Le v Angius

Supreme Court of NSW|2022-02-18|Before: Parker J

Judgment

On 18 February 2022 I heard an interlocutory application in family provision proceedings. The plaintiff, who claims to have been the deceased's de facto wife, or at least companion, sought orders restraining his daughter, who has been named as his executor, from taking possession of the deceased's home and evicting the plaintiff and her son. I refused the plaintiff's application. What follows are my reasons for that decision.
The proceedings concern the estate of the late John (also known as "Giovanni") Angius. He was born in October 1936 in Italy. According to a medical report in evidence, he came to Australia in about 1957.
After he arrived in Australia the deceased married his wife, Laura. Together they had two children: Robert Angius (from whom the deceased was apparently estranged), and the defendant, Jenny Angius. The deceased's wife Laura died in January 2012. He did not remarry. He died ten years later at the age of 85.
The matrimonial home was a house at Denning Street, Coogee. The deceased was living there prior to his death. It is this property which was the main focus of the plaintiff's application. It is a substantial one. The house is said to have four bedrooms, four bathrooms, extensive living areas including a roof-top terrace, and garaging for three cars.
The plaintiff, Thi Quy Le, is of Vietnamese extraction. She was born in March 1963, making her twenty-six years younger than the deceased. She claims that she and the deceased lived together in a de facto relationship for the last ten years or so of the deceased's life. Before that, she claims, they were in a sexual relationship for eight years or so.
The plaintiff has at least three children by a previous relationship, or relationships. These include two sons Ba Thang John (known as "John") Hoang, and Ba Duc (known as "Duc") Hoang.

Background and procedural history

As well as the matrimonial home at Coogee, the deceased and his wife owned a property at Allen Street, Waterloo. The deceased oversaw a redevelopment of the property which apparently began in about 2010. The development involved the construction of a mixed retail and residential building. It seems to have been completed some time in 2011.
In November 2011 the deceased and his wife granted to the plaintiff a registered lease of one of the newly constructed shops in the Waterloo building. The plaintiff operated, and continues to operate, a laundromat business from that shop.
Following his wife's death, the deceased became the sole proprietor of the Waterloo property and the Coogee property (as well, it seems, as other properties which had been owned by her). In 2016 the lease to the plaintiff of the laundromat shop was extended. This was recorded in a formal variation of lease registered with the Land Titles Office.
It is unclear on the evidence when the lease, as varied, was to expire. One possibility is that it does not expire until 2026. Another is that it expired in 2021, and the plaintiff has been holding over since then. For the purposes of the application, it was not necessary to go into this any further.
The deceased and his wife retained ownership of a residential unit (described in the evidence as a penthouse) in the Waterloo property. It is common ground that the deceased lived there, at least periodically, in 2011 and early 2012. According to the defendant, the deceased returned to the house at Coogee after his wife's death. According to the plaintiff, the deceased continued to live at the Waterloo penthouse until he sold it in August 2016, and only then moved back to Coogee.
It seems that in 2016 or 2017, orders were made by this Court for the appointment of trustees for the sale of the Coogee property. These orders appear to have had something to do with costs liabilities incurred by the deceased in proceedings concerning his wife's estate. For a time the deceased moved to a rural property at Burradoo in the Southern Highlands which he had bought as a weekender following his wife's death in 2012. But later in 2017, the deceased bought the Coogee property from the trustees at a public auction and moved back in. The deceased paid $6 million to buy the property back.
The deceased was in poor health in the last few years of his life. He suffered from heart and circulation trouble as well as other conditions. A geriatrician's report from June 2021 which is in evidence records that he was also suffering from a degree of cognitive impairment. According to the plaintiff, he was constantly in and out of hospital during the last year or so of his life. His final admission to hospital came on 23 January (this year) and he died in hospital on 31 January.
The deceased left a will dated 21 April last year, which appears to have been his last will. The will appointed the defendant as his executor and sole beneficiary. If the defendant did not survive her father, the estate was to go to her two children upon their attaining the age of 25.
The defendant has advertised that she intends to make an application for probate of the will. The plaintiff has not foreshadowed any challenge to the capacity of the deceased, or otherwise to the validity of the will. Counsel for the plaintiff accepted that, while the deceased's property is at the moment formally vested in the New South Wales Trustee and Guardian, once probate of the will is obtained the defendant's title as executor will relate back to the date of death: see Probate and Administration Act 1898 (NSW), ss 44, 61.
The trigger for the application before me was the defendant's decision to take control of the Coogee property. She appointed an "Asset Manager", Mr Jason Bates, for this purpose. On Thursday 10 February, Mr Bates attended the property. At the time, the plaintiff's son Duc was there but the plaintiff was not. I refer in more detail below to the parties' evidence about what occurred. For present purposes it is enough to say that Mr Bates required Duc to leave the property and he did so, taking some of his mother's and his possessions with him. Mr Bates then had the locks changed.
The proceedings were commenced by the plaintiff on an urgent basis on the following day, Friday 11 February. The matter came before me in the Duty List and I granted short service. The summons contained an application for interlocutory relief which I set out in more detail below. Counsel for the plaintiff asked me to grant that relief immediately, but I declined. I considered that the application was not so urgent as to justify relief on an ex parte basis, without even hearing from the defendant.
At the request of counsel for the plaintiff, I made the summons returnable at 2.00 pm the following Monday, 14 February. On that occasion the defendant appeared by counsel but she was not ready to meet the application. Instead, that Friday, 18 February, was fixed as the hearing date.
In order to regularise the proceedings pending a formal grant of representation, under Uniform Civil Procedure Rules 2005 (NSW), r 7.10, I appointed the defendant as the legal representative of the estate for the purpose of the proceedings. Counsel for the plaintiff renewed his application to have the interlocutory orders sought by the plaintiff made immediately, pending the hearing, but again I declined.

