O'Donnell v O'Donnell

Introduction

1. These reasons determine the issues raised by the parties to six proceedings that were heard together and all relate to the estate of the late Garry Francis O'Donnell (the deceased) who was born in Goulburn and died in Canberra on 26 November 2018 aged 67.
2. The deceased left a will dated 18 August 2015 (the will) in which he named four of his five children as his executors (the defendants or the executors). Probate of the will was granted to the executors by the Supreme Court of the Australian Capital Territory (the ACT) on 22 March 2019.
3. As did the parties themselves, I will, with no disrespect intended, generally refer to the parties and persons related to them by their first names.

The deceased's relationships

1. My explanation of the nature of the proceedings will be made clearer if I begin with a description of the relevant relationships in the deceased's life, focusing on the parties to the proceedings and other persons who are relevant to the determination of the proceedings.
2. The deceased married Cheryl Hogan in 1971. They were divorced in 1972. Cheryl remains alive. The defendant Jaimie is the deceased's son of that relationship born 13 May 1971, and is aged 50.
3. On 26 January 1975, the deceased married his second wife, Joan O'Brien. They separated in or about 1987 and divorced in 1991. Joan remains alive. The deceased has two daughters from his marriage to Joan, namely the defendants Vanessa, born 5 January 1981, aged 40, and Laura, born 29 June 1984, aged 37.
4. On 15 June 1990, the deceased married his third wife, Fiona Costanza. They separated in or about 1996 and divorced in 1998. Fiona remains alive. The deceased has two children of that marriage, namely the defendant Ashley, born 19 October 1989, aged 31, and Simon, born 7 June 1991, aged 30.
5. The executors of the deceased's will are Jaimie, Vanessa, Laura and Ashley.
6. From approximately 2000, the deceased had a relationship with Anna Gray, the plaintiff in one of the proceedings. Anna was born on 16 July 1959 and is currently aged 62. The nature of that relationship is the subject of dispute. The executors contend the relationship was that of boyfriend and girlfriend. The relationship ended in or about mid-2013. There are no children of that relationship. Family Court proceedings (referred to below) between Anna and the deceased were settled in 2015, without any judicial determination of the nature of the relationship.
7. Anna had children from a prior marriage, namely Jurek Gray, born 24 November 1985, aged 35, and Kristina Gray, born 11 July 1989, aged 32. Kristina and Jurek are plaintiffs in another of the proceedings.
8. In November-December 2012, the deceased met Kalpana (also known as Paris and Kay) and they married in Las Vegas on 9 May 2013. Kalpana, the first plaintiff to bring a claim, was the deceased's fourth wife. They remained married until the deceased's death. Kalpana was born on 21 December 1963 and is now 59 years of age.
9. There are no children of the deceased's marriage with Kalpana. Kalpana has a child from a prior marriage, namely Tobias Findlay, born 26 June 1986, aged 35.

The proceedings

1. On 17 April 2019, Kalpana filed a summons in this Court commencing proceedings No 2019/120911 against the executors seeking an order under s 59 of the Succession Act 2006 (NSW) (the Succession Act) for provision out of the estate and the notional estate of the deceased. Notwithstanding that Kalpana was his wife, the deceased made no provision for her in his will.
2. By originating application dated 3 June 2019 filed in the Supreme Court of the ACT in proceedings No 278/2019, Kalpana sought an order against the executors under s 8 of the Family Provision Act 1969 (ACT) (the Family Provision Act) for provision out of the estate of the deceased.
3. On 20 September 2019, Anna also commenced proceedings No 470/2019 against the executors in the Supreme Court of the ACT for an order under s 8 of the Family Provision Act for provision out of the estate of the deceased. Anna was not a beneficiary under the will.
4. Kristina and Jurek commenced their own proceedings No 2019/372281 in this Court against the executors seeking orders under s 59 of the Succession Act for provision out of the estate and the notional estate of the deceased. They also were not beneficiaries under the will.
5. On 2 July 2020, Anna commenced proceedings No CAC1389/2020 in the Family Court of Australia at Canberra against the executors, the primary purpose of which was to obtain relief setting aside a deed of settlement between Anna and the deceased made on 12 October 2015 (the deed of settlement) under the Domestic Relationships Act 1994 (ACT) (the Domestic Relationships Act) under which Anna received a property settlement from the deceased.
6. Finally, by statement of claim filed in this Court on 7 July 2021 commencing proceedings No 2021/194343 against the executors, Kalpana sought a declaration that the executors had committed devastavit by wrongfully depleting the estate of the deceased of its assets by a transfer of shares in a company that were registered in the name of the deceased, without receiving any consideration for the transfer. Devastavit is the name given to wrongful conduct by executors of a deceased estate whereby they have diminished the value of the estate available to be paid to creditors and distributed to beneficiaries.
7. On 16 October 2019, the Supreme Court of the ACT (Crowe AsJ) heard an application by Kalpana to cross-vest her application for family provision relief in that Court to this Court under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT), and an order to that effect was subsequently made. The claim became proceedings No 2019/363217 in this Court.

Relationship between the proceedings

1. Although the proceedings commenced by Kalpana on the one hand, and Anna and her children on the other, raise distinct issues, the resolution of some claims may be influenced by the outcome of other claims. Although it will be necessary to consider the issues raised by the individual proceedings in considerably more detail below, the following brief outline may assist an understanding of the relationship between the proceedings.
2. As the deceased did not make any provision for Kalpana in his will, Kalpana now seeks orders for family provision under both the NSW and ACT statutes. The total value of the provision sought by Kalpana in her final submissions is $9,471,248.90. Kalpana also sought an order for the payment of the costs of these proceedings out of the estate or notional estate of the deceased.
3. As will shortly be seen, the parties ultimately agreed that the value of the deceased's estate is $2,058,460.11, subject to the payment of any orders for costs that may be made in any of the proceedings. The deceased's actual estate is clearly insufficient to meet the orders for family provision and costs sought by Kalpana.
4. Under Part 3.3 of the Succession Act of this State (NSW), the Court is empowered to make what are called "notional estate" orders that may have the effect, in this case, that a part of the net assets of the O'Donnell group will be treated as part of the deceased's estate to the extent necessary to give effect to any order for family provision and costs in favour of Kalpana that the Court determines is appropriate. The value of the O'Donnell group is sufficient at between $28,170,236 and $32,720,859 to meet all the orders sought by Kalpana.
5. There is no equivalent to Part 3.3 of the Succession Act permitting a court to make orders designating notional estate for the purpose of meeting an application for family provision in the law of the ACT, or any other State or Territory in the Commonwealth.
6. The most significant issue concerning the claims made by Kalpana for family provision orders is whether the Court must determine those claims in the proceedings in this Court under the Succession Act or whether the statute that must be applied is the Family Provision Act. As will be seen, that is a complicated question of fact and law that depends principally on whether the deceased had a domicile in NSW or the ACT at the date of his death. The Court must apply the relevant principles of the conflicts of law to determine the statute that must be applied. Broadly, the law of the deceased's domicile governs the succession to all of his movable property and the law of the situs of his immovable property governs the succession to that property. In practical terms, immovable property is equivalent to real property and all other relevant property is characterised as movable property.

