Application of Yi

1. [1]

   This matter comes before me as duty judge. The applicant, Mr Chong Eun Yi, seeks urgent judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW), in his capacity as executor of the estate of his mother, the late Young Ja Yi (the deceased).

2. [2]

   The subject of the judicial advice concerns the maintenance of an appeal presently on foot in the Court of Appeal, pursuant to which Mr Yi appeals the judgment given by Elkaim AJ in Eun Ju Park v Chong Eun Yi as executor of the late Young Ja Yi [2024] NSWSC 294 (Park v Yi), as well as a costs judgment Eun Ju Park v Chong Eun Yi as executor of the late Young Ja Yi (No 2) [2024] NSWSC 372 (‘Park v Yi Costs’). I will generally refer to those proceedings as the principal proceedings. In those principal proceedings, Eun Ju Park, who is Mr Yi’s sister, obtained judgment against Mr Yi in his capacity as his mother’s executor, together with costs, for repayment of amounts which Elkaim AJ found to be payable pursuant to a written “deed of loan agreement” between Ms Park, on the one hand, and the deceased, on the other.

3. [3]

   The statement of claim in the principal proceedings was filed on 6 May 2022. Mr Yi filed a cross-claim on 27 June 2022. An amended statement of claim was filed on 12 May 2023. Elkaim AJ heard the matter on 13 and 14 March 2024 and delivered his reasons in Park v Yi on 22 March 2024. Park v Yi Costs was delivered on 11 April 2024

4. [4]

   On 17 April 2024, Mr Yi filed a notice of appeal.

5. [5]

   At no point before 5 June 2024 the Court approached to give advice as to whether Mr Yi was justified in filing or maintaining his defence and cross-claim in the principal proceedings. The urgency in this application is thus of the applicant’s own making.

The principal proceedings

1. [6]

   In Park v Yi, Elkaim AJ determined a claim made by Ms Park for the recovery of a loan pursuant to a “Deed of Loan Agreement”. To step back, the late Young Ja Yi (‘the deceased’) died on 4 June 2020, leaving a will which provided:

   1. (1)

      $300,000 to Ms Park;

   2. (2)

      $200,000 to Mr Yi; and

   3. (3)

      Of the residue:

2. [7]

   The deceased left a house in Concord West with a value of $2,680,000 on her death. Ms Park’s case was that she had loaned her mother $300,000 in 2012, which was used to renovate the Concord West house. The house comprised the bulk of the deceased’s estate. This arrangement was regularised by a document entitled ‘Deed of Loan Agreement’ (‘the Loan Agreement’) made on 13 July 2017, which recites the above ‘loan’ and records that the parties agreed that the $300,000 would be repaid on the house’s sale or the death of the deceased, together with a fixed amount of interest, namely $200,000.

3. [8]

   Elkaim AJ held that in around 2011 or 2012, Ms Park had reached an agreement with the deceased as follows:

4. [9]

   Pursuant to this agreement, Ms Park paid $370,000 to the deceased. The relevant construction occurred and Ms Park did generally receive $450/week in rent for the granny flat, although sometimes the deceased kept this money. Mr Yi moved his family into the granny flat in 2017 which ended Ms Park’s rental receipts.

5. [10]

   Ms Park spoke to a solicitor in 2017 about recovering money from her mother, and thus sought to regularise the arrangement that had developed. Presumably this was, in part, due to the fact that she was no longer receiving rental income. One option that was suggested was the use of a Will to ensure repayment, but it appears that the deceased wished to use a separate agreement. This is what occurred. The deceased, on 2 June 2017, executed a will, pursuant to which the whole of the deceased’s estate went to her husband, but if he did not survive her then the estate was to be split, with 60% given to Mr Yi and 40% given to Ms Park. Elkaim AJ placed some significance on this document shortly pre-dating the Loan Agreement, insofar as it showed that the deceased could distinguish between the two documents (when her state of mind was put in issue).

6. [11]

   The hearing before Elkaim AJ was, in his Honour’s words, “awash with claims and counterclaims about their respective relationships with the deceased”: Park v Yi at [16]. It was evidently bitterly fought. Much of the evidence was ultimately not relevant to the true issues in dispute, namely the legal effect of the Loan Agreement.