Application for possession of deceased's home until further order

The plaintiff's summons sought by way of interlocutory relief (prayer 2) an order in conventional interlocutory form restraining the defendant from "interfering with the occupation" and quiet possession by the plaintiff "and her family" of: 1. the house at Coogee; and 2. the shop at Waterloo.
Prayer 3 was an order that prayer 2 "is to be regarded as interim provision in favour of" the plaintiff for the purposes of the Succession Act 2006 (NSW), s 62(1). I will return to this section below. Prayer 4 sought an order requiring the defendant to make all keys and other means of access to the properties available to the plaintiff.
Counsel for the defendant made it clear that the defendant does not, at this time, seek to interfere with the plaintiff's possession of the Waterloo shop. Nor is the defendant seeking to enforce any obligation on the plaintiff to pay rent for the shop. The dispute on the application concerned the Coogee property. The defendant contended that the application should be refused.

Evidence

The principal affidavit in support of the plaintiff's application was made by her on 11 February. Four other affidavits were filed in support of the application when it first came before the Court. Three more affidavits were filed in Court on the return of the summons on 14 February. Counsel indicated that these were all of the affidavits upon which the plaintiff proposed to rely (in chief) in support of her application and I made a note accordingly.
In the plaintiff's affidavit, she stated that she first met the deceased in about 2000. He was then working as a mechanic with his own workshop. The plaintiff stated that her sexual relationship with the deceased began in March 2003 after the deceased took her out to dinner. She remembered this because it was only a few weeks after her 40th birthday.
At the time, the plaintiff was living in subsidised housing at Phillip Street in Waterloo. According to the plaintiff, the deceased would stay overnight with her there two to three times a week. He told her he was effectively separated from his wife, although they were still living under the same roof. Once he started staying at the Waterloo penthouse (which the plaintiff said was in 2011), she would stay with him there.
The plaintiff stated that the deceased gave her the Waterloo shop in 2011 as an act of generosity, in the context of her relationship with him. The formal lease was only to "appease" the deceased's wife. The plaintiff was not required to pay rent (although she did apparently pay the outgoings on the shop).
The plaintiff stated that in about December 2011 she moved into the Allen Street penthouse full-time. She kept up the Phillip Street housing for the benefit of her daughter who was then pregnant. The deceased encouraged her in this. She lived with the deceased at the penthouse until it was sold in 2016 and they moved to the house at Coogee. She then moved with him to Burradoo and returned with him to Sydney when he bought the Coogee property back again in 2017. She continued to live with him until his death.
The plaintiff said she and the deceased were in a mutually loving and supportive relationship. She would go out to dinner with him, including with friends and family. Otherwise, she would cook for him. She looked after him in other ways, for instance by taking him to appointments, buying his clothes for him and mending them. There was a cleaner who helped with cleaning and gardening.
The plaintiff stated that during the deceased's times in hospital towards the end of his life she would visit him. After he died, she went home to Coogee and collected a set of clothes for him. Then she returned to the hospital and she and the defendant's daughter Gabrielle dressed the deceased for the last time.
The plaintiff stated that apart from the laundromat business she had "no significant assets or liabilities". But there was no evidence about the value of the business and the application was conducted by the parties on the basis that the plaintiff had no assets of substance.
The plaintiff's evidence was supported by evidence from friends and acquaintances who stated that they regarded the deceased and the plaintiff as a couple, and set out recollections of them behaving affectionately towards each other. Some of this evidence was presented in the form of affidavits made for the purposes of these proceedings. Other accounts were presented in statutory declarations which were annexed to an affidavit by the plaintiff's solicitor.
There was also an affidavit from the plaintiff's son Duc. He described being at the Denning Street property on 10 February when Mr Bates and a security guard arrived. Mr Bates, according to Duc, brusquely told him to leave, and to take his and his mother's possessions with him. According to Duc, Mr Bates told him that if his mother made things difficult, the defendant would take back possession of the Waterloo shop as well.
In response to the application, there were affidavits from the defendant herself; from her daughter, Gabrielle; from Mr Bates; and from the security guard who accompanied Mr Bates to the house at Coogee, Mr Damir Travizuk.
The defendant's affidavit put a quite different complexion on the relationship between her father and the plaintiff. The defendant stated that the plaintiff had begun by doing domestic tasks, including cooking and cleaning, for the deceased. She also acted as his driver on occasions when he went out, so that he could drink. Over time, the plaintiff in effect became the deceased's carer.
But according to the defendant there was nothing more to the relationship than this. The defendant stated that she never saw the deceased and the plaintiff behave affectionately. Nor did she see the plaintiff when visiting her father in hospital. She denied that they were living together in a domestic relationship.
