Yuen v Louey - [2023] VSC 423

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 05066

BETWEEN:

CHIK CHUN YUEN (as Executor of the will of WING POY LOUEY (also known as PAUL LOUEY), deceased) & ANOR (according to the attached Schedule)	Plaintiffs
v
MAYLING LOUEY (in her representative capacity as an executor of the estate of WING POY LOUEY (also known as PAUL LOUEY), deceased)	Defendant

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2023
DATE OF JUDGMENT:	25 July 2023
CASE MAY BE CITED AS:	Yuen & Anor v Louey
MEDIUM NEUTRAL CITATION:	[2023] VSC 423

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WILLS – Judicial advice – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 54.02 – Whether executors justified in defending proceeding – Whether executors entitled to indemnity out of the estate – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A Verspaandonk of counsel	KHQ Lawyers
For the Defendant	Mr T Staindl of counsel	Neal Collin & Associates

HIS HONOUR:

Introduction

The first plaintiff (Ms Yuen) and the second plaintiff (Ms Chan) are two of the three executors of the estate of Wing Poy Louey (deceased). They have applied to the Court for directions pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules (Vic) (Rules) as to whether they are justified in defending proceeding S ECI 2022 03543 commenced in this Court’s Trust, Equity and Probate List by the deceased’s widow claiming equitable ownership of some estate property (TEP Proceeding).

The defendant, Mayling Louey, is the third executor of the deceased’s estate. The defendant was joined as a necessary party to the proceeding. She took a generally neutral position, neither consenting to nor opposing the plaintiffs’ application. The defendant made only limited submissions on very discrete points which are discussed below.

For the reasons that follow I have decided that the plaintiffs are justified in defending the TEP Proceeding. I have also decided that the plaintiffs should be indemnified by the estate for their costs of defending the TEP Proceeding.

Background

The plaintiffs relied on three affidavits in support of their application:

(a) affidavit of Ms Chan sworn 1 December 2022;

(b) affidavit of Oliver Charles LaCaze affirmed 23 February 2023; and

(c) further affidavit of Oliver Charles LaCaze affirmed 14 July 2023.

Ms Chan’s affidavit set out the factual context against which the plaintiffs’ application was brought. Mr LaCaze’s first affidavit exhibited the memorandum of advice of counsel, Mr Verspaandonk, obtained by the plaintiffs and addressing the merits of the TEP Proceeding. Mr LaCaze’s second affidavit was largely directed to the plaintiffs’ anticipated costs in defending the TEP Proceeding.

The following background is drawn from Ms Chan’s affidavit.

Ms Chan is one of three co-executors of the deceased’s estate pursuant to a grant of probate dated 7 September 2021. The other two executors named in the grant were Ms Yuen and Mayling Louey. Both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSC 423
Decision Date: 25 July 2023

CaseChat Overview and Summary

The case of Yuen v Louey involved a dispute between the executors of a deceased estate and a claimant who sought to enforce a will. The matter was heard in the Supreme Court of Victoria. The executors of the estate were challenged by the claimant over the interpretation and execution of the will, and the claimant sought to enforce certain provisions of the will against the estate.

The primary legal issues before the court were whether the executors were justified in defending the proceeding and whether they were entitled to an indemnity out of the estate. The court had to consider whether the executors acted within their authority and whether their actions were reasonable and in the best interest of the estate.

The court held that the executors were justified in defending the proceeding as their actions were reasonable and within their authority. The court found that the executors had acted prudently and in the best interest of the estate. Additionally, the court granted the executors an indemnity out of the estate, as their actions were justified and they were entitled to reimbursement for any expenses incurred in defending the proceeding.

The court made orders granting the executors an indemnity out of the estate and dismissing the claimant's action against the executors. The executors were relieved from any personal liability for the costs of the proceeding, and the claimant's claim was dismissed with costs.

Orders