Dezarnaulds bht Dezarnaulds v Stock

Legislation Cited: Acts Interpretation Act 1901 (Cth) s 2B
Aged Care Act 2024 (Cth) ss 292, 294, 330
Commonwealth Powers (De Facto Relationships) Act 2003 (NSW)
Family Law Act 1975 (Cth) ss 4, 39A, 39B, 90RC, 90SMA
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 8, 25, 51, 132, 149
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 4, 5
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 5
Property (Relationships) Act 1984 (NSW) s 9
Supreme Court Act 1970 (NSW) s 66

Cases Cited: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; HCA 75
Allen v Jambo Ltd [1980] 1 WLR 1252
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; HCA 46
Bradstreet v Merrin Developments Pty Ltd [2017] NSWSC 1559
DJ Singh v DH Singh [2018] NSWCA 30; 17 ASTLR 317
Jensen v Pearce [2013] NSWCA 247
Liu v Jia [2025] NSWSC 1218
Re Neil (No 5) (2022)110 NSWLR 197; NSWSC 1704
State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; HCA 48
Valceski v Valceski (2007) NSWLR 36; NSWSC 440
Young v Lalic [2006] NSWSC 18; (2006) 192 FLR 29

Category: Principal judgment

Parties: Camille Eduard Dezarnaurds by his tutor Chantal Dezarnaulds (Plaintiff/Cross-Defendant)
Sally Stock (Defendant/Cross-Claimant)

Representation: Counsel:
L McIntyre (Plaintiff/Cross-Defendant)
C Lee (Defendant/Cross-Claimant)
Solicitors:
Walker and White (Plaintiff/Cross-Defendant)
Pagano Burlovich (Defendant/Cross-Claimant)

File Number(s): 2026/00152356

JUDGMENT

1. This matter first came before me as duty judge on 14 April 2026. The Plaintiff in these proceedings is the registered proprietor of a unit in Woollahra (the Unit). Through his tutor, who is also his daughter, he urgently commenced these proceedings seeking an order for possession of the Unit against the Defendant.

2. The Statement of Claim is brief. The Plaintiff asserts ownership of the Unit and contends that the Defendant remains in occupation of the Unit despite being requested to vacate.

3. The circumstances that informed the urgency of the application were set forth in an affidavit of his tutor affirmed 14 April 2026. That affidavit deposes to the following facts.

4. The Plaintiff, Mr Camille Eduard Dezarnaulds, is a 91-year-old man who was diagnosed with vascular dementia in August 2025. Two of his daughters, Chantal and Annalisa, have his power of attorney and Chantal has been appointed his tutor in these proceedings.

5. Due to his dementia and other medical issues, the Plaintiff’s health has significantly deteriorated over the last nine months. He now completely lacks independence. The Plaintiff entered aged care on 8 October 2025. Shortly after doing so, he entered into an agreement (the Agreement) for permanent admission to a room and full-time care at this aged care facility. He elected to pay for that through a a $660,000 Refundable Accommodation Deposit (the RAD).

6. On 8 October 2025, the facility issued an invoice for the RAD. That invoice was to be paid by 24 April 2026. The aged care facility is able to terminate the Agreement if the RAD is not paid within 42 days of becoming due, being 5 June 2026.

7. The Plaintiff did not have the financial resources to pay the RAD and so decided to sell the Unit. The Plaintiff told his brother, Peter, to inform the Defendant of his decision to sell the Unit, which Peter did on 17 November 2025.

8. There was some delay in the Unit being sold. Nevertheless, on 5 March 2026, the Plaintiff entered into a contract to sell the Unit for $1,060,000. The Plaintiff was to give the purchaser vacant possession of the Unit by 16 April 2026. That date was later extended to 28 April 2026.

9. The Defendant, Ms Sally Stock, is a 79-year-old woman who, until 24 April 2026, resided at the Unit. She and the Plaintiff lived there together until his health problems rendered him unable to do so. There was some contest between the parties as to the exact nature of their relationships as discussed at [47] below, that contest has been resolved in some measure.

10. The tutor’s affidavit discloses that she and her sister, with the Defendant’s consent, attended the Unit to begin cleaning out the Plaintiff’s belongings and furniture in February 2026 and on several dates in March 2026. The Defendant was present at those times.