The defendant acknowledged that for a time before her mother's death, her father was staying at the Waterloo penthouse. Her explanation for this was two-fold. First, he was supervising the development. Secondly, he was being pressed by his wife to reconcile with his son Robert and he wanted to get away from her nagging. The deceased left most of his clothes and belongings at Coogee and when he stayed at the Waterloo penthouse he stayed there on his own. After his wife's death he returned to Coogee where he continued to live alone, with the plaintiff and the cleaner visiting to help him.
The defendant produced records of statements made by the deceased to support her account. The deceased was interviewed by the police on the day of his wife's death (the evidence did not explain why). He gave an explanation for staying at the Waterloo penthouse which was consistent with the defendant's. He also said he lived there alone. The June 2021 geriatrician's report recorded that the deceased was living alone at Coogee with hired help coming in.
The defendant acknowledged that part of the arrangement under which the plaintiff acted as carer was that she was not obliged to pay rent on the Waterloo shop. But the defendant did not accept that the lease was some sort of sham. The defendant produced a formal agreement signed by the plaintiff acknowledging a loan from the deceased and his wife of $41,000 for the purchase of laundromat machines and granting security over the machines in their favour. The agreement was dated 31 January 2012, several weeks after the deceased's wife died. The point, it was suggested, was that it would hardly have been entered into to "appease" her.
The defendant stated that the deceased never treated the plaintiff as his partner for financial or administrative purposes. He did not put her name on his health insurance policy or on the accounts for electricity or other services. Nor did he give her any access to his bank accounts. He did give her money to buy food but that again was in her capacity as his carer.
The defendant acknowledged that the plaintiff was sometimes present at dinners and celebrations attended by the deceased, but explained her presence there as the deceased's carer and driver. The plaintiff would have visited, and perhaps on occasion stayed overnight at, the Coogee property. But the defendant maintained that this was only a consequence of her acting as carer. The plaintiff never lived there.
The defendant produced a copy of an application by the plaintiff to Families and Community Services for continued use of the subsidised Phillip Street housing. According to the defendant the document was given to her by the deceased. The application, which was signed by the plaintiff and prepared with the assistance of the plaintiff's daughter, was dated April 2017. It identified the household at the Phillip Street property as consisting of the plaintiff, and the plaintiff alone.
The defendant also stated that she was told by her father that the plaintiff had bought a property of her own at Parramatta with money which she had made from the sale of an earlier business. He also told her that the plaintiff had put the property in the name of her older son, John, so as to be able to continue to retain the subsidised Phillip Street housing. The defendant annexed to her affidavit a property search showing John as owner of a property at Condell Park, which is near Parramatta.
It appears to be common ground that the plaintiff gave up the Phillip Street housing in June last year. The defendant attached to her affidavit copies of correspondence addressed to the plaintiff at the Coogee address and dated early June. That correspondence recorded that the plaintiff had changed the address shown on her driver's licence and car registration papers to Coogee and had redirected her mail (presumably to Coogee also). The defendant stated that she got these documents from the deceased. He told her that he had told the plaintiff not to use the Coogee property as her home address.
According to the defendant, before Christmas last year she was told by the plaintiff that she was having Christmas "at home" at Parramatta. The defendant and Gabrielle celebrated Christmas with the deceased. The plaintiff was not present.
The defendant stated that the deceased never gave the plaintiff the keys to the Coogee property, retaining them for himself. It was only after the deceased was admitted to hospital for the final time on 23 January this year that the plaintiff obtained his keys and installed herself (and then her son Duc) in the property.
Evidence along the same lines was given by the defendant's daughter Gabrielle. She too denied that there was any relationship between the plaintiff and deceased other than that of carer. She did not, however, deny the plaintiff's evidence about fetching the deceased's clothes and dressing his body following his death.
The affidavits from Mr Bates and Mr Travizuk dealt with the events of 10 February. According to the affidavits, Mr Bates behaved properly and professionally in his dealings with Duc, prevailing upon him, despite his initial opposition, to leave the property peacefully. Mr Bates specifically denied making threats about the plaintiff's tenure of the Waterloo shop.
Mr Bates stated that Duc took away several bags of food, clothes and personal effects. Duc also took an iPad and some dresses which were said to belong to the plaintiff. According to Mr Bates the dresses came from a bedroom closet upstairs. The bed did not appear to have been slept in and Mr Bates did not see any other clothes or personal effects. In the kitchen refrigerator was some insulin (the plaintiff is diabetic) but Mr Bates did not allow Duc to take it, as it was unlabelled.
