Chang v Tjiong [2022] NSWSC 1092

Chang v Tjiong [2022] NSWSC 1092

The court held George's payments to Lindsay in 1999 did not constitute a valid exercise of power of appointment under the Burwood Trust, as the evidence did not show the payments were made as trust distributions nor based on an assessment of need per the trust terms. The mixed account was not maintained as a separate trust account and funds lost their trust character through mixing and depletion. The trust was not terminated, its corpus remains, and independent trustees should be appointed for proper administration.

Jurisdiction
Australia
Judgment Date
16 August 2022
Procedural Posture
Equity / Final Judgment After Hearing; Orders Made for Appointment of Independent Trustees and Other Relief
Outcome
Declarations and orders for trust administration and independent trustee appointment; costs orders against Katrina Tjiong.
Legal Topics
['powers of Appointment in Trusts' 'appointment of Independent Trustees' 'breach of Trust' 'mixing of Trust and Personal Funds' "administration of Deceased Trustee's Estate"]
['equity' 'trusts and Trustees'] ['powers of Appointment in Trusts' 'appointment of Independent Trustees' 'breach of Trust' 'mixing of Trust and Personal Funds' "administration of Deceased Trustee's Estate"]

Case Brief

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Procedural Posture

Equity / Final Judgment After Hearing; Orders Made for Appointment of Independent Trustees and Other Relief

Legal Issues

  1. 1 ['Whether the Burwood Trust was terminated by payments by the trustee (George) to Lindsay in 1999' 'Whether those payments were a valid exercise of the power of appointment under the Burwood Trust' 'Whether trust property was distributed in breach of trust before the death of the life tenant (Kwat)' 'Who is the current trustee or bare trustee of the Burwood Trust and what consequential orders should be made']

Ratio Decidendi

The court held George's payments to Lindsay in 1999 did not constitute a valid exercise of power of appointment under the Burwood Trust, as the evidence did not show the payments were made as trust distributions nor based on an assessment of need per the trust terms. The mixed account was not maintained as a separate trust account and funds lost their trust character through mixing and depletion. The trust was not terminated, its corpus remains, and independent trustees should be appointed for proper administration.

Court Disposition

Declarations and orders for trust administration and independent trustee appointment; costs orders against Katrina Tjiong.

Orders

  • ['Declaration as to holding and succession of trusteeship of Burwood Trust (George Tjiong until death, then Richard Tjiong as bare trustee, then Katrina Tjiong as bare trustee)' 'Declaration of the objects of the Burwood Trust as per Annexure A' 'Appointment of independent trustees (Stephen Neville Hall and Timothy...