Tong v Tong [2024] ACTCA 27

Less than a week before he died, Quoc made a will, dated 12 June 2019. The will made further gifts of $70,000 each to Duc and Le, and $30,000 to his mother, Khanh. Quoc’s superannuation benefit was left to Suqin. The rest of the estate was to be transferred to the Trust to be invested for the benefit of the children’s education, health, and wellbeing, until the youngest surviving child reached 24 years of age. When each surviving child reached that age, the child was able to choose to take the whole of their equal share as a lump sum and cease being a beneficiary of the Trust.

Probate was granted to Duc, the executor named in the will, on 15 November 2019. The net value of the estate as at the time of the grant was approximately $340,000. Issues

The primary judge (J [15]) identified that the respondents (who were the plaintiffs at first instance) made three categories of claim: (a) complaints about financial transactions and real property transfers which occurred before Quoc died (the Undue Influence Claim); (b) complaints about the terms of the will and whether it made adequate provision for Quoc’s wife and children (the Family Provision Claim); and (c) complaints about the administration of Quoc’s estate and the Trust (the Estate Administration Claim).

The primary judge (J [18]) identified six issues arising out of the three categories of claim, which she then determined: Undue Influence Claim (a) Whether the testamentary gifts of $70,000 each to Duc and Le in the will were the product of undue influence or coercion (Issue 1). (b) Whether the transfers of money or property to Duc and Le were the product of undue influence or unconscionable conduct (Issue 2). Family Provision Claim (a) What assets form part of the estate in light of the findings on Issue 2 (Issue 3). (b) Whether the plaintiffs’ claim for family provision should succeed and, if so, what adjustment should be made (Issue 4). Estate Administration Claim (a) Whether Duc should be removed as executor of the Estate (Issue 5). (b) Whether Fortitude should be removed as trustee of the Trust (Issue 6). Undue influence - testamentary gifts

So far as Issue 1 was concerned, the primary judge identified that the findings that she made were largely overtaken by the conclusions that she reached, favourable to Suqin and the children, in relation to the claim for family provision. An alteration to the provisions made in the will effectively overtook whatever decision the court made on Issue 1. Despite this, the primary judge addressed Issue 1 in some detail. Her Honour made findings as to relevant events following Quoc’s diagnosis with stage IV colon cancer in November 2018 up until the execution of the will on 12 June 2019. The primary judge concluded (J [52]): 52. The circumstances in which the Will was both brought into existence and executed are troubling, but not to such an extent as to establish that Quoc was either too ill to exercise free agency or that the influence that Duc plainly exercised over his brother was so great as to be ‘undue’ or coercive in the sense of Quoc no longer exercising his free will, as explained in the authorities. Undue influence – gifts of money and property

Issue 2 was the issue of central importance in relation to the value of the estate. The primary judge addressed the issue over 141 paragraphs. Before the primary judge, the respondents challenged three dispositions of property on the basis that they were the subject of undue influence upon Quoc by either Duc or Le. Those were: (a) the transfer of the Kambah property from Quoc to Le; (b) the payment of $360,000 from Quoc to Duc; and (c) the payment of $290,150 from Quoc to Le.

Her Honour set out the principles applicable to an equitable claim of undue influence and unconscionable conduct taken from Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; 41 WAR 353 at [166]-[176].

Because it was established that the Richardson property was held on constructive trust for Quoc, the $290,150 cheque provided to Le was not a gift or any benefit to Le but was, in fact, “plainly repaying the debt that Le had taken on for an asset to which he (and Suqin) were beneficially entitled”: J [148]. Therefore, whether it should be set aside for undue influence or unconscionable conduct fell away. As an aside, her Honour indicated (J [165]) that, had Quoc remained alive, Suqin would have had at least a 50 percent equitable interest in the Richardson property on a Baumgartner trust: Baumgartner v Baumgartner (1987) 164 CLR 137.

The primary judge also addressed an alternative claim that Le breached her fiduciary duty as a holder of Quoc’s enduring power of attorney when she accepted the cheque for $290,150. That would have been relevant if the transfer of the title to the Richardson property was to be made other than unencumbered, because Le did not in fact use the money for the purpose of paying off the loan on the Richardson property. However, because her Honour ordered that the title to the Richardson property be transferred “free of any encumbrance”, that claim fell away. Had it been necessary to determine whether Le was liable to account to the estate, the primary judge indicated that some further submissions would have been necessary.

Finally, the primary judge addressed the situation in which, contrary to her conclusion, the payment of $290,150 was a gift to Le. Her Honour indicated that, in that instance, “I would have found that such a gift was a result of presumptive undue influence which had not been rebutted and was therefore liable to be set aside”. She recorded that “[t]he reasons for that finding would have been similar to those that are set out below in the context of the next transaction” (i.e., the payment to Duc): J [171].

The submissions of the respondents appeared simply to assert that there was no error on the part of the primary judge. They pointed out that the primary judge’s findings in relation to a presumption of undue influence were based upon “a number of overlapping features which combined to give rise to the presumption of undue influence”: J [174]. They referred, in detail, to the evidence relating to the preparation of the Enduring Power of Attorney, the Tong Family Trust Deed, and Quoc’s will. They also referred to the preparation of Quoc’s Family Court affidavit, and Duc’s Family Court affidavit in which he affirms that he gave notice to the Commonwealth Superannuation Corporation that Quoc and Suqin intended to divorce. They also pointed to the subsequent conduct of Duc following Quoc’s death in seeking to have the superannuation benefits not paid to Suqin, despite the fact that that was directly contrary to the terms of Quoc’s will. They submitted that “one could not conceive of a relationship where there was greater dominance, ascendancy, control, subjection and dependence at the times when events occurred in relation to dispossession of the terminally ill Quoc’s assets to Duc and Le”.

This was the second feature relied upon by the primary judge – that the relationship of trust and confidence between Duc and Quoc intensified in the last six months of Quoc’s life. She found that when Duc became aware that Quoc was dying, he “stepped up his level of involvement in Quoc’s life”: J [176]. Her Honour did not characterise this as indicating any ulterior motive but, because of the intensification of the relationship, found that “Duc assumed a critical role in Quoc’s care and the management of Quoc’s life and affairs from January 2019 when Quoc was undergoing chemotherapy and from then on until Quoc died”. She found that Duc and members of his family went to visit Quoc every day when he was in hospital. She found that Duc was Quoc’s “primary confidante”. She found that when Quoc was not in hospital, he would see Duc during the week for lunch and frequently meet him for coffee on the weekend. Duc would come to the Richardson property most weekends and take Quoc out for three or four hours. The appellants do not challenge this finding but submit that the spending of substantial time with Duc indicates that the relationship of trust and confidence was social and not related to business or finances. Once again, the point made is, to an extent, correct in that it is asserted that the increased contact between Duc and Quoc performed a significant social, as distinct from a business or financial, function. However, it is artificial to draw a sharp distinction between the social and the business or financial. The point made by the primary judge was that the relationship intensified over this period. That intensification and the increase in time spent with his brother (and away from his wife and children) provided the factual context for the increased influence on his brother’s part.

