Lin v Lin

3 The parties have each conceded that certain parts of the affidavits proposed to be relied upon at the hearing of the 5 August summons will not be read. The parts of the affidavits not to be read are set out in Tables A and B in Annexure 1 below.

4 In relation to the objections raised by the plaintiffs and the eighth defendant to the first defendant affidavits, the Court's rulings are set out in the fifth column of Table C in Annexure 1 below.

5 In relation to the first defendant's objections to the affidavit of Lachlan James Vallance dated 5 July 2025, the Court's rulings are set out in the sixth column of Table D in Annexure 1 below.

Consolidated affidavit of Shih-Kai Lin affirmed 17 September 2025

6 The parties have agreed for the Court to rule upon the first defendant's objections to the consolidated affidavit of Shih-Kai Lin affirmed 17 September 2025 by reference to groups or categories of evidence referred to therein. Having considered the parties' submissions in relation to the objections, the Court's rulings in respect of relevant categories are set out below.

7 This category is evidence of previous representations from witnesses not proposed to be called at the hearing of the 5 August summons. It generally accords with 'category 1' referred to in the first defendant's submissions, and 'category 2' in the plaintiffs' submissions.

8 The evidence in Category 1 is hearsay as it purports to be evidence given by Shih-Kai Lin of what other witnesses have said at previous hearings in this proceeding, in circumstances where those witnesses are not proposed to be called at the hearing of the 5 August summons.

9 The plaintiffs submit that the evidence is admissible under s 75 of the Evidence Act 2008 which provides that the hearsay rule does not apply in 'interlocutory proceedings' if the party who adduces it also adduces evidence of its source. It may be accepted that this last requirement is satisfied.

10 The Evidence Act 2008 does not define an 'interlocutory proceeding'. According to the Shorter Oxford English Dictionary, in the area of law, 'interlocutory' has the following meaning:

Of a decree or judgment; given in the course of an action or a as a preliminary to coming to trial; preliminary, provisional, interim.

To similar effect, the Macquarie Dictionary includes the following definition of 'interlocutory' in the area of law:

temporary or provisional, pending final judgement or determination; interim: interlocutory injunction.

11 Although the evidence in Category 1 is proposed to be adduced at a hearing in relation to relief which is sought by summons, the character of the proceeding is to be determined from the nature of the relief sought, not by its form.[5] Whether the character of a proceeding is interlocutory or final is to be determined by the nature of the order that results from its determination.[6]

12 The Court granted final relief in this proceeding on 2 February 2023, including an order that the proceeding be dismissed. The 5 August summons is brought pursuant to the grant of liberty to apply[7] and seeks the Court's leave for the first defendant to be relieved of certain undertakings he gave to the Court as part of the grant of final relief. Relevantly, those undertakings have the same operation and effect as an order of the Court. Accordingly, the nature and effect of the relief sought by the first defendant in the 5 August summons is to alter an aspect of the final relief granted by the Court in the proceeding. The relief sought is in no way provisional or preliminary. The proceeding is accordingly not an 'interlocutory proceeding' within the meaning of s 75 of the Evidence Act.

13 The plaintiffs' alternative submission was that the evidence in Category 1 was relevant for a non-hearsay purpose and therefore admissible under s 60 of the Evidence Act 2008. It was submitted that the evidence is relevant to whether, in seeking to exercise his power of appointment, the first defendant was acting genuinely and for proper purposes. I accept this submission.

14 However, for the reasons outlined in paragraph 14 of the first defendant's submissions, in the absence of the relevant witnesses being available for cross-examination, there is a real danger that the evidence would be unfairly prejudicial to the first defendant. The Court accordingly directs under s 136 of the Evidence Act 2008 that the Category 1 evidence be limited in its use such that it is only evidence of the first defendant's notice, awareness or knowledge of the evidence, and not the truth of its contents.

15 This category is evidence of previous out-of-court representations by the first plaintiff and the sixth defendant. It generally accords with 'category 2' referred to in the first defendant's submissions and 'category 3' in the plaintiffs' submissions. This evidence is hearsay as it is not proposed that the makers of the representations will give evidence at the hearing of the 5 August summons.

16 The plaintiffs' reliance upon s 75 of the Evidence Act 2008 is rejected for the reasons given above in respect of the Category 1 evidence.