7. [12]

   The applicant, by way of an essentially defensive cross-claim, asserted the following in response to the Loan Agreement:

   1. (1)

      the Loan Agreement was not a deed because it did not comply with s 38 of the Conveyancing Act 1919 (NSW), in particular because the signatures of the parties to the agreement had not been witnessed by an independent person;

   2. (2)

      the Loan Agreement was not an enforceable contract because Ms Park had not given any valuable consideration;

   3. (3)

      Ms Park could not establish an estoppel by convention to prevent Mr Yi denying Ms Park’s right to the $300,000 plus interest of $200,000;

   4. (4)

      the Loan Agreement should be set aside, partially, or fully, under the Contracts Review Act 1980 (NSW);

   5. (5)

      the interest of $200,000 should be regarded as a penalty and rendered void;

   6. (6)

      the $300,000 referred to in the loan agreement was the same $300,000 left to Ms Park under the deceased's will; and

   7. (7)

      declarations voiding the Loan Agreement as the product of undue influence or unconscionable conduct.

8. [13]

   Elkaim AJ held that the Deed of Loan Agreement was not, in fact, a deed, but that it could be enforced as a simple contract. His Honour held that Ms Park had provided good consideration by way of her “forbearance to sue” Mrs Yi, relying on Butler v Fairclough (1917) 23 CLR 78 at 96; [1917] HCA 9 and Brehm v Wright [2007] NSWSC 1101 at [29].

9. [14]

   His Honour held that the interest component of the loan was not unjust or unconscionable within the meaning of the Contracts Review Act and was not a penalty within the meaning of that term in the general law. His Honour further dismissed the argument that the deceased’s Will was an effective amendment to, or substitution of, the Loan Agreement. His Honour found an estoppel argument was technically made out but that it was misconceived.

10. [15]

    His Honour allowed for interest for one year at 7.5%, leading to a judgment sum of $537,500.

11. [16]

    So far as costs were concerned, his Honour ordered each party to pay its own costs of the proceedings up to and including 11 May 2023 but that Mr Yi should pay Ms Park’s costs on an indemnity basis thereafter on the basis of an offer of compromise of $300,000 made on 18 April 2023. The significance of the 11 May date was that the amended statement of claim, filed on 11 May 2023, was the first time that Ms Park articulated an alternative case to the Loan Agreement being a valid deed (which, as it turned out, it was not).

This application

1. [17]

   Mr Yi’s appeal has been brought on the following ground:

2. [18]

   As will be evident, the appeal is limited to the aspect of the case that involves good consideration being provided for the deceased’s entry into the Loan Agreement, specifically her forbearance to sue. On Mr Yi’s case, whatever the original arrangement between Ms Park and the deceased was, it did not involve any repayment obligation. It follows on his case that the 2017 loan agreement, whatever it might say, did not in fact involve any forbearance from suing on a repayment obligation. Given that the only consideration that was alleged to support the contract was that forbearance, Mr Yi contends that the ‘deed of loan agreement’ was not supported by any consideration at all and is thus unenforceable as a simple contract.

Applicable principles

1. [19]

   Section 63 of the Trustee Act 1925 (NSW) relevantly provides:

2. [20]

   In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [55]-[58] the High Court emphasised that the power in s 63 should not be read down by implications not found in the express language of the Act. All that is required is that there should be a “question respecting the management or administration of the trust property”. I am conscious of that injunction, as I am of the oft-cited judgment of Palmer J in Application of Macedonian Orthodox Church St Petka Inc (No 3) [2006] NSWSC 1247 at [80]:

3. [21]

   These principles generally apply to advice as to the prosecution of an appeal in the same way as they do in other circumstances. In Application of Rinehart: 2020/142504 [2020] NSWSC 1624, Parker J remarked at [196], adopting Palmer J’s statement in Application of Macedonian Orthodox Church St Petka Inc (No 3), that:

4. [22]