The deceased's estate

1. The deceased during his lifetime was a successful businessman. The inventory of property prepared by the executors for the purpose of the application for a grant of probate in the ACT recorded that the net value of the deceased's property was $6,463,024. The deceased's assets included a debt owed to the deceased by Kalpana of $765,000 that is disputed, and a pink diamond with a value of $1,210,050 that has not been discovered. However Kalpana and the executors agreed after the conclusion of the hearing that the value of the deceased's estate is $2,058,460.11, subject to the payment of any orders for costs that may be made in any of the proceedings. The Court was not informed of the basis of this agreement, and it is not clear whether it was agreed that the debt alleged to be payable to the deceased's estate was not payable or simply irrecoverable. As I understand it, the positions taken by the parties' respective expert accountants concerning the assets in the deceased's estate and their value are as set out in a spreadsheet that was marked for identification as MFI 5. The parties ultimately agreed that the value adopted by the defendants' expert was the correct one, so Kalpana must have abandoned her initial claim that the estate contained additional assets as asserted by her expert accountant.
2. Before the agreement between Kalpana and the executors referred to in the previous paragraph was reached, there was a substantial dispute between those parties concerning the value of the actual estate of the deceased. The parties retained expert accountants who prepared detailed expert reports and the expert witnesses prepared a joint report following a conclave. The parties devoted considerable forensic effort to this issue and the expert witnesses were cross-examined at length. The need for the Court to address this evidence has been obviated by the agreement reached by the parties.
3. As background, it should be recorded that in the deceased's final years he apparently increased the level of his personal expenditure, but did so using the financial resources of companies in the O'Donnell group, without complying with legal obligations such as the declaration of dividends in his favour and compliance with applicable income tax reporting requirements. This led to an audit by the Australian Taxation Office (ATO) and subjected the deceased's estate and companies within the O'Donnell group to potential liability under the current tax avoidance provisions in Division 7A of the Income Tax Assessment Act 1936 (Cth). It is sufficient to note that the executors reached a settlement with the ATO in relation to the application of Division 7A. This led to a reduction in the value of the actual estate of the deceased that is reflected in the agreement as to that value referred to above. As a result, the detailed effect of the agreement with the ATO was not ultimately explored by the parties. That does not matter for the purposes of these reasons, and the Court will simply accept the value of the actual estate of the deceased that was agreed. I note that the spreadsheet that is MFI 5 specifies amounts paid or remaining to be paid in relation to the Division 7A issue, and that some of the assets may not fetch their assumed value on sale.

The O'Donnell group

1. Over his working life, the deceased prospered and acquired substantial assets that were incorporated from time to time into what the parties called the O'Donnell group.
2. The parties explained the structure of the O'Donnell group by means of flowcharts. The flowcharts had three tiers of companies. At the top was Duboti Pty Ltd as trustee of the Mugga Way Family Trust. In the second tier were seven asset owning companies whose shares were owned as to either 100% or in two cases 50% by Duboti Pty Ltd. One of the companies in the second tier was Evenlong Pty Ltd, which has been mentioned above. Another company in the second tier, Fashionable Leasing Pty Ltd, owned either 100% or in one case 50% of the shares in the nine asset owning companies in the third tier. As a result of a process of rationalising the O'Donnell group undertaken by the executors since the death of the deceased, seven of the companies in the third tier are inactive or have been deregistered. It is unnecessary to identify the assets held by each of the companies in the O'Donnell group. Particular companies and the assets held by them will be considered below where relevant to the issues that require determination.
3. Sitting in the second tier but not part of the O'Donnell group under Duboti Pty Ltd is Soothink Pty Ltd, which is shown as being beneficially held as to 100% by the deceased. Soothink Pty Ltd is shown as being trustee of the Mugga Way Capital Trust, but that trust does not appear to have been explained clearly in the evidence.
4. The revised flowchart provided by the defendants became part of MFI-4. Kalpana provided a competing flowchart that became MFI-6, which was substantially same as the defendants' flow chart, except that, in stating the shareholding relationship between the deceased and particular companies, Kalpana relied literally on the information contained in the ASIC records concerning whether the deceased held shares beneficially or non-beneficially. The explanation for the difference is that, on 13 December 1996, the deceased executed a number of declarations of trust of shares held by him in companies in the O'Donnell group. At the same time, other persons who held some of those shares executed declarations of trust in the same terms as the deceased. On a number of occasions the other party was Fiona, the deceased's third wife. In some cases the beneficiary of the declarations of trust was Fashionable Leasing Pty Ltd. In other cases the beneficiary was Duboti Pty Ltd as trustee of the Mugga Way Family Trust. Declarations of trust were executed over the shares in Fashionable Leasing Pty Ltd in favour of Duboti Pty Ltd on the same basis. The effect was to make Fashionable Leasing Pty Ltd the beneficial owner of the shares in some of the companies in the third tier and Duboti Pty Ltd became the beneficial owner of shares in companies in the second tier and indirectly the beneficial owner of shares in companies in the third tier through Fashionable Leasing Pty Ltd. As I understand it, the result as depicted in the defendants' flowchart, was that, except for Soothink Pty Ltd, Duboti Pty Ltd as trustee of the Mugga Way Family Trust, stood at the top of the pyramid and directly or indirectly controlled and beneficially owned the companies in the two lower tiers, except in a small number of cases where a third party owned 50% of the shares in particular companies.

The Mugga Way Family Trust

1. The Mugga Way Family Trust was created by deed of trust made on 29 June 1991. Duboti Pty Ltd was appointed as Trustee. Under clause 1(c), the Vesting Day is the sooner of 80 years from the execution of the deed and the day of execution by the Trustee of a deed declaring that day to be the Vesting Day. It is sufficient to note that clause 3(a) provides that the Trustee holds the income of the trust in respect of each Accounting Period for one or more of the beneficiaries as the Trustee in its absolute discretion may determine, or alternatively the Trustee may resolve to accumulate income. Similarly, by clause 6(1), on the Vesting Day the Trustee has an absolute discretion to distribute the income and capital of the Trustee among the Beneficiaries. Finally, clause 7(5) empowered the Trustee in its sole discretion at any time to apply the whole or any part of the capital to any one or more of the Beneficiaries in such manner as the Trustee thinks fit. Capital and income Beneficiaries were separately specified in the Schedule to the trust deed.
2. The trust deed provided for an office of Appointor who at the date of the deceased's death was the deceased's long-term accountant. The Appointor was given various powers under the trust deed, including an unfettered power to remove and replace Duboti Pty Ltd as trustee, but those powers had not been exercised by the time of the deceased's death.
3. The Beneficiaries were identified in Item 6 of the Schedule to the trust deed. The first-named capital beneficiary was Soothink Pty Ltd. The capital Beneficiaries included "any other corporation, partnership or trust in which Garry Francis O'Donnell has a beneficial interest." The income Beneficiaries included Soothink and any child of the deceased.
4. As a practical matter, the Mugga Way Family Trust and the O'Donnell group of companies were structured in a way that gave the deceased the power and right in his absolute discretion to distribute the income and capital of the Trust to the identified Beneficiaries, including himself through Soothink Pty Ltd.