According to Mr Bates, the kitchen was in a neglected state. Elsewhere there was an empty floor safe which had apparently been drilled out and opened. Mr Bates was told by Duc that the plaintiff had asked him to stay at the property as she was unable, for some unspecified reason, to do so. Duc also told Mr Bates that the plaintiff was the deceased's carer. Mr Travizuk's affidavit confirmed that statement.
Finally, the defendant's solicitor produced a real estate agent's appraisal of the rental value of the Coogee property. The agent's opinion was that its rental value was $4,500 to $5,000 per week.
At the hearing on the morning of 18 February, counsel for the plaintiff sought to rely upon additional affidavits which had been served overnight. These included an affidavit from the plaintiff which contained photographs upon which counsel particularly wished to rely. It also contained affidavits of John and Duc.
Counsel for the defendant objected on the ground that she had not had an opportunity to read, and obtain instructions upon, this new evidence. Counsel submitted that the evidence could have been presented in chief and referred to the notation which I had made about the plaintiff's evidence in chief being complete on 14 February.
There was force in these submissions. In the end, the hearing of the application was stood down until the afternoon to allow counsel for the defendant an opportunity to consider the new affidavits. When the matter came on for hearing in the afternoon, counsel maintained her objection but I permitted the plaintiff's affidavit to be read, noting however the circumstances in which it had come forward. Counsel did not object to the affidavits of John and Duc being read in reply but made it clear that she had had no real opportunity to address what was said in those affidavits.
The plaintiff's further affidavit contained photographs upon which she relied to support her allegation that she and the deceased were living together in a domestic relationship. Some of the photographs showed birthday cakes for the deceased which the plaintiff said she had made. Some showed them together, kissing or with arms around each other. Others showed the deceased and the plaintiff in social settings. There were also photographs of the deceased and plaintiff lying next to each other in bed.
The plaintiff joined issue with the defendant and Gabrielle about the nature of her relationship with the deceased. She explained that the defendant and the deceased's son Robert had never accepted her. The documentation for the Waterloo shop was to protect her not only against the deceased's wife but also against Robert. She agreed that she did not see the deceased's family at the hospital but at his request would visit him when they were not there.
The plaintiff said that the Christmas celebration last year to which the defendant and Gabrielle referred was a lunch. The plaintiff agreed she did not attend, but said that when his family had left, she visited the deceased and they had dinner together. On the following day they had lunch with Robert's children.
The plaintiff confirmed that she gave up the Phillip Street subsidised housing last year. She insisted however that she had not lived there since 2011. She did not address the FACS subsidy application form, or the defendant's evidence that the deceased told her he had told the plaintiff not to use the Coogee property as her address.
The plaintiff stated that the Condell Park house belongs to her son John, and was paid for by him. John's affidavit likewise stated that he is the owner of the Condell Park property. The house contains two bedrooms and a study. John has one bedroom and his brother, Duc, has the other bedroom. Both of them work from home.
John stated that the plaintiff was being accommodated on a mattress on the floor in a study which he said was "not ideal". He added that it was awkward for him and his brother having their mother in the house. Both of them are unmarried and she does not approve of John's long-term girlfriend living at the house, or of Duc bringing women home.
By way of rejoinder to John's evidence, counsel for the defendant tendered a printout of an internet page depicting the Condell Park property on a real estate website, apparently for rental purposes. The date of listing was unclear. The listing described the property as having three bedrooms and also referred to a "granny flat". Counsel for the plaintiff objected. Counsel conceded that the house itself contained three bedrooms (one of which apparently has been set up as a study, and in which the plaintiff is staying). Counsel submitted that I could reach no conclusion about the availability of further accommodation at the property.
Given the circumstances in which the evidence of the plaintiff's sons came forward I decided to allow the tender. I agree however with counsel for the plaintiff that it is not possible to reach any conclusion about there being any granny flat accommodation available at Condell Park.
In the course of final submissions, counsel for the defendant made an open offer to resolve the application on the basis that the plaintiff would be paid a sum of $500 per week out of the estate until further order. She would also be permitted to retain possession of the Waterloo property without paying rent, but on the basis that she complied with the other terms of the lease, including the payment of outgoings. Counsel made it clear if this offer was rejected (as it was) it would still be honoured by the defendant if the application failed.
Duc's affidavit joined issue with the affidavits of Mr Bates and Mr Trazivuk. In particular, Duc denied that he told them the plaintiff was the deceased's carer. To the contrary, he said that he told them the plaintiff and the deceased had been in a de facto relationship for nineteen years. He did not say anything about the apparent opening of the floor safe in the Coogee house or Mr Bates' other observations about the state of the premises.