   In Application of Dalton and Schaeffer as executors of the estate of the late John Herman Schaeffer [2023] NSWSC 1338 (‘Dalton’) at [36]-[42], McGrath J identified those matters that usually have particular relevance to the giving of judicial advice in the context of an appeal. At [42], his Honour said:

5. [23]

   I particularly note his Honour’s reference to Frost and Attia. In Frost and Fallon [2011] NSWSC 591, Ward J (as her Honour the President then was) said at [69]:

6. [24]

   At [72] her Honour added:

7. [25]

   In Re Attia [2020] NSWSC 94, Ward CJ in Eq said at [94]:

8. [26]

   I will say a little more below about the extent to which I need to be satisfied of the soundness of the grounds of appeal in the light of these authorities and in the particular circumstances of this case.

9. [27]

   Generally speaking, I approach this matter in much the same way McGrath J approached the issues in Dalton. What his Honour said in Dalton at [42] is a useful summary of the matters to be considered in the present case. I do however recognise that, as Hammerschlag CJ in Eq said recently in Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd [2024] NSWSC 680:

Decision

1. [28]

   In Macedonian Orthodox Community Church St Petka Inc, Gummow ACJ, Kirby, Hayne and Heydon JJ said at [74]:

2. [29]

   In the present case, that did not occur. The failure to follow that course does not now deprive the Court of power to give advice, but it is a circumstance that has some consequences for the application, as I discuss below.

3. [30]

   The principal matters that bear on the question of whether the applicant is justified in maintaining the appeal are those identified by McGrath J in Dalton at [42]. A consequence of this application having been brought so late is that those matters now fall to be assessed in the context of a proceeding in which there have already been findings of fact; where costs have already been ordered to be paid by the applicant, including on an indemnity basis; and where the applicant has already launched an appeal, committed to grounds of appeal and now filed and served an outline of argument. In some respects, these circumstances allow me to proceed with a degree of certainty. In other respects, such as my consideration of whether Mr Yi’s ground of appeal is reasonably arguable, these circumstances lead me to approach the matter with caution, as I explain below.

4. [31]

   It is almost impossible for me to comment on the soundness of Mr Yi’s ground of appeal without directly traversing the very issues that will be decided on their merits when the matter is heard, as it shortly will be, by the Court of Appeal. It is ordinarily inappropriate for the Court to comment on the merits of a trustee’s claim but this is especially so in the present circumstances where the appeal has been filed and the submissions are already on.

5. [32]

   I have already referred to what Gummow ACJ, Kirby, Hayne and Heydon JJ said in the first sentence of [74] of Macedonian Orthodox Community Church St Petka Inc. In the balance of that paragraph, their Honours added:

6. [33]

   The danger of eliding that distinction causes me to be more than usually circumspect about expressing a view as to the soundness of Mr Yi’s ground of appeal. That is because any comment I now make would be a comment on the very ground (and the very arguments in support of that ground) already filed in the appeal. Apart from anything else, it would not be fair to the parties to the principal proceedings for me to express a view on those matters at this stage.

7. [34]

   The Court was provided with the opinion of counsel for Mr Yi who are briefed in the appeal. I made an order under the section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) in relation to that opinion.

8. [35]

   I am satisfied on the basis of that opinion that the ground of appeal is sufficiently sound to found this application. I otherwise express no view as to the merit of the appeal or its prospects of success.

9. [36]

   The Court is now in a position to know with relative certainty what amounts will be involved in maintaining the appeal and what the costs will be.

10. [37]

    At the time of trial, the Concord West property had been sold, the mortgage paid out, the specific legacies paid out. The property of the Estate consisted of cash in the sum of about $2,000,000: see Park v Yi at [58].

11. [38]

    The amount of the judgment including interest up to judgment is $537,500. That sum has not yet been paid. I was informed that Mr Yi’s costs of the principal proceedings were about $150,000. There is no evidence as to Ms Park’s costs of the principal proceedings. I will assume that costs which Mr Yi has been ordered to pay, namely Ms Park’s indemnity costs of the principal proceedings from 11 May 2023, are no less than $100,000.

12. [39]

    In the event the appeal succeeds, the estate will avoid all of these liabilities, which total (on the assumptions I have made) about $787,500.