17 In the alternative, the plaintiffs submit that the evidence is admissible under s 60 of the Evidence Act 2008 because it is relevant for a non-hearsay purpose: providing 'context' to the making of a previous open offer said to have precipitated the appointment of the eighth defendant as trustee, as well as context as to the second plaintiff's opposition to the first defendant's application in the 5 August summons.

18 The plaintiffs have not elucidated the relevance of these contextual purposes for the task of determining the 5 August summons. The Category 2 objections are accordingly upheld.

19 This category of evidence corresponds with 'category 3' referred to in the first defendant's submissions. It is convenient to deal with the two objections in this category separately.

20 The objection in item 67 is to a statement by Shih-Kai Lin that he opposes the relief sought in the 5 August summons because of his belief that it was necessary for Mr Vallance to perform a significant amount of work to familiarise himself with matters relevant to the trusts. The remaining part of the paragraph, which is not subject to objection, sets out in uncontroversial terms the witness' concerns in the event that a new trustee is appointed relating to the incurring of additional costs. The part of the paragraph the subject of objection is in substance argumentative or in the nature of submissions based upon opinions of the deponent which I am not satisfied satisfy the exception in s 78 of the Evidence Act 2008 relating to lay opinion evidence. The objection in item 67 is accordingly upheld.

21 The objection in item 69 relates to evidence to be given by Shih-Kai Lin as to four matters which he considers have given rise to a significant portion of Mr Vallance's fees. The requirements for the admission of lay opinion evidence in s 78 of the Evidence Act 2008 are not met for the admission of this evidence. The objection is upheld.

22 This category of evidence accords with 'category 4' referred to in the first defendant's submissions. It concerns paragraphs of the affidavit made by Shih-Kai Lin in which he extracts or refers to observations or findings made by judicial officers in this proceeding about the first defendant.

23 I do not consider this evidence to be relevant. Contrary to the submissions made on behalf of the plaintiffs, I do not accept that evidence of observations made by the Court to, or in the presence of, the first defendant on previous occasions could rationally effect an assessment of his state of mind in the context of the present application for relief and whether or not he is acting bona fide and for proper purposes. The assessment of the first defendant's state of mind in respect of these matters is to occur by the Court as constituted to hear the 5 August summons and not on the basis of conclusions or impressions expressed by judicial officers on other occasions in other contexts. The objection is upheld.

24 The remaining objections to the consolidated affidavit of Shih-Kai Lin affirmed 17 September 2025 are addressed in Table E in Annexure 1.

25 The parties are to prepare a schedule of the specific parts of the affidavits which have been the subject of successful objection in accordance with this ruling (including whether the relevant part is not to be received as evidence at all, or on a limited basis). The Schedule is to be provided on the Court at the commencement of the hearing of the 5 August summons.

TSAI MEI CHUAN LIN (in her own capacity and as administrator of the estate of WEN CHIH LIN, deceased)

(in its own capacity and as trustee for THE LIN FAMILY TRUST)

W C LIN NOMINEES PTY LTD (ACN 007 455 987) (in its own capacity and as trustee for THE LIN FAMILY TRUST NO 2)

WEN CHIH LIN MEMORIAL PTY LTD (ACN 622 246 575)

(in its own capacity and as trustee for THE LIN FAMILY TRUST

(ACN 622 246 619) (in its own capacity and as trustee for THE LIN FAMILY TRUST NO 2)

LACHLAN JAMES VALLANCE in his capacity as Trustee of the Lin Family Trust and the Lin Family Trust No 2.

TABLE A: OBJECTIONS CONCEDED BY EIGHTH DEFENDANT AND PLAINTIFF

1. Affidavit of Lachlan James Vallance dated 25 July 2025

Relevance (s 56) (submission/argument); opinion (s 76).

Accepted on the basis that the evidence of the second plaintiff speaks for itself.

Relevance (s 56) (speculation); opinion

(s 76).

Accepted without prejudice to the eighth defendant's seeking to tender into evidence an email dated 1 August 2024 from McKay Law to AUM, HOCW and Hunt & Hunt (without attachment) which forwarded proposed joinder orders in proceeding SCV 2018 1192 with extended dates and contained an email chain dated 28 July 2024 between McKay and Ryan Law re proposed joinder orders.

2. Consolidated affidavit of Shih-Kai Lin filed on 17 September 2025

Paragraph 79 (entirety, including sub-paragraphs, but excepting footnoted references to transcript).

Relevance (s 56) (evidence not of deponent); the transcript speaks for itself.

However, transcript is not objected to and therefore remains in evidence.

