whether such assets are or were held by or in the name of the Second Defendant or any other person or persons; and

(b)as are as are within the Defendants’ possession, custody or power.

[64]Copies of these documents appear to have been provided under cover of a letter dated 16 September 2019 from Thomas Victoria Lawyers, solicitors for the first, third and fourth defendants and were later formally discovered by way of an affidavit of documents of Ms Lee filed on 23 September 2019.

1. So far as these documents are concerned, Mr Martindale KC for the plaintiffs conceded that they were produced under compulsion and therefore subject to the Harman undertaking. It was said however that they were not used to draft the amended statement of claim in support of the Joinder Application but were used by the plaintiffs subsequently in seeking orders that the first defendant provide unredacted copies of certain documents.[65]

   [65]Affidavit of Lachlan Nguyen filed 4 September 2024, 12–15.

1. In summary, of the documents said by the first defendant to have been subject to the Harman undertaking, I consider that only those documents provided by the first defendant on 25 September 2019 were relevantly produced under compulsion and therefore subject to the implied undertaking.

C.3.3.Was there a breach of the Harman undertaking?

1. The next question to be determined is whether the use made by the plaintiffs, or their lawyers, of the documents provided by the first defendant on 25 September 2019 was in breach of the Harman undertaking.

1. The principal complaint made by the first defendant is that the documents were used for the purposes of the Joinder Application. I am not satisfied that the documents provided by the first defendant on 25 September 2019 were used for that purpose.

1. These documents are not expressly referred to in the draft statement of claim in support of the Joinder Application nor do they appear to be directly relevant to the matters pleaded in that document.

1. The transcript of the hearing before McDonald J on 25 October 2019 indicates that at the commencement of the hearing, Dr Hanak KC for the first, third and fourth defendants confirmed that the Joinder Application was not opposed.[66] Later during the hearing Mr Martindale KC (for the parties to be joined as third and fourth plaintiffs) sought an order that the first defendant provide unredacted copies of certain documents that had previously been provided by the first defendant on 25 September 2019 in redacted form.[67]

   [66]Transcript of Proceedings (25 October 2019) 1.25–31.

   [67]Ibid 16.25–7.7.

1. Once they were joined as plaintiffs, the third and fourth plaintiffs were entitled to use any documents that had previously been discovered in the proceeding. Any use made by the third and fourth plaintiffs (after they had been joined as parties) of documents that had been provided by the first defendant on 25 September 2019 was not therefore for an ulterior or collateral purpose,[68] or for any purpose other than that for which they were produced.[69]

   [68]Harman [1983] 1 AC 280, 302 (Lord Diplock).

   [69]Hearne v Street (2008) 235 CLR 125, 154–5 [96] (Hayne, Heydon and Crennan JJ).

1. Even if these documents were used for the Joinder Application, I do not consider such use to have been for an ulterior or collateral purpose or for any purpose other than that for which they were produced. Such use would have been in respect of the very proceeding in which they had been discovered. In this regard it is significant that s 27 of the CP Act prohibits information or documents being used ‘for a purpose other than in connection with the civil proceeding’. Even if the documents alleged to have been subject to the Harman undertaking were used in the Joinder Application such use would have been in connection with the proceeding.

C.3.4.Has there been consent or waiver on the part of the first defendant?

1. Given my conclusions above, it is not strictly necessary to determine whether there has been consent or waiver by the first defendant to the use of the documents now said to be subject to the Harman undertaking.

1. While there was no express consent or express waiver by the first defendant to the use of the documents now said to be subject to the Harman undertaking, in circumstances where the first defendant was aware that those documents had been used in connection with the Joinder Application and thereafter and raised no complaint for almost five years, it is strongly arguable that there has been implied waiver.

1. Although Byrne J in Dagi left open the possibility that implied consent or waiver might be sufficient, there is no clear authority to that effect. In the circumstances, I am not prepared to conclude that where the Harman undertaking arises it can be overcome other than by express consent, express waiver or leave of the court.

C.3.5.Should retrospective leave to use the documents be granted?

1. If I am wrong in my conclusions concerning the application or breach of the Harman undertaking in respect of any of the documents in question, for the following reasons I would grant retrospective (nunc pro tunc) leave to the lawyers for the deceased third plaintiff and the fourth plaintiff to use all the documents produced in this proceeding by the defendants to the first plaintiff and his lawyers prior to 2 October 2019 for the purpose of this proceeding, including their joinder.

1. First, the first defendant was at all material times aware that certain documents now said to be subject to the Harman undertaking had been used in support of the Joinder Application. The first defendant’s affidavit of 19 July 2019 was expressly referred to in the third and fourth plaintiffs’ draft statement of claim which was exhibited to an affidavit filed in support of the Joinder Application. Ultimately the first defendant did not oppose the Joinder Application. Nor did the first defendant complain that any documents had been used in breach of the Harman undertaking. At that time and until September 2023 the first defendant was represented by experienced senior and junior counsel. No complaint was raised by the first defendant to the plaintiffs’ use of the documents prior to 28 August 2024.

1. Secondly, the documents now said to be subject to the Harman undertaking were used in the same proceeding in which they had been discovered or produced. They were not used in some different or unrelated proceeding or for some collateral, ulterior or extraneous purpose.

1. Thirdly, it is difficult to see what particular prejudice the first defendant has sustained by reason of the documents being used for the purposes of the Joinder Application and thereafter.

1. Fourthly, had an application been made by the plaintiffs for leave to use the documents now said to be subject to the Harman undertaking for the purposes of the Joinder Application it is difficult to see why such an application would not have been granted. It is significant that the first defendant did not oppose leave being granted to use the 2019 Lee affidavit in a related proceeding to remove a caveat. It is therefore likely that if an application had been made for leave to use the documents for the purposes of the Joinder Application it would likewise not have been opposed.

1. Fifthly, granting leave to use the documents is also consistent with the overarching purpose of the CP Act to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties.

1. In view of my conclusions, the relief sought by the first defendant in the Third Summons on the basis that has been a breach of the Harman undertaking is refused.

1. Insofar as it is necessary, I will grant leave nunc pro tunc to the lawyers for the deceased third plaintiff and the fourth plaintiff to use all the documents produced in this proceeding by the defendants to the first plaintiff and his lawyers prior to 2 October 2019 for the purpose of this proceeding, including their joinder.