The deceased's control of the O'Donnell group and the Trust

1. At the date of his death, the deceased was the holder of all of the 100 issued shares in Duboti Pty Ltd. The deceased held 49 of those shares beneficially, and he apparently held 51 shares on trust for Duboti Pty Ltd itself, as trustee for the Mugga Way Family Trust. The evidence does not appear to establish how the deceased came to hold the 51 shares on trust for Duboti Pty Ltd. There was no contest as to the truth of this proposition, which is apparently based upon an assertion by the deceased's long-term accountant. There was no suggestion that the deceased's holding of the 51 shares as trustee constrained his entitlement to exercise his rights as the 100% shareholder in Duboti Pty Ltd to cause that company to exercise its powers as the trustee of the Mugga Way Family Trust in a manner that was favourable to the deceased.
2. The deceased was the sole director of every company in the O'Donnell group, except for Duboti Pty Ltd and the companies in which third parties held shares. For some years before the deceased's death, Jaimie was also a director of Duboti Pty Ltd. The evidence justifies a finding, however, that Jaimie's appointment as a director was nominal and he did not play an active part in the management of the company. I am also satisfied that Jaimie would have acted in all matters in accordance with the deceased's requests. Jaimie said in cross-examination: "all I was really required to do was sign paperwork usually once or twice a year" [T 395.43]. In answer to the question: "Did he run the companies the same way he ran what I asked you earlier, his way or the highway?" by saying: "Largely, yes" [T 396.4]. Asked what Duboti Pty Ltd did as the controlling company of the O'Donnell group, Jaimie said: "Not a clue" [T 396.32].

Overview of Kalpana's family provision claims

1. As I have explained above, Kalpana has made claims for family provision under s 59 of the Succession Act in this Court and under s 8 of the Family Provision Act in the Supreme Court of the ACT that has been cross-vested to this Court. It is necessary to consider whether Kalpana is entitled to maintain her claims and to identify the statutory provisions that govern them.

Kalpana's eligibility

1. Kalpana is eligible to make her claims for family provision as she was the spouse of the deceased at the date of his death for the purposes of s 57(1)(a) of the Succession Act and his partner for the purposes of s 7(1)(a) of the Family Provision Act because she was his spouse.

Timeliness of applications

1. Kalpana commenced the claim for family provision in this Court on 17 April 2019 and in the Supreme Court of the ACT on 3 June 2019. Her proceedings were commenced within the 12-month period following the death of the deceased required by s 58(2) of the Succession Act as the deceased died on 26 November 2018. Section 9(1) of the Family Provision Act requires, in the ordinary case, that the claim be commenced within the 6 months period after the grant of administration. As the grant of probate was made by the Supreme Court of the ACT on 22 March 2019, the application was within time under the Family Provision Act.

Statutory basis for family provision orders

1. The material provisions of the Succession Act that govern this Court's power to make a family provision order in favour of an eligible applicant are: 59 When family provision order may be made (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that - (a) the person in whose favour the order is to be made is an eligible person, and … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. Note - Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order. … 60 Matters to be considered by Court (1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining - (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court - (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, … (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, … (m) the character and conduct of the applicant before and after the date of the death of the deceased person, … (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.

Principles governing application of the statutes

1. I respectfully adopt the following statement of the general principles to be applied in the exercise of the statutory jurisdiction to make family provision orders made unanimously by the Court of Appeal in Bassett v Bassett [2021] NSWCA 320 (Bell P, as the Chief Justice then was, Leeming and Payne JJA). Their Honours said: [78] Before an order for provision can be made in favour of a child of the deceased (who is an "eligible person" within the meaning of s 59 of the Succession Act), the Court must be satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person": Succession Act, s 59(1)(c). [79] Satisfaction in this regard is "jurisdictional" insofar as it is a prerequisite to the Court exercising its discretionary power to make an order for provision pursuant to s 59(2): see, for example, as to the use of the description "jurisdictional", White v Barron (1980) 144 CLR 431 at 456; [1980] HCA 14; Singer at 208-210; Hampson v Hampson [2010] NSWCA 359; (2010) 5 ASTLR 116 at [69]-[72]. Care must, however, be taken when answering this jurisdictional question not to confine the relevant consideration to an applicant's financial or material needs; the language of "proper maintenance, education or advancement" involves more than simply a question of financial needs: see Sgro v Thompson [2017] NSWCA 326 at [68]-[74] (Sgro). [80] Once the level of satisfaction referred to in [78] has been reached, the Court has a broad discretion, "having regard to the facts known to the Court at the time the order is made" (emphasis added), to make such order for provision out of the estate as ought to be made "for the maintenance, education or advancement in life of the eligible person": Succession Act, s 59(2). [81] In considering both whether to make a family provision order and the nature of any such order if the threshold required by s 59(1)(c) is satisfied, the Court is entitled to consider the broad range of matters specified in s 60(2) of the Succession Act. The breadth of the matters that may be considered under s 60(2) does not, however, authorise the making of an order which is for a purpose other than "the maintenance, education or advancement in life of the eligible person". Nor does it relieve the Court of the need to make the order "having regard to the facts known to the Court at the time the order is made" (emphasis added). [82] The primary judge's summary of relevant principles, as noted at [59] above, was not challenged. It is convenient to add a reference to McCosker v McCosker (1957) 97 CLR 566 at 571-572; [1957] HCA 82 (McCosker), in which Dixon CJ and Williams J observed that: "The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd.) [1938] NSW St Rp 3; [1938] AC 463; (1938) 38 SR (NSW) 176 the word 'proper' in this collocation of words is of considerable importance. It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." [83] Kitto J's observations in the same case at 579 are also of note: "The testator has shown by the terms of his will that he did not fail to consider what he ought to do for the several members of his family and that it was his deliberate judgment that some of them, including the respondent, had been adequately provided for by assistance he had given them. His opinion on the subject is, of course, by no means conclusive. But there is nothing to suggest that he was under any misapprehension, or that he was in any way prejudiced against the respondent; and the case seems to me to be one of those in which the testator is much more likely to have formed a correct conclusion on the subject of the moral obligations he owed to his family than a court can well hope to be." [84] In Singer at 208-209, the majority held, in the context of broadly equivalent provisions under the predecessor Family Provision Act 1982 (NSW), that: "It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the 'jurisdictional question'. That description means no more than that the court's power to make an order in favour of an applicant under s 7 is conditioned upon the court being satisfied of the state of affairs predicated in s.9(2)(a)." [85] More recently, in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122] (Vigolo), Callinan and Heydon JJ observed, in relation to the corresponding Western Australian legislation, that the questions which the Court has to answer in assessing such a claim do not "necessarily always divide neatly into two" and that: "Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." [86] Vigolo is also significant because three of the five justices (Gleeson CJ, Callinan and Heydon JJ) supported the continuing utility in this field of discourse of notions of moral obligation and duty. Thus, Gleeson CJ (at [25]) observed that: "In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text." See also Callinan and Heydon JJ at [121], cf Gummow and Hayne JJ at [63]-[73]. [87] It is also relevant to note that in Sgro at [83], White JA (with whom McColl and Payne JJA agreed) repeated what he had earlier said in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] as follows: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136] ). This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."

