Harlow & Harlow [2025] FedCFamC1F 795 (6 November 2025)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harlow & Harlow has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons determine an Application in a Proceeding filed on 13 August 2025 by Mr B Harlow in property adjustment proceedings between the executors of the Estate of the Late Mr Harlow ("the estate of the late husband") and Ms Harlow ("the wife") seeking:
   1. To the extent that leave is necessary pursuant to Rule 3.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the Family Law Rules"), that leave be granted to the Applicant Intervenor [Mr B Harlow], to intervene in these proceedings for the purpose of seeking the following orders pursuant to Section 79 of the Family Law Act :

1.1 The Respondent [Ms Harlow] transfer to the Applicant all her right title and interest in the property known as [E Street, Suburb F] NSW being Lot [...] in Strata Plan [...].

1.2 The Respondent [Ms Harlow] transfer to [Mr C] and [Mr D], in their capacity as the executors appointed under the will of the late [Mr Harlow] all her interest in [Super Fund 1].

1.3 The Respondent [Ms Harlow] transfer to [Mr C] and [Mr D] in their capacity as the executors appointed under the will of the late [Mr Harlow] all her right title and interest as tenant in common in the property known as [G Street, Suburb H] being the whole of the land in Folio [...].

1.4 The Respondent [Ms Harlow] pay to [Mr C] and [Mr D] in their capacity as executors appointed under the will of the late [Mr Harlow] an amount equal to one half of the total value of all the assets of the late [Mr Harlow] and [Ms Harlow] less the value of the assets otherwise held or to be held by the estate of the late [Mr Harlow].

1. That the Applicant Intervenor [Mr B Harlow] is to be added as the Intervenor in the Proceedings.
2. The Initiating Application and the affidavits filed by the Husband and the Wife be served on the Applicant Intervenor with in seven days.
3. That within 28 days of the date of order 2, the Applicant Intervenor file and serve Points of Claim and any affidavit in answer to the affidavits filed by the Husband and the Wife.

1. The estate of the late husband by way of a Response to an Application in a Proceeding filed on 19 September 2025 seeks:

Joinder to assert interest in [Suburb F] Property

1. In relation to Prayer 1.1 of the Application in a Proceeding filed 13 August 2025, and on the basis of the matters pleaded at paragraphs 15 to 18 of the Points of Claim filed on 28 August 2025 (Points of Claim), the Husband by his legal personal representatives (Husband) neither consents to nor opposes the joinder of proposed intervenor, [Mr B Harlow], in relation to the [Suburb F] property.

Joinder to assert interest as residuary beneficiary of the Estate of the Husband

1. In relation to Prayers 1.2 - 1.4 of the Application in a Proceeding filed 13 August 2025, and on the basis of the matters pleaded at paragraphs 19 to 43 of the Points of Claim, Order that the application for joinder as sought in Prayer 2 be dismissed.

Costs

1. That the proposed intervener, [Mr B Harlow], pay the Husband's costs of and incidental to this Application.

(As per the original)

1. The wife seeks by way of her Response to an Application in a Proceeding filed on 16 September 2025:
   1. That the application of the Applicant, [Mr B Harlow], filed on 13 August 2025 be dismissed.

2. That the proposed intervenor pay the costs of The Respondent.

(As per the original)

1. The proceedings were transferred to Division 1 on 28 October 2025 and included in the Major Complex Financial Proceedings List.
2. For the reasons that follow, the Application in a Proceeding of Mr B Harlow filed on 13 August 2025 is dismissed.