The third feature was that Quoc was in seriously failing health. The primary judge found that he knew from December 2018 that his illness was terminal, and he was in and out of hospital for chemotherapy. The primary judge found that that fact brought about an intensification of the relationship with Duc, as Duc wished to spend as much time with Quoc as possible because he was dying. The primary judge found, based on the evidence of a letter from Dr David Leong, a specialist oncologist, that Quoc’s health had declined between mid-December 2018 and mid-January 2019, that proposed surgery had been cancelled due to his poor condition, and that he had commenced palliative chemotherapy. The primary judge found that as at May 2019, Quoc described himself as “physically weak, under nourished from loss of appetite to eat, have no energy, tired and sleepy from the chemo medication and other medication to combat the side effects of the chemo treatment”. There was evidence before the primary judge that as he became physically weak, Quoc became increasingly argumentative and expressed his distress through anger and impatience. The appellants submitted that there was no evidence of any cognitive decline and that it cannot be inferred simply from poor physical health that a person is so affected cognitively that they are in a position of “dependence and subjection”.

Once again, if this factor was taken by itself, that submission would have significant merit. However, that is not how the primary judge addressed this issue. The grave and deteriorating nature of Quoc’s condition is plainly a very significant part of the context in which he conducted himself at the end of his life. It would be artificial to quarantine from any consideration of his decision-making in relation to very substantial gifts, the physical and emotional consequences of his rapidly progressing terminal illness.

The fourth feature described by the primary judge was that Quoc became increasingly isolated from Suqin towards the end of his life. She found that in the draft will of 16 May 2019, Quoc referred to Suqin as having commenced divorce and separation proceedings even before he received the letters from the family lawyer instructed by Suqin which were sent by email on 23 May 2019 and received by post on 28 May 2019. The primary judge referred to the discussions which had occurred between Duc and Quoc about this issue. She found that these discussions indicated that Quoc felt distanced from other people who may previously have balanced out the relationship of dependence upon Duc. Her Honour referred to the fact that Suqin had stopped coming to medical appointments from March 2019 and that the involvement of Duc and other family members in assisting Quoc with medical appointments, rather than him asking for her help, was a source of complaint by Suqin.

The appellants accept these findings but say that they are only of peripheral relevance. They point to the absence of any finding that Duc was involved in any way in isolating Quoc from Suqin and submitted that the fact that Quoc’s relationship with Suqin was deteriorating had no bearing upon the relationship between Quoc and Duc.

The submissions do not undermine the relevance of the primary judge’s findings. We do not accept that the fact that Quoc’s relationship with Suqin was deteriorating had no bearing upon the relationship between Quoc and Duc. To the contrary, that fact provides significant context for the increase in dependence upon Duc. The decline in the relationship with Suqin was significant because, as the primary judge pointed out, Quoc felt distanced from other people who may have balanced out his relationship with Duc. Once again, by itself, it may have been of modest overall significance, but its significance is to be considered as one of the seven overall strands identified by the primary judge.

The fifth feature was the finding that Quoc became dependent upon Duc for assistance with “all facets of his life, whether it be work, medical, financial, or legal affairs”: J [181]. The primary judge found that Quoc requested Duc’s help with obtaining life insurance payments, talking to his director at work, writing his will over a number of months, speaking to doctors, obtaining medical reports, drafting affidavits, corresponding with Suqin’s family lawyer, and printing whatever forms were necessary and bringing them to the hospital. She referred to Duc’s description of his role as Quoc’s “secretary or administrative assistant”.

The appellants correctly observed that, on one view, this is the strongest argument for a presumption of undue influence. However, they seek to dissect the functions undertaken so as to undermine the primary judge’s generalised finding. They identify that, in contrast, for example, to the circumstances of the respondent in Johnson v Buttress (1936) 56 CLR 113, Quoc was still capable of understanding the tasks that he needed to perform. Rather, they characterised his dependence upon Duc as being because it was easier for Duc to perform certain tasks owing to Quoc’s physical frailty and lack of energy. In his affidavit affirmed on 11 February 2022, Duc deposed that “[f]rom my observations Quoc was fully in command of his mental faculties. … The power of attorney was not used by me to make decisions on Quoc’s behalf, … but to assist where required to obtain information, forms and medical reports for Quoc”. Nonetheless, the characterisation of Quoc as merely using Duc as a means of performing physical tasks does not do justice to the combined effect of the apparent influence that Duc had over the different and significant aspects of Quoc’s life, in particular, those relating to his assets and estate.

The sixth feature was that Quoc had given Duc formal authority or power over his affairs in various ways. That included the execution of an enduring power of attorney appointing Duc and Le as his attorneys. Her Honour found that Quoc described Duc as the primary power of attorney with Le as a second attorney. Her Honour accepted that Duc did not actually use the power of attorney to make decisions on Quoc’s behalf but that he did use the power of attorney to obtain information, forms and medical reports for Quoc. However, her Honour found that the “critical matter” was that Duc was in a formal position to exert influence.

The appellants submit that this is not a factor that sheds any light on the nature or quality of the relationship between Quoc and Duc. They submit that the concept of the exertion of influence by the holder of a power of attorney over their appointor would be antithetical to, and inconsistent with, the purpose of the power.

It can be accepted that the existence of a power of attorney does not, of itself, demonstrate a power to “exert influence”. However, the existence of a power to make decisions on Quoc’s behalf and the limited use that was in fact made of that power was another indicium of the depth of the relationship.

The seventh feature, which partially overlapped with Duc’s involvement in assisting Quoc in his dying months, was that “Quoc’s perception of Duc was of someone who had moral and practical superiority”: J [183]. The primary judge found that this was in part because Duc and Le had better language skills and superior financial literacy. She also made reference to Quoc naming Duc as the executor of his will and his choice of Duc and Le over his own wife to manage the Trust for his children. The primary judge noted that Duc was “intimately involved” with the drafting of the will and setting up of the Trust. She set out the reference in the will signed by Quoc on 16 May 2019 to Duc and Le being “the two most responsible people in my family” and the statement made by Quoc to Duc that he had “complete faith” in Duc’s ability to manage the Trust. Her Honour said that the position of trust and influence went beyond reciprocal confidence and influence, moving to dependence and subjection.