11. In those circumstances, the Defendant could be expected to have raised any opposition to the sale of or her vacation from the Unit around the date on which she was informed of the Plaintiff’s intention to sell the Unit. Even raising those issues later, when the tutor and her sister attended the Unit, would have been expected.

12. It was only on 8 April 2026 that the Defendant, through her then solicitor, informed the Plaintiff that she had changed the locks to the Unit and that she would not permit anyone to access the Unit unless and until the Plaintiff signed an irrevocable authority to give her $600,000 from the proceeds of sale of the Unit. It was in those circumstances that the Plaintiff approached this Court for the orders in the Statement of Claim.

13. The core of the present dispute, when it first came before me, was that the $1,060,000 sale price of the Unit is insufficient to pay both of the $660,000 RAD and the $600,000 the Defendant sought.

14. On 14 April 2026, I granted short service to the Plaintiff to serve the Statement of Claim at 6 PM that day, with a return date before me on 16 April 2026.

15. On the return date, where Ms Lee of Counsel appeared for the Defendant, I was informed that the Defendant would not obstruct the sale of the Unit. She would vacate it prior to 28 April 2026. The remaining issues were the proceeds of the sale and how those proceeds should be dealt with. The orders in the Statement of Claim seeking vacant possession of the Unit and a writ of possession became otiose. This, however, was not the end of the matter.

16. The Defendant indicated that she wished to file a Cross-Claim seeking relief. I set down a timetable for the Defendant to file and serve any such Cross-Claim as well as an affidavit in support and listed the matter for hearing on Friday 24 April.

The Cross-Claim

17. The Defendant filed a Cross-Claim by which she sought both interim and final relief in the following terms:

“Interim Relief

1. An order that [the Plaintiff] pay the proceeds from the sale of [the Unit] pursuant to the contract for sale of land scheduled to be completed between [the Plaintiff] as vendor and [the purchaser] into Court pending further order.

2. An order that the Court, under s 90SH of the Family Law Act (Cth) release the funds from the proceeds of sale, by way of maintenance, to [the Defendant] in circumstances where [the Defendant] is in immediate need of financial assistance, and it is not practicable in the circumstances to determine immediately what order should be made.

3. In the alternative, an order under s 28 of the Property (Relationships) Act 1984 (NSW) that the Court release funds from the proceeds of sale, by way of maintenance, to [the Defendant] in circumstances where [the Defendant] is in immediate need of financial assistance, and it is not practicable in the circumstances to determine immediately what order should be made.

Final Relief

4. A declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship as defined by s 4AA of the FLA existed between [the Plaintiff] and [the Defendant] that commenced in December 1992 in Melbourne and ended between October 2025 and February 2026.

5. An adjustment of property between the parties pursuant to s 90SM of the Family Law Act 1975 (Cth) such that:

a. the proceeds of the sale of [the Unit] be distributed as the Court considers just and equitable; and

b. the remaining property of the parties be distributed as the Court considers just and equitable.

6. In the alternative, an order under s 90SE of the Family Law Act 1975 (Cth) for maintenance in circumstances where [the Defendant] is unable to support herself adequately by reason of age, and physical incapacity for appropriate gainful employment.

7. In the alternative to orders 4, 5 and 6, an adjustment of property between the parties pursuant to s 20 of the Property (Relationships) Act 1984 (NSW) such that:

a. the proceeds of sale of [the Unit] be distributed as the Court considers just and equitable; and

b. the remaining property of the parties be distributed as the Court considers just and equitable.

8. In the alternative, an order under s 27 of the Property (Relationships) Act 1984 (NSW) for maintenance in circumstances where [the Defendant] is unable to support herself adequately by reason of age, and physical incapacity for appropriate gainful employment.”

18. The parties agreed to an order that these proceedings be transferred to Division 2 of the Federal Circuit Court of Australia. With one caveat, I consider that to be appropriate and will make that order pursuant to s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (the NSW JCVA).

19. The issue that requires immediate resolution is what orders, if any, ought to be made in relation to the funds from the sale of the Unit that are being paid today.