Paragraph 167 (entirety, save for sub-paragraphs (a)-(c)).

Relevance (s 56); hearsay (s 59); evidence not of deponent.

TABLE B: OBJECTIONS CONCEDED BY FIRST DEFENDANT

First affidavit of Shih-Hsien Lin filed 6 August 2024

The summary of the letter is misleading or confusing (s 135)

First affidavit of Shih-Hsien Lin filed 6 August 2024

Hearsay - it is unknown if the maker is available. Further, s 135 applies as Mr Gong is not called and therefore not available for cross-examination.

Third affidavit of Shih-Hsien Lin filed 11 September 2025

Entire paragraph from 'I believe that the Trustee ...' onwards.

Opinion (s 76)

Concede the words "I believe that..." to and including "for instance:" and sub-paragraph 20(a) but not sub-paragraphs 20(b) and 20(c)

Sub-paragraphs 20(b) and 20(c) contain direct evidence of fact and are not matters of opinion.

TABLE C: EIGHTH DEFENDANT AND PLAINTIFFS' LIST OF OBJECTIONS TO EVIDENCE

First affidavit of Shih-Hsien Lin filed 6 August 2024

Hearsay (s 59), where one of the makers of the statement (the mother) is available and the exception in s 64(2) does not apply.

Opposed. The evidence is of contemporaneous representations about each of those person's intention or state of mind: s 66A.

For reasons in [3] of eighth defendant's submissions dated 6 November 2025.

Third affidavit of Shih-Hsien Lin filed 11 September 2025

Opinion (s 76), not based on relevant specialised knowledge, training study or experience of the first defendant.

basis of the witness' experience in dealing with and managing LFT and LFT2 as a director of the former trustees (including as described in the final sentence of [37]).

Further, the evidence is not sought to be admitted to prove the existence of a fact about the existence of which the opinion was expressed, but instead as evidence of a concern held by the witness relevant to the fact in issue of his good faith and proper purpose: s 77.

Evidence is admissible under s 77 as it relates to the concerns held by the first defendant which is relevant to his good faith and proper purpose which is a relevant issue. Evidence not received as proof of the existence of facts about the existence of which the opinion was expressed.

Third affidavit of Shih-Hsien Lin filed 11 September 2025,

Opinion (s 76), not based on relevant specialised knowledge, training study or experience of the first defendant.

TABLE D: FIRST DEFENDANT'S LIST OF OBJECTIONS TO THE AFFIDAVIT OF LACHLAN JAMES VALLANCE DATED

Relevance (s 56). The documents are in evidence and speak for themselves.

The first defendant maintains his objection (he does not object to the tender of the underlying

Where the underlying documents not subject to objection, witnesses' evidence in narrating them is not relevant to fact in issue.

Relevance (s 56). The Court's reasons speak for themselves.

S91 does not prevent the tender of a judgement which contains findings as to the existence of facts relevant to the issues in the trial of the first

What occurred between 22 February 2024 and the making, on 14 March 2024, by McMillan J of consent orders appointing Lachlan Vallance as trustee of the LFT and LFT2 is relevant as it explains the factual

basis leading to the making of the consent orders by the Court rather

The first defendant maintains his objection (but he does not object to the tender of the judgment itself).

Where the underlying document not subject to objection, witnesses' evidence in narrating them is not relevant to fact in issue.

The entire paragraph, insofar as it concerns the Trustee's costs since 21 December 2023, as to which no such costing or certification has been provided to the first defendant or put into evidence.

Relevance (s 56) (conclusion); hearsay (s 59); opinion (s 76).

Sub-paragraph 19.13 commences with the words "as noted below". Sub-paragraph 19.30 is that notation.

Maintained (insofar it concerns events since 12 December 2023).

Matter for cross examination in light of opening words 'as noted below'.

Relevance (s 56) (conclusion); evidence likely to mislead in absence of disclosure of the advice received

(s 135).

Relevant as being probative of the factors to which the eighth defendant had regard to when determining to pay all named LFT2 Balance Sheet UPEs which determination the first defendant strongly disagrees with.

S 135 not satisfied. The Words are not evidence which give rise to the danger that they might be misleading or confusing to the Court absent disclosure of the advice received.

The Words are probative of the fact that, inter alia, the eighth defendant received counsel's advice in conference prior to determining to pay the LFT2 UPEs.

Relevance (s 56) (argument/submission/ conclusion).

Refer to and repeat response to 19.13 (part) above.

Maintained (see the related objection to paragraph 19.13 at item 5 above).

