Thai Tong Lian bht Kim Seng Chew v Kim Hock Chew [2021] NSWSC 639

Supreme Court New South Wales

Medium Neutral Citation: Thai Tong Lian bht Kim Seng Chew v Kim Hock Chew [2021] NSWSC 639 Hearing dates: 3 June 2021 Date of orders: 3 June 2021 Decision date: 03 June 2021 Jurisdiction: Common Law Before: Campbell J Decision: Orders in accordance with the form of consent orders Catchwords: CIVIL PROCEDURE – Approval of settlement – Legal incapacity – Plaintiff of an advanced age – Where shares in wound up company held on trust by defendant on condition he care for the plaintiff – Whether settlement in plaintiff's best interests – No question of principle – Approval granted Legislation Cited: Nil Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Thai Tong Lian by her tutor Kim Seng Chew (Plaintiff) Kim Hock Chew (Defendant) Representation: Counsel: M. Maconachie (Plaintiff) J. Clifton (Defendant)

Solicitors: Nexus Law Group (Plaintiff) Raymond Lee & Co (Defendant) File Number(s): 2020/150379 Publication restriction: Nil

EX TEMPORE Judgment 1. These proceedings are before me for the approval of a proposed settlement between the plaintiff, Madame Thai Tong Lian, and the defendant, Kim Hock Chew. The proposed settlement requires approval as Madame Thai, who sues by her tutor, Kim Seng Chew, is, I am satisfied on the evidence before me, and for the purpose of these proceedings, a person who is incapable of managing her own affairs by reason of her age, she is about 99 years of age, and her medical condition which on the medical evidence attached to the tutor's affidavit includes a condition of dementia. She resides permanently in a nursing home facility in Malaysia. 2. The dispute might be described as an intra‑family dispute involving an extended Australian-Malaysian family. The instant proceedings involve a claim by the plaintiff, or on her behalf, for money had and received by the defendant, being the proceeds of the voluntary winding up of a property‑owning company incorporated here in Australia and, at one time, the registered proprietor of a commercial development in Sydney. The property was sold for a sum of around $36.8 million. The plaintiff claimed to be the holder of a parcel of shares entitling her to a 15% stake in the company. 3. It is the defendant's case that the plaintiff held those shares on trust for him. The trust was said to have been created orally by the pater familias who seems to have been the architect of the extended family's financial success. The plaintiff is the pater familias's first wife, and the defendant is the son of his second wife, a Madame Yap who has since passed away. The defendant acknowledged that the trust here is subject to conditions imposed by the pater familias at the time of the creation of the trust that the defendant care for both his mother, Madam Yap, and the plaintiff, Madam Thai, in their old age. 4. The dispute extends beyond the current proceedings. As I have said, it is a large extended family, and there are apparently proceedings in the courts of Malaysia in relation to who should be responsible for the care of Madame Thai. There is also a property dispute concerning a house in Sentul, a suburb of Kuala Lumpur, in which Madame Thai has a 50% interest. The remaining 50% forms part of the residue of the Estate of Madame Yap of which the defendant is the executor. It is a term of the agreement that Madame Thai, or those responsible for managing her affairs, will transfer her current interest to the defendant. 5. I should say that on the evidence of her tutor in his affidavit of 22 May 2021, the home in Sentul is currently unoccupied and effectively boarded up because of Madame Thai's incarceration in the nursing home. It is an old house in need of repair, and Madame Thai is not able to continue to reside there because of her present circumstances. 6. The proceedings were referred to mediation, and the parties took the opportunity to settle all of the disputes between, and amongst, them, and recorded those agreements in a document entitled, "Heads of Agreement" which is annexed to the affidavit of the plaintiff's solicitor. 7. So far as the plaintiff's claim in the present proceedings is concerned, the arrangement is that a succession of trusts will be established, funded by the defendant for the purpose of maintaining Madam Thai in the care facility where she presently resides, and providing for her necessary attendant care and attention. There are two trusts, because of her great age, and on the medical evidence her life expectancy is uncertain. The intent of establishing two trusts is that in the event of her early demise, the second trust will, as it were, fail, and the sums intended to establish that will revert to the defendant. 8. The form of trust is provided for in the Heads of Agreement and also in the consent orders. The proposed trustee is a chartered accountant, and he has consented to act as trustee. There is also evidence from a solicitor who knows him well, vouching for his good character, repute and business habits. The solicitor swears that Mr Low is a fit and proper person to act as a trustee and I accept that evidence. The same solicitor witnessed Mr Low's signature on the consent to act. 9. I have also had the benefit of considering a body of confidential material prepared by counsel retained on behalf of Madame Thai, which I have taken into account, and which will remain on the Court file and its confidentiality will be maintained. 10. Having regard to all of the circumstances, as they have been set out in the evidence read, I am satisfied that the establishment of the trusts is an appropriate settlement of the proceedings in the interests of Madame Thai, and I am prepared to approve those arrangements as a compromise of the current proceedings. It is proposed that the proceedings will be dismissed on terms that they may not be recommenced, and that the defendant will pay the plaintiff's costs in a specified sum agreed between the parties. 11. To the extent to which I have the power, bearing in mind that the Heads of Agreement seek to bring all outstanding matters in contest between the parties to this litigation to an end, I am satisfied that the whole arrangement is in the best interests of the plaintiff. 12. I make orders in accordance with the form of consent orders handed up by counsel, signed by the plaintiff's solicitor and by the defendant. 13. I will simply add by way of addendum that I have considered the fees proposed to be charged by Mr Low in the execution of his office as trustee, and the rates he has outlined are, in my judgment, reasonable.