Jurisdiction

20. At the hearing of this matter, I raised my concern about whether the Court has jurisdiction to determine this matter. First, even if it does not have jurisdiction over this matter or any part thereof, this Court has jurisdiction to decide whether any claim brought in the Court is within the its jurisdiction: State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [31].

21. Prayers 2, 4, 5 and 6 of the Cross-Claim, which concern the Family Law Act 1975 (Cth) (the FLA), satisfy the definition of “de facto financial cause” in s 4 FLA. As recorded in Young v Lalic [2006] NSWSC 18; (2006) 192 FLR 29 (Brereton J) (Young) at [32]–[50], that subject matter has throughout the years oscillated in and out of this Court’s jurisdiction.

22. Justice Brereton in Young concluded at [37] and [48] that the Court had been invested with jurisdiction in such matters since the commencement of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the Cth JCVA) pursuant to s 4 of that act. The Court of Appeal agreed in DJ Singh v DH Singh [2018] NSWCA 30; 17 ASTLR 317(Gleeson JA, with whom Leeming and White JJA agreed) (Singh) at [250]. As I will discuss further below, s 4 Cth JCVA has since been amended and I am not certain that this remains the case.

23. I pause to note that Young concerned a matrimonial, not de facto, cause. However, I do not consider that difference to raise any difficulties here. Justice Basten, with whom Barrett and Emmett JJA agreed, set out the constitutional history of the distinction in Jensen v Pearce [2013] NSWCA 247 at [12]–[13]. In summary, when Young was decided, the Commonwealth had legislative power concerning matrimonial causes under s 51(xxii) of the Constitution. That power did not extend to de facto relationships. On 22 September 2008, the Commonwealth Powers (De Facto Relationships) Act 200**3 (NSW) commenced, under which NSW referred to the Commonwealth financial matters relating to partners in a de facto relationship arising out of the breakdown of those relationships. Jurisdiction in such matters was conferred upon Federal courts upon the commencement of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth).

24. Young could not have concerned whether de facto financial causes were invested in the Supreme Court by the Cth JCVA because it was not at the time a matter of Federal jurisdiction. However, the same principles would have applied once de facto financial causes came within Federal jurisdiction and I will proceed on that basis.

Does this Court have jurisdiction under the Family Law Act?

25. First, the FLA does not itself invest this Court with the necessary jurisdiction*.* De facto financial causes that may be instituted under the FLA must not be instituted other than as provided by that act: s 39A(5). They may be instituted in Division 2 of the Federal Circuit and Family Court of Australia (the FCFCA), the Supreme Court of the Northern Territory or in a Court of summary jurisdiction: s 39A(1). Jurisdiction in such matters is conferred on those Courts by s 39B(1) FLA.

26. This Court is plainly neither Division 2 FCFCA nor the Supreme Court of the Northern Territory. A “court of summary jurisdiction” is not defined in the FLA. It was clearly defined in s 26 of the Acts Interpretation Act 1901 (Cth) until that provision was repealed in December 2011. The current definition, which is contained s 2B of that act, being “any justice of the peace, or magistrate of a State or Territory, sitting as a court of summary jurisdiction”, is not as comprehensive as the repealed s 26. However, it still excludes this Court. Accordingly, a de facto financial cause cannot be instituted in this Court under the FLA.

Is jurisdiction cross-vested?

27. As set out at [22] above, this Court had jurisdiction to determine matrimonial and de facto financial causes since the commencement of the Cth JCVA. When Young and Singh were decided, s 4 Cth JCVA read, relevantly, as follows:

4 Additional jurisdiction of certain courts

(1) Where:

(a) the Federal Court or the Family Court has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and

(b) the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter;

then:

(c) in the case of the Supreme Court of a State (other than the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory)—that court is invested with federal jurisdiction with respect to that matter; or

(d) in the case of the Supreme Court of a Territory (including the Australian Capital Territory and the Northern Territory)—jurisdiction is conferred on that court with respect to that matter.