Interlocutory injunction

Counsel for the plaintiff put the application principally as one for interim provision under the Succession Act. But the application did include a prayer for a conventional interlocutory injunction. It is convenient to deal with that basis for the application first.
There is of course no difficulty in principle with the Court making an order on a conventional interlocutory basis in family provision proceedings. If the plaintiff can show sufficient prospects of obtaining provision in the form of a proprietary interest in specified property belonging to the deceased, then the Court may make an appropriately framed interlocutory order to preserve that interest until the final hearing, provided that it is proper to do so after considering the balance of convenience.
The plaintiff has presented evidence which, if accepted, would make her an eligible person for the purpose of the Act and would give her an arguable case for an order for provision in her favour at the final hearing. Indeed, counsel for the plaintiff put her case much higher than that. Counsel acknowledged that the defendant and her daughter, Gabrielle, denied that there was a de facto relationship between the deceased and the plaintiff, but submitted that the plaintiff's case on this point was really overwhelming. Counsel relied in particular on the photographs as placing the existence of the relationship beyond question.
I do not think that the defence can be brushed aside so easily, and certainly not at this point. The photographs were only produced belatedly. Even if that was forensically understandable given the speed with which the plaintiff's application came before the Court, the fact remains that the defendants had no real opportunity to respond to them at the hearing. Furthermore, there is the evidence of the plaintiff's own son describing his mother as the deceased's carer.
Perhaps most importantly, counsel for the defendant pointed out that the statutory declarations from friends and acquaintances were dated June and July 2021. This was six months before the deceased's death and at a time when the plaintiff was (on the defendant's case, contrary to the deceased's wishes) changing her home address to the house at Coogee. The suspicions which arise from this may or may not be dispelled at the hearing, but the defendant is fully justified at this point in refusing to accept the evidence presented in support of the plaintiff's case, including the photographs, without further investigation.
There is another aspect of the plaintiff's prima facie case which must be considered. That is the relationship between the interlocutory order sought and the relief to which the plaintiff can claim to be ultimately entitled.
Counsel began by saying that the plaintiff would be claiming some sort of interest in the Coogee property, but it was not possible to specify that interest at the moment. It might be a right of occupation; a life estate; or even full ownership. But when asked about the plaintiff's ability to meet the outgoings in future, given the evidence about her financial circumstances presented in support of her application, counsel suggested that the proper relief might be some sort of right of occupation at the estate's expense. This would not necessarily be for life; it might be for five years, or even for two or three years.
It is usual in a family provision application for the applicant's affidavit to state what it is that the applicant wants by way of provision from the deceased's estate. There was no such statement in the plaintiff's affidavit evidence on this application. I had the following exchange with counsel: HIS HONOUR: How do I know she even wants to live there [at Coogee]? I know she wants to live there temporarily, but how do I know she wants to live there permanently? COUNSEL: Your Honour, with no disrespect, I don't say that that is irrelevant, but it is not relevant for what I am asking for today. I am just asking to be "restored to where I was living a week ago" so that we can get on with this court case and then work out where everyone wants to go.
In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199, an injunction had been granted in the course of proceedings against the broadcast of allegedly confidential information. Gleeson CJ stated (at [15]-[16]): There could be no justification, in principle, for granting an interlocutory injunction here other than to preserve the subject matter of the dispute, and to maintain the status quo pending the determination of the rights of the parties. If the respondent cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation of the claim for interlocutory relief disappears. In a context such as the present, a proposition that the respondent has a ''free-standing'' right to interlocutory relief is a contradiction in terms.
Counsel's submissions came perilously close to infringing the principles stated by Gleeson CJ. In the end, however, counsel did not confine himself to seeking "free standing" interlocutory relief. A right of occupation until further order could be justified by a claim for provision by way of a fee simple, or a life estate, or a right of occupation extending beyond the proceedings, even if extending for only for a relatively short time.
In theory, therefore, the plaintiff has a claim for a sufficient proprietary interest to support an injunction. But how likely is it that her claim will actually succeed?