D.THIRD SUMMONS: ABUSE OF PROCESS

D.1.Submissions

1. Ms Lee submitted that, in addition to the plaintiffs’ alleged breaches of the Harman undertaking, the plaintiffs have also abused the Court’s processes by deceiving the Court in relation to Chin Huat’s mental capacity. By the Third Summons, Ms Lee seeks to have the plaintiffs’ 5FASOC struck out. In oral submissions, senior counsel for Ms Lee also sought a stay of the proceeding.[70]

   [70]Transcript of Proceedings (10 September 2024) 68.18–68.28. The first defendant initially made these submissions in opposition to the relief sought by the plaintiffs in the First Summons. In essence, the first defendant argued that no representative should be appointed for Chin Huat’s estate in circumstances where the Court had been misled about Chin Huat’s capacity. These submissions were later relied on in support of the Third Summons by which Ms Lee also sought to strike out the 5FASOC and stay the proceeding.

1. In summary, Ms Lee’s position is that Eng Hock and Ms Kam wrongfully exploited Chin Huat’s mental incapacity by bringing a claim in Chin Huat’s name, with Ms Kam subsequently appointed as his litigation guardian, when Chin Huat never intended or wanted to bring such a claim.[71] Ms Lee submitted that:

   [71]Transcript of Proceedings (21 August 2024) 115.20–116.12.

(a)   Chin Huat never intended to or wanted to bring a claim adverse to Ms Lee with respect to the trust assets;[72]

[72]First Defendant’s Submissions filed 3 September 2024, [40].

(b)  Chin Huat had dementia from 2014 and severe dementia from at least 2019;[73]

[73]Ibid [35]–[37], [39]–[40], [45]; Transcript of Proceedings (21 August 2024) 78.4, 95.25–95.26.

(c)   Ms Kam must have known how bad Chin Huat’s dementia was;[74]

(d)  a perjury finding has been made against Chin Huat;[75] and

(e)   because Chin Huat had dementia, someone else used him to bring this claim in his name.[76] Ms Lee referred to particular steps taken by the plaintiffs, including filing an affidavit in the Family Law Proceeding purportedly sworn by Chin Huat[77] and filing an Overarching Obligations Certificate in this proceeding purportedly signed by Chin Huat,[78] both done after he had already developed dementia.

[74]First Defendant’s Submissions filed 3 September 2024, [37]; Transcript of Proceedings (21 August 2024) 78.26.

[75]First Defendant’s Submissions filed 3 September 2024, [36]–[37]; Transcript of Proceedings (21 August 2024) 78.28, 79.5, 82.2–82.4, 82.21–82.26, 85.27, 90.29–90.30, 92.15, 94.13, 94.31, 100.5, 112.7, 112.10.

[76]First Defendant’s Submissions filed 3 September 2024, [39].

[77]First Defendant’s Submissions filed 7 August 2024, [84].

[78]Transcript of Proceedings (21 August 2024) 99.11–99.19.

1. The narrative now put by Ms Lee is that Eng Hock and Ms Kam needed Chin Huat to claim any significant amount of money from the resulting trust.[79] Accordingly, Eng Hock and Ms Kam acted in concert in respect of the Joinder Application and now the First Summons, likely with an arrangement between them for a ‘division of the spoils’ should they succeed at trial.[80]

   [79]Transcript of Proceedings (10 September 2024) 58.10–58.28.

   [80]First Defendant’s Submissions filed 7 August 2024, [87].

1. Ms Lee argued that, because the claim was brought in Chin Huat’s name when he never wanted or intended to, it was brought for an improper purpose or is otherwise an abuse of the Court’s processes.

1. In reply, the plaintiffs submitted, first, that Ms Lee’s assertion that Chin Huat did not intend or desire to make a claim for the Trust assets in this proceeding when he was joined as a plaintiff goes too far. Such an assertion is only that Chin Huat lacked the capacity to form such an intention; that must be so whenever a proceeding is brought on behalf of a person lacking mental capacity. However, to say that, if he had capacity he would not have brought such a claim, is a step further. To speculate on what Chin Huat would have intended to do if he did not have dementia is inappropriate for an interlocutory application.

1. Secondly, the plaintiffs submitted that to make out an abuse of process, it is necessary to make a connection between the innocent absence of mental capacity and the supposedly deliberate conduct of Ms Kam and others to hide it or take advantage of it for an improper purpose. To say that the claim should never have been brought is to invite the Court to find that the claim was not brought for Chin Huat’s benefit. The plaintiffs argued that Ms Lee has an impossibly heavy onus in order to make that proposition good and, even if the Court were prepared to make such a finding on an interlocutory hearing, that onus has not been discharged.

1. Thirdly, the plaintiffs argued that the relevance of the perjury finding against Chin Huat is overstated. There was no hearing to determine whether Chin Huat had perjured himself and Chin Huat was not found criminally liable for perjury. Rather, Johns J found that, on the balance of probabilities, Chin Huat attempted to mislead the Court.

D.2.Principles

1. Rule 23.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) provides:

Where a proceeding generally or any claim in a proceeding—

(a)       is scandalous, frivolous or vexatious; or

(b)       is an abuse of the process of the Court—

the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

1. Rule 23.02 of the Rules provides:

Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—

(a)does not disclose a cause of action or defence;

(b)is scandalous, frivolous or vexatious;

(c)may prejudice, embarrass or delay the fair trial of the proceeding; or

(d)is otherwise an abuse of the process of the Court—

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.

1. Apart from the Rules, the Court has inherent power to stay a proceeding for abuse of process.[81] The Court may also impose sanctions if a party contravenes their overarching obligations under the CP Act.[82]

   [81]Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210, 220–1 (Lord Blackburn); Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, 266–7 [10] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

   [82]Civil Procedure Act 2010 (Vic) ss 16–26, 29.

1. The Court’s power to permanently stay proceedings is a power of last resort that should only be exercised where no other option is available to prevent injustice. As the High Court stated in GLJ v Trustees of Roman Catholic Church for Diocese of Lismore:[83]

the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute.[84]

[83]GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 414 ALR 635 (‘Lismore’).

[84]Lismore (2023) 414 ALR 635, 638 [3] (Kiefel CJ, Gageler and Jagot JJ).

1. The plurality of the High Court went on to explain that the power to stay a proceeding to prevent an abuse of process is not discretionary:

If a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process, a court must not permit the trial to be held. If a fair trial can be held and will not be so unfairly and unjustifiably oppressive as to constitute an abuse of process, a court ordinarily has a duty to hear and decide the case.[85]

[85]Ibid 645 [23] (Kiefel CJ, Gageler and Jagot JJ).

1. The heavy onus of proving that there is an abuse of process rests on the party alleging it.[86]

   [86]Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585, 599 [62] (Kyrou JA).

1. What amounts to an abuse of process is broad and incapable of being described by closed categories,[87] but abuses of process often fall into one of three categories:

(1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.[88]

[87]Ridgeway v The Queen (1995) 184 CLR 19, 74–5 (Gaudron J).