28. However, that provision was amended by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) so that from 1 September 2021 it provided:

4 Additional jurisdiction of certain courts

(1) Where:

(a) the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and

(b) the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter;

then:

(c) in the case of the Supreme Court of a State (other than the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory)—that court is invested with federal jurisdiction with respect to that matter; or

(d) in the case of the Supreme Court of a Territory (including the Australian Capital Territory and the Northern Territory)—jurisdiction is conferred on that court with respect to that matter.

29. Before that amendment, this Court was invested, relevantly, with the jurisdiction of the Family Court. That Court, along with the former Federal Circuit Court now forms part of the FCFCA, and they are now respectively known as Division 1 and Division 2 FCFCA: s 8 Federal Circuit and Family Court of Australia Act 2021 (Cth) (the FCFCA Act). The amended language of the s 4 Cth JCVA means that this Court is now instead invested with the jurisdiction of Division 1 FCFCA.

30. The original jurisdiction of Division 1 of that Court is contained in s 25 of the FCFCA Act, which provides:

25 Original jurisdiction

(a) if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or

(b) if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or

(c) as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.

31. “[F]amily law or child support proceedings” is defined in s 7 FCFC**A Act to mean proceedings in respect of which Division 2 FCFCA has original jurisdiction. That includes matters in respect of which proceedings may be instituted under the FLA: s 132 FCFCA Act.

32. Proceedings in the FCFCA must not be instituted in Division 1 FCFCA: s 50 FCFCA Act. They can, however, be transferred by order of the Chief Justice of Division 1 FCFCA or by order of Division 2 FCFCA: ss 51, 149.

33. Justice Henry confronted this in Re Neil (No 5) (2022) 110 NSWLR 197; NSWSC 1704 (Re Neil) at [39]–[75]. Although that decision concerned the Court’s jurisdiction to make recovery orders under different provisions of the FLA, it also concerned “matters in respect of which proceedings may be instituted under the [FLA].” The relevant statutory language is identical and I see no reason to depart from her Honour’s reasoning.

34. In Re Neil, after rejecting several approaches to the construction of the FLA that would have retained this Court’s jurisdiction to hear such matters, her Honour concluded that s 4 Cth JCVA no longer confers jurisdiction on this Court. Respectfully, I agree with her Honour’s conclusion.

35. I do not consider that I have jurisdiction to make the orders sought in Prayers 2, 4, 5 and 6 of the Cross-Claim.

Property (Relationships) Act 1987 (NSW)

36. The Defendant also seeks interim and final orders pursuant to the Property (Relationships) Act 1984 (NSW) (the PRA). This Court has jurisdiction to hear matters under the PRA: s 9. However, s 90RC FLA states the “de facto financial provisions” of the FLA are to apply to the exclusion of any State concerning financial matters relating to the parties to de facto relationships.

37. Prayers 3, 7 and 8, which concern orders for either maintenance or an adjustment of property under the PRA, satisfy the definition of “financial matters” as defined in s 4 FLA. And the “de facto financial provisions” cover those by which the Defendant seeks relief under the PRA. Accordingly, this Court does not have jurisdiction to make the orders sought in Prayers 3, 7 and 8.

Transfer

38. The parties consent to these proceedings being transferred to Division 2 FCFCA. Even so, I must proceed in a principled way, as “parties by consent cannot confer power upon the Court to make orders which the Court lacks power to make”: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; HCA 48 (Gibbs CJ, Stephen, Mason and Wilson JJ) at 163.

39. Section 5 of the NSW JCVA provides as follows:

5 Transfer of proceedings

(1) Where—

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court, and

(b) it appears to the Supreme Court that—

…

(ii) having regard to—

(A) whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Federal Circuit and Family Court of Australia, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Federal Circuit and Family Court of Australia,

(B) the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and

(C) the interests of justice,

it is more appropriate that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia, as the case may be,

…

the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Federal Circuit and Family Court of Australia, as the case may be.

40. Significantly, the NSW JCVA, unlike its Commonwealth counterpart, does not specify the division of the FCFCA to which these proceedings may be transferred. Accordingly, if I transfer the matter, it will be to the FCFCA generally, rather than to any specific division. In doingso, I am adopting the approach taken by McGrath J in Liu v Jia [2025] NSWSC 1218 (Liu) at [39].

