Tjiong v Chang [2025] NSWCA 25

Tjiong v Chang [2025] NSWCA 25

By majority (Basten AJA, Price AJA agreeing; Griffiths AJA dissenting), the appeal was allowed. The appellant successfully established, on the balance of probabilities, that the payment made by George Tjiong to Lindsay Tjiong in July 1999 was a final distribution under the Burwood Trust, terminating the Trust. Orders below were set aside as the Trust did not remain extant. The trial judge erred in her approach to documentary and oral evidence and in her allocation of the onus of proof. Claims for trustee indemnity were thus rendered irrelevant.

Parties
Appellant / Cross Respondent: Katrina May Lan Tjiong; First Respondent: Tzer Chin Chang; Second Respondent / First Cross Applicant: Timothy Paul Heesh; Third Respondent / Second Cross Applicant: Mark Kenneth John Everingham
Jurisdiction
Australia
Judgment Date
28 February 2025
Procedural Posture
Appeal / Final Judgment Appeal Determination and Disposition
Outcome
Appeal allowed. Orders below set aside to the extent relevant. Declaration that the Burwood Trust was terminated by distribution in July 1999. Costs orders made. Certain applications for indemnity rendered irrelevant. Leave to cross-appeal granted in limited form; cross-appeal dismissed.
Legal Topics
Existence and Termination of Trust, Trustee Indemnity, Burden of Proof in Trust Litigation, Review of Trustee's Conduct, Powers of Appointment Under Trust
Equity Trusts Existence and Termination of Trust Trustee Indemnity Burden of Proof in Trust Litigation Review of Trustee's Conduct Powers of Appointment Under Trust

Case Brief

Summary, issues, holding and outcome

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Parties

Katrina May Lan Tjiong

Appellant / Cross Respondent

Tzer Chin Chang

First Respondent

Timothy Paul Heesh

Second Respondent / First Cross Applicant

Mark Kenneth John Everingham

Third Respondent / Second Cross Applicant

Procedural Posture

Appeal / Final Judgment Appeal Determination and Disposition

Legal Issues

  1. 1 Whether the Burwood Trust was terminated in July 1999 by a distribution to Lindsay Tjiong
  2. 2 Whether the primary judge erred in her determination of the appellant's claims to indemnity from the Burwood Trust

Ratio Decidendi

By majority (Basten AJA, Price AJA agreeing; Griffiths AJA dissenting), the appeal was allowed. The appellant successfully established, on the balance of probabilities, that the payment made by George Tjiong to Lindsay Tjiong in July 1999 was a final distribution under the Burwood Trust, terminating the Trust. Orders below were set aside as the Trust did not remain extant. The trial judge erred in her approach to documentary and oral evidence and in her allocation of the onus of proof. Claims for trustee indemnity were thus rendered irrelevant.

Court Disposition

Appeal allowed. Orders below set aside to the extent relevant. Declaration that the Burwood Trust was terminated by distribution in July 1999. Costs orders made. Certain applications for indemnity rendered irrelevant. Leave to cross-appeal granted in limited form; cross-appeal dismissed.

Orders

  • Grant the appellant an extension of time to appeal from the first judgment delivered on 16 August 2022 and (where necessary) leave to appeal from the second judgment delivered on 9 February 2024.
  • Allow the appeal and set aside orders (1)-(11), (14), (15) and (17) made by the trial judge on 16 August 2022, and orders (1)-(3) made on 9 February 2024.