[88]Rogers v The Queen (1994) 181 CLR 251, 286 (McHugh J). See also Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (in liq) (2022) 275 CLR 508, 542 [93] (Gageler J).

1. In this case, Ms Lee has alleged that the plaintiffs are litigating the proceeding for an improper purpose — to make claims against the resulting trust to which they would not otherwise be entitled without the joinder of Chin Huat as a plaintiff.

1. In Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd,[89] Maxwell P and Nettle JA examined proceedings brought for illegitimate purposes:

As the law stands, the only legitimate purpose for bringing a proceeding is to vindicate legal rights or immunities by judgment or settlement. Consequently, unless the predominant purpose of bringing a proceeding is a legitimate purpose, the proceeding is an abuse of process and is liable to be stayed. …

It is necessary, then, to examine the notion of ‘collateral advantage’. The authorities distinguish between two types of case. On the one hand, a proceeding will not be regarded as an abuse of process by reason only that it is brought for the purpose of taking collateral advantage of any judgment or settlement in vindication of legal rights or immunities which might be obtained in the proceeding. On the other hand, if a proceeding is brought for the predominant purpose of obtaining collateral advantage from the existence of the proceeding as such, as opposed to collateral advantage flowing from any judgment or settlement in vindication of legal rights or immunities which might be obtained in the proceeding, it will be an abuse of process and liable to be stayed.[90]

[89]Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585.

[90]Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585, 588 [9], [11] (citations omitted).

1. Similarly in Melbourne City Investments Pty Ltd v Leighton Holdings Ltd,[91] the Court of Appeal observed:

   [91]Melbourne City Investments Pty Ltd v Leighton Holdings Ltd [2015] VSCA 235.

It is one thing to commence a proceeding for the purpose of obtaining substantive relief, and in the knowledge that if one is successful then costs will likely follow the event. It is another to have commenced a proceeding for the predominant purpose of simply generating income for a legal practitioner in circumstances where the value of any loss meant that it was unlikely that the proceeding had been commenced for the purpose of recovering compensation. We agree with the majority in Treasury Wine that commencing a proceeding, in the circumstances we have described, for the predominant purpose of generating income for a legal practitioner, was and is an abuse of process.[92]

[92]Ibid [45] (Tate and Beach JJA and Robson AJA).

D.3.Consideration

1. The threshold question is whether the joinder of Chin Huat as a plaintiff and the subsequent conduct of the proceeding constitutes an abuse of process.

1. As explained in Treasury Wine Estates, a proceeding will only constitute an abuse of process if its predominant purpose was to obtain a collateral advantage from the existence of the proceeding itself, rather than a collateral advantage flowing from any judgment or settlement in vindication of legal rights.

1. On the evidence before the Court, the joinder of Chin Huat appears to have been undertaken primarily to pursue his potential entitlements as a contributor to the Trust. This is particularly significant given the Court’s determination that the Trust had failed for uncertainty, creating new rights that could be legitimately pursued on Chin Huat’s behalf. The fact that Chin Huat lacked capacity when joined does not of itself render the purpose improper — indeed, the very purpose of litigation guardian provisions is to enable claims to be pursued on behalf of those lacking capacity.

1. Ms Lee’s submissions effectively invite the Court to conclude that the entire claim is a facade constructed by Eng Hock and Ms Kam for their own benefit. However, such serious allegations require clear and compelling evidence. The evidence before the Court on this interlocutory application falls short of establishing that the predominant purpose of Chin Huat’s joinder was to obtain a collateral advantage from the fact of his joinder as such, as opposed to a collateral advantage flowing from any judgment or settlement in vindication of Chin Huat’s legal rights which might be obtained in the proceeding.

1. Moreover, the context and timing of Chin Huat’s joinder is significant. The Joinder Application followed naturally from the Court’s determination about the failure of the Trust, which fundamentally altered the legal landscape and created potential rights that could be legitimately pursued on Chin Huat’s behalf. While questions may exist about the extent and timing of Chin Huat’s incapacity, these go to the merits of the underlying claims rather than establishing an abuse of process.

1. In the circumstances I am not satisfied on the evidence before the Court on this application that the joinder of Chin Huat or the claims made on his behalf constitute an abuse of process.

1. It is also significant that, in paragraphs 1A and 1B of her most recent defence dated 26 June 2024, the first defendant has comprehensively pleaded the matters she relies on as constituting an abuse of process or breach of overarching obligations under the CP Act under the heading ‘Huat’s lack of capacity and unclean hands’ as a basis for alleging that Eng Hock and Ms Kam come to the Court with unclean hands and should therefore be refused any relief.

1. While the first defendant’s allegations raise serious matters warranting careful consideration, given that these matters have now been raised by the first defendant as part of her defence it is appropriate that they be determined at trial after the Court has had the benefit of hearing all the evidence and full submissions rather than on an interlocutory basis.

1. It therefore follows that the relief sought by the first defendant in the Third Summons is refused.

E.FIRST SUMMONS: REPRESENTATION OF DECEASED ESTATE

1. On 9 May 2024, Chin Huat died in Malaysia. By the First Summons, the plaintiffs seek an order that Ms Kam be appointed to represent the estate of Chin Huat for the purposes of the proceeding pursuant to r 16.03(1)(b) of the Rules.

1. The following additional facts are relevant:

(a)        in a document purported to be Chin Huat’s last will and testament,[93] Eng Hock is appointed as both the sole executor and the sole beneficiary of Chin Huat’s estate;

[93]Affidavit of Eng Hock Yap filed 24 June 2024, Exhibit EHY-1.

(b)       Eng Hock does not intend to obtain probate at this stage because, to his knowledge, there are no assets of the estate in Victoria unless the estate is successful in establishing an interest in the Trust in this proceeding;[94] and

[94]Affidavit of Eng Hock Yap filed 26 June 2024, [3]–[4].

(c)        notwithstanding the terms of Chin Huat’s purported will, Ms Kam has consented to represent Chin Huat’s estate in this proceeding and, in the interests of minimising costs of any probate or related proceedings, she is prepared to work constructively with Eng Hock in the resolution of this proceeding. However, Ms Kam has not accepted that the document in Eng Hock’s possession is, in fact, Chin Huat’s will and reserves her position with respect to that purported will.[95]

[95]Affidavit of Sau Lin Kam filed 24 June 2024, [9].

(d)       Chin Huat is survived by the following children:

(i)         Eng Hock;

(ii)       Vincent;

(iii)      William;

(iv)      Bee Ling Yap, who is not a party to this proceeding;

(v)       Bee Lian Yap, who is not a party to this proceeding;

(vi)      Bee Yong Yap, who is not a party to this proceeding; and

(vii)     Bee Keem Yap, an adopted child who is not a party to this proceeding;

(e)        It is apparent that Chin Huat’s children are aware of this proceeding.[96]

[96]Letter to the Honourable Justice Williams in the Family Court Proceeding signed by Eng Hing Yap, Bee Ling Yap, Bee Lian Yap and Bee Yong Yap dated 13 October 2020, attached to the Plaintiffs’ Submissions filed 3 September 2024.