41. I am required to have regard to each of the matters set out in ss 5(1)(b)(ii)(A), (B) and (C), which matters are not cumulative requirements: Liu at [46]. Even if the first two matters are not satisfied, this Court may still conclude that, having regard to the matter contained in s 5(1)(b)(ii)(C), it is more appropriate that these proceedings be determined by the FCFCA: Liu at [47]; Valceski v Valceski (2007) NSWLR 36; NSWSC 440 (Brereton J) at [67]–[68].

42. Having regard to the matters in ss 5(1)(b)(ii)(A) and (B), as set out above, a substantial part of this proceeding is incapable of being instituted in this Court but is capable of being instituted in the FCFCA.

43. Having regard to the matters in s 5(1)(b)(ii)(C), the FCFCA is clearly the more appropriate forum. This matter, when commenced, was concerned with an application for a writ of possession of the Unit so as to achieve its vacant possession before settlement of the sale. This Court was undoubtedly the best forum for that subject matter. However, as the matter has unfolded, the matter now concerns a claim for a distribution of property between the Plaintiff and Defendant arising from the breakdown of a de facto relationship. As set out above, that is clearly within the jurisdiction of the FCFCA, and the language of the NSW JCVA does not require me to be concerned with which Division of that Court this matter is heard.

44. I will order that the matter be transferred to the FCFCA.

The freezing order

45. By her Cross-Claim, the Defendant seeks a freezing order over the proceeds of sale apart from a sum which she seeks to be paid to her immediately. That order is sought under s 66(4) of the Supreme Court Act 197**0 (NSW). That section provides that the Court may, at any stage of the proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient to do so. I consider that I have jurisdiction to make such an order.

46. In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; HCA 46 at [65], Gummow and Hayne JJ explained the process in considering whether to grant an interlocutory injunction as follows:

“The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued [at 622-623]:

‘The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief... The second inquiry is... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.’

By using the phrase ‘prima facie case’, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument [at 620]. With reference to the first inquiry, the Court continued… [at 622]:

‘How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.’”

47. The Defendant has filed a detailed affidavit in which she sets out her evidence as to the history of her relationship with the Plaintiff. The nature of the affidavit is typical of the kind of affidavit that would be filed in property adjustment proceedings between de facto or de jure spouses. It charts the alleged commencement of the parties’ intimate relationship in late 1992 and the relationship’s trajectory, which is alleged to have extended to over 30 years. During that time, the Defendant alleges that both parties made financial and non-financial contributions.

48. In contrast, the affidavit of the Plaintiff’s tutor described the Defendant as “a lady that lived with dad at [the Unit] until his admission to hospital in July 2025.” Only once the hearing was well progressed did it become clear that the Plaintiff accepted he had been in a de facto relationship with the Defendant. The Plaintiff instead submitted that the relationship commenced in 2010.

49. I consider that the Plaintiff’s admission of the existence of a de facto relationship means that the Defendant has a prima facie case.

50. Whether that relationship was for 15 years or 16 years or the far longer period for which the Defendant contends, is not a matter I need determine here. I can proceed on the basis of there having been a de facto relationship of between medium and extremely lengthy duration. I will now turn to the balance of convenience.

Balance of convenience

51. In determining the balance of convenience, I consider that the most important issues I must weigh are the Plaintiff’s election to pay the RAD (and whether he is now contractually committed to doing so), the needs of the Defendant and the Defendant’s inability to offer the usual undertaking as to damages.

Is the Plaintiff obligated to pay the RAD?

52. The Defendant submits that the Plaintiff is not obligated to pay the RAD and that the Court should not feel constrained in the orders it makes in relation to the balance of the proceeds.

53. The Plaintiff predominantly relies upon the terms of his with Catholic Healthcare. Noting that no document executed by the service provider is in evidence, I will assume that it has done so.

54. Clause 20 provides as follows:

“20.1. Subject to the other provisions of this clause 20, you may pay for your accommodation by:

20.1.1. Daily Payments (see clause 21)’

20.1.2. Refundable deposit (see clause 22);

20.1.3. a combination of a Refundable Deposit and a Daily Payment;

20.1.4. a combination of a Refundable Deposit and a Daily Payment, where your daily payment is deducted from your Refundable Deposit (see clause 23.3).