Choice of law to be applied

1. As Kalpana's claim for family provision is for an amount that is substantially greater than the value of the deceased's actual estate, even if that estate is augmented by a remedy against the defendants for devastavit, the crucial issue in these proceedings is whether the Court must determine Kalpana's claim on the basis of the proceedings she implemented in this Court under the Succession Act, or whether the only claim she can prosecute is the claim commenced in the Supreme Court of the ACT under the Family Provision Act that has been cross-vested to this Court. That is because it is only in the former case that the Court has power, if the requirements of Part 3.3 of the Succession Act are satisfied, to designate parts of the property of the O'Donnell group of companies as the notional estate of the deceased.
2. The Court is required to choose which are the correct proceedings to determine, which involves the choice of the correct law to apply. Choice of law depends upon the application of the relevant rules of the conflicts of law. Even though Australia is a single country, in various ways the laws of the several States and Territories differ. For disputes governed by State and Territorial law, the States and Territories are treated as if they were separate countries. The conflicts of law rules of this Court, as the forum for the dispute (the lex fori), govern the choice of law. There is no controversy about the content of the applicable rule, which is conveniently set out in M Davies, AS Bell, PLG Brereton and M Douglas, Nygh's Conflict of Laws in Australia (10th ed, 2019, LexisNexis Butterworths) (Nygh's) at [38.43], as follows (footnotes omitted, and noting that 'Testator's Family Maintenance' is equivalent in meaning to 'family provision'): The relevant principles applicable to jurisdiction in testator's family maintenance in the absence of legislative provisions are set out in the judgment of Sholl J in Re Paulin: (a) The courts of the testator's domicile alone can exercise the discretionary power arising under the appropriate Testator's Family Maintenance legislation of the domicile so as to affect his movables and immovables in the territory of the domicile; … (b) The same courts alone can exercise such discretionary powers as to affect under the same legislation movables outside the territory of the domicile; … (c) The courts of the situs alone exercise such discretionary powers to affect, and then only if there is Testator's Family Maintenance legislation in the situs providing for it, immovables of the testator out of the jurisdiction of the courts of his domicile; and the courts of his domicile cannot exercise their discretion so as to deal with such immovables; …

Property available for designation as notional estate

1. If the Court has jurisdiction to hear Kalpana's claim under ss 59 of the Succession Act, it will have power to make an order designating property as notional estate of the deceased under Part 3.3 of that Act.
2. As Mason P said in Kavalee v Burbidge (1998) 43 NSWLR 422 (Meagher JA agreeing and Handley JA dissenting in part) at 441 concerning the substantially equivalent provisions of the Family Provision Act 1982 (NSW), which were replaced by Chapter 3 of the Succession Act: A court approaching the interpretation of the notional estate provisions is at once confronted with a legislative scheme which is both beneficial to applicants and restrictive of the existing property rights of disponees. And it uses both technical legal terms and expressions of indeterminate reference.

Possible basis of relevant property transaction

1. The explanation of the application of Part 3.3 that follows will be assisted by a description of the relationship between the deceased and the O'Donnell group that relevant authority suggests may justify the Court in making a notional estate order in respect of the property of those companies. Relevantly:

• Duboti Pty Ltd, as trustee of the Mugga Way Family Trust, could at any time in its absolute discretion have resolved to distribute the income and capital of the Trust to any income or capital beneficiary (as the case may be).
• Soothink Pty Ltd was both an income and capital beneficiary of the Mugga Way Family Trust.
• All of the shares in Soothink Pty Ltd were beneficially owned by the deceased. Any increase in the assets of Soothink Pty Ltd caused by a distribution to it of the income or capital of the Mugga Way Family Trust would have increased the value of the actual estate of the deceased.
• At material times, there were two directors of Duboti Pty Ltd, being the deceased and Jaimie. As explained above, it was Jaimie's habit to exercise his powers as a director of Duboti Pty Ltd in accordance with the instructions of the deceased. The deceased exercised his powers as a director of Duboti Pty Ltd in a way that gave him complete control over the actions of that company.
• In any event, as the deceased held all of the issued shares in Duboti Pty Ltd, the deceased could have resolved at any time to remove Jaimie as a director, before causing Duboti Pty Ltd to make whatever distribution the deceased wished the company to make as trustee of the Mugga Way Family Trust.
• The deceased was able to exercise these powers at any time up to the date of his death but he did not do so.
• The subject of the distribution that the deceased could have caused Duboti Pty Ltd to make could have been any of the shares held by Duboti Pty Ltd in the companies in the O'Donnell group or any of the units in the Newcastle Unit Trust.
• In all of the cases where the deceased was the sole director of a company in the O'Donnell group the deceased could have caused the companies to declare dividends out of any available profits, or alternatively profits could have been distributed to Duboti Pty Ltd as the holder of units in the Newcastle Unit Trust, so that Duboti Pty Ltd would have received profits that would have been available for distribution to income beneficiaries.

Outline of facts of prior authorities

1. Following is an outline of the facts relevant to the authorities to which I will refer in considering the application of Part 3.3 in this case.
2. In Kavalee v Burbidge, the deceased established a type of company called a stiftung governed by the law of Liechtenstein that was called 'the Foundation' in the judgment. The deceased transferred substantial assets to the Foundation designed to limit the capacity of his wife and the children of his marriage to make successful claims on his estate. The deceased did not have what Australian law would recognise as a legal or beneficial interest in the assets of the Foundation, so those assets were not part of his estate at the time of his death. Under its constitution, the Foundation was controlled by a Founder, being a nominated company, which was empowered to create bylaws for the Foundation that governed how the assets of the Foundation were to be distributed. The bylaws were made in accordance with memoranda of wishes given to the Foundation by the Founder. As Mason P said at 440: "Put simply and in lay terms, the Founder had the right to cause the Foundation to deal with its assets as the Founder chose. And the deceased had the right to pull the strings that caused the Founder to jump at his direction." The Court of Appeal held that this Court could in principle make an order designating assets of the Foundation as notional estate of the deceased, provided it was established that the law of this State governed the succession to the deceased's property.
3. In Wardy v Salier [2014] NSWSC 473, White J (as his Honour then was) was required to determine whether the Court had power to make a notional estate order in respect of the assets of a discretionary trust whose terms were materially similar to the terms of the Mugga Way Family Trust: see [82]. The deceased owned the shares in, and was the director of, the company that was the trustee of the trust. The deceased was a nominated beneficiary of the trust. The deceased failed to exercise his powers as shareholder and director of the trustee to cause the trustee to resolve to distribute the assets of the trust to himself before he died. White J found that the Court had power to make an order designating the property of the discretionary trust as notional estate of the deceased.
4. The circumstances in Hitchcock v Pratt were materially different. Brereton J (as his Honour then was) made an order for the summary dismissal of the plaintiff's claim. The plaintiff had claimed that this Court could make an order designating real property in this State as notional estate of the deceased. The deceased had died domiciled in Victoria, so that the law of Victoria governed the succession to his movable property. The real property situated in NSW was owned by a company whose principal place of business and share register were in Victoria. The shares in the company were ultimately owned by another company resident in Victoria that was the trustee of a discretionary trust. The deceased was not a director of the trustee company, although he could have exercised a power to make himself the director. The deceased had been a director of the property-owning company before his death. The deceased was specifically excluded as an eligible beneficiary in the trust deed that governed the trust. The plaintiff's argument was that the deceased, as director of the company that owned the property in this State, could have caused the company to transfer the property to himself. Brereton J found that the Court could not make an order designating the real property in this State as notional estate of the deceased for two reasons: first, it would not have been lawful for the deceased who owed fiduciary duties to the property-owning company as its director to transfer the company's property to himself without payment of its full value, and secondly, even if the deceased had been the controlling director of the ultimate holding company that was the trustee of the discretionary trust, he could not have caused the trustee to distribute the value of the property to himself because he was explicitly excluded as a beneficiary of the discretionary trust.