1. The late husband was born in 1948 and died in 2024. The wife was born in 1949 and is currently 76 years of age.
2. The late husband and the wife married in 1980. Mr B Harlow was born in 1982. He is one of two children of the late husband and the wife, his older brother being Mr J. The late husband and the wife separated on 3 January 2023. A Divorce Order was made in 2024.
3. On 11 September 2024, the late husband commenced proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act") in the Federal Circuit and Family Court of Australia (Division 2) seeking orders adjusting property of he and the wife. On 10 October 2025, the wife filed a Response to Initiating Application seeking different orders adjusting that property.
4. The late husband made his last Will in late 2024, the day before he passed away. In July 2025, Probate was granted by the Supreme Court of New South Wales of the late husband's estate to the executors nominated in his Will, Mr C and Mr D.
5. The property of the late husband and the wife subject to adjustment in the s 79 proceedings is in the range of $30 million. As part of that property, the wife is the registered owner of a real property at E Street, Suburb F NSW ("the Suburb F property").
6. By way of the last Will of the late husband, after payment of specified legacies of about $2,300,000, the residue of his estate is shared equally between his sons, Mr J and the proposed intervener, Mr B Harlow.
7. In July 2025, the proposed intervener, Mr B Harlow, filed proceedings, number ..., in the Supreme Court of New South Wales seeking further provision out of the estate of the late husband pursuant to s 59 of the Succession Act 2006 (NSW) ("the Succession Act").
8. On 13 August 2025 an order was made in Division 2 that the executors of the estate of the late husband, Mr C and Mr D, be substituted as the applicant in the s 79 proceedings.
9. Both the estate of the late husband and the wife submit that the consideration of the matters identified in s 79AA(8) of the Act as to the continuation of the s 79 proceedings subsequent to the death of the husband will be comfortably satisfied in the circumstances of this case.

92 Intervention by other persons

(1) In proceedings (other than divorce or validity of marriage proceedings), any person may apply for leave to intervene in the proceedings, and the court may make an order entitling that person to intervene in the proceedings.

(2) An order under this section may be made upon such conditions as the court considers appropriate.

(3) Where a person intervenes in any proceedings by leave of the court the person shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.

1. Part 3.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") sets out the procedure for the joinder of a party to a proceeding. Mr B Harlow seeks joinder by way of r 3.04. It provides:

3.04 Person may apply to be included

(1) A person may apply to the court to be included as a party to a proceeding by filing an Application in a Proceeding.

(2) Unless the court otherwise orders, the application must be supported by an affidavit stating:

(a) the person's interest in the proceeding or any matter in dispute between the person and a party to the proceeding; and

(b) the orders (if any) that the person will seek if included as a party.

(3) The person must serve a copy of the application and affidavit on each party to the proceeding.

(4) An order for inclusion of the party may be on limited terms.

1. Rule 3.01 is relevant to joinder of an additional party. It provides:

3.01 Necessary parties

A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding

1. Section 92 of the Act and r 3.01 do not identify the matters to be considered to join a party to a proceeding. The rule mandates that a necessary party to a proceeding be joined. The rule prescribes satisfaction of two conjunctive thresholds, being:

(a) Firstly, that the party who is proposed to be joined has rights that will be directly affected by the proceeding; and

(b) Second, that their participation in the proceeding is necessary to determine all issues in dispute in the proceeding.

1. If the case pleaded and/or evidence grounds such satisfaction, the rule obliges a joinder.
2. The word "necessary" for the purposes of a predecessor of r 3.01 was described by Warnick J in Wayne & Dillon & Anor [2008] FamCAFC 204; (2008) 40 Fam LR 543 as meaning something more than "useful" or "expeditious". No submission was made that, as a matter of construction, the word "necessary" would not have meaning, other than its ordinary and natural meaning, as being essential.
3. Joinder is a serious step in litigation with significant obligations and consequences.
4. The facts and circumstances pleaded and/or the evidence must be sufficient to demonstrate that, if proved, the law arguably provides the relief sought (B Pty Ltd & K [2008] FamCAFC 113; (2008) FLC 93-380). It would be futile to order a person to be joined if immediately thereafter an existing party could apply for summary judgment, and that application would succeed (s 46(2)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth); Riemann & Riemann (No 3) [2017] FamCA 911). It is well established that a court, when considering whether a claim has no reasonable prospects of success in a summary dismissal context, does not resolve disputed facts and takes the applicant's case at its highest.
5. Mr B Harlow constructs his application for joinder as a party to the proceedings from two separate foundations, broadly being:

(a) A claim that the wife holds the Suburb F property on trust for his benefit; and

(b) Complaints as to conduct of the legal personal representatives of the estate of the late husband in the s 79 litigation to protect and promote his interests as a residuary beneficiary of the late husband's estate.