20.2. While fees and charges will commence upon your entry into the Home, you have 28 days from your Agreed Date of Entry to notify us of your chosen method of payment under clause 20.1. You may choose to notify us earlier, however, if you do not notify us within those 28 days, you must pay for your accommodation by Daily Payments.

20.3. You must make a notification under clause 20.2 by completing a ‘Notice of method of payment’, a copy of which is included at pages 13 & 14 of this Agreement and delivering it to us.

20.4. If you are making Daily Payments for your accommodation at any time during the term of this Agreement, you may choose to pay us a Refundable Deposit equivalent to your Daily Payments instead, determined in accordance with the method set out in Method 1 of Schedule 4. You must continue to pay Daily Payments until the Refundable Deposit is paid.”

55. Clause 22 provides as follows:

“22.1. If you choose to pay for your accommodation by a Refundable Deposit:

22.1.1. you can pay your Refundable Deposit at any time, but are not required to pay it until six months after your Agreed Date of Entry; and

22.1.2. until such time as the Refundable Deposit is paid, you must make Daily Payments commencing from your Agreed Date of Entry.”

56. The Plaintiff relies upon cl 24 to found a submission that, having committed himself to pay the RAD, he is now locked into such payments. The upshot of this is, the Plaintiff submits, that if he is required to pay into Court an amount that would preclude him from paying the RAD, he will inevitably be in breach of the Agreement.

57. Clause 24 provides, relevantly, as follows:

“24.1. The Refundable Deposit Balance must be refunded if:

24.1.1. you die; or

24.1.2. you cease to be provided with residential care by us (other than because you are on leave).”

58. Clause 24 does not seem to engage with any scenario in which the Plaintiff is by his election effectively locked into paying the RAD rather than, for example, Daily Payments.

59. A document titled “Notice of method of payment” forms part of the Agreement. The version in evidence is not completed, though it appears to be signed by either the Plaintiff or his tutor. That document contains three options to pay, being either Daily Payments, a Refundable Deposit or a combination of each of those.

60. The tax invoice issued by Catholic Healthcare to the Plaintiff on 8 October 2025 in the amount of $660,000 is the RAD. There is also a letter addressed to the Plaintiff’s tutor which welcomes the Plaintiff as a permanent resident of the facility. That document provides that the Plaintiff has 28 days from the admission date to return the Notice of method of payment form. Attached to the welcome document is another document titled “Understanding the cost of residential aged care”, within which there is a subheading “Selecting your payment option – Accommodation fees”. Included under that subheading are the words:

“You have 28 days from the time of permanent entry to sign and return this form. It is strongly recommended you seek financial advice to understand the best option for you.

Please be aware that from the date of entry you will be charged the Daily Accommodation Fee (DAP) irrespective of your final selection option. If you select to pay the [RAD], the DAP charge will cease once this payment has been received in full by Catholic Healthcare.”

61. The evidence does not disclose to me the document in which the Plaintiff made his election was executed. If such a document was executed and it is the document contained in the evidence entitled “Notice of method of payment”, that would indicate that option has not yet been selected by the Plaintiff, even though an invoice for $660,000 has been issued by Catholic Healthcare.

62. There is no basis for me to infer that the Plaintiff is locked into paying the RAD. He has been in full-time habitation of the aged care facility since October 2025 and has not paid any such deposit. There is no document in evidence which establishes that the Plaintiff has elected to pay such a deposit, despite the invoice from Catholic Healthcare. Nor is there any document in evidence that discloses that, even if he had made such an election, he is thereby prohibited from changing his election to a Daily Payment.

63. In addition to those clauses, my reading of the Agreement is informed by the A**ged Care Act 2024 (Cth) (the ACA). Under 292(b) ACA, the provider of aged care services must inform an individual entering into their care of the payment amounts, which amounts may be expressed as a RAD or a Daily Payment. Those payments can be made as either a RAD, Daily Payments or a combination of those two methods: s 294(1)(e) ACA.