Particulars of Kalpana's notional estate claim

1. The defendants filed a notice of motion on 25 August 2021 seeking particularisation by Kalpana of the notional estate orders that she sought. On 27 August 2021, in the course of a pre-trial directions hearing, Kalpana's senior counsel informed the Court that particulars of Kalpana's notional estate claim would be provided to the defendants. Those particulars were provided by letter from Kalpana's solicitors dated 8 September 2021: see Exhibit D3.
2. The letter stated: "Consistent with the Plaintiff's evidence that has been served on your clients, and in their possession since 2019, and indeed the agreements reached by the parties' respective accounting experts, the Plaintiff contends that the following assets are capable of forming the deceased's notional estate…" The defendants contest that there was any relevant agreement between the accounting experts. The letter then listed "the deceased's shareholding" in 12 companies in the O'Donnell group. The letter also listed "the deceased's shareholding in the Northern Territory Club Supplies Unit Trust". The deceased did not have a shareholding in that trust, as trusts do not issue shares. The trustee of that trust was a company called Belsos Pty Ltd. All of the companies that were listed, as well as Belsos Pty Ltd, are companies in which the deceased held shares that were subject to declarations of trust by the deceased in favour of either Fashionable Leasing Pty Ltd or Duboti Pty Ltd. As noted above, after probate of the deceased's will was granted to the executors, they executed transfers of the shares the subject of the declarations of trust in favour of the beneficiary companies. Kalpana's solicitors' letter ended by saying: "The relevant property transaction is the transfer of those shareholdings between 11 February 2019 and 23 July 2019."
3. This letter appears to be misconceived, and in any event it is not clear upon what basis Kalpana contended that transfers by the executors could be relevant property transactions within s 75(1) of the Succession Act. As I will explain below, Kalpana relied upon one of these transactions as the basis of her devastavit claim against the executors. Kalpana claimed that the relevant declaration of trust should not have been acted upon by the executors as if it remained valid, so the transfer of the relevant shares to the supposed beneficiary without full value was a devastavit.

Application of Part 3.3 of the Succession Act

1. I will now turn to a consideration of the application of Part 3.3 to the relationship between the deceased and the companies in the O'Donnell group and the property owned by those companies.
2. The issue is whether there is property that is not part of the estate of the deceased that can be designated as notional estate by an order under Part 3.3, and so is made available as the subject of a family provision order by s 63(5).
3. The starting place therefore is 80(1), which is the provision that empowers the Court to make an order designating property as notional estate of the deceased, and which is in the following terms: (1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that the deceased person entered into a relevant property transaction before his or her death and that the transaction is a transaction to which this section applies.
4. Section 80(2) specifies what are called the "relevant property transactions" to which s 80 applies. As will be seen, the only transactions that are candidates for relevant property transactions in this case are transactions "that took effect … on … the deceased person's death" within s 80(2)(c). Section 80(2)(a) and (b) provide that s 80 applies to relevant property transactions that took effect within 3 years or within 1 year respectively before the date of the death of the deceased person, provided those transactions conformed to stated criteria. Those criteria are not present or relevant in this case.
5. Section 80(3) confines the property that may be designated as notional estate by a notional estate order under s 80(1) to property that conforms to the description in the subsection, as follows: (3) Property may be designated as notional estate by a notional estate order under this section if it is property that is held by, or on trust for - (a) a person by whom property became held (whether or not as trustee) as the result of a relevant property transaction, or (b) the object of a trust for which property became held on trust as the result of a relevant property transaction, whether or not the property was the subject of the relevant property transaction.

Significance of real property in NSW owned by O'Donnell group companies

1. In Hitchcock v Pratt, Brereton J said at [20]: [20] Accordingly, there will be jurisdiction in this case only if the deceased, having died domiciled in Victoria, left property in New South Wales. It is uncontroversial that he left no actual estate in New South Wales. However, the presence in New South Wales of property which could be designated as notional estate is sufficient to attract jurisdiction, since once designated it assumes for practical purposes equivalence to actual estate. Accordingly, if it were arguable that there was in New South Wales property capable of being designated as notional estate of the deceased, it would be inappropriate summarily to dismiss the proceedings.
2. Consequently, even if this Court does not have jurisdiction to apply Part 3.3 of the Succession Act where the deceased had control of the O'Donnell group generally, it is in principle relevant to consider whether at the time of the deceased's death there was real property situated in this State, being immovable property of a company in the O'Donnell group, that this Court has jurisdiction to treat as part of the deceased's estate because a notional estate order may be made in respect of that property.
3. As I understand the evidence, the candidate properties for the making of notional estate orders would have been as follows: 1. Evenlong Pty Ltd, as trustee for the Newcastle Unit Trust, owned the Pyrmont apartment that was sold in 2019 for $5.5 million and the Royal Hotel Bungendore that was sold in 2019 for $4.4 million. Duboti Pty Ltd, as trustee for the Mugga Way Family Trust, held 100% of the shares in Evenlong Pty Ltd and 100% of the units in the Newcastle Unit Trust. The deceased was the only director of Evenlong Pty Ltd. 2. Enjet Pty Ltd owned the Empire Hotel Goulburn that was sold in 2019 for $3.034 million and a property in Thredbo that was sold in 2020 for $2.55 million. Duboti Pty Ltd, as trustee for the Mugga Way Family Trust, held 100% of the shares in Enjet Pty Ltd. The deceased was the only director of Enjet Pty Ltd. 3. Amazonia Hotels Pty Ltd owned the North Nowra Tavern that was sold in 2020 for $12 million. Fashionable Leasing Pty Ltd and Duggan Family Hotels Pty Ltd each held 50% of the shares in Amazonia Hotels Pty Ltd. Duboti Pty Ltd, as trustee for the Mugga Way Family Trust, held 100% of the shares in Fashionable Leasing Pty Ltd. The deceased and Mark Duggan were each directors of Amazonia Hotels Pty Ltd. Mr Duggan and his company were independent investors to the deceased.