The appellants submitted that the confidence that Quoc had in Duc to make good decisions did not indicate that the relationship went anything further than being of trust and confidence.

The conclusion reached by the primary judge (set out at [59] above) involved an evaluative judgment as to whether the relationship between Quoc and Duc went beyond a close relationship between brothers so as to involve reliance, dependence, or trust on the part of Quoc that resulted in ascendency or dominion, or some element of moral or practical authority or superiority and correlative dependence or subjection on the part of Duc. Although the most significant person, Quoc, could not give evidence, her Honour did see and hear Duc give evidence. Whilst her Honour made no particular reference to any impression that she gained of Duc, this court needs to bear in mind that the primary judge had some advantage over an appeal court in that the former had the benefit of actually observing the witnesses as they gave evidence while the latter is confined to reading the documents and transcript.

The conclusion reached was based on a variety of circumstances which, if viewed separately, may have led to a different outcome but, when taken together, led the primary judge to her conclusion. The weight to be given to the various factors that her Honour identified in determining whether the relationship was one in which a presumption of undue influence would arise, involved matters of impression and judgment. Of particular significance for the primary judge appeared to be the third, fifth, and seventh features identified and addressed above. Having examined the evidence, and notwithstanding the submissions made on behalf of the appellants in relation to the individual features, it is not possible to conclude that the primary judge erred in reaching the conclusion that she did. The significant increase in contact between Duc and Quoc, his terminal and deteriorating health condition, his increasing alienation from his wife, and Quoc’s perception of Duc’s language skills and financial literacy all meant that the conclusion reached by the primary judge that the relationship was one in which Duc was in a position of ascendency over Quoc was one which was reasonably open to her to make. It is not one which this court can say involved an error and, hence, not one which should be departed from.

It is notable that Dixon J, whilst referring to the substantial nature of the gift, did not make express reference to the second limb as described in Allcard. However, he did refer to the acceptance of a benefit “which may well proceed from an abuse of the authority conceded to him”. That is consistent with the circumstances being such as to give rise to the possibility of there having been an abuse.

The existence of the second limb was made clear by his Honour’s judgment three years later in Yerkey. There, Dixon J said: But in the relations comprised within the category to which the presumption of undue influence applies, there is another element besides the mere existence of an opportunity of obtaining ascendancy or confidence and of abusing it. It will be found that in none of those relations is it natural to expect the one party to give property to the other. That is to say, the character of the relation itself is never enough to explain the transaction and to account for it without suspicion of confidence abused.

It is notable that his Honour, in articulating the second test, posited an enquiry targeted at whether it was possible to account for the transaction “without suspicion” of the confidence having been abused.

In Whereat, Asprey JA (with whom Holmes JA agreed) quoted (at 167-168) from Dixon J in Johnson as to when the first limb was satisfied, and continued: Where those circumstances are established and the gift is substantial the court will, to borrow from the judicially adopted argument of Sir Samuel Romilly in Huguenin v. Baseley “look upon such a gift with a very jealous eye and very strictly examine the conduct of persons in whose favour it is made”. The onus is upon the party seeking to set aside the gift to establish the facts from which the court will infer that a situation exists where undue influence may have been exerted. These situations will naturally vary from case to case. Once those facts have been shown to have existed, the presumption arises and the onus is then cast upon the donee to rebut it. (Footnotes omitted)

His Honour subsequently (at 172) found that the circumstances were that an “improvident gift of a very large amount which otherwise would have fallen for distribution amongst her four children in equal shares” had been given solely to her younger son, “in whom she placed implicit and unquestioning trust”. He continued: I am, therefore, of the opinion that in these circumstances the defendant is called upon to rebut the presumption by showing that so large a gift to him was the independent and well-understood act of his mother in a position to exercise a free judgment based on information as full as that which he himself possessed.

In Goldsworthy, Nourse LJ (with whom Parker LJ and Sir John Megaw agreed) explained the circumstances in which a presumption of undue influence might arise and made some additional comments, which included: Secondly, with relationships to which it does apply the presumption is not perfected and remains inoperative until the party who has ceded the trust and confidence makes a gift so large, or enters into a transaction so improvident, as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary men act. Although influence might have been presumed beforehand, it is only then that it is presumed to have been undue.

In Royal Bank of Scotland, Lord Nicholls referred (at [21]) to the second requirement as being “that the transaction is not readily explicable by the relationship of the parties”. After having referred to Allcard and Bank of Montreal v Stuart [1911] AC 120, he continued at [23]-[24]: The need for this second prerequisite has recently been questioned: … Mr Sher invited your Lordships to depart from the decision of the House on this point in National Westminster Bank plc v Morgan [1985] AC 686. My Lords, this is not an invitation I would accept. The second prerequisite, as expressed by Lindley LJ, is good sense. It is a necessary limitation upon the width of the first prerequisite. It would be absurd for the law to presume that every gift by a child to a parent, or every transaction between a client and his solicitor or between a patient and his doctor, was brought about by undue influence unless the contrary is affirmatively proved. Such a presumption would be too far-reaching. The law would be out of touch with everyday life if the presumption were to apply to every Christmas or birthday gift by a child to a parent, or to an agreement whereby a client or patient agrees to be responsible for the reasonable fees of his legal or medical advisor. The law would be rightly open to ridicule, for transactions such as these are unexceptionable. They do not suggest that something may be amiss. So something more is needed before the law reverses the burden of proof, something which calls for an explanation. When that something more is present, the greater the disadvantage to the vulnerable person, the more cogent must be the explanation before the presumption will be regarded as rebutted.

His Lordship then went on to consider the confusion that had arisen in relation to Lord Scarman’s reference to “manifest disadvantage” in National Westminster Bank plc v Morgan [1985] AC 686 in the context of wives guaranteeing their husbands’ bank overdrafts. His Lordship thought it was better to adhere more directly to the test in Allcard. That had the effect of making it less likely that in a husband and wife case a guarantee of one by the other would be seen as giving rise to a presumption of undue influence.