E.1.Principles

1. Rule 16.03 of the Rules provides:

(1)Where a deceased person was interested, or the estate of a deceased person is interested, in any question in a proceeding and the deceased person has no personal representative, the Court may—

(a)proceed in the absence of a person to represent the estate of the deceased; or

(b)by order (with the consent of the person appointed) appoint a person to represent the estate for the purpose of the proceeding.

(2)An order under paragraph (1), and any judgment or order subsequently given or made in the proceeding, shall bind the estate of the deceased person as it would had a personal representative of the deceased been a party.

(3)Before making an order under this Rule, the Court may require notice of the application for the order to be given to any person having an interest in the estate.

1. Rule 9.09 of the Rules provides:

(1)Where a party to a proceeding dies, but the cause of action survives, or where a party becomes bankrupt, the proceeding shall not abate by reason of the death or bankruptcy, but may be carried on in accordance with paragraph (2).

(2)Where at any stage of a proceeding the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may order—

(a)that the other person be added as a party to the proceeding or made a party in substitution for the original party; and

(b)that the proceeding be carried on as so constituted.

1. Rule 9.10(1) of the Rules provides:

Where a party dies, and a cause of action in the proceeding survives, but no order is made under Rule 9.09(2) substituting a personal representative of the deceased party as party, the Court, on application by a party or by a person to whom liability on the cause of action survives on the death, may order that unless an order for substitution is made within a specified time the proceeding be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon survives on the death.

1. Section 29(1) of the Administration and Probate Act 1958 (Vic) (‘AP Act’) relevantly provides that ‘on the death of any person, all causes of action subsisting against or vested in him shall survive against or (as the case may be) for the benefit of his estate’.

1. Both rr 9.09 and 16.03 of the Rules deal with the continued conduct of a proceeding after a party dies. Which rule is applicable is a point of dispute between the parties.

E.2.Submissions

1. The plaintiffs argued that the correct rule in the circumstances is r 16.03. They submitted that, notwithstanding that an executor derives title from the will and not from the grant of probate, the Court has, in practice, declined to make orders under r 9.09 substituting the executor named under a will where probate has not been granted, citing Bolitho v Banksia Securities Ltd (No 15) (‘Bolitho’)[97] and Sorbara v Prochilo (No 2) (‘Sorbara’).[98]

   [97]Bolitho v Banksia Securities Ltd (No 15) [2020] VSC 725 (‘Bolitho’).

   [98]Sorbara v Prochilo (No 2) [2022] VSC 225 (‘Sorbara’).

1. The plaintiffs’ position is that, should the Court decline to appoint Ms Kam under r 16.03, the plaintiffs would be forced to apply for a grant of probate to pursue substitution under r 9.09 in order to progress this proceeding. This, they submitted, would be contrary to the just, efficient, timely and cost effective resolution of the real issues in dispute in this proceeding, as required by s 7 of the CP Act, because:

(a) it would delay this proceeding pending the grant of probate (and potentially any application under Pt IV of the AP Act), especially if the application for that grant is contested;

(b)       it would put Eng Hock to additional expense regardless of whether probate is contested; and

(c)        as Chin Huat’s estate leaves no assets in Victoria other than a potential interest in the outcome of this proceeding, obtaining probate before finalisation of this proceeding runs the risk of being pointless. The Court’s time and resources would be consumed by determining the probate application before its utility can be known.

1. The plaintiffs submitted that Ms Kam is the most appropriate representative for Chin Huat’s estate in this proceeding, given her previous role as litigation guardian. While Ms Lee seems to oppose any appointment under r 16.03, the defendants have in the past consented to Ms Kam acting as Chin Huat’s litigation guardian.

1. The plaintiffs submitted that, while the Court should be cautious before appointing a representative under r 16.03, given the risk of complications subsequently arising in the event that probate is not granted, the Court may alleviate that risk by staying the disbursement of any trust assets until probate is granted.[99] The plaintiffs submit this approach would preserve the position of the estate until any questions concerning probate are addressed at a time when the parties are in a position to know better whether it is financially worthwhile to obtain probate.

   [99]Citing the approach taking by Gorton J in Sorbara [2022] VSC 225, [4](c).

1. Finally, the plaintiffs submitted that the Court should dispense with the notice requirement in r 16.03(3) of the Rules as no good purpose would be served through incurring the cost and delay that would be caused by requiring notice of the application to be given to any person having an interest in the estate, especially in circumstances where Chin Huat’s surviving children are already aware of this proceeding.

1. Ms Lee argued that r 9.09 is the correct rule in the circumstances and r 16.03 is not applicable. Ms Lee relied on the maxim of generalia specialibus non derogant, the principle of statutory construction that where there is a conflict between a general and a specific provision, the specific provision will prevail.[100]

   [100]Citing Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat & Live-Stock Corporation (No 2) (1980) 44 FLR 455, 469 (Deane J).

1. Ms Lee submitted, in line with the Court of Appeal’s observations in Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (in liq) (‘Culve’),[101] that the purpose of r 9.09 is to give effect to s 29 of the AP Act. That is, it is the mechanism by which Parliament’s intention, as expressed in s 29 of the AP Act, is given practical effect in this Court. Therefore, should s 9.09 apply, it should not be open to the executor of the deceased’s estate to elect to use r 16.03 instead.

   [101]Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (in liq) (2017) 53 VR 219.

1. Ms Lee submitted that, pursuant s 9.10(1) of the Rules, where an action survives the death of a party (as Chin Huat’s claim in equity does here) and no application is intended to be made for an order pursuant to r 9.09(2) (as Eng Hock has indicated), the defendants may seek an order that the proceeding be dismissed insofar as it consists of any cause of action that has survived for the benefit of the deceased’s estate. This, she argued, leaves no role for r 16.03(1)(b) to play where its only application would be to allow anyone at large, not being the executor of the estate in circumstances where the decease has left a will, to be made representative of the estate. Rule 9.09 is the more specific — and therefore correct — rule in the circumstances.

E.3.Consideration

1. I accept that r 9.09 will take priority over r 16.03 if both are applicable in the circumstances. As the Court of Appeal explained in Culve, a substitution order should be made under r 9.09 absent disentitling circumstances:

The power in r 9.09 to make a substitution order is a power which has to be exercised consistently with the entitlement provided for by s 29 of the Administration and Probate Act. Absent ‘disentitling circumstances’, a substitution order should be made. …

Disentitling circumstances cannot be constituted by matters which are a consequence of the death, such as the inability to call evidence from the deceased. This is because s 29 of the Administration and Probate Act has already addressed that issue and has provided that the action survives.