1. Until her death in 2014, the wife's mother, Ms K, was the owner of the Suburb F property. Mr B Harlow has lived in that property since 2007.
2. Mr B Harlow said in his affidavit filed on 13 August 2025:
   1. ...In 2007, my grandmother said to me, "You can live there, and I will gift the property to you in my will." My mother acquired this property under the will of my grandmother. I understand my grandmother made an arrangement with my mother that my mother would hold this property in trust for me.

1. Mr B Harlow contends that the wife by way of her affidavit filed on 10 October 2024 "stated expressly" that Ms K, "settled the [Suburb F] property [on the wife] as trustee for the benefit of [Mr B Harlow]". The relevant paragraph of the affidavit relied upon to support the contention records:
   1. [Mr B Harlow] has been living in the [Suburb F] property, which was owned by my mother prior to her death, for 17 years. My mother allowed him to live there with the intention that he pay a peppercorn rent but he has not contributed at all as he cannot afford to pay rent and fund his living expenses. Prior to her death my mother informed me that she wanted me to hold the [Suburb F] property in trust for [Mr B Harlow] so that he would have a home with his partner..., so that she would stay with him.

1. During the hearing, Mr B Harlow asserted his understanding that the Suburb F property was to be his came from a conversation with his grandmother in 2007. He conceded that he did not plead or adduce any evidence as to when he achieved knowledge that the asserted trust was established.
2. The wife contends that:

(a) Her mother, Ms K, made a signed statement in March 2009, associated with her last Will also made in March 2009, that recorded the wife helping and taking care of her (the testator) for many years, and assisting her in the management of her financial and personal affairs;

(b) Notwithstanding the evidence of Mr B Harlow in his affidavit filed on 13 August 2025, Ms K's Will, made some two years after the conversation in 2007, does not bequeath the Suburb F property to Mr B Harlow. It leaves half of the residue of the estate (which includes the Suburb F property amongst other property) to Mr B Harlow should the wife predecease Ms K (the testator);

(c) Her evidence as to conversations with her mother as to her wishes regarding the Suburb F property establishes that the receipt of the property by the wife by way of the Will forming the terms of the Grant of Probate, granted in the Supreme Court of New South Wales on March 2015, was not on condition that she hold it for the benefit of Mr B Harlow. The Suburb F property formed part of the residue of that estate. Mr B Harlow did not challenge Ms K's Will, nor did he make a claim by way of the Succession Act, or object to the distribution of the Suburb F property to the wife; and

(d) Mr B Harlow has not produced any document to support his claim as to his grandmother intending to create a trust for his benefit.