Legal principles governing determination of domicile

1. Every person has at every moment of their life one and only one domicile, but that domicile may change during the person's life. A person's domicile is of fundamental significance to the legal principles that govern important aspects of the person's life and death. Yet it may be that most people are oblivious to the fact that they have a domicile or that other people upon whom they may depend also have a domicile. The concept of domicile may be alien to their experience. They may go about their lives in ignorance of how their own domicile and the domicile of other people may crucially impact on their lives and their rights.
2. In Udny v Udny (1869) LR 1 Sc & Div 441 (Udny) Lord Westbury said, at 457-8, using the old term "domicil": …[T]he civil status is governed universally by one single principle, namely, that of domicil, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy, must depend. … It is a settled principle that no man shall be without a domicil, and to secure this result the law attributes to every individual as soon as he is born the domicil of his father, if the child be legitimate, and the domicil of the mother if illegitimate. This has been called the domicil of origin, and is involuntary. Other domicils, including domicil by operation of law, as on marriage, are domicils of choice. For as soon as an individual is sui juris it is competent to him to elect and assume another domicil, the continuance of which depends upon his will and act. When another domicil is put on, the domicil of origin is for that purpose relinquished …
3. A somewhat more modern explanation of the concept of domicile was given by Lewison J (as his Lordship then was) in Gaines-Cooper v Commissioners for HM Revenue and Customs [2007] EWHC 2617 (Ch) at [1] (Gaines-Cooper): [1] Given that many people move about the world from one country to another, it is essential to have a means of establishing under which system of law and within the jurisdiction of which country's courts questions relating to their civil status (such as marriage, divorce and legitimacy) and some aspects of their property (such as the devolution of moveable property on their intestacy) fall to be determined. It is to accomplish that purpose that the concept of domicile has been developed. It is a neutral rule of law for determining that system of personal law with which an individual has the appropriate connection, so that it will govern his personal status and questions relating to him and his affairs. Its essential feature is that it attempts to connect a person so far as it is possible with the country in which he has his permanent home or in which he lives indefinitely. But in addition to the principal objective of the law of domicile, it also has knock-on effects, such as a person's liability to pay tax. That is what this appeal is about.

Determination of the deceased's domicile

1. The parties directed their greatest forensic efforts towards a determination of the deceased's domicile at the time of his death that was favourable to their cases. That was because the deceased left his widow nothing in his final will and, on any version of events, Kalpana is morally entitled to a provision that is substantially greater than what events have shown is the value of the deceased's actual estate. Kalpana cannot secure her moral entitlement unless a finding is made that the deceased was domiciled in NSW. Her quandary is exacerbated by the possibility that the estate will be substantially diminished by costs orders that may be made in all of the proceedings. As a result of the way in which the hearing was conducted, it will be necessary for the Court to address the detail of the evidence led by the parties on the issue of the deceased's domicile.

Background

1. As noted, the deceased was born in Goulburn. At some time he moved to the ACT and engaged in business, principally, it seems, as a hotelier. The deceased prospered and, in 1998, he purchased 30 Mugga Way, Red Hill, in his own name. He continued to own that property until his death.
2. The deceased's life with his first three wives was predominantly lived in the ACT.
3. The companies in the O'Donnell group that were controlled by the deceased, without any significant third-party investment, all had their principal places of business and registered offices in premises in Fyshwick in the ACT owned by a company in the O'Donnell group.
4. At various times in the last 10 years of the deceased's life, either directly or through companies or trusts associated with the O'Donnell group, the deceased purchased property in Canberra, Sydney, Bateman's Bay, Nowra, the Gold Coast and Perth.
5. As noted above, the deceased caused Evenlong Pty Ltd, which was the trustee of the Newcastle Unit Trust, to purchase the Pyrmont apartment in July 2013.
6. Kalpana and the deceased met in November 2012 and commenced a relationship, which led to them marrying on 9 May 2013 in Las Vegas. The couple initially lived at the Mugga Way property. On 29 October 2014, the deceased's dog named Lady was bitten by a snake at the Mugga Way property. As Kalpana was afraid of snakes, the deceased agreed to purchase another property for the couple to use as a home. The property that the parties called the Barton penthouse was purchased on a fully furnished basis in December 2014 in the deceased's name. The deceased had originally arranged to buy the Barton penthouse in equal shares with Kalpana as tenants-in-common. Kalpana attended at the solicitor's office to sign the contract as a purchaser. Subsequently, in unknown circumstances, the deceased caused Kalpana to be removed as a purchaser and acquired the Barton penthouse in his sole name. As will be seen, this caused a short-term breach between Kalpana and the deceased.
7. The penthouse in the Versace Hotel on the Gold Coast was purchased in March 2016 using funds obtained from Evenlong Pty Ltd, and sold at a loss approximately 18 months later in November 2017.
8. In December 2015, the deceased and Kalpana entered a contract to purchase an 'off the plan' apartment at Elizabeth Quay, Perth. A deposit of $250,000 was paid. The contract was due to settle in early 2019, but as a result of the deceased's prior death, the contract was not completed and the deposit was forfeited.

Kalpana's credibility

1. This will be a convenient place to deal with the issue of the credibility of the evidence given by Kalpana, as her credibility is most affected by the evidence that she gave on the domicile issue.
2. It is unfortunate that, in such contentious proceedings as the present, it was necessary for the Court to conduct an audio-visual hearing because of the consequences of the COVID-19 pandemic. Those who have participated in many such hearings during the course of the pandemic will know that the quality of audio-visual hearings varied significantly and unpredictably from hearing to hearing. That was apparently the result of technical and bandwidth issues that were often little understood and difficult to remedy. My experience of the hearing in these proceedings was that the audio-visual difficulties that were experienced were relatively extreme. That meant that the ability of the Court to place any weight on the demeanour of witnesses depended upon the quality of the particular audio-visual connections that were in place for each witness who generally gave their evidence from different remote locations.
3. Kalpana gave her evidence from what appeared to be a relatively large conference room in which her legal representatives were also present on screen. I consider that the audio-visual connection was relatively poor and unreliable, so that it would not be fair for the Court to place any significant weight on views it might have formed concerning Kalpana's demeanour in giving her evidence. It appeared to me that Kalpana was significantly disadvantaged by reason of having to respond to a lengthy and forceful cross-examination in an audio-visual process.
4. Kalpana was clearly emotionally upset by the process of giving evidence and on some occasions she could not satisfactorily continue. Kalpana's apparent demeanour was entirely consistent with what one might reasonably expect of a bereaved widow who had married and thought she was loved by, and could trust, a wealthy man, only to find that he left her nothing in his will, contrary to what I am satisfied were promises made by the deceased to Kalpana. If that were not bad enough, Kalpana must have discovered, after the deceased's death, that the law of this country had put her in the position where justice to her claim depended upon a court's finding as to the domicile of the deceased at the date of his death. Given that most lawyers do not understand domicile, it is only to be expected that the existence of this barrier to success in her case must have been a traumatic realisation. Consequently, I have attributed no significance to the highly emotional state in which Kalpana gave her evidence and her consequent tendency to lose the thread and to ramble in response to the questions that were put to her.