Disentitling circumstances might be constituted by matters arising under the Civil Procedure Act. An order might be refused if there were some inexcusable delay causing prejudice in the making of the application itself; or where a continuation of the proceeding would contravene or be inconsistent with the Civil Procedure Act, or would be an abuse of process, for reasons unrelated to the consequences of the death.[102]

[102]Ibid 232 [59]–[61] (Whelan and Ferguson JJA).

1. In Bolitho, the first defendant applied to have Ms Katerina Peiros appointed to represent the estate of the deceased sixth defendant, Mr Peter Trimbos, under r 9.09 or, alternatively, r 16.03 of the Rules. Ms Peiros was the executor of Mr Trimbos’ last will and consented to act as representative, but was yet to be admitted to probate. Justice John Dixon ultimately appointed Ms Peiros under r 16.03, stating:

Rule 16.03 is the appropriate rule. Rule 9.09 is applicable in circumstances where a party to the proceeding has died and their interest or liability in the proceeding has been assigned, transmitted or devolved to another person. Although Ms Peiros is named as executor under Mr Trimbos’ will, there is no grant of probate or any other form of administration order that would assign, transmit or devolve the liability flowing from the proceeding to her. Until such time as that occurs, any application must proceed under r 16.03. …

I am satisfied that the estate of a deceased person is interested in a question in this proceeding. I am also satisfied that the estate presently has no personal representative, as Ms Peiros is yet to apply for a grant of probate of Mr Trimbos’ will. Given that Ms Peiros has identified herself as the person named as executor in Mr Trimbos’ last will and consents to the appointment, it is not appropriate to proceed in the absence of a person to represent the estate. Ms Peiros is an appropriate person to be appointed to represent the interests of his estate as the sixth defendant in the proceeding.[103]

[103]Bolitho [2020] VSC 725, [14], [17].

1. In Sorbara, Gorton J appointed a representative under r 16.03 where the defendant had died after trial but before judgment and probate had not yet been granted. While acknowledging the risk of complications in the event that probate was not later granted, his Honour nonetheless found it appropriate to appoint a representative in circumstances where the proposed representatives were named executors under the will, the plaintiffs did not oppose the appointment, the defendants were successful at trial and therefore the matter was merely awaiting dismissal and final disposal of the proceeding could not occur until such regularisation of the parties.[104]

   [104]Sorbara [2022] VSC 225, [4].

1. It may therefore be said that, where a party dies but the cause of action survives, r 9.09(2) will only recognise an interest or liability as having been assigned or transmitted to or devolved upon some other person if probate has been granted. Rule 16.03 is therefore the applicable rule until such time. This accords with Ward J’s observations in Hewitt v Gardner,[105] in the context of the New South Wales analogue to r 16.03 of the Rules, r 7.10 of the Uniform Civil Procedure Rules (NSW):[106]

The usual circumstance in which a personal representative would be appointed under the rule is where there is no person willing or able to take out a grant of probate or administration and where proceedings cannot be continued or disposed of in the absence of a representative of the estate. However, the use of the rule is not limited to such circumstances.[107]

[105]Hewitt v Gardner (2009) 3 ASTLR 407.

[106]Rule 7.10(2) of the Uniform Civil Procedure Rules (NSW) provides: ‘The court— (a) may order that the proceedings continue in the absence of a representative of the deceased person’s estate, or (b) may appoint a representative of the deceased person’s estate for the purposes of the proceedings, but only with the consent of the person to be appointed’.

[107]Hewitt v Gardner (2009) 3 ASTLR 407, 431 [89].

1. The distinction between rr 9.09 and 16.03 reflects the fundamental difference between appointment of a representative for procedural purposes and the formal transmission of legal rights through probate. While Ms Lee’s argument about statutory interpretation has merit, it fails to recognize that r 16.03 serves a distinct procedural purpose — enabling proceedings to continue where formal probate is premature or impractical.

1. The Court’s power to appoint a representative under r 16.03(1)(b) is discretionary.[108] In exercising that discretion, the Court will consider all relevant circumstances. Such circumstances may include, but are not limited to: whether and to what degree there is a nexus between the proposed representative and the deceased;[109] whether there is a named executor under the will;[110] whether there is a conflict of interest between the proposed representative and the estate;[111] and whether an appointment would go toward progressing the proceeding.[112]

   [108]Talacko v Talacko (2015) 305 FLR 353, 405 [165] (Sloss J) (‘Talacko’); Hewitt v Gardner (2009) 3 ASTLR 407, 432 [92] (Ward J).

   [109]Talacko (2015) 305 FLR 353, 406 [170] (Sloss J).

   [110]Bolitho [2020] VSC 725, [17] (John Dixon J).

   [111]Hewitt v Gardner (2009) 3 ASTLR 407, 432 [94], [96] (Ward J).

   [112]Sorbara [2022] VSC 225, [4](a) (Gorton J); Hewitt v Gardner (2009) 3 ASTLR 407, 431–2 [89]–[91], [96] (Ward J).

1. This approach balances two competing considerations: the need for efficient progression of proceedings; and the protection of estate interests. Where, as here, obtaining probate may be premature or unnecessarily costly, r 16.03 provides a practical mechanism to continue proceedings while preserving the ultimate determination of estate rights.

1. If the discretion under r 16.03(1)(b) is not exercised, r 16.03(1)(a) would allow the proceeding to continue in the absence of a person to represent Chin Huat’s estate. This would generally be inappropriate in circumstances where the deceased was the sole plaintiff or defendant, as there is doubt such a proceeding could continue in the absence of a representative for their estate.[113] Continuing in the absence of a representative may be appropriate where there are other parties to the proceedings who have the same interest as the estate.[114] In this case, however, Ms Kam and Eng Hock may have competing interests in respect of Chin Huat’s estate. In circumstances where Ms Kam is otherwise a suitable representative of the estate for the purposes of this proceeding, I do not consider it appropriate to proceed in the absence of a representative. This is particularly relevant here where the estate’s interest in the proceedings may be its only significant asset. Proceeding without a representative could prejudice potential beneficiaries’ rights while providing no practical benefit.

   [113]Ivanovski v Perdacher [2009] NSWSC 913, [38], [49] (Hammerschlag J).

   [114]John v John [2010] NSWSC 937, [35] (Ward J), citing Borough of Drummoyne v Hogarth (1906) 23 WN (NSW) 243.