Not argument, submission or conclusion. Matter for cross examination.

Relevance (s 56) (argument/submission/ conclusion); opinion

(s 76).

Relevant as to the eighth defendant's perception/understanding of the timeliness of his provision of costs information to the beneficiaries.

Limit use under s 136 to evidence of eighth

defendant's understanding (i.e., the witness' belief or understanding).

Objection confined to words 'on a timely basis'. Conclusionary, but relevant to Trustee's perception/ understanding. Use of such evidence to be limited accordingly per s 136 of the Evidence Act 2008 (the Evidence Act).

Relevance (s 56) (the documents are in evidence and speak for themselves); s 135 (undue waste of time and costs; paragraph 29 inaccurately records the true content of the document cited and is likely to mislead).

Accepted that the letters of 9 July 2024, 22 July 2024, 26 July 2024 and

1 August 2024 (four letters) are contained in the eighth defendant's exhibit bundle.

characterised as "significant pre-issue correspondence".

They have been deliberately placed into the body of the eighth

defendant's affidavit to underline the importance to be attributed to them.

S 135(c). Reading the four letters in the body of the affidavit means that they are not required to be read in the exhibit bundle. They are not productive of undue waste of time.

S 135 (c) does not allow the Court to refuse to admit evidence on the basis of an alleged waste of costs.

S 135(b). There is no or no proper explanation of the allegation that paragraph 29 inaccurately records the true content of the document cited and is likely to mislead.

Maintained (though the first defendant does not object to the underlying documents being tendered).

As to the inaccurate recording in paragraph 29 and s 135(b), see fn 2 of the first defendant's submissions in reply to the eighth defendant dated 27 August 2025 (the extracted text at paragraph 29 incorrectly recites passages of the letter).

As the letters which are extracted are proposed to be tendered into evidence, the paragraphs are not relevant to a fact in issue and inclusion of paras 27-30 is unnecessary. Para's 25-26 to be admitted as summary of correspondence considered to be significant by Trustee which is relevant to his actions.

TABLE E: OTHER OBJECTIONS TO CONSOLIDATED AFFIDAVIT OF SHIH-KAI LIN FILED 17 SEPTEMBER 2025

2. Consolidated affidavit of Shih-Kai Lin filed on 17 September 2025

The first defendant objects generally to the affidavit of Shih-Kai Lin insofar as it quotes, duplicates (in some instances more than once) or summarises witness statements and transcripts that are already on the Court file in this proceeding, because this is productive of wasted time and cost.

This is not a basis for objection. It is an unfounded criticism by the first defendant who consistently relies upon selective historical matters in support of his position and then criticises those family members who (regrettably) fill-in the gaps to avoid the selective account presented by the first defendant.

Relevance (s 56) (argument/submission/ conclusion) and, as to the last sentence, hearsay (s 59).

(s 78) - witness is deposing to what he saw, heard or otherwise perceived about the events in issue and this is necessary to obtain an adequate account of the plaintiff's perception of the events.

Last sentence: evidence relevant for a non-hearsay purpose (s 60) - this evidence provides evidence of the second plaintiff's state of mind (in support of his opposition of the first defendant's application).

Alternatively, s 136 applies to limit the weight to be given to the evidence.

Last sentence: state of mind of the witness is irrelevant even if for the non-hearsay purpose.

Paragraph is in the nature of opinion and requirements for the admission of lay evidence in s 78 of the Evidence Act not established.

Paragraph is otherwise in nature of argument or submission.

Relevance (s 56) (argument/submission/ conclusion); unqualified opinion (s 76); hearsay (s 59) (final sentence only).

(s 78) - witness is deposing to what he saw, heard or otherwise perceived about the events in issue and this is necessary to obtain an adequate account of the plaintiff's perception of the events.

Final sentence: evidence relevant for a non-hearsay purpose (s 60) - this evidence provides evidence of the second plaintiff's state of mind (in support of his opposition of the first defendant's application).

Alternatively, s 136 applies to limit the weight to be given to the evidence.

Last sentence: state of mind of the witness is irrelevant even if for the non-hearsay purpose

Paragraph is in the nature of opinion and requirements for the admission of lay evidence in s 78 of the Evidence Act not established.

Relevance (s 56) (argument/submission/ conclusion); unqualified opinion (s 76).

Lay opinion of primary beneficiary/second plaintiff (s 78) - witness is deposing to what he saw, heard or otherwise perceived about the events in issue and this is necessary to obtain an adequate account of the second plaintiff's perception of the events.