1. The wife has been the registered owner of the Suburb F property since it was transferred to her pursuant to the Grant of Probate made in March 2025, absent demur by Mr B Harlow. The contention of Mr B Harlow is that the doctrine in Blackwell v Blackwell [1929] AC 318 is attracted, preserving his beneficial interest in the real property.
2. The wife contends that the facts and contentions pleaded by Mr B Harlow could not lead to a successful claim against the Suburb F property and hence, any joinder would be futile. In that circumstance it cannot be established that he is a necessary party. Mr B Harlow contends he has established an arguable claim against the Suburb F property. As will be explained, it is not necessary for me to determine the prospects of success of Mr B Harlow's claim relating to the Suburb F property to determine this aspect of the joinder application.
3. The executors of the estate of the late husband took a different two-folded approach to the application for joinder, based on the Suburb F property claim, focusing on a failure to establish jurisdiction. Jurisdiction means "the authority which a court has to decide matters that are litigated before it or to take cognoscente of matters present in a formal way for its decision" (Wardley Australian Limited v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 561). Only a court with jurisdiction can validly exercise power. If jurisdiction is not established, joinder for the purpose of the claim has no utility. Mr B Harlow bears the onus of establishing jurisdiction to enliven his claims for relief in the s 79 proceedings.
4. As to the first limb, if granted leave to intervene, Mr B Harlow identifies that as a party he will seek an order pursuant to s 79 of the Act that his mother transfer to him the Suburb F property.
5. Section 92(3) of the Act, or the act of intervening in the proceeding, does not provide the intervener with a substantive right to make a claim which is not otherwise directly available to the intervener under some other provision of the Act, or on some other basis (Deputy Commissioner of Taxation v Kliman [2002] FamCA 629; (2002) FLC 93-113 at [21]).
6. Section 79(1)(d) permits a court to make an order altering the interests of the property of the parties to the marriage for the benefit of a child of the marriage. The High Court in Dougherty v Dougherty [1987] HCA 33; (1987) 163 CLR 278 said that the unusual case of a transfer of property to a child of the marriage (including an adult child) must be based on circumstances that arise over the parties' marital relationship (see also B Pty Ltd and Anker [2025] FedCFamC1A 85).
7. Mr B Harlow claims an equitable interest in the Suburb F property as a beneficiary under a trust. His claim to that real property is not based on circumstances arising out of the marital relationship of his parents nor are his other claims for relief for his mother to transfer to the estate of his late father, specified items of property, and an unspecified sum of money. He has no standing to seek that relief in these s 79 proceedings.
8. Section 79 of the Act has no application to his claims. If that conclusion is in error, Mr B Harlow has not pleaded any facts of, or given evidence as to, any integer of the considerations in s 79 of the Act, to demonstrate any prospect of success of the relief sought for his mother to transfer the Suburb F property to him, or his other orders sought that his mother alter her property interests in favour of his late father's estate. To grant him leave to intervene on the basis that he seeks an order pursuant to s 79 of the Act would serve no purpose.
9. Mr B Harlow submitted that Pt VIIIAA of the Act, and specifically s 90AE(2)(b), enabled a jurisdictional pathway in a matrimonial cause for a third party to the marriage to prosecute a claim against a party to the marriage in s 79 proceedings. He could not identify any authority in support of this submission. In the event leave is granted for him to be joined as a party, he did not submit that the terms of his relief as constructed would be a matrimonial cause as defined in the Act.
10. Part VIIIAA of the Act is headed "Orders and injunctions binding third parties". Section 90AA of the Act provides:

90AA Object of this Part

The object of this Part is to allow the court, in relation to the property of a party to a marriage, to:

(a) make an order under section 79 or 114; or

(b) grant an injunction under section 114;

that is directed to, or alters the rights, liabilities or property interests of a third party.

1. For the purposes of Pt VIIIAA, a "third party" is defined as "a person who is not a party to the marriage".
2. Section 90ADA provides:

90ADA Other provisions of this Act not affected by this Part

This Part does not affect the operation of any other provision of this Act.

Example: Paragraph 90AE(3)(e) and subsection 90AE(4) do not limit the operation of any other provisions of this Act that require or permit the court to take matters into account in making an order in proceedings under section 79.

1. Section 90AE for the purposes of Mr B Harlow's contention relevantly provides:

90AE Court may make an order under section 79 binding a third party

...

(2) In proceedings under section 79, the court may make any other order that:

(a) directs a third party to do a thing in relation to the property of a party to the marriage; or

(b) alters the rights, liabilities or property interests of a third party in relation to the marriage.

(3) The court may only make an order under subsection (1) or (2) if:

(a) the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

(b) if the order concerns a debt of a party to the marriage - it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and

(c) the third party has been accorded procedural fairness in relation to the making of the order; and

(d) the court is satisfied that, in all the circumstances, it is just and equitable to make the order; and

(e) the court is satisfied that the order takes into account the matters mentioned in subsection (4).

(a) the taxation effect (if any) of the order on the parties to the marriage;

(b) the taxation effect (if any) of the order on the third party;

(c) the social security effect (if any) of the order on the parties to the marriage;

(d) the third party's administrative costs in relation to the order;

(e) if the order concerns a debt of a party to the marriage - the capacity of a party to the marriage to repay the debt after the order is made;

Note: See paragraph (3)(b) for requirements for making the order in these circumstances.

Example: The capacity of a party to the marriage to repay the debt would be affected by that party's ability to repay the debt without undue hardship.

(f) the economic, legal or other capacity of the third party to comply with the order;

Example: The legal capacity of the third party to comply with the order could be affected by the

terms of a trust deed. However, after taking the third party's legal capacity into account, the court may make the order despite the terms of the trust deed. If the court does so, the order will have effect despite those terms (see section 90AC).

(g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters - those matters;

Note: See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.