1. The circumstances of this case strongly favour appointment under r 16.03. First, delaying the proceedings pending probate would cause unnecessary cost and delay. Secondly, the estate’s primary asset may be contingent on the outcome of these proceedings, making immediate probate impractical. Thirdly, Ms Kam’s previous role as litigation guardian provides continuity and familiarity with the proceedings.

1. It is also significant that, on 20 August 2021, the first defendant consented to orders pursuant to which Ms Kam was appointed as litigation guardian for Chin Huat in this proceeding, despite being aware of the circumstances now relied on by the first defendant to oppose Ms Kam’s appointment under r 16.03.[115]

   [115]See paragraph 58 above. Ms Lee also consented to Ms Kam’s appointment as a case guardian for Chin Huat in the Family Court Proceeding: see paragraph 49 above.

1. As the death of Chin Huat terminated the authority of his wife, Ms Kam, to act as his litigation guardian, it is appropriate that an order be made appointing Ms Kam to represent his estate under r 16.03. Ms Kam’s appointment would maintain continuity in the proceeding while preserving all parties’ rights regarding the ultimate determination of estate matters. Her prior role as litigation guardian means she is familiar with the proceedings and the deceased’s interests, making her well-placed to represent the estate’s interests at this stage.

1. I also find it appropriate to dispense with the need for notice under r 16.03(3).

F.SECOND SUMMONS: WITHDRAWAL OF ADMISSIONS

1. By the Second Summons, Ms Lee and Vincent seek leave to withdraw admissions previously made in their defences.

1. At the hearing of 28 June 2024, Mr Martindale KC, senior counsel for the plaintiffs, took issue with the defences that had been filed on the basis that Ms Lee and Vincent had withdrawn admissions made in their previous defences which had been settled by senior counsel.[116]

   [116]Transcript of Proceedings (28 June 2024) 2.24–3.8.

1. On 18 July 2024, Ms Lee and Vincent filed the Second Summons in response to Mr Martindale’s concerns.

F.1.Submissions

1. Although Ms Lee and Vincent are the moving parties in this application, they have not particularised which admissions they seek to withdraw, apparently intending to replace their previous defences wholesale and start afresh. Alternatively, they argued that if they succeed in opposing the First Summons, this application loses relevance.[117]

   [117]First Defendant’s Submissions filed 7 August 2024, [3].

1. In support of their application, Ms Lee and Vincent submitted, first, that they were essentially misled by their previous lawyers to make admissions which they should not have made. They stated that simple admissions were presented to them by their previous lawyers on the basis that documentary evidence supported the allegation being admitted, but the admissions should not have been made. For example, evidence of a funds transfer may have led to an admission about a transaction when it should not have, as it by itself does not reveal the source of the funds transferred or the purpose of the transfer.

1. Secondly, Ms Lee and Vincent submitted that their previous lawyers failed to advise them on the particular issue as to when the Trust failed for uncertainty. In their previous defence, they admitted the trust failed when the 1982 Trust Deed was lost. Had they been properly advised, they would have pleaded that the Trust failed from its inception.

1. Finally, Ms Lee and Vincent submitted that the broader issue is whether their previous defences were ones that they should ever have been required to file, given that the claims by Chin Huat, constituting the bulk of disputed contributions — which depended crucially on a denial of a division of matrimonial property agreed with Ms Lee — ought never to have been advanced. They argued that, in the circumstances, none of the plaintiffs can show prejudice that might be occasioned by the withdrawal of any prior admission by either Ms Lee or Vincent.[118]

   [118]Ibid [91]–[92].

1. The plaintiffs’ position is that the Second Summons should be dismissed and the latest defences filed by Ms Lee and Vincent should be struck out, with leave to replead limited to responding to the amendments made by the Fifth FASOC.

1. As to Ms Lee and Vincent’s argument that they were misled by their previous lawyers, the plaintiffs took issue with the non-specific example given that evidence of a funds transfer does not reveal the source or purpose of the funds transfer. The plaintiffs submitted that nothing useful can be made of this as justifying the withdrawal of any admission.

1. As to Ms Lee and Vincent’s argument that they were not properly advised as to when the Trust failed for uncertainty, the plaintiffs submitted that there was a proper basis for the admission that the Trust failed when the 1982 Trust Deed was lost and nothing justifies the withdrawal of that or any other admission. In particular, the plaintiffs submitted that Ms Lee and Vincent have discovered and consistently relied on documentary evidence that the 1982 Trust Deed was real.

1. Finally, as to the general proposition that Ms Lee and Vincent should never have been required to file their previous defences given questions over Chin Huat’s capacity, the plaintiffs submitted that the defendants still require leave to withdraw admissions and that such a general proposition does not justify leave being granted.

F.2.Principles

1. Order 36 of the Rules relevantly provides:

36.01General

(1)For the purpose of—

(a)determining the real question in controversy between the parties to any proceeding; or

(b)correcting any defect or error in any proceeding; or

(c)avoiding multiplicity of proceedings—

the Court may, at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.

(2)In this Order document includes—

(a)originating process;

(b)an indorsement of claim on originating process; and

(c)a pleading.

…

36.04Amendment of pleading and disallowance of amendment

(1)A party may amend any pleading served by that party—

(a)once before the close of pleadings; or

(b)at any time by leave of the Court or with the consent of all other parties.

(2)Where a party amends a pleading in accordance with paragraph (1)(a), the Court may, on application by any other party made within 21 days after service of the amended pleading on that party—

(a)disallow the amendment; or

(b)allow it either wholly or in part.

1. Rule 25.02 of the Rules relevantly provides:

…

(4)At any time—

(a)the plaintiff may withdraw a defence to counterclaim or any part of it; and

(b)a defendant may withdraw the defendant’s defence or any part of it.

(5)Paragraph (4) does not enable a party to withdraw an admission or any other matter operating for the benefit of another party without the consent of that party or the leave of the Court

1. Rule 1.14(1) of the Rules relevantly provides:

In exercising any power under these Rules the Court—

(a)shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined;

1. Section 7(1) of the CP Act provides:

The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

1. The High Court of Australia clarified the principles governing the amendment of pleadings generally in Aon Risk Services Australia Ltd v Australian National University (‘Aon’).[119] The plaintiff in that case applied, on the third day of a four-week trial of a proceeding that had been on foot for two years, for an adjournment and for leave to amend its statement of claim to add a substantial new claim against the defendant under the Court Procedures Rules 2006 (ACT). At first instance, Gray J granted leave to the plaintiff on the condition that the plaintiff pay the defendant’s costs of and resulting from the amendment.[120] The Court of Appeal of the Supreme Court upheld Gray J’s decision, subject to a further order that the plaintiff pay the defendant’s costs of the amendment on an indemnity basis.[121]

   [119]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (‘Aon’).