Notwithstanding that a multipart test is to be applied, it must be remembered that it is not a multistage process. The test for the existence of a presumption of undue influence and a determination as to whether or not any such presumption has been displaced occurs as part of the final determination of the case. All relevant facts will already be before the court. Thus, the determination of whether a presumption has been displaced will be made in light of the same evidence as the determination of whether any presumption arose in the first place. In addressing the second limb, all the evidence will be before the court. The second limb test articulated in Allcard must be understood as filtering out those cases in which the relationship between donor and donee is such as to remove the potential that the gift arises as a result of undue influence. The cases do not clearly articulate the threshold at which the potential for undue influence is sufficiently removed so as to avoid the enlivening of the presumption. Allcard refers to the gift being “reasonably accounted for” by ordinary motives. Johnson articulates the presumption arising where the benefit “may well proceed” from an abuse of authority. Yerkey refers to the relationship being not enough to account for the transaction “without suspicion of confidence abused”. All these formulations are targeted at the proposition that, in order to prevent the presumption from arising, the circumstances and relationship must be such that there is an insufficient indication of the potential for the involvement of undue influence to warrant its imposition.

In making this determination, the existence of a motive unrelated to the possible undue influence (“a strong independent motive”: Quek at 11,778) may be significant. However, it will only mean that the second limb is not satisfied if it sufficiently removes the potential of that motivation being “entangled” (to use Dixon J’s language) with the undue influence of the donee.

The determination of whether or not the second limb is satisfied must involve an evaluation of all the circumstances. As pointed out in Allcard, the nature of the gift will be of significance – “a distinction might well be made between gifts of capital and gifts of income, and between gifts of moderate amount and gifts of large sums”. Similarly, whether an alternative motivation reasonably accounts for the transaction may depend upon whether there remain aspects of the transaction that may have been the subject of undue influence. In Quek (at 11,778), the deceased was “clearly motivated by a desire to deprive her children of the opportunity of obtaining any substantial benefit from her estate”. However, that motivation was not sufficient to account for her choice of recipient of the property. Her selection of her pastor as the recipient of her gifts of real property was “difficult to reconcile with the absence of any influence arising from [his status] and his ascendancy associated with that status”.

In the present case, what is involved is a very substantial gift of money. The amount of $360,000 was a significant component of Quoc’s overall assets. The relationship between two siblings is not one in which it would be ordinary to expect such large gifts of money to be made. To adapt the words of Dixon J in Yerkey (which were in relation to gifts between a husband and wife) to the circumstances of gifts between two brothers, it could not be said that “there is nothing unusual or strange in a [brother] from motives of affection or even of prudence conferring a large proprietary or pecuniary benefit upon [his brother]”. Rather, “the character of the relation itself is never enough to explain the transaction and to account for it without suspicion of confidence abused”. However, it is said that Quoc had a strong motivation to remove this sum from the pool of assets from which it might potentially be claimed by his wife. That is certainly a strong independent motive. However, as in Quek, that is not a complete answer to the potential for the involvement of undue influence because it does not remove the potential for influence in relation to the choice of donee. That is particularly so because of the existence of his four children, in relation to whom he had clear moral obligations and to whom he may well have made a disposition in a manner that put the funds beyond the reach of his wife. Instead, the disposition to his brother carried with it no obligation to give any benefit to his children and was significantly greater than the disposition that he made at about the same time to his children via the establishment of the Trust.

The appellants are correct to point out that when the primary judge was considering whether the presumption arose, her Honour did not consider the second limb as so clearly articulated in Quek. Instead, her Honour considered (under the heading “A presumption of undue influence”) whether there was a presumption of undue influence only by reference to the first limb. However, when her Honour then considered (under the heading “The presumption was not rebutted.”) whether the presumption was rebutted in the circumstances, she did, in fact, consider the issue relevant to the second limb. It was at the end of that part of her reasons that she said (J [194]): 194. Having regard to Quoc’s circumstances at the time the gift was made, the value of the gift was so substantial and the transaction so improvident as to be inexplicable on the grounds of the ordinary motives on which ordinary persons act: Quek v Beggs (1990) 5 BPR 11,761 at 11,764 per McLelland J. The evidence before the Court was insufficient to rebut the presumption.

Notwithstanding that the primary judge did not follow the sequence in which the issue ought to have been considered, for the reasons given above, her conclusion on the issue raised by the second limb was still correct. The transaction was so improvident as to be inexplicable on the grounds of ordinary motives in the sense that the authorities require. The circumstances were such that the second limb was satisfied. As a consequence, notwithstanding the error in the manner in which the primary judge approached the issue, this ground of appeal is not made out.

As pointed out earlier, the circumstances were such that they would explain a desire by Quoc for his estate not to benefit Suqin personally, but they were not sufficient to explain the generosity towards Duc in preference to his own children for whom he had a greater moral obligation. The improvidence of the transaction occurs in a circumstance where Quoc had been dealing closely with Duc in the months leading up to his death in relation to his will and the establishment of the Trust, and where Quoc had received no independent financial or legal advice as to the manner in which he dealt with his assets. Further, the conduct of Duc after Quoc’s death in seeking to prevent Quoc’s superannuation entitlements from being paid to Suqin (J [245]-[251]), when that was directly contrary to Quoc’s will, is a strong indication, which was not displaced by Duc’s evidence, that in May 2019 he was not a disinterested factotum but was, rather, prepared to act directly against Suqin’s interests and indirectly against the interests of the children. In those circumstances, the primary judge was correct to conclude that the presumption had not been displaced as it had not been proved that Quoc was acting independently of any influence arising from the relationship of ascendancy Duc had over him.

The appellants also submitted that, having regard to the fact that the transfer of title to the Richardson property was a direct transaction between Le and Quoc, Suqin’s subjective understanding of the transaction and hearsay statements about the arrangement should be afforded little weight.

The submissions of the respondents sought to uphold the reasoning of the primary judge. They pointed to the fact that, although Le had produced her bank statements showing payments by her to Quoc in January 2008, she did not produce her bank statement for February 2008 in circumstances where records subpoenaed from ANZ Bank showed that Quoc made substantial payments back to Le in February 2008. They relied upon the submissions made to the primary judge explaining the “shuffle of funds” between the accounts. They submitted that the primary judge’s finding that the credit and debit of $65,330 into and out of Quoc’s account on 31 January 2008 was a payment from and to Le was correct. They submitted that Duc removed Quoc’s business and financial records from the Richardson property on 15 June 2019, with the assistance of Quoc’s eldest son, Edmund, who was apparently oblivious to the significance of its removal. They submitted that the appellants then “cherry picked” which of Le and Quoc’s bank statements to put into evidence, only including those from January and not those from February. Quoc’s bank statement from February was ultimately tendered after it was subpoenaed from ANZ Bank. They submitted that the February statement showed the “reversal” of the deposits made by Le in January 2008.