Kalpana's evidence

1. In Kalpana's 16 April 2019 affidavit affirmed in support of her application for family provision in this Court, Kalpana gave as her address the address of the Barton penthouse. Kalpana said, in par 151, that she and the deceased had plans to renovate the Mugga Way property and to retire there. She said in par 154 that she currently split her time between the Barton penthouse and the Pyrmont apartment.
2. Kalpana swore a supplementary affidavit on 23 May 2019, which was listed in the contents of the Court Book as containing evidence relevant to the domicile issue. Kalpana claimed in par 7 that, during their marriage and prior to the deceased's admission to hospital in November 2018, when they were in Australia, they spent half of their time living in the Pyrmont apartment. She said that following the deceased's death, she split her time between the Pyrmont apartment and the penthouse in Barton.
3. The defendants obtained orders from this Court that required Kalpana to vacate the Pyrmont apartment after the deceased's death, so that the apartment could be sold. Kalpana had to find alternative rental accommodation for herself and her dog. She filled out a tenancy application form that contained a statement that she had been living in Canberra for five years. The form was the subject of the following cross-examination [T 159.30-159.47]: Q. When you filled out the tenancy application form, which is at page 43, I suggest to you that you correctly represented to the agent that you had been living in Canberra for five years. What do you say about that? A. Mr Meek, I would have had to say anything to get a roof over my head. I didn't have any place to go. I was kicked out of my home. I had a puppy. No-one was renting. What am I going to say? Which address to put? What can I put? Q. And - sorry, you go. A. I can't put Pyrmont. It is - it is gone. What am I going to do? Which address? Q. Are you suggesting that the detail that you were living in Canberra in the application form was a lie, is it? A. I used to live in every place - when I'm in Canberra, I say I'm living there. I'm living in Sydney, our home was Pyrmont. I use home for all our residences. I say ..(not transcribable).. home. I say - our third home - we called everyone home, but our principal place was Pyrmont.
4. The cross examination on this issue continued, and also raised the fact that, at the time Kalpana claimed that her and the deceased's primary home was the Pyrmont apartment, she had arranged for overseas trips with the deceased with a Flight Centre office in Pyrmont, but the invoices were addressed to the Barton penthouse [T 163.35-163.49]: Q. You say you just put any old address, is that right? A. Because we have so many homes. We just - can I stop there. The other reason that we would put those addresses is because we can get our mail there. We never used to have any mail coming to Pyrmont because we - we just go there, open the door and we relax. That's our home. We didn't get any mail in Pyrmont. All our mail went to 30 Mugga Way or 27 Sydney Avenue. Q. You see on page 8 that there is an invoice from Flight Centre for a flight to Bali to depart from 20 December 2015 returning 8 January 2016; right? A. Yeah, I can see that, and I can see the address as well, but that's what I just explained in the previous question. We - we just put whatever because we didn't - we don't get mail in Pyrmont at all. We never received any - our mail going to Pyrmont. Gary had his own postal address that his work email - I mean his work documents go to PO box that he collects and the mail normally comes between Monday to Friday so we have to give some address where we can receive our mail.

Witnesses called by Kalpana on the domicile issue

1. Kalpana and the defendants called evidence from a number of witnesses to support their respective cases as to the domicile of the deceased at the date of his death. As the ACT is embedded in NSW, and as the deceased was frequently present in each of these jurisdictions, the element of the necessary intent to acquire a new domicile of choice was of particular significance in this case. Although it is conventional for the Court to place more weight on the objective evidence of the subject person's intention than statements made by the person concerning his or her subjective intention, I have found, in the unusual circumstances of the present case, evidence of statements made by the deceased in his day-to-day dealings with other people to have significant force.
2. Kalpana called evidence on the issue of the deceased's domicile from 16 acquaintances of the deceased. Only three of those witnesses were cross-examined by the defendants. I will consider their evidence first.

Peter Princi

1. Peter Princi said that he became a close friend of Kalpana before her marriage to the deceased, and after their marriage he and the deceased became closer friends. In December 2014, Kalpana and the deceased moved out of the Mugga Way property into a penthouse apartment in Barton. Mr Princi then gave the following evidence in his 18 July 2019 affidavit: 5. After the move to Barton, I had a conversation with Garry and Paris whilst out at dinner with them at Thai Chang Rai in Kingston. Garry said words to the effect, "Barton is only temporary. You should see the home we bought in Sydney! It's so close to the water, you can sit on the balcony and piss into the harbour. I bought it for Paris, we love it and are moving in shortly." Garry appeared excited as he said this. 6. After Garry and Paris moved to Sydney, I visited them at the Pyrmont apartment on many occasions. I also attended their dinner parties and other social events held over the years in Sydney. Garry and I also spent a lot of time sitting on the balcony at the Pyrmont apartment drinking. 7. In all of the conversations I had with Garry and Paris following their move, they both referred to the Pyrmont apartment, and Sydney, as their "home". 8. On one occasion I attended a Melbourne Cup event in Darling Harbour in Sydney with Garry and Paris. We returned to their apartment after and Garry said to me words to the effect of "because we live in Sydney now, I want to buy something bigger. There is a double apartment in this same complex I am interested in buying." 9. When Garry was in Canberra in May 2018, I had dinner with him at Ottoman Restaurant in Barton. I asked him what his movements for the week (sic). He said to me, "We're heading home for a few days" (referring to Sydney). I asked him when he would be back in Canberra, he said, "I don't know, maybe next week." 10. From what I observed, and from my discussions with Garry and Paris both together and separately, I understood that Sydney was Garry and Paris' permanent home.
2. Mr Princi gave the following evidence in cross-examination: [T 15/10/21 237.30-239.20]: Q. ... Now, you mentioned the Pyrmont penthouse. Are you aware that that had been purchased before the Barton penthouse? … A. I was out with him at dinner or something when he - and he said - yeah, after - this was just after he bought the penthouse at The Realm, and he said, "We've purchased a property - we've purchased a property in Sydney." And he said that, "You should see it. It's beautiful." He said - you know, I - I said that in my affidavit because it sticks in my head. He said, "Wait till you come there." He said, you can stand on the balcony and piss into Sydney Harbour." That's how good it was. And he said to me that - that Barton - the Barton penthouse was only temporary, because they were moving to Sydney. … Q. I'm just trying to understand why he would have told you that the Barton property was temporary? Did he explain that? A. I think you'd have to ask him that because he - he - that's what he said to me. He said the property was temporary. When he got the penthouse at Barton, he said it was temporary. They're moving to Sydney. Q. The Barton penthouse was purchased after the Sydney apartment, so did you have any understanding of temporary for what? A. He said was there temporary - it was only temporary because they were moving to Sydney. Q. I suggest that you haven't properly recalled what he told you about the Barton apartment about it being temporary-- A. Well, I can - I can tell you this: that when he moved out of Mugga Way and moved into that Barton penthouse, he moved in there because - he moved out of Mugga Way because Paris was actually scared of snakes at Mugga Way, so I would assume that he just - he bought the penthouse so he could get Paris out of there, you know, because she was scared, and - and that was a temporary - a temporary fix until they moved to Sydney to the - to the property in Sydney. Q. Let's go back to Mugga Way. You refer to the fact that Paris was scared of snakes. You understand that that's because she was living in the Mugga Way property with him; that's right, isn't it? A. She was there for a short period of time, I believe, yes. Q. When you say "you believe", what do you actually know? A. Well, in Mugga Way - in the period of time they were at Mugga Way, I think I went to that place a maximum of two times because they then bought the - got her out of there because she was worried. They bought the Barton property, and they moved into there while they were preparing to move to Sydney. … Q. You have no actual knowledge of that, do you? A. Only from what he told me he'd moved to Sydney. He'd always refer to Sydney as his home. I would go there on a regular basis and see them up in Sydney in Darling Harbour. That was his home. Q. How many times do you say you were in Sydney with him? A. Dozens of times in Sydney. It was only a three-hour trip up the road. We used to go quite regularly to Sydney. Q. If I suggest to you that he was actually only in Sydney for a very small percent of the time over that period from 2014 until his death, what would you say about that? A. I know that he had a lot of work in Canberra, so he did work in Canberra quite a bit, but he always went back to Sydney, and whether the percentages were more in Canberra or Sydney, I don't know, but Sydney was his home. Q. You say that. You're aware that he did live and continued to live at times in the Barton penthouse; right? A. When he was in Canberra? Q. Yes. A. If he had to stay here for a few days or something, of course he would be in the Barton penthouse.