   [120]Australian National University v Chubb Insurance Co of Australia Ltd [2007] ACTSC 82.

   [121]Aon Risk Services Australia Ltd v Australian National University (2008) 227 FLR 388.

1. The High Court unanimously reversed the Court of Appeal’s decision, emphasising the irreparably unfair prejudice that would arise out of granting leave at such a late stage in the proceeding. Chief Justice French explained:

In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed. The discretion of the primary judge miscarried. …

Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes. …

The requirement to make amendments for the purpose of deciding ‘the real issues in the proceeding’ does not impose some unqualified duty to permit the late addition of any new claim. The real issues in the proceeding were to be determined in this case by reference to the limited way in which ANU had deliberately chosen to frame its original claim against Aon, and its persistence in that limited approach up to the trial date itself.[122]

[122]Aon (2009) 239 CLR 175, 182 [5], 192 [30]–[31].

1. The High Court made clear that the considerations found in provisions such as rr 1.14(1) and 36.01(1) of the Rules and s 7(1) of the CP Act should inform the court’s discretion to grant leave to amend pleadings.[123]

   [123]Ibid 195 [36], 205 [71]–[72], 213 [98] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

1. More recently in Gregorich v Khouri (‘Gregorich’),[124] Nichols J summarised the principles governing the amendment of pleadings under r 36.01(1)(b) generally:

Whether an amendment should be permitted is a matter of discretion, to be exercised according to an assessment of where justice lies. While it is neither possible nor desirable to delimit the factors that the Court may take into account in exercising the discretion, some considerations that should inform the exercise of the discretion have been considered in the authorities.

An amendment will not be permitted where it would cause irremediable prejudice to the other party. On an application to amend the applicant bears the burden of persuasion that the amendment will not cause such prejudice, while the party opposing the amendment bears an evidential onus of adducing evidence on the question of prejudice. The question is whether the possibility of prejudice or injustice to the opposing party has been excluded. If it has not, the application must be refused. It must also be refused if the Court concludes that it cannot decide whether it is just to allow the amendment.

The loss of an opportunity to take a step in the proceeding in response to a denial may constitute relevant prejudice. An order for indemnity costs may not always undo the prejudice a party suffers by a late amendment. Case management considerations may inform the justice of the grant or refusal of an application to amend.[125]

[124]Gregorich v Khouri [2020] VSC 5 (‘Gregorich’).

[125]Ibid [6]–[8] (citations omitted).

1. As to the amendment of pleadings specifically involving the withdrawal of admissions, Nichols J in Gregorich went on to cite the reasons of Gillard J in McKenzie v Commonwealth and Jeanes v Commonwealth.[126] There, Gillard J described the general rule as being that all amendments should be permitted, including an amendment to a defence, unless the amendment will cause prejudice to the other party which cannot be overcome in some way.[127] It is not the law, his Honour said, that a defendant is not permitted to resile from an admission unless it was shown the admission was made inadvertently or through error — the issue is ultimately one of justice between the parties ensuring that the real matters in controversy are decided.[128] As is now clear from Aon, what it means to do justice in the circumstances is to be understood in light of the purposes and objectives stated in guiding provisions such as rr 1.14(1) and 36.01(1) of the Rules and s 7(1) of the CP Act.[129]

   [126]Ibid [9] (Nichols J); McKenzie v Commonwealth [2001] VSC 361 (‘McKenzie’); Jeanes v Commonwealth [2005] VSC 488 (‘Jeanes’).

   [127]Jeanes [2005] VSC 488, [19].

   [128]Ibid [19]; McKenzie [2001] VSC 361, [45].

   [129]Aon (2009) 239 CLR 175, 195 [36], 205 [71]–[72], 210–11 [90], 213 [98] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

1. New South Wales authorities have tended to place greater emphasis on the distinction between formal and informal admissions.[130] Formal admissions are those made in the course of court proceedings, including, for example, admissions made in pleadings and admissions made under Order 35 of the Rules.[131] They are contrasted with informal admissions made outside of court proceedings. As Campbell JA explained in Nominal Defendant v Gabriel,[132] only formal admissions require leave for withdrawal:

As it is the pleadings that define the issues for trial, if an admission is made in a defence, there is no issue at the trial about the truth of the fact admitted, and therefore no evidence may be led, or submission made, for the purpose of controverting that admitted fact. Similarly, an assumption that underlies the requirement for leave to withdraw a formal admission made in court proceedings by one of the means prescribed by the Rules, other than admission on the pleadings, is that, unless and until leave to withdraw that admission is given, the matter that is admitted cannot be controverted by other evidence in the case. …

It is only because admissions made by a formal step in proceedings, of the various types I have just mentioned, prevent there being any issue in the proceedings about the correctness of the matter admitted that any question arises about such admissions being ‘withdrawn’. Granting leave for such an admission to be withdrawn is, in effect, granting permission for an issue to be raised in litigation about the correctness of the matter that had been admitted. …

An admission made otherwise than in the course of a formal court process is merely an item of evidence that the court might ultimately accept or reject. … [A]n admission that is an item of evidence made outside court proceedings can be qualified or explained away. However, there is no question, absent some statutory context that provides it, of any such admission being ‘withdrawn’.[133]

[130]See, eg, Nominal Defendant v Gabriel (2007) 71 NSWLR 150, 170–2 [103]–[113] (Campbell JA) (‘Gabriel’); Drabsch v Switzerland General Insurance Co Ltd (Supreme Court of New South Wales, Santow J, 16 October 1996) 6–7 (‘Drabsch’); Le Meilleur Pty Ltd v Jin Heung Mutual Savings Bank Co Ltd (2011) 256 FLR 240, 304 [310] (Ward J) (‘Le Meilleur’); Jun International Property Pty Ltd v Fullerton Property Pty Ltd [2019] NSWSC 450, [70] (Ward CJ in Eq).

[131]Gabriel (2007) 71 NSWLR 150, 170–2 [103]–[111] (Campbell JA).

[132]Ibid.

[133]Ibid 172 [110]–[111], [113].

1. Authorities focusing on formal admissions have tended to proceed on the principle that, where a party under no apparent disability makes a clear formal admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission should not be freely granted.[134] A party seeking to withdraw a formal admission will generally need to provide some good reason why the court should disturb what was previously common ground or conceded.[135]

   [134]Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738, 745 (Rogers CJ Comm D) (‘Coopers Brewery’); Drabsch (Supreme Court of New South Wales, Santow J, 16 October 1996) 6–7, cited with approval in Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327, 331 [18] (Hill, Madgwick and Conti JJ) (‘Jeans’).

   [135]Drabsch (Supreme Court of New South Wales, Santow J, 16 October 1996) 7.