They sought to support the primary judge’s finding that the dealings with the Richardson property were consistent with the dealings with the Kambah property, along with another property owned by the family in Mackay in Queensland, by reference to the evidence in relation to those properties. They accused the appellants of approbating and reprobating when they accepted that the Kambah property was held by Quoc on trust for Khanh, but then contended that the Richardson property was not held by Le on trust for Quoc.

They denied that the evidence established that the transfer of the Richardson property to Le in 2008 was in order to provide Quoc with financial assistance, relying upon Suqin’s evidence to the contrary.

They pointed to the evidence that Quoc treated the Richardson property as his own, including by undertaking renovation works. They relied upon the primary judge’s finding that Le was a generally unreliable witness and that the documentary records provided by Le were to be approached with caution because of the lack of complete financial records produced by her. They placed emphasis upon Le’s failure to produce her bank statements from February 2008 in circumstances where “there can be no doubt” that Quoc’s records showed payments to her in that period.

In reply, the appellants submitted that the allegation that Le was “cherry picking” financial records that were disclosed was not addressed in the cross-examination of Le, and that the rule in Jones v Dunkel (1959) 101 CLR 298 may not be used to fill gaps in evidence. They also submitted that the Kambah and Richardson property transactions were only superficially similar and, hence, that the existence of a constructive trust in relation to the Kambah property could not be used as supporting the existence of such a trust in relation to the Richardson property.

It is necessary to set out the relevant passage from the primary judge’s reasons. 102. The discussion that follows deals with the various sums deposited and withdrawn from bank accounts between Quoc and Le. The end result will be a finding that Quoc retained an equitable interest in the Richardson property at the time he transferred it to Le. 103. In December 2005, Quoc purchased the Richardson property. He paid $321,000. To finance that purchase, he used a combination of a home loan from the ANZ bank and the proceeds of sale following the transfer of the Mackay property from Duc to Le. 104. In late 2007, Quoc was said to have been facing financial difficulties. Le agreed to take over or “purchase” the Richardson property from Quoc for $350,000. 105. The catalyst for this arrangement was said to be to allow him to pay for Suqin’s mother’s visa application. Suqin disputed this. She did not believe that Quoc would have needed to raise funds to pay for her mother’s visa application given that Quoc had been transferred $12,000 by Suqin and $10,000 by her mother. Ultimately, nothing turns on the specific reason for Le taking the legal title to the Richardson property. 106. Le argued that she held the legal and beneficial title to the Richardson property from 31 January 2008. Her evidence was: (a) That the transfer of the title from Quoc to her was a purchase, effectively an arm’s length transaction at market value. (b) That she paid $350,000, financed by – (i) a loan of $285,000 from Members Equity bank (the ME loan) and (ii) $65,000 of her own money. (c) The amount required to pay out Quoc’s mortgage with the ANZ Bank was $232,644. (d) The proceeds of sale, as recorded on the settlement statement, were $117,266. 107. Prima facie, the paper trail in relation to the transfer of the Richardson property on 31 January 2008 reflects Le’s evidence. That is: (a) There are documents to support her taking out of a mortgage with Members Equity in the amount of $285,000; (b) There is also an unidentified deposit into Quoc’s account on 31 January 2008 of $232,324; and (c) There is an unidentified deposit into Quoc’s account on 31 January 2008 of $65,330. 108. The inference I have drawn is that the unidentified deposits came from the settlement monies provided by Le. 109. However, that is not the full story. When closer scrutiny is paid to the money flowing between Le and Quoc at the time, it can be seen that the “purchase” was more of a family arrangement. Quoc’s bank records in 2008 demonstrate that although the mortgage was taken over by Le and she paid various sums of money to Quoc, Quoc then repaid money to Le sufficient to retain equity, or an equitable interest, in the Richardson property at the time of settlement. 110. The detail underlying the finding that the transfer was a family arrangement and not a complete transfer of legal and equitable interest to Le is as follows: (a) In the days leading up to the settlement, there are three deposits from LN Tong into Quoc’s bank account, totalling $91,896. (b) Then on the day of settlement, immediately following the unidentified deposit of $65,330, the same amount was withdrawn from Quoc’s bank account. (c) From 31 January 2008 and up to 21 February 2008, the ANZ bank statement for Quoc’s account in that time period records Quoc making various transfers totalling $52,658.04 to “Le Ngoc To”, with the last two letters of Le’s surname plainly being cut off from the description. (d) There is also a further unidentified withdrawal on 5 February 2008 of $25,536.41. 111. As to the unidentified deposit of $65,330, the plaintiffs submitted that the first unidentified withdrawal on the day of settlement was money being repaid to Le. If that amount is added to the amounts that the narrative indicates were payments to Le, it leads to the inference that Quoc repaid the $117,988.04 in what were described as the proceeds of sale (also described as the equity in the property after the mortgage was repaid). 112. The net result from the shuffling of money appears to have been that: (a) Le paid to Quoc $157,226, (b) Quoc paid to Le $143,524.45, (c) Quoc therefore received $13,701.55. It was unclear who paid the stamp duty on the property, but the stamped duty that was paid was $12,250.00. 113. Alternatively, if it were assumed that the unidentified withdrawal of $25,536.41 was not a repayment by Quoc to Le, the amount Quoc would ultimately have received increases to $39,237.96. It is not necessary to make any finding about that amount. 114. What is critical is that, within two weeks of the settlement occurring, Quoc had transferred back to Le sums of money which totalled $117,988.04, slightly more than what he was formally recorded on the settlement sheet as having just received from her. The amount represented the equity Quoc had held in the asset (by reference to a market valuation obtained at the time). 115. If it were necessary to infer a reason for the slight discrepancy in the amount repaid to Le, I would attribute it to things like the mortgage discharge and bank draw down and conveyancing fees. 116. In making the repayment, Quoc arguably had at least a resulting trust in respect of the sums paid as a percentage of the purchase price at the time of the transfer. However, I have passed over that, as it is overtaken by the finding in respect of the interest in the entire property. 117. Counsel for the defendants took issue with any inference that the $65,330 was paid to Le because of the lack of a narrative to that effect on the bank statement. It was submitted that the Court could not draw such an inference from the evidence, because inferences may only be drawn from primary facts. Further, because the $65,330 was taken from Quoc’s bank account by withdrawal rather than by electronic transfer (as was the case for the other transfers or money to Le), that should lead to an inference that the money was paid to someone other than Le. 118. I disagree with both submissions. Le accepted in evidence that if the ANZ bank statement recorded the transactions as being made to her, then that was what occurred, and further, that her memory of the financial transactions at that time was poor. Both the bank records and oral evidence established as a primary fact that $52,658.04 was repaid to Le in the few weeks following the transfer of the Richardson property. The bank statement which would have disclosed either way whether the money went into Le’s account or not was not in evidence, but that does not mean that without it, the Court cannot draw any inference from the surrounding circumstances and transaction. 119. The $65,330 was withdrawn from Quoc’s account on the day of the settlement. The timing of the transaction is a primary fact that is consistent with the money being related to the Richardson property purchase. The amount withdrawn is also a primary fact. It is an amount that squarely ties in with Quoc repaying the equity in the Richardson property to Le. There is also a degree of common sense brought to bear on whether the inference may properly be drawn: the repayment of $65,330 to Le is consistent with Quoc acting according to fairness, so that he did not make any financial gain out of his sister, when she was doing him a favour by taking over the legal responsibility for the mortgage. 120. Added to this is the absence of contradicting facts. Le said she did not remember what the amount was for, and she did not produce her bank records after 31 January 2008 in response to a notice to produce seeking those documents. It is not necessary to go so far as to draw a Jones v Dunkel (1959) 101 CLR 298 inference from the failure to produce (a course for which the plaintiffs contended), as I consider the inference that the unidentified money was paid to Le in relation to the Richardson property purchase to be reasonably open from the other surrounding circumstances without it. But the absence of such evidence simply means that there was no evidence that Le did not receive that unidentified payment from Quoc in addition to the $52,658.04. 121. On the balance of probabilities, I find that it is more likely than not that the $65,330 was paid to Le along with the other amounts that she accepted as having been paid to her at the time. However, even if the $65,330 were put to one side, Le’s attempt to distinguish the family arrangement in relation to the Kambah property from the family arrangement in relation to the Richardson property ignores Quoc’s repayment of the other significant sums of money totalling $52,658.04 to her. 122. As the plaintiffs submitted, what occurred was a shuffling of money between Le and Quoc to effect on paper the sale of the property for $350,000. That was an amount that matched the property valuation for stamp duty purposes and that enabled Le to support any claim that the Richardson property was an investment property. What really happened was that Le effectively only took over Quoc’s mortgage which required the taking over of the legal title, to help her brother out financially. 123. The conclusion that the Richardson property transfer was another family arrangement which included Quoc as seller still retaining the equity in the property defeats Le’s argument that she became the beneficial owner at the time of the transfer. Quoc’s conduct in paying the moneys referred to above to Le is consistent with Quoc demonstrating an intention to retain his equitable interest in the Richardson property and inconsistent with Le obtaining a beneficial interest. Even though Le could no longer recall (in the witness box) receiving any money back from her brother from the day of the sale and shortly afterwards, or give any explanation as to what those sizeable amounts were for, the fact that she accepted those payments at the time demonstrates her knowledge of that same position.