64. Upon the Plaintiff’s entry into the aged care facility, the Defendant was a protected person within s 330(6)(a) ACA. That section provides that in determining the value of the assets of a person entering care who owns a home, the value of that home is to be disregarded if it is occupied by the partner of that person. “Partner” is defined in s 7 ACA as “the other member of a couple of which the individual is also a member.” This also means that had the Plaintiff disclosed that he was in a de facto relationship at the time of his admission to the aged care facility, his RAD would have been calculated at a lower amount.

65. The Plaintiff contends that the RAD is no different to the Plaintiff’s interest in the Unit. I disagree. As was noted in the Plaintiff’s supplementary submissions, upon the Plaintiff’s death, the RAD will be refunded to the administrators of his estate pursuant to cl 24.1.1 of the Agreement. At that time, the estate could be subject to a claim pursuant to s 90SMA(8) FLA as well as any claim under the Succession Act 2006 (NSW).

66. The issue at hand is not the security of the RAD during the Plaintiff’s lifetime, nor after his death The real issue is the availability of that money for distribution during the Plaintiff’s lifetime as part of orders that could be made by the FCFCA for a property distribution. If the Unit were not being sold, it would remain within the Plaintiff’s control and so could be sold to fund any order for property distribution. The situation is a more difficult if the money is held by a third party.

67. Once the money is received by Catholic Healthcare, it cannot easily be released to the Defendant. That was made plain by the Plaintiff, who in his submissions referred to the limited circumstances in which the RAD becomes available.

68. It is impossible to determine how long the Plaintiff will live. There is no evidence to suggest the Plaintiff may die soon, despite his advanced age and deteriorating health. The money could potentially be tied up for years and the Defendant may be unable to access it if she is otherwise entitled to a distribution of property.

69. The Plaintiff’s assets include $143,801.15 in cash in his bank account. In circumstances where I consider he will be able to continue paying the $220 Daily Payment fee, I consider that amount to be sufficient to make Daily Payments for the time being.

70. It follows from this analysis that:

71. I do not consider that the Plaintiff is locked in to pay the RAD, nor will he be in breach of the Agreement if he makes a Daily Payment instead;

72. Conversely, if he pays the RAD, that money will be difficult to retrieve unless the events contained in cl 24 occur;

73. the Defendant is, by the Plaintiff’s admission of a de facto relationship, entitled to assert a claim as the former de facto spouse of the Plaintiff, be that for 16 years or the significantly longer period for which the Defendant contends; and

74. I consider that the Defendant will be prejudiced if the balance of proceeds is allowed to be paid to the Plaintiff for use as an RAD in circumstances where there is no evidence which demonstrates that the Plaintiff will be incapable of continuing to pay the Daily Payment for his accommodation as he has been doing since October 2025.

The Defendant’s needs

71. The Defendant is not in good health. Over the last ten years, she has had cancer three times, twice requiring surgical excision of a tumour. She has also undergone surgery on her left leg as well as the removal her gall bladder.

72. In October 2024, she broke a vertebrae after slipping in Bondi Junction, after which she spent several months in and out of hospital. In January 2025, the Defendant had a quadruple bypass and has continuing heart problems.

73. In relation to her financial situation, the Defendant’s evidence is that she currently has less than $2,000 across her three bank accounts and she has no valuable items to sell nor superannuation. She receives a pension of approximately $1,156 each fortnight. From that, she pays around $150 each fortnight for private health insurance and $202.58 each month to store certain belongings in Melbourne. The Defendant owns no real estate nor does she have any friends or family that can assist her. Although her son lives in Sydney, he is unable to provide her the support she needs.

The undertaking as to damages

74. Due to her impecuniosity, the Defendant is unable to provide to the Court the usual undertaking as to damages. Usually, that alone is determinative against the making of an interlocutory injunction such as this one. That usual approach is because the undertaking “is a very important, if not an essential, means of preventing injustice from being done by the court when it makes an order at an interlocutory stage”: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; HCA 75 (Gibbs J) at 311–312. However, different principles can apply where the party seeking an interlocutory injunction is impecunious: Allen v Jambo Ltd [1980] 1 WLR 1252 (Denning MR, with whom Shaw and Templeman LJJ agreed) at 1256–1257 .

