Cong v Shen (No 4) [2021] NSWSC 1206

Cong v Shen (No 4) [2021] NSWSC 1206

Orders for provision in favour of Edmund and Teresa are to be satisfied from the estate (notional estate limited to $1,190,317) in priority to any debt to Ms Shen; the original orders for designation of notional estate are amended under the slip rule to properly reflect the Court's actual intention regarding asset pools; costs are apportioned such that each of the main parties (Edmund, Teresa, Ms Shen) bears their own costs (save as to orders otherwise made for costs of Ms Wu and estate representation) given the mixed outcome and intertwined issues; the Calderbank offer is not effective to enliven special costs jurisdiction due to its nature as a joint offer incapable of individual...

Parties
First Plaintiff: Edmund Bede Hao San Cong; Second Plaintiff: Teresa Mae Yin Cong; Third Plaintiff: The estate of the late Laurence Xavier Xiao Ming Cong by its representatives Edmund Cong and Teresa Cong; First Defendant: Yanjiao Shen; Second Defendant: Yaqin Wu; Third Defendant: The estate of the late Zi Li Cong by its representative Tamara Goodwin
Jurisdiction
Australia
Judgment Date
24 September 2021
Procedural Posture
Equity/civil, Family Provision, Probate/costs Application / Post Judgment; Determination of Costs and Amendment of Orders (slip Rule)
Outcome
Amendment of previous orders to designate notional estate properly; orders regarding satisfaction and priority of payment; complex costs orders with apportionment.
Legal Topics
Slip Rule, Family Provision, Notional Estate, Costs Orders, Probate, Contracts Review Act Relief, Offers of Compromise / Calderbank Offer
Succession Equity Probate Civil Procedure Costs Slip Rule Family Provision Notional Estate +3 more

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Parties

Edmund Bede Hao San Cong

First Plaintiff

Teresa Mae Yin Cong

Second Plaintiff

The estate of the late Laurence Xavier Xiao Ming Cong by its representatives Edmund Cong and Teresa Cong

Third Plaintiff

Yanjiao Shen

First Defendant

Yaqin Wu

Second Defendant

The estate of the late Zi Li Cong by its representative Tamara Goodwin

Third Defendant

Procedural Posture

Equity/civil, Family Provision, Probate/costs Application / Post Judgment; Determination of Costs and Amendment of Orders (slip Rule)

Legal Issues

  1. 1 Whether orders respecting the designation of notional estate should be amended under the slip rule (UCPR r 36.17)
  2. 2 Whether costs of the proceedings should be apportioned and which parties bear liability for costs
  3. 3 Whether Calderbank offer by first defendant entitled her to indemnity costs

Ratio Decidendi

Orders for provision in favour of Edmund and Teresa are to be satisfied from the estate (notional estate limited to $1,190,317) in priority to any debt to Ms Shen; the original orders for designation of notional estate are amended under the slip rule to properly reflect the Court's actual intention regarding asset pools; costs are apportioned such that each of the main parties (Edmund, Teresa, Ms Shen) bears their own costs (save as to orders otherwise made for costs of Ms Wu and estate representation) given the mixed outcome and intertwined issues; the Calderbank offer is not effective to enliven special costs jurisdiction due to its nature as a joint offer incapable of individual...

Court Disposition

Amendment of previous orders to designate notional estate properly; orders regarding satisfaction and priority of payment; complex costs orders with apportionment.

Orders

  • Order 1: Amend order 6 of 3 August 2021 by slip rule to clarify the limit and net proceeds applicable for notional estate.
  • Order 2: Amend order 5 of 3 August 2021 to include Ms Shen's one-third share of insurance proceeds and Mr Cong's one-half share of joint bank account moneys as notional estate.