We consider that the finding in relation to the payment of $65,330, that it was an amount paid to Le, was an inference that could not be drawn in the circumstances. Taken together, the circumstances were insufficient to demonstrate that this payment was to or for the benefit of Le, unless it was assumed, as part of the circumstantial factors, that there was an intention to transfer $117,000 or thereabouts back to Le at the time of the transaction. To make that assumption would involve an element of circularity: assuming a transfer back of the whole of the net proceeds as a factor in proving that the intention was to transfer back the whole of the net proceeds. However, that conclusion does not mean that the primary judge’s ultimate conclusion that the Richardson property was held in trust should be disturbed.

As will be apparent from quoted paragraph 121, even though the primary judge found that it was more likely than not that the $65,330 was paid to Le along with the other amounts, her Honour’s conclusion was not dependent upon that finding being made. She found that, even if that payment was put to one side, because of the undoubted payments totalling $52,658.04, the family arrangement in relation to the transfer of the Richardson property could not be distinguished from the family arrangement in relation to the Kambah property. Her Honour then concluded (J [122]) that the shuffling of money enabled Le to support a claim that the Richardson property was an investment property. The fact that the primary judge’s conclusion was not dependent upon the full figure of $117,988.04 having been paid but could alternatively be based upon the undoubted payments totalling $52,658.04 was made clear by the subsequent reference to that alternative foundation when discussing her conclusions in relation to the Richardson property at [163].

The second aspect that the primary judge relied upon was the history of dealings between members of the Tong family. Her Honour was addressing the issue in the context of other family arrangements which had placed the legal ownership of particular properties with persons other than the beneficial owner of those properties. Her Honour had found that the Kambah property, of which Quoc was the registered owner, was held by Quoc on trust for his mother, a finding which is not challenged on appeal. Her Honour had also recounted the series of transactions relating to Quoc’s beneficial ownership of a property in Mackay in Queensland, of which Duc was the original registered owner, but then ownership was subsequently transferred to Le. Therefore, the proposition that residential real estate would be held by members of the family on trust for other members of the family and those other members of the family would make payments characterised as “rent” was something which was routine within the Tong family, rather than unusual.

Although not referred to in the judgment, there was some evidence of the manner in which the arrangements flowed through to provide tax benefits to the family members. Although Le’s tax returns were not produced to the court, there was evidence of the quantum of investment property losses in Quoc’s tax returns. The supplementary section of Quoc’s tax returns for financial years 2009-2010 and 2011-2012 were tendered through Suqin. Each showed significant residential property losses were claimed in relation to the Kambah property which the primary judge found was held on trust for Khanh, or Khanh and Le.

The third circumstance relied upon by the primary judge was the evidence as to how Quoc treated the property himself. Her Honour found that it went beyond the conduct of a tenant. He undertook renovations to the laundry and constructed a large concrete slab, apparently intended for the purpose of building a shed. Although Le originally outlaid the expense, it was reimbursed by Quoc. Her Honour’s conclusion that Quoc and Suqin “continued to do whatever was desirable or necessary to maintain or improve the property, including expending significant sums of money,” was not challenged. The primary judge also referred (J [136]) to an “unguarded” answer by Le in cross-examination, in which she gave an answer which appeared to recognise that the Richardson property was Quoc’s.

The fourth circumstance was Suqin’s treatment of the Richardson property as her own asset. This was an aspect of the primary judge’s reasons that was specifically challenged. Contrary to the submissions made on behalf of the appellants, the evidence given by Suqin about the nature of the transaction was significant. She gave affidavit evidence that, in October 2008, Quoc had made arrangements with Le in relation to the Richardson property so as to allow Le to claim tax deductions. Le then had the opportunity to give any evidence that she wished in relation to Suqin’s evidence. With this evidence having been admitted, the issue of what weight Suqin’s evidence ought to be given was a matter for the primary judge. Having regard to the advantage that her Honour had in having seen and heard both Suqin and Le give evidence and having regard to her Honour’s adverse conclusion about the reliability of Le’s evidence, it was open to her to place more weight upon Suqin’s evidence as to Quoc’s understanding of the nature of the agreement. It is certainly not the case that this court, having not seen and heard the witnesses give their evidence, must, because of the potential for Suqin’s evidence to be self-serving, reach a different conclusion as to the reliability of that evidence to that reached by the primary judge.