(h) any other matter that the court considers relevant.

1. The High Court in Commissioner of Taxation v Tomaras [2018] HCA 62; (2018) 265 CLR 434 confirmed that Part VIIIAA is explicitly ancillary to s 79 of the Act and is directed, subject to the conditions in s 90AE(3), to a third party, allowing a court to make an order under s 79 that is directed to, or alters the rights, liabilities or property interests of a third party. The example given in the legislation is that certain provisions of s 90AE "do not limit the operation of any other provisions of [the Act] that require or permit the court to take matters into account in making an order in proceedings under section 79". In other words, Pt VIIIAA is to be construed as sitting alongside, and ancillary to, Pt VIII.
2. For the reasons recorded earlier, I do not accept the implicit submission of Mr B Harlow that Pt VIIIAA of the Act equips a court exercising a s 79 power with jurisdiction to determine a claim made by a third party against a party to that marriage. As s 79 of the Act has no application to Mr B Harlow's claims, joinder cannot be achieved by way of s 90AE(2) of the Act. His application for joinder as a party constructed from these foundations has no utility and hence fails.
3. The second limb of the contention of the executors of the estate of the late husband engages with Mr B Harlow's alternate Suburb F property claim to that made by s 79 of the Act, being a non-federal claim by way of New South Wales law in equity. This Court has accrued jurisdiction by which, dependent upon the circumstances of the case, it has jurisdiction to hear and determine non-federal issues (Warby & Warby (2001) FLC 93-091; Valceski v Valceski [2007] NSWSC 440; (2007) FLC 93-312 ("Valceski"). Mr B Harlow directed his submissions to the description of the accrued jurisdiction of Brereton J in Valceski:
   1. When a federal law confers jurisdiction on a court in respect of a "matter" arising under the Commonwealth Constitution or a federal statute, the jurisdiction extends to authorise determination of the whole "matter". It has long been established that a matter is a "justiciable controversy", the determination of which may involve both federal and State law: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; In the Marriage of Smith (No 2) [1985] FamCA 16; (1985) 10 Fam LR 283 at 288‑289.

...

1. Thus, when a federal court is invested with federal jurisdiction, it is also invested with the power to determine non-federal aspects of a justiciable controversy which involves the exercise of its federal jurisdiction, provided that the non-federal aspects of the controversy form an integral part of the same controversy: Stack v Coast Securities (No 9). The scope of the "matter" in respect of which a federal court has jurisdiction is described by the ambit of the justiciable controversy. There is but a single matter, and the non-federal claims are within the accrued jurisdiction, where the different claims arise out of "common transactions and facts" or "a common substratum of facts" (Philip Morris Inc (at 512 per Mason J)), notwithstanding that the facts upon which the claims depend "do not wholly coincide" (Fencott v Muller (at 607 per Mason J, Murphy J, Brennan J and Deane J); Re Wakim (at 586 [141])); or where different claims are so related that the determination of one is essential to the determination of the other (Philip Morris Inc (at 512 per Mason J)); or where, if the proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings (Re Wakim (at 586 [141])). However, it must always be borne in mind that the ultimate question is not the existence of each of the several suggested indicia, but whether there is in substance a single justiciable controversy.

1. Jurisdiction is either accrued or it is not. There is no discretion as to whether or not to exercise it (Noll v Noll & Anor [2013] FamCAFC 24 at [24]). Ultimately, it is a matter of impression and practical judgment as to whether the federal claim and the non-federal claim are within the ambit of a matter.
2. Mr B Harlow submits that his asserted equitable interest in the Suburb F property as a beneficiary under a trust may be affected by any declarations made, pursuant to s 78 of the Act or orders made pursuant to s 79 of the Act, in the property adjustment proceedings between the estate of the late husband and the wife. He contends that identification of the wife's property interests are considerations in the resolution of the federal s 79 claims made by each of the estate of the late husband and the wife (s 79(3) of the Act). Consequently, as the determination of the interests of the wife in the Suburb F property are a relevant consideration in a determination of the adjustment of property interests, he would achieve engagement of the accrued jurisdiction as mandated by each limb of r 3.01.
3. That submission is not accepted. Neither the husband nor the wife in the s 79 proceedings seek relief adjusting any interest in the Suburb F property, or declarations as to the wife's interest in that property. The construction of the s 79 litigation directs that the wife's interest in the Suburb F property will be undisturbed.
4. For the purposes of engaging the accrued jurisdiction, Mr B Harlow did not identify any common substratum of facts that spans both his claim against the Suburb F property and the competing s 79 claims. At its highest, if his joinder is achieved, the wife is a respondent to each claim.
5. The claim against the Suburb F property is severable in nature from the competing s 79 claims. Mr B Harlow has not identified each claim presenting a single justiciable controversy. He has failed to establish that an accrued jurisdiction is engaged to determine the proposed non-federal claim. This concludes that the application for joinder based on the non-federal Suburb F property claim fails, in turn, to establish the conjunctive thresholds in r 3.01.
6. This conclusion is reinforced by Mr B Harlow:

(a) Having capacity to commence a claim in the Supreme Court of New South Wales as to the Suburb F property. It presents as a natural forum for that claim, including that the claim may be determined concurrently with the Succession Act claim; and

(b) Failing to engage as to the potential risk of inconsistent findings between those implicitly underscoring the distribution of the Suburb F property to the wife, pursuant to the terms of the Grant of Probate made in the Supreme Court in 2015, and those sought by him if the Suburb F property claim was successfully prosecuted in this forum.

Joinder by way of interest as a residual beneficiary of the late husband's estate

1. The foundations for joinder by this avenue are submitted by Mr B Harlow to establish, either individually or by way of accumulation, the conjunctive thresholds in r 3.01 by way of two related categories, being:

(a) Assertions that the executors of the late husband's estate have failed to act with care and diligence in promoting the interests of that estate in the s 79 proceedings; and

(b) That Mr B Harlow, as a residual beneficiary of the late husband's estate, has a separate and distinct interest from the estate in the s 79 proceeding.

1. As to the first category, Mr B Harlow asserts the executors of the estate of the late husband have permitted the wife to wrongfully remove valuable items of property, including a wine, art and musical instrument collection, from the control of the late husband's estate, and not sought to recover them. He submits the executors of the late husband's estate ought to have sought an urgent injunction to recover the possession of the items for his benefit as one of the residuary beneficiaries of his late father's estate, and to ensure that the removed items are valued. The executors of the late husband's estate deny the import and fact of the allegations, directing attention to an affidavit filed by the wife on 3 October 2025 disclosing particulars of the location of 76 items including artworks, sculptures, furniture, wine and musical instruments, all of which are either at G Street, Suburb H NSW ("the Suburb H property") or L Street, Suburb M NSW ("the Suburb M property").
2. Mr B Harlow makes express allegations as to the executors failing to ensure disclosure by the wife of her financial circumstances, citing a failure by her to disclose her interest in a shopping centre at N Street, City O and a superannuation fund. At the hearing, the executors of the estate of the late husband established that such allegations were vacuous, those interests of the wife having been recorded in her Financial Statement filed on 10 October 2024. The executors were aware that the shopping centre was received by the wife on bequest from her late mother's estate. The executors submit that there is no credible foundation in the evidence to assert that they, in substitution for the husband, or that the wife, has not, or will not in the future, comply with the mandated obligations of disclosure of documents and information as to the relevant financial circumstances for the purposes of the s 79 proceedings, as codified in s 71B of the Act, or that they will fail to ensure relevant property is valued. On the evidence identified on this subject matter for the purposes of the joinder application, the assertions of Mr B Harlow are hollow.
3. Other complaints are made by Mr B Harlow by way of the first category as to a failure on behalf of the executors of the late husband's estate to include the late husband's s 79 claim on the inventory of property for the purposes of obtaining a Grant of Probate, and assertions as to the significant undervalued items of personal property as contained in the inventory of property for the Grant of Probate. The complaints expand to an "art collection" of the late husband being ascribed an original value of $500,000 for the Grant of Probate, amended in the Succession Act proceeding to $310,250 and a "wine collection" being ascribed a value of $663,000 for Grant for Probate, amended in the Succession Act proceeding to $435,775. These matters are directed to the conduct of the current Supreme Court litigation. No foundation was identified in the evidence to establish a possibility that the executors of the late husband's estate in the s 79 litigation will attempt to prescribe a value, other than a market value, to an item of property in the s 79 proceeding.