1. An apparent tension between more liberal and conservative approaches to the granting of leave for the withdrawal of admissions may be explained by the observations of Ward J (as her Honour then was) in Le Meilleur Pty Ltd v Jin Heung Mutual Savings Bank Co Ltd.[136] Her Honour noted two competing policies in relation to the withdrawal of formal admissions. On one hand, an admission should not be permitted easily to be withdrawn, so as to make the procedure for formal admissions meaningless. On the other hand, parties should not be discouraged from making admissions out of fear that once given they cannot be withdrawn.[137]

   [136]Le Meilleur (2011) 256 FLR 240.

   [137]Coopers Brewery (1992) 26 NSWLR 738, 750 (Rogers CJ). See also Jeans (2003) 204 ALR 327, 330 [17] (Hill, Madgwick and Conti JJ); Le Meilleur (2011) 256 FLR 240, 303 [307] (Ward J).

F.3.Consideration

1. The first and third defendants seek to withdraw numerous admissions, though they have not clearly identified these in their most recent defences. The plaintiffs have helpfully filed a schedule detailing the specific admissions now sought to be withdrawn and replaced with non-admissions or denials.[138]

   [138]Plaintiffs’ Schedule of Withdrawn Admissions filed 16 August 2024.

1. The application requires balancing several competing considerations:

(a)   the principle that formal admissions should not be lightly withdrawn, given their role in defining issues for trial and promoting efficient litigation;

(b)  the countervailing principle that parties should not be discouraged from making admissions out of fear they cannot be withdrawn; and

(c) the overarching purpose under s 7(1) of the CP Act of facilitating the just, efficient, timely and cost-effective resolution of real issues in dispute.

1. I consider that the following factors support granting leave to the first and third defendants to withdraw the admissions:

(a)   the plaintiffs have not demonstrated they would suffer irremediable prejudice;

(b)  the proceeding has not yet been fixed for trial;

(c)   the defendants have provided some explanation for seeking to withdraw the admissions — namely alleged inadequate legal advice regarding the evidentiary basis for and implications of the admissions; and

(d)  most importantly, allowing withdrawal of the admissions would better enable determination of the real matters in controversy.

1. While withdrawal of the admissions may increase costs and cause some delay, these considerations are outweighed by the need to ensure that the real issues are properly ventilated and justly determined. Ultimately, it is an issue of justice between the parties ensuring that the real matters in controversy are decided.[139]

   [139]Jeanes [2005] VSC 488, [19] (Gillard J); McKenzie [2001] VSC 361, [45] (Gillard J).

1. I will therefore allow the first and third defendants to rely on their most recently filed defences. To the extent that those defences withdraw admissions previously made I grant them leave to do so. I will also require the first and third defendants to file and serve their amended defences clearly identifying all amendments made to their previous defence dated 7 February 2023.

G.ORDERS

1. I will make the following orders:

(a)   in respect of the First Summons:

(i) Ms Kam is appointed as the representative of the estate of Chin Huat pursuant to r 16.03(1)(b) of the Rules;

(ii) the requirement for notice under r 16.03(3) is dispensed with;

(iii)             the First Summons is otherwise dismissed;

(b)  in respect of the Second Summons:

(i)     Ms Lee has leave to file and serve an amended defence and counterclaim substantially in the form filed on 26 June 2024 subject to it clearly identifying all amendments made to her previous defence dated 7 February 2023;

(ii)  To the extent that Ms Lee’s amended defence and counterclaim withdraws admissions previously made she has leave to do so;

(iii)             Vincent has leave to file and serve an amended defence substantially in the form filed on 27 June 2024 subject to it clearly identifying all amendments made to his previous defence dated 7 February 2023;

(iv)             to the extent that Vincent’s amended defence withdraws admissions previously made he has leave to do so;

(v)  the Second Summons is otherwise dismissed;

(c)   the Third Summons is dismissed; and

(d)  in respect of the Fourth Summons:

(i)     insofar as it is necessary, leave is granted nunc pro tunc to the lawyers for the deceased third plaintiff and the fourth plaintiff to use all the documents produced in this proceeding by the defendants to the first plaintiff and his lawyers prior to 2 October 2019 for the purpose of this proceeding, including the joinder of the third and fourth plaintiffs; and

(ii)  the Fourth Summons is otherwise dismissed.

1. The parties are asked to confer and, within seven days, submit a consent minute in respect of the appropriate costs order. Failing agreement, I will hear the parties as to costs.

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SCHEDULE OF PARTIES

S CI 2016 01053

BETWEEN:

ENG HOCK YAP	First Plaintiff
ADAM YAP (BY HIS LITIGATION GUARDIAN, ENG HOCK YAP)	Second Plaintiff
CHIN HUAT YAP (BY HIS LITIGATION GUARDIAN, SAU LIN KAM)	Third Plaintiff
SAU LIN KAM	Fourth Plaintiff
- and -
YEW HAN LEE	First Defendant
YAP BROTHERS HOLDINGS PTY LTD (ACN 004 651 512)	Second Defendant
ENG SENG YAP	Third Defendant
ENG HING YAP	Fourth Defendant

AND BETWEEN:

YAP BROTHERS HOLDINGS PTY LTD (ACN 004 651 512)	Plaintiff by First Counterclaim
- and -
ENG HOCK YAP	Defendant by First Counterclaim

AND BETWEEN:

YEW HAN LEE	Plaintiff by Second Counterclaim
- and -
ENG HOCK YAP	First Defendant by Second Counterclaim
ADAM YAP (BY HIS LITIGATION GUARDIAN, ENG HOCK YAP)	Second Defendant by Second Counterclaim

AND BETWEEN:

ENG SENG YAP	First Plaintiff by Third Counterclaim
ENG HING YAP	Second Plaintiff by Third Counterclaim
- and -
ENG HOCK YAP	First Defendant by Third Counterclaim
ADAM YAP (BY HIS LITIGATION GUARDIAN, ENG HOCK YAP)	Second Defendant by Third Counterclaim

AND BETWEEN:

YEW HAN LEE	First Plaintiff by Fourth Counterclaim
ENG SENG YAP	Second Plaintiff by Fourth Counterclaim
ENG HING YAP	Third Plaintiff by Fourth Counterclaim
- and -
CHIN HUAT YAP (BY HIS LITIGATION GUARDIAN, SAU LIN KAM)	First Defendant by Fourth Counterclaim
SAU LIN KAM	Second Defendant by Fourth Counterclaim

AND BETWEEN:

ENG HING YAP	First Plaintiff by Fifth Counterclaim
- and -
YEW HAN LEE	First Defendant by Fifth Counterclaim
YAP BROTHERS HOLDINGS PTY LTD (ACN 004 651 512)	Second Defendant by Fifth Counterclaim