The primary judge’s conclusion was expressed at [162]-[164]: 162. Drawing all those factors together, the requisite common intention for the establishment of a constructive trust between Le and Quoc is demonstrated by: (a) The substantial payments made by Quoc to Le in respect of the Richardson property at the time of the title being transferred to her. (b) The conversations Quoc had with Suqin about what he believed occurred when the title was transferred. (c) The rental arrangement on paper being the same as the rental arrangements on paper in respect of other assets owned among the Tong family members, including the Kambah property. (d) The evidence that Quoc and Suqin continued to take responsibility for the upkeep and improvements on the Richardson property. (e) The substantial payment Quoc made to totally pay off the loan at the end of his life. 163. The requisite detriment is established by Quoc at least paying substantial sums of money to Le in January and February 2008 ($117,988.04 or alternatively at least $52,658.04), $7,865 for the renovation works, and then $260,000 for the final payout of the loan. Other amounts may also arguably be included as constituting detriment, such as the rental payments on the basis that Quoc believed the payments to be for his own mortgage. 164. Accordingly, the plaintiffs have established that the Richardson property was held on constructive trust for Quoc. That means the issue of whether the transaction should be set aside for undue influence or unconscionable conduct falls away, because the $290,150 cheque provided to Le was not a “gift” or any benefit to Le.

Having regard to the variety of circumstances pointing to the conclusion that the primary judge reached, the absence of reliance for the purposes of the conclusion on establishing that the $65,330 was an essential component in her reasoning, and the capacity to rely upon the evidence given by Suqin about Quoc’s contemporaneous understanding of the arrangement entered into in 2008, the primary judge did not err in reaching the conclusion that the Richardson property was held on trust by Le for the benefit of Quoc.

The submissions of the respondents were that they did not wish to “appeal” from orders 4, 5 and 6. Instead, they described their cross-appeal as follows: 8. The purpose of the Cross Appeal is not to appeal from all or part of Orders 4, 5 and 6 but to seek amendment of the orders made by Her Honour by removing the ACT Public Trustee and Guardian as executor and trustee and by appointing [Edmund] and [Suqin] jointly as executors and trustees.

The basis upon which they sought those amendments were that: (a) the primary judge did not have the benefit of the further information that the respondents now seek to put before the court; (b) it would be in the interests of justice, having regard to the likely impact of the Public Trustee’s charges and expenses; (c) Edmund and Suqin are suitable persons to be appointed.

In oral submissions, counsel for the respondents submitted that because what was sought was an “amendment”, it was not necessary for them to demonstrate any error on the part of the primary judge in order to succeed on the cross-appeal. That is said to be because r 5413 of the Court Procedures Rules 2006 (ACT), which relates to cross-appeals, refers to a respondent wanting to “appeal from” or wanting “an amendment of” an order. He submitted that the language of “amendment”, therefore, does not involve a cross-appeal as such; rather, it involved asking for an amendment. No authority was pointed to in relation to this distinction.

The appellants (as cross-respondents) neither consented to nor opposed the filing of further evidence.

They did submit, however, that, although styled as an amendment to the primary judge’s orders, it remained necessary for the respondents to demonstrate an error on the part of the primary judge within the principles stated in House v The King (1936) 55 CLR 499. They submitted that, having regard to the primary judge’s reasons given in the primary judgment and in Tong (No 2), the respondents had not demonstrated any error on the part of the primary judge. Whilst the appellants have no direct interest in the future administration of the estate or the Trust, they did not oppose but did not expressly consent to the orders sought by the respondents. Nevertheless, in order to assist the court as a contradictor, they support the observations made by the primary judge as to the benefits of appointing an independent person to administer the estate and the Trust. Decision Appeal or amendment?

It is first necessary to work out the nature of the cross-appeal in light of the submission made by the respondents that there was a distinction between appealing from an order and seeking the “amendment” of an order that would relieve the moving party from the need to establish error.

That submission cannot be accepted. The use of the word “amendment” is not intended to avoid the need to establish error. It is, instead, intended to cover the situation in which the cross-appeal seeks, if it is successful, to vary some part of the judgment appealed from. That is made clear when regard is had to the legislative history.

The predecessor of r 5413 was found in the Supreme Court Rules 1937 (ACT) at O 86 r 30, which, relevantly, provided that: 30 Cross-appeal (1) A respondent who wants to appeal from part of a judgment, or to seek a variation of part of a judgment, need not begin a substantive appeal. (2) However, the respondent must— (a) file a notice of cross-appeal within 21 days after the day the notice of appeal is served on the respondent, or within any further time allowed by the Court of Appeal; and (b) serve the notice on— (i) the appellant (or each appellant); and (ii) any other party to the proceeding in which the judgment appealed from was given, who is affected by the judgment that the respondent seeks. (3) The notice of cross-appeal must state— (a) what part of the judgment the respondent cross-appeals from or contends should be varied; and (b) briefly, but specifically, the grounds of the cross-appeal; and either— (i) the judgment that the respondent seeks instead of the judgment cross-appealed; or (ii) the variation of the judgment that the respondent seeks.

Of particular relevance is subs (3), where, in describing the content of the notice of cross-appeal, the Supreme Court Rules referred to the “part of the judgment the respondent cross-appeals from or contends should be varied” and refers to the notice specifying either “the judgment that the respondent seeks instead of the judgment cross-appealed” or “the variation of the judgment that the respondent seeks”.

Order 86 was inserted after the establishment of the Court of Appeal by the Supreme Court Amendment Rules 2002 (No 3) (ACT). The explanatory statement for the amendment to the Supreme Court Rules indicated that the amendment relating to the Court of Appeal were based on the Federal Court Rules which regulated appeals and set out the procedure to be followed: Explanatory Statement, Supreme Court Amendment Rules 2002 (No 3) (ACT). The relevant equivalent rule at the time was O 52 r 22 of the Federal Court Rules 1979 (Cth), which also referred to a cross-appeal being necessary where a respondent wishes to “appeal from a part of the judgment or to seek a variation of a part of the judgment”.