4. As part of the first category of failure on the part of the executors of the late husband's estate, Mr B Harlow identifies that one executor, Mr C, has a long-standing personal relationship with the wife. Mr B Harlow makes the serious assertion that this relationship impacts his ability to act neutrally in the interests of the late husband's estate. He cites that the other executor of the late husband's estate is often outside of Australia. The executors of the late husband's estate refute the allegations. The executors of the late husband's estate submitted that a letter dated 31 October 2025 from Mr B Harlow's solicitors put the allegations against them (the executors) in "very serious terms", inferring that their questions to the wife in a letter dated 15 September 2025 and responded to by way of her affidavit filed on 3 October 2025, were a "façade to present to the Court that steps have been taken when in truth there is nothing genuine about it".
5. The executors of the late husband's estate say that should Mr B Harlow believe that his scandalous assertions as to neglect, misconduct, or failure to act appropriately have substance, he can make such application as he is advised to the Probate and Family Provision List in the Equity Division of the Supreme Court to seek the appropriate relief for their removal, being a court where they (the executors) and Mr B Harlow are already litigants. No such application has been made. The submission of the executors of the late husband's estate as to Mr B Harlow adopting that course, rather than engaging a "peripheral issue in a s 79 proceeding" using assertions to join him as a party to that proceeding, has merit. It is telling that during submissions Mr B Harlow identified that his dissatisfaction with the conduct of the executors of his late father's estate includes a refusal, to date, to release estate funds to him. That circumstance is devoid from connection to the s 79 proceedings. He anticipates making an application in the current Supreme Court proceedings for that relief.
6. Further, Mr B Harlow has not made any application to remove the executors of the late husband's estate, substituted for the late husband in the s 79 proceedings in this forum, by way of variation of Order 1 as made on 13 August 2025. On one view, that ought to have been anticipated from the tenor and content of his complaints.
7. Mr B Harlow's assertion that the executors of the late husband's estate are not able to "adequately meet" allegations of abuse or financial control alleged by the wife in the s 79 litigation, is hollow. Mr B Harlow can be called as a witness to give evidence rebutting family violence at the appropriate time in the proceeding.
8. The contention that Mr B Harlow, as a residual beneficiary of his late father's estate, has a separate and distinct interest from the estate in the s 79 proceeding, is difficult to distil as a matter of law. As best as I understand it, he asserts that each of the art collection, wine collection and musical instrument collection will form part of the residuary estate, and although he does not have a beneficial interest in any specific chattel, "he has an equitable interest in the entire estate that would be protected by a court of equity".
9. As a starting point, the Grant of Probate vests all of the property of the late husband in the executors of his estate from the date of death (s 44 and 61 of the Probate and Administration Act 1989 (NSW)). Mr B Harlow, as a residuary beneficiary in an unadministered estate, does not have any beneficial or equitable interest in that estate, or any of its assets. As a beneficiary, he has a chose in action for the due administration of the estate in accordance with the Will of the late husband. This does not establish that he has a separate and distinct interest in the s 79 proceeding from that of the estate of the late husband.
10. Mr B Harlow has not established, by consideration of the factors he identifies both individually and cumulatively as to his interest as a residuary beneficiary of his late father's estate, that his rights by way of that interest will be directly affected by the s 79 proceeding, or that his participation in the proceedings is necessary to determine all issues in dispute in the proceeding. His application for joinder by way of this foundation fails.
11. This conclusion is buttressed by way of Mr B Harlow's own "chapter and verse" submissions in his Case Outline filed on 21 October 2025 as to the multifaceted capacities to make claims to seek recompense from the executors, if he can establish his assertions by way of a remedy in another forum, as acknowledged by the executors of the estate of the late husband.

1. For all of the above reasons, the Application in a Proceeding of Mr B Harlow filed on 13 August 2025 will be dismissed.

1. No opportunity was afforded for submissions as to costs as sought. Directions will be made to enable such matters to be determined. If they are not pressed, any applications for costs will be dismissed.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.