75. The Defendant’s impecuniosity is thus one factor I must consider in determining whether injunctive relief should be granted: Bradstreet v Merrin Developments Pty Ltd [2017] NSWSC 1559 at [45(7)].

76. In the circumstances, I consider that the Plaintiff’s inability to make the usual undertaking as to damages is not a bar to the interlocutory relief sought. Accordingly, I will make a order for that relief.

Immediate payment on account of the Defendant’s needs

77. In relation to the relief sought by the Defendant, two issues arise:

78. what amount, if any, should be paid directly to the Defendant from the proceeds of the sale; and

79. what orders should be made regarding the balance.

80. The Plaintiff is agreeable to an order that the Defendant immediately receive $25,000 from the sale proceeds to assist her to find accommodation. The Plaintiff is also content to pay a further sum of $145,000 into Court, with the balance of the sale proceeds being paid entirely to the Plaintiff.

81. The Defendant seeks a payment of $145,000 from the proceeds, with the balance to be paid into an account in anticipation of the proceedings in the Federal Circuit and Family Court. That amount is comprised of:

82. $8,000 for four weeks at an AirBnb whilst obtaining accommodation elsewhere;

83. $3,200 to cover the bond at a rental property;

84. $8,000 to pay packers and removalists;

85. $20,000 to furnish a rental property;

86. $15,000 to purchase an automatic second-hand car. This is apparently needed because the Defendant has difficulty driving her manual vehicle due to her back and leg pain; and

87. funds to pay her legal fees. An estimated amount was not provided.

88. The stated amounts there total $54,200. The Defendant also anticipates ongoing costs of $1,612 each week, which comprises:

89. $800 each week for rent;

90. $200 each month to keep her belongings in storage in Melbourne; and

91. $762.50, which is comprised of:

(a) $100 each week for fuel; (b) $50 each month for her mobile; (c) $250 each week for groceries; (d) $250 each week for medical appointments; and (e) $150 each week for general expenses.

81. Neither parties’ proposal is acceptable to me. I will instead order that both parties receive $110,000 from proceeds of the sale of the Unit. I have reached that amount for the following reasons:

82. I consider that $8,000 both for a month in an AirBnb and for packers and removalists is excessive. I have reduced each of those amounts to $4,000;

83. I consider that $20,000 to furnish a rental property is also excessive. I have accordingly reduced that amount to $15,000;

84. I do not consider that the $15,000 to replace the Defendant’s car is an appropriate expense. The back injury that contributes to her difficulty with the manual car occurred in 2024. This is not a suitable avenue for the Defendant to replace her car;

85. I propose to allow approximately $30,000 for legal fees. I do this noting that a substantial part of the Defendant’s evidence in the FCFCA proceedings has already been prepared in the course of this matter; and

86. Of the other ongoing expenses, the Defendant already pays the storage, fuel, mobile, medical and general expenses, and they are already included in her evidence concerning the use of her pension payments. The $800 weekly rent expense is undoubtably new, and there may be a loss in the cost efficiency of purchasing groceries for one person rather than two. It is in relation to those expenses that I will order her to receive additional money.

87. I do not consider it necessary or convenient for the balance of the proceeds to be paid into Court. That will only cause complications where I am transferring this matter to the FCFCA. I will instead order that the remaining sum be paid into a trust account held by the Plaintiff’s solicitor with that money not to be used for anything other than as directed by the FCFCA.

Orders

83. In accordance with my reasons, I make the following orders:

84. The Plaintiff is to pay the Defendant an amount of $110,000 from the proceeds of the Unit’s sale.

85. The Plaintiff is to receive $110,000 from the proceeds of the Unit’s sale.

86. The balance of the proceeds of the Unit’s sale are to be paid into a trust account held by the Plaintiff’s solicitor. Those proceeds are not to be used for any purpose other than as directed by the FCFCA.

87. The costs of these proceedings are reserved. They are to be determined by the FCFCA pursuant to the determination of those proceedings.

88. The Plaintiff’s Statement of Claim be dismissed.

89. These proceedings are transferred to the FCFCA.

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Amendments

28 April 2026

Correction of typographical error at [33].

28 April 2026

Order 6 added pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW).

(1981) 146 CLR 249