Alternatively, s 136 applies to limit the weight to be given to the evidence.

State of mind of the witness is irrelevant even if for the non-hearsay purpose.

Relevance (s 56) (argument/submission/ conclusion).

Evidence is relevant because it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (s 55). This evidence is relevant (a) to demonstrate the first defendant's failure to act with "an entire and single view to the real purpose and object of the power" but rather carrying into effect his (long-standing) sinister object: Duke of Portland [1864] EngR 339; (1864) 11 ER 1242 at 1251 and (b) to the credibility of the first defendant (due to the selective nature of his evidence).

Maintained. Evidence amounts to no more than a submission.

Relevance (s 56) (argument/submission/ conclusion); unqualified opinion (s 76).

Evidence is relevant because it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (s 55). This evidence is relevant (a) to demonstrate the first defendant's failure to act with "an entire and single view to the real purpose and object of the power" but rather carrying into effect his (long-standing) sinister object: Duke of Portland [1864] EngR 339; (1864) 11 ER 1242 at 1251 and (b) to the credibility of the first defendant (due to the selective nature of his evidence).

Lay opinion of primary beneficiary/plaintiff (s 78) - witness is deposing to what he saw, heard or otherwise perceived about the events in issue and this is necessary to obtain an adequate account of the plaintiff's perception of the events.

Alternatively, s 136 applies to limit the weight to be given to the evidence.

Maintained. Relevance to face in issue not established. Witness does not describe the matters he saw, heard or otherwise perceived. As to weight and s 136, see item 18.

Sub para is conclusionary and in nature of argument or submission

Sub-paragraph 85(b), final sentence, from the words "and therefore" to the end of the sentence.

Relevance (s 56) (argument/submission /conclusion).

Evidence of the second plaintiff's / primary beneficiary's view of the reliability of the accounts is relevant because it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (s 55), namely whether the first defendant is acting with "an entire and single view to the real purpose and object of the power": Duke of Portland [1864] EngR 339; (1864) 11 ER 1242 at 1251.

Further this lay opinion of the primary beneficiary/ second plaintiff (s 78) - witness is deposing to what he saw, heard or otherwise perceived about the events in issue and this is necessary to obtain an adequate account of the plaintiff's perception of the events.

Alternatively, s 136 applies to limit the weight to be given to the evidence.

Maintained. Witness' state of mind/belief irrelevant to the fact in issue identified. Witness does not describe the matters he saw, heard or otherwise perceived. As to weight and s 136, see item 18.

Words are in nature of argument or submission and otherwise lay opinion for which requirements of s 78 are not satisfied.

Relevance (s 56) (argument/submission/ conclusion); unqualified opinion (s 76).

Evidence of the second plaintiff's / primary beneficiary's view of the first defendant's assessment of the impact of UPEs is relevant because it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding

(s 55). In particular, this evidence provides a rebuttal of the first defendant's opinion about these matters and assists in an assessment as to whether the first defendant is acting with "an entire and single view to the real purpose and object of the power" cf carrying out some sinister object: Duke of Portland [1864] EngR 339; (1864) 11 ER 1242 at 1251.

Further this lay opinion of the primary beneficiary/ second plaintiff (s 78) - witness is deposing to what he saw, heard or otherwise perceived about the events in issue and this is necessary to obtain an adequate account of the plaintiff's perception of the events.

Alternatively, s 136 applies to limit the weight to be given to the evidence.

Maintained. Witness' state of mind/belief irrelevant to the fact in issue identified. Witness does not describe the matters he saw, heard or otherwise perceived. As to weight and s 136, see item 18.

Basis of conclusion referred to in following paragraphs.

Relevance (s 56) (argument/submission/ conclusion); unqualified opinion (s 76).

Evidence of the second plaintiff's / primary beneficiary's view of the first defendant's assessment of the balance of the UPEs and beneficiary loans is relevant because it could rationally affect (directly or indirectly) the assessment of the probability of the existence of

a fact in issue in the proceeding (s 55). In particular, this evidence provides a rebuttal of

the first defendant's opinion about these matters and assists in an assessment as to whether the first defendant is acting with "an entire and single view to the real purpose and object of the power" cf carrying out some sinister object: Duke of Portland [1864] EngR 339; (1864) 11 ER 1242 at 1251.