The plaintiff does not claim to have made any financial contribution, direct or indirect, to the deceased's acquisition of the house at Coogee. Nor does she claim to have given up income-earning opportunities. The property is far bigger and more valuable than what she needs. Indeed, on her own evidence, she really cannot afford to live there. In these circumstances, even if the plaintiff establishes an entitlement to some sort of provision out of the deceased's estate, a gift of the property would be an unlikely way of satisfying such needs as she might be able to demonstrate.
Similar comments apply to the suggestion that the plaintiff would receive a right of occupation. The periods of time mentioned by counsel are quite arbitrary. There seems no more need to give the plaintiff a right of occupation of a property which is too large and too expensive for her for a fixed period of time than to give her the whole of the property.
It is hard to escape the conclusion that what the plaintiff really wants is to be able to stay in the property until she sees what, if anything, she receives by way of provision as a result of her application. But that is the very thing which is impermissible as a basis for the grant of an interlocutory injunction. The prospects of the plaintiff obtaining a proprietary interest by way of final relief which would justify the interlocutory orders that she claims are, I think, weak.
There are also difficulties for the plaintiff on the balance of convenience. The uncontested evidence before me is that the rental value of the Coogee property is $4,500 to $5,000 per week. The plaintiff has not undertaken to pay this amount (or any sum) as a condition of the grant of an injunction. And while the plaintiff is prepared to give the usual undertaking as to damages, on her own evidence this undertaking has little or no value.
Counsel for the plaintiff however submitted that this was of little importance in a family provision case. Counsel pointed out that there was no evidence that the Coogee property was needed to meet any liabilities of the deceased's estate. Nor was there any evidence that there was any plan to rent the property out. In counsel's submission, the predominant factor for the Court was the need to provide continuity of occupation (or alleged occupation) by the plaintiff.
This was part of a wider theme in counsel's conduct of the application. During the hearing on 14 February, counsel stated: … the usual practice is when a plaintiff is in occupation and it proceeds to a family provision claim, the defendant puts on a cross-claim seeking vacant possession and that is adjourned at the trial, and if the plaintiff achieves possession, well and good.
The practice described by counsel would be a departure from the usual rule that the onus is firmly on an applicant for interlocutory relief to establish the grounds for it. It would mean that in most cases a person in occupation of the deceased's property following the deceased's death could, by the simple expedient of making an arguable family provision application, extend that occupation until trial.
I was not taken to any authority recognising the existence of any such practice. I see no justification for it as a matter of principle. Delaying the distribution of the deceased's estate imposes costs on the beneficiaries of the estate which are real. The terms of s 62(3) make it clear that such a delay does not flow automatically from the making of a family provision application; it must be justified.
The same point may be made about imposing a restriction on an executor's freedom to deal with an asset of the estate before the estate is fully administered. I do not see why an executor facing a claim by a plaintiff to continued occupation of a property should have to demonstrate some immediate intention to sell or rent out the property before the plaintiff will be required to pay market rent, or at least to undertake to do so if the claim fails. As between the executor and the plaintiff, the executor stands in no different position from any other person having title to, and a prima facie entitlement to possession of, the property.
This is not to say that a plaintiff who is in occupation of the deceased's property, but would be unable to pay damages if his or her claim to the property ultimately fails, must always be evicted. All it means is that if such a plaintiff is to prolong his or her occupation of the property, it must be in accordance with the usual rules which apply to the grant of interlocutory relief.
In the present case, the plaintiff has no overwhelming need to live (or, on her case, continue to live) in the house at Coogee. It is not possible at present to determine whether she has some equitable interest in the Condell Park property, but even if she does not, there is sufficient room for her to stay there with her sons. No doubt this would require a degree of give and take between the parties, as is common in all shared living arrangements, but the inconvenience to the plaintiff's sons can hardly be of great weight in the scheme of things.
In these circumstances, I think that the circumstances do not justify the grant of an interlocutory injunction over the Coogee property in the plaintiff's favour. Still less do they justify an injunction permitting occupation of the Coogee property by members of the plaintiff's family. They have advanced (and on the evidence, could advance) no claim on the deceased's estate.