13. [40]

    The applicant’s total costs of the appeal will be about $89,950. I infer that a significant portion of this amount has already been spent. There is no direct evidence of Ms Park’s costs of the appeal, but I will proceed on the basis that they will be at least the same amount.

14. [41]

    The applicant has at this point sunk costs into this litigation that are significant compared to the benefit to residuary beneficiaries if he is ultimately unsuccessful. If he is unsuccessful and if his costs are all borne by the estate, the costs to the estate will probably not be much less than – and may even exceed – the amount which the estate stood to gain from defending the proceedings in the first place, being the sum of $500,000 plus interest.

15. [42]

    However that may be, the subject of this application is whether the applicant is justified in maintaining the appeal, not whether the appeal should have been brought (or the principal proceedings defended) in the first place. If the applicant were to withdraw the appeal at this point, there would be significant adverse costs consequences to the applicant and to the estate as a whole, subject to any argument about whether the estate should bear those costs. In this respect, I note the views expressed by Parker J in Application of Rinehart at [193]. At the same time, a very significant portion of the costs associated with the appeal have already been spent and the potential upside to the estate (which I have calculated to be around $787,000) far exceeds that amount.

16. [43]

    When the potential outcomes of the appeal are weighed against the costs involved in achieving those outcomes from this point, it is in the interests of the estate for Mr Yi to finish what he has started and to maintain the appeal through to the hearing.

17. [44]

    This is not to endorse the merit of the appeal. It is to say no more than that a cost benefit analysis conducted at this point suggests that Mr Yi is justified in maintaining the appeal.

18. [45]

    This is also not to suggest that a trustee improves their prospects of obtaining favourable judicial advice by delaying their application until such time as it may be presented, as this matter has been, as something of a fait accompli. It is true that such an approach improves the rather simplistic cost benefit analysis, but that only reflects that the trustee will instead have incurred costs as to which he or she does not have the protection of s 63 of the Trustee Act. The trustee who delays an application for judicial advice also increases the risk that the Court hearing the principal proceeding will take the view that costs ought not be borne by the estate despite the fact that judicial advice was eventually obtained as to the maintenance of the appeal.

19. [46]

    It is generally inappropriate for the Court to give judicial advice where the subject matter of the advice concerns a dispute between parties to a trust: see JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis) at [21-34]. However, this litigation is as often occurs something of a hybrid in this regard. The parties to the principal proceedings are the two principal beneficiaries of the estate. However, the litigation relates essentially to Ms Park’s claim against the estate as creditor. It is true that the outcome of the appeal will directly affect the parties’ interests as beneficiaries. It will, however, primarily determine a dispute with a creditor and will therefore govern the basis on which the estate is administered.

20. [47]

    In Sotiropoulos v Sotiropoulos (No 2) [2015] NSWSC 1277, Robb J said at [30]:

21. [48]

    I am satisfied that this is a case where it is appropriate for the trustee to seek judicial advice notwithstanding that the appeal concerns a dispute between beneficiaries. That is because it is in the interests of the estate as a whole that the issue in the appeal be resolved to allow the estate to be administered.

Conclusion

1. [49]

   It follows from all of this that I am willing to advise that the applicant is justified in maintaining the appeal.

2. [50]

   However, it is also appropriate to record that the question of whether any costs order made against the applicant in the appeal proceedings should be borne by the estate may yet be determined by the Court of Appeal notwithstanding my advice that Mr Yi is justified in maintaining the appeal. I express no view as to that matter.

3. [51]

   It follows that the main consequence of my advice is this: if the Court of Appeal either makes no order as to costs or makes a costs order against Mr Yi but does not address the question of whether those costs should be borne by the estate; and if the applicant has recourse to the estate to meet the costs of the appeal (whether his own costs or costs he is ordered to pay); then the applicant will have the benefit of s 63 of the Trustee Act but only insofar as he maintained the appeal from this point onwards.

4. [52]

   I therefore advise pursuant to s 63 of the Trustee Act that the applicant as executor of the estate of the late Young Ja Yi is justified in maintaining the appeal in proceedings 2024/146740.