Further this lay opinion of the primary beneficiary/ second plaintiff (s 78) - witness is deposing to what he saw, heard or otherwise perceived about the events in issue and this is necessary to obtain an adequate account of the

Alternatively, s 136 applies to limit the weight to be given to the evidence.

Maintained. Witness' state of mind/belief irrelevant to the fact in issue identified. Witness does not describe the matters he saw, heard or otherwise perceived. As to weight and s 136, see item 18.

Sentence is a lay opinion and requirements of s 78 are not satisfied.

Relevance (s 56) (argument/submission/ conclusion); unqualified opinion (s 76).

Direct evidence of the second plaintiff's/primary beneficiary's receipt of trust distributions (as recorded in the financial accounts) is relevant

Further, to the extent that this paragraph contains any opinion of the second plaintiff, it is admissible lay opinion of the primary beneficiary/ second plaintiff (s 78) - witness is deposing to what he saw, heard or otherwise perceived about the events in issue and this is necessary to obtain an adequate account of the plaintiff's perception of the events.

Alternatively, s 136 applies to limit the weight to be given to the evidence.

Maintained. Witness' state of mind/belief irrelevant to the fact in issue identified. Witness does not describe the matters he saw, heard or otherwise perceived. As to weight and s 136, see item 18.

Witness deposes to his understanding, and its basis, about a matter which is arguably relevant to whether the first defendant is seeking to exercise the power of appointment bona fide and for proper purposes.

Paragraph 136 (entirety, including sub-paragraphs).

Relevance (s 56) (argument/submission/ conclusion); unqualified opinion (s 76).

Evidence of the second plaintiff's/primary beneficiary's view regarding the sale of the Box Hill Property (a step opposed by the first defendant) is relevant because it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (s 55). In particular, this evidence provides a rebuttal of the first defendant's opinion about this matter and assists in an assessment as to whether the first defendant is acting with "an entire and single view to the real purpose and object of the power" cf carrying out some sinister object: Duke of Portland [1864] EngR 339; (1864) 11 ER 1242 at 1251.

Maintained. Witness' state of mind/belief irrelevant to the fact in issue identified. As to weight and s 136, see item 18.

Paragraph is in the nature of opinion and requirements for the admission of lay evidence in s 78 of the Evidence Act not established.

Further this lay opinion of the primary beneficiary/second plaintiff (s 78) - witness is deposing to what he saw, heard or otherwise perceived about the events in issue and this is necessary to obtain an adequate account of the plaintiff's perception of the events.

Alternatively, s 136 applies to limit the weight to be given to the evidence.

Paragraph 147 (entirety, including sub-paragraphs).

Relevance (s 56) (argument/submission/ conclusion); unqualified opinion (s 76).

Evidence of the second plaintiff's/primary beneficiary's view of the first defendant's motive /state of mind is relevant because it could rationally affect (directly or indirectly) the assessment of the probability of the existence of

a fact in issue in the proceeding (s 55). In particular, this evidence assists in an assessment as to whether the first defendant is acting with "an entire and single view to the real purpose and object of the power" cf carrying out some sinister object: Duke of Portland [1864] EngR 339; (1864) 11 ER 1242 at 1251.

Further this lay opinion of the primary beneficiary/second plaintiff (s 78) - witness is deposing to what he saw, heard or otherwise perceived about the events in issue and this is necessary to obtain an adequate account of the plaintiff's perception of the events.

Alternatively, s 136 applies to limit the weight to be given to the evidence.

Alternatively, s 136 applies to limit the evidence as having been provided to or given in the presence of the first defendant.

Maintained. Witness' state of mind/belief irrelevant to the fact in issue identified. As to weight and s 136, see item 18.

Not relevant to whether the first defendant is proposing to exercise the power of appointment bona fide and for proper purposes.

Lay opinion evidence does not satisfy the requirements of s 78

[1] [2024] VSC 759 ('Lin v Lin No. 4').

[4] Being the first defendant's submissions on objections filed 6 November 2025 (the first defendant's submissions); the eighth defendant's submissions regarding objections to evidence filed 6 November 2025; and the plaintiff's outline of submissions on the first defendant's objections to evidence filed 6 November 2025 (the plaintiff's submissions).

[5] Allstate Life Insurance Co v ANZ Banking Group Ltd (No 3) (1996) 64 FCR 55, 58.

[6] Ashby v Commonwealth of Australia (No 3) [2012] FCA 788; (2012) 206 FCR 444, [11].

[7] See generally Lin v Lin No. 4 (n 1).