Interim provision under the Succession Act

As already mentioned, the other basis for the plaintiff's application was the Court's power to make an order for interim provision under the Succession Act, s 62. That enactment provides: 62 Interim family provision orders and orders restraining distribution of the estate (1) The Court may make an interim family provision order before it has fully considered an application for a family provision order if it is of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order. (2) After making an interim family provision order, the Court must proceed to finally determine the application for a family provision order by confirming, revoking or varying the interim order. (3) The Court may make an order restraining the final or partial distribution of an estate (other than a distribution under section 94 (1) of this Act or section 92A of the Probate and Administration Act 1898) pending its determination of an application for a family provision order.
Subsections (1) and (2) of s 62 are derived from subsections 9(5) and 9(6) of the former Family Provision Act 1982 (NSW). Those subsections were analysed by Young J in Young v Salkeld (1985) 4 NSWLR 375. Their language presented difficulties of interpretation and the rationale for their enactment was somewhat opaque. However, his Honour's analysis has been accepted as applying to the current subsections, which are similarly worded: Roberts v Moses [2015] NSWSC 1504 at [12]; see also Bryan v Beveridge [2021] NSWSC 1406 at [10]. I will follow the same approach.
As I have mentioned, counsel for the plaintiff relied principally upon s 62 as the basis for the plaintiff's application. It was evidently assumed from the plaintiff's point of view as a more favourable basis for obtaining an order for interlocutory possession than a conventional interlocutory injunction application.
This assumption is not supported by authority. Two features of the power under s 62 are relevant for present purposes. One is the test which the Court is to apply in considering whether the plaintiff has made out a case for final relief. The other is the balance of convenience.
In Young v Salkeld, Young J rejected a submission that the power to make an interim order could be exercised only if the Court were satisfied on a final basis, that is, after hearing all the evidence on both sides, that the plaintiff was entitled to provision. His Honour concluded instead that the duty of the Court was "to examine what evidentiary material is placed before it, and to assess on that material the probable outcome of the proceedings". (See at 380D-381A).
His Honour's formulation may owe something to Hutley JA's dissenting judgment in Woollahra Municipal Council v Jeffries [1981] 1 NSWLR 377, a case to which Young J referred. In that case, the Court of Appeal was dealing with the power of the Workers Compensation Commission to make an interim award of compensation. Hutley JA drew the implication from the term "interim" that the Commission did not have to be satisfied, as it would have to be on a final hearing, that the worker was actually entitled to compensation. Instead, the question was whether "on the evidence then before the Commission on the balance of probabilities at that stage, the Commission can come to a conclusion that compensation may probably be payable" (at 385 F-G).
In Jeffries, the power to make an award depended on the Commission being "satisfied that compensation is payable under this Act". The majority, Reynolds JA and Mahoney JA, considered that this language was intractable. The Commission could not be satisfied if there was a dispute, or potential dispute, and the evidence was incomplete or had not been fully tested.
But while Hutley JA's view did not prevail in Jeffries, s 9(5) of the Family Provision Act referred only to the Court being of the "opinion" that the eligible person "would" be entitled to provision. Young J may well have considered that the difference in language justified the conclusion that interim order for family provision could be made if a test along the lines stated by Hutley JA was satisfied. Another way of expressing the test, as a matter of substance, might be that the Court "has reason to believe", based on the evidence before it, that an order for provision will be made at final hearing. Mahoney JA in Jeffries suggested that "reason to believe" was the type of statutory language which, if used instead of "satisfaction", would have produced a different result: see at 391F-G.
In Roberts at [14], Kunc J referred to what Young J said in Young v Salkeld and stated in his own language what he considered the s 62 process to entail. He stated the relevant question for present purposes as being: ... will a family provision order be made in favour of the applicant at the final hearing of the application for such an order? This requires the Court, by reference to the evidentiary material then before it, to consider what the Court thinks will be the position as at the date of a notional, future final hearing. The use of the modal or auxiliary "would be" does not mean the applicant must demonstrate an arguable case or a serious question to be tried that the applicant will be entitled to a final order. The Court must be satisfied on the balance of probabilities that the applicant will obtain an order at the final hearing.
In Steiner v Strang [2017] NSWSC 132, his Honour returned to the issue. He reaffirmed that in his view it is insufficient merely to demonstrate an arguable case. The applicant must show on the balance of probabilities that provision will be awarded: see at [32].
Counsel for the plaintiff did not dispute Kunc J's conclusions. Indeed he did not refer at all to the line of authority I have just discussed. In these circumstances, I will take the same approach as his Honour.
For reasons I have already given, the evidence before me is far from conclusive. The plaintiff's claim is wholly denied and there is clearly a proper basis in the evidence for doing so. Furthermore, the defendant has not yet even had a proper opportunity to investigate the evidence which the plaintiff has put before the Court on the application.
