Chan v Chan [2016] NSWCA 222

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chan v Chan [2016] NSWCA 222 Hearing dates: 28 June 2016 Decision date: 24 August 2016 Before: Basten JA at [1]; Simpson JA at [74]; Payne JA at [75] Decision: (1) Dismiss the cross-appeal and order that the cross-appellant (Benedict Chan) pay the costs of the cross-respondent (Clement Chan) of the cross-appeal.

(2) In respect of the appeal, (a) Allow the appeal and set aside the order of Darke J made on 30 July 2015 dismissing the application by Clement Chan under the Succession Act 2006, with respect to the estate of his late father, August Ying Kiang Chan. (b) Set aside the orders made by Darke J on 16 September 2015 in relation to the costs of proceedings 2013/187391. (c) Extend the time for the making of the application until 18 June 2013. (d) Subject to (f) and (g) below, order that further provision be made out of the estate of August Ying Kiang Chan in an amount of $700,000 payable to the appellant, Clement Wai Shing Chan. (e) Refuse leave to the appellant to file an amended notice of appeal. (f) Remit the matter to the Equity Division to consider any application by either party pursuant to s.66(1) of the Succession Act 2006 for the provision ordered under (d) above to be held on a protective trust for the appellant and to be applied to the use of the appellant towards the repair and maintenance of the property at 10 Robert St, Gordon and otherwise for the appellant's needs, with such powers of investment as are prescribed in Pt 2, Div 2 of the Trustee Act 1925 (NSW). (g) Stay the order for further provision in (d) above for 28 days or for such further time as may be ordered by a judge of the Equity Division to allow the determination of any application made in accordance with (f) above. (h) Order that the respondent, Benedict Chan, pay the costs of Clement Chan in this Court and in the Equity Division. Catchwords: SUCCESSION – family provision – claim by adult son – applicant suffering degree of functional impairment – history of financial dependence on testator – testator provided son with house and costs of maintenance during father's lifetime – accommodation in significant disrepair – whether testator made adequate provision – adequacy of provision determined in context of pre-existing condition and station in life – relevant factors include size of estate, proportion conferred on respondent, respondent's financial need – Succession Act 2006 (NSW), ss 59(1), 60(2)