Upon the transition from the Supreme Court Rules to the Court Procedures Rules in 2006, the rules relating to appeals and, in particular, the rules relating to cross-appeals, were substantially remade. However, it is apparent that the legislative drafter responsible for the Court Procedures Rules did not wish to carry over the use of the word “variation” and, instead, preferred the word “amendment”. Multiple references to “variation” were removed from the rules and that was the case with newly made r 5413 as well. References to “varied” or “variation” that had before appeared in O 86 r 30 were removed and references to “amend” and “amendment” were included in their stead. The changes that were made to r 5413 were simply changes of drafting style, reflecting the legislative drafter’s preferences as to the language that should be used in Territory laws, as opposed to a specific effort to change the meaning or intent of the rule.

The earlier Supreme Court Rules and Federal Court Rules, which referred to the variation of the judgment on cross-appeal, were plainly intended to cover the situation in which a variation of the order appealed from was sought, rather than a wholly different order, and should not be viewed as creating a lesser burden on the respondent. The same requirements to justify such a variation as existed in relation to an appeal would apply, namely, the establishment of error. In light of this legislative history, which demonstrates that the word “amend” is intended to be the equivalent of “vary”, r 5413 is appropriately interpreted as not dispensing with the requirement to establish error as a condition for the success of the cross-appeal. It does not give to the Court of Appeal a general power, not conditioned upon the existence of an error, to amend the order the subject of the cross-appeal.

For these reasons, it is necessary on a cross-appeal to establish error on the part of the primary judge. In the present case, although the grounds in the cross-appeal are not formulated by reference to any error, it is possible to interpret them as impliedly asserting that, in light of the additional evidence, an error is established in the decision of the primary judge to appoint the Public Trustee as executor of the estate and trustee of the Trust. Admission of further evidence

A ruling on the admissibility of the further evidence was deferred until the court’s judgment. Further evidence may be admitted on appeal pursuant to s 37N(3) of the Supreme Court Act 1933 (ACT). The general principles to be applied are described in Jovanovic v The Queen [2015] ACTCA 29 at [22]-[23]; Leighton v The Queen [2017] ACTCA 55 at [23]-[24] and TS v DT [2020] ACTCA 43 at [58].

The Originating Claim before the primary judge sought to remove Duc as executor of the estate and remove Fortitude, of which Duc and Le were the directors and shareholders, as trustee of the Trust. Instead, the claim sought to have Suqin substituted as the trustee of the Trust and the executor of the estate. The evidence led before the primary judge focused on the asserted unsuitability of Duc and Le and their company, Fortitude, to be the executor and trustee due to their own personal interests conflicting with the best interests of the children and because “they have betrayed the Deceased’s trust in them”.

During the course of proceedings, the primary judge raised with counsel the possibility of an independent executor and trustee being appointed. Counsel for the respondents at the trial recognised that as a possible course and did not make any submissions to the contrary. Counsel for the appellants were “comfortable for an independent person to be appointed”; however, they did specifically oppose Suqin being appointed as trustee. During the course of submissions, the primary judge appeared to contemplate that the parties would be given some further opportunity to identify a suitable person or entity, though counsel for the respondents stated that he was not aware of any independent person known to Suqin. The primary judge then raised with counsel that the Public Trustee was “not a bad option”, and provided, as an example, its experience in investing funds. In her judgment, her Honour concluded that it was appropriate to remove Duc as executor of the estate and Fortitude as the trustee of the Trust so that an independent executor and an independent trustee could be appointed. She did not give reasons in her judgment for appointing the Public Trustee as executor of the estate and trustee of the Trust.

The primary judge then allowed the parties to file further written submissions and evidence, addressing the question of costs and pursuant to the liberty to apply that had been granted. The respondents sought, pursuant to the grant of liberty to apply, to have Edmund individually or, alternatively, Edmund and Suqin jointly appointed as executor of the estate and trustee of the Trust in place of the Public Trustee. That was put on the basis of the potential for the fees and charges of the Public Trustee to deplete the assets of the estate and the Trust, as well as the increased inconvenience to the beneficiaries owing to the involvement of the Public Trustee.

In Tong No 2, the primary judge referred to her earlier reasons in which she had indicated (J [255] and [268]) that an independent executor and independent trustee would be preferable. Her Honour (at [28]) characterised the respondent’s request as being to place the funds in the hands of a private trustee “where the private trustees proposed are persons who may have competing or conflicting interests with other family members as to how to manage or spend the inheritance that was left to them”. Her Honour said that the “driving concern” in appointing the Public Trustee was to avoid further conflict and that the “appointment of the Public Trustee was made in full awareness that the child plaintiffs (who were not separately represented) had sought for their mother to be appointed as Executor and Trustee”: Tong No 2 at [29]. She pointed to the potential for Edmund to be influenced by his mother and the absence of any evidence that he had sufficient experience to manage the Trust or make decisions about a property asset of substantial size.

As a consequence, her Honour concluded that, even had she found that the application to replace the Public Trustee with Suqin or Edmund or both was within the scope of the grant of liberty to apply, she still would not have varied the orders made.

Insofar as the evidence sought to be admitted describes the educational and professional qualifications of Suqin, that evidence was available at first instance and could have been put on in support of the claim that Suqin should be appointed as executor and trustee. So, too, might evidence have been put on as to the costs involved in the appointment of the Public Trustee. The evidence of Suqin is that she provided no instructions to her counsel at the time that he discussed the possible appointment of an independent trustee with the primary judge. There was no evidence as to why, if the apparently reasonable statement by counsel for the respondents that “the Public Trustee could be appointed” might have been a matter of concern, the solicitor for the respondents did not take instructions at the time or seek to put on further evidence. However, it is also apparent that her Honour at that stage contemplated the possibility of further submissions being made on that issue, at least to the extent that, prior to making final orders, the parties be given the opportunity to provide names for potential alternative appointees as executor and trustee.

So far as the evidence in relation to Edmund is concerned, the potential for Edmund to be appointed as executor and trustee, either by himself or jointly with his mother, only arose upon him becoming an adult. That occurred in December 2022, after the primary judge had reserved her decision but before she had handed down her judgment. Although there appears to have been some form of hearing on 2 February 2023, it appears that, as a matter of substance, the potential for Edmund to be appointed as executor and trustee only arose after the conclusion of the case.

Given that: (a) the primary judge was granting relief that was different to that which was sought in the respondents’ claim; (b) Edmund only became a possible executor or trustee once he became an adult; and (c) there were indications before the primary judge that she would hear the parties further prior to the appointment of an independent executor and trustee; it is appropriate to admit the further evidence on the appeal so as to enable the court to deal with the point of substance.

The cross-appeal will be dismissed.