I have also pointed out that even if the plaintiff establishes an entitlement to provision, it is quite another question whether such provision would take the form of ownership, or at least possession, of the house at Coogee. In these circumstances, the test stated by Kunc J is not satisfied and the application should be refused for that reason alone.
In his submissions, counsel seemed disinclined to accept that the balance of convenience applied at all, or at least counsel appeared to question whether it was of equivalent significance as it is in a conventional application for interlocutory relief. But again this is not supported by the authorities.
In Young v Salkeld Young J stated (at 381F-G): … in the normal case, although the Court has jurisdiction to make a wider order, it would seem to me that the proper order would be to give the eligible person only such a sum as would deal with real needs pending the hearing and then usually only on terms that the moneys could be recovered if the applicant were unsuccessful. … I do not say that the Court could not make an order for a penniless eligible person that she receive either a legacy or a weekly sum for living expenses knowing that all these moneys would be dissipated by the time of the hearing. Indeed, I would consider that would be a perfectly proper order. However, generally speaking, if there is the means of protecting the estate by securing the order in some way, then the interim order might be framed accordingly.
In the typical case where relief under s 62 takes the form of a payment of money, then the plaintiff's ability to repay the money if the order is revoked at final hearing is a critical aspect of the balance of convenience. Clearly Young J thought that if the estate could be protected it should be. See also Roberts at [15]. In Steiner Kunc J explicitly refused, on balance of convenience grounds, to make a payment order in favour of a beneficiary who was unlikely to be able to repay it if the order was ultimately revoked: see at [40]. Again, counsel for the plaintiff did not question these authorities, and again I propose to apply them.
In passing, I should note another feature of the wording of subsection 62(1). It requires the Court to be satisfied that "the eligible person" will obtain provision on a final hearing. It does not say the "applicant" or "the person claiming to be an eligible person". Arguably therefore, the Court must be satisfied on the application, not merely that there is an arguable case or even a likelihood that the applicant will establish at trial that he or she is an eligible person, but that the applicant actually is an eligible person. In the present case, given the dispute about the factual basis to the plaintiff's claim, that requirement would not be satisfied. But this point was not addressed by counsel on either side and it is not necessary to say anything more about it.
Counsel for the plaintiff may be correct in the submission he made that an undertaking as to damages should not be required as part of an order for interim provision under s 62. A s 62(1) order, although interim, is nonetheless an order for provision for the purposes of the Act: Roberts at [13]. That means that it takes (interim) effect as a deemed codicil to the will: Succession Act, s 72. It would follow that, if an order were made granting possession of the property by way of interim provision to the plaintiff, no direct injunction against the executor would be needed. The making of the order would automatically require the executor to give effect to it.
But while it may not be so in form, in substance such an order takes effect as an interlocutory order against the executor. Indeed it is a mandatory interlocutory order since it requires the executor to take positive steps to give effect to the order for provision (such as, in the present case, handing over the keys sought in prayer 4 of the plaintiff's summons: see [21] above).
On the approach taken by Young J and Kunc J, the making of such an order requires attention to the balance of convenience, and in particular the ability of the plaintiff to make recompense if the order is discharged on a final hearing. In the context of the present application, proper recompense could only be achieved by requiring the plaintiff to undertake to pay rent for the use of the property in the meantime.
As Young J noted, taking the balance of convenience into account does not necessarily mean that, where the plaintiff would be unable to make recompense if the provision were revoked, the balance must be struck in favour of the defendant. But for reasons I have already given, I think the balance of convenience in the present case is against the plaintiff. That is so even if one does not take into account the interim provision by way of monetary payment which has been proffered by the defendant. If it were a question of balancing the plaintiff's arguable case against the balance of convenience, I would still refuse the application for interim provision.

Orders

The orders of the Court on 18 February 2022 were: 1. Note the undertaking of the defendant in her capacity as the legal representative for the purpose of these proceedings of the estate of the late John (also known as "Giovanni") Angius, that until further order she will, by way of interim provision under the Succession Act 2006, s 62: 1. pay the plaintiff the sum of $500 per week, commencing on the date of the undertaking; and 2. permit the plaintiff to continue to occupy the property the subject of registered Lease AG 36767L (as varied by registered Variation of Lease AK2053594) after 31 January 2022 (being the date of the deceased's death) on the terms set out in that Lease, without any obligation to pay rent, but subject to compliance with all other obligations and in particular the obligation to pay outgoings. 1. Order the plaintiff's application for interlocutory relief in the Summons be dismissed. 2. Order that the plaintiff pay the defendant's costs of the application for interlocutory relief. 3. List the matter in the Expedition List on 18 March 2022. 4. Direct that the plaintiff file and serve her notice of motion for expedition returnable on that date.

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Family Provision Act 1982(NSW)

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