Robert John Leticq

1. The next witness who gave evidence for Kalpana was Robert John Leticq. Mr Leticq said that he had known Kalpana since July 2009 and that he met the deceased in December 2012. After the marriage of Kalpana and the deceased in May 2013, Mr Leticq and his partner spent a significant amount of time with both of them socially and travelled with them on overseas holidays. Mr Leticq and his partner would catch up with Kalpana and the deceased two or three times a fortnight. This would often be for dinner at local Canberra restaurants or in Sydney after Kalpana and the deceased moved there in about September 2013. Mr Leticq said that after Kalpana and the deceased moved to Sydney they travelled back to Canberra often for business.
2. In his 1 August 2019 affidavit, Mr Leticq said: 5. … The four of us were having dinner one night in July 2013 at the Thai Chang Rai in Kingston when we had a conversation to the following effect: Garry said: "I've bought a place at Pyrmont for Paris and I to live in." I said: "Are you looking at settling down in Sydney?" Garry said: "Yes, I am keen to settle down there soon, I prefer the Sydney lifestyle and have good mates up there. It's more entertaining and I enjoy the warmer weather of Sydney compared to Canberra. I've got bad knees and joints, and Canberra's cold weather is no longer good for me, they hurt a fair bit. That's one of the main reasons for the move. Paris can furnish it as she likes. I want her to be happy in our new home. She runs things past me but I'm happy if she is happy. This is our new start. 6. After Paris and Garry moved, whenever Vilayphone and I travelled to Sydney, we almost always visited Paris and Garry at their home in Pyrmont where we would have a meal with them. … 8. In December 2014, during a dinner with Paris, Garry and Vilayphone, Garry said, words to the effect: "I need to move from Mugga Way, because it's too big, Paris and I want something a little smaller as my Canberra base while here on business, we have purchased a nice unit in Barton and will move our things into that place. … 10. In June 2018, during a visit to Canberra, I met up with Garry for dinner at Thai Chang Rai. During dinner, Garry said to me, words to the effect: "I looked at buying a larger unit in our Pyrmont complex. I actually wanted to buy the place next door. However, they wanted too much for it. So, Paris, and I will keep looking around for something we like, and we've even thrown around the idea of buying a nice place in the eastern suburbs and building a house with more privacy." … 12. In all of my conversations with Garry after he and Paris moved to Sydney, I observed he would always refer to the Pyrmont property as "home". I regarded it as his home.

Brian Morris

1. Brian Morris met Kalpana in 2008 and was introduced to the deceased shortly after she began her relationship with the deceased in 2012. Mr Morris had regular contact with Kalpana and the deceased for many years, either over the phone or in person almost once a week. Together with his wife, he attended meals, parties and overseas trips with Kalpana and the deceased. Mr Morris gave the following evidence in his 22 July 2019 affidavit: 4. In late June 2013, I met Garry at the Statesman Hotel. I asked Garry where Paris was. He laughed and said: "She is still getting ready, we only just arrived from Sydney." He said to me. "Guess what I bought for Paris today? A house in Sydney, right on the water. We want to move up to Sydney, Paris loves it, but I will have to work even harder now!" He laughed and went on to say: "That's what you do for the woman you love. Sydney will be good for Paris and I, if she is happy, I am happy." Garry was very excited, I asked him more about the property, and he said to me: "I don't have any pictures, but Paris does on her phone, you'll have to have a look when she arrives."
2. In par 5 of his affidavit, Mr Morris gave evidence of a conversation with the deceased during a trip to Las Vegas in March 2016 in which the deceased said: "We can live anywhere we like, and we chose Sydney, we absolutely love it. You guys should move up too."
3. Mr Morris' affidavit continued: 6. Garry and Paris came to a dinner party my wife and I held at our house in Kambah Canberra, Garry said to me: "You too should come and live in Sydney, Paris would love to have friends like you closer to home." 7. We regularly visited Garry and Paris in Sydney. When we went up for business we would stay at their home in Pyrmont. 8. During a visit to Sydney in September 2018, Rabia and I told Garry and Paris about our plans to move to Queensland. Garry encouraged us to make the "big move" and said to me: "Paris and I did it years ago and we are loving Sydney, it's the best thing we could have done." He also said: "My joint pain and knees have actually improved too since our move here. They were terrible in the Canberra cold all the time."
4. The cross-examination of Mr Morris was relatively brief and included the following [T 15/10/21 244.48-245.41]: Q. In your affidavit, and I'm not being critical, but you don't refer to a lot of contact with them, or with Garry, over the five years between 2013 and 2018; right? A. There was regular contact, but it was, again, on a social nature. For dinners and drinks, and parties and things like that. Q. In the context of conversations you had, so you refer to a number of conversations in paragraphs 4, 5 and 6 of your affidavit. Those conversations took place at meal times, or lunch or dinner; right? A. Most - most often it was after work. So after work meal times and drink times, yes. Q. Some of that was at The Statesman Hotel? A. Correct. Q. There was a degree of drinking; right? A. Yes. Social. Yes. We were all driving, so we didn't drink too much. Q. You're aware that from time to time Garry would say things in the nature of big noting; right? A. I beg your pardon? Q. Garry would say things that were in the nature of big noting? A. Big noting? Q. Yes. A. I wouldn't have called it big noting, no. Q. Why? A. He's a - he's a man of good means. He doesn't need to big note himself. Q. You set out some discussions that you say that you had with him. As far as you're aware, most of your contact with him was in Canberra, wasn't it? A. Canberra, Sydney and USA. Q. Over the period of time that, say from 2014 until his death, is it the case that you wouldn't have spent a great deal of time with him in Sydney? A. No. I wouldn't it was not a great deal of time. It was several times, but each of those times we were both up there for different reasons, and we would get together again for a meal in the evening. Q. When you talk about 'several times", we're not talking about a large number. You're meaning by that maybe four or five or six times? A. In that period of time I would have said less than 10 times.

Pushpanjali Vyas

1. Pushpanjali (Angelina) Vyas is Kalpana's sister. She said that she had known the deceased since 2012.
2. Ms Vyas gave the following evidence in her 26 July 2019 affidavit: 5. Kalpana called me in May 2013 and told me that she and Garry had married and were looking for a place in Sydney to live. She said words to the effect: "Garry asked me to marry him! We did it in Las Vegas. We've found an amazing apartment on Sydney Harbour and we are moving out from Canberra." 6. At the end of June 2013, I was discussing with Garry and Kalpana their move to Sydney over the phone. They were very eager to move in, I asked what the rush was. Garry said to me: "Angelina, we want Ruff to see his new home before he passes. He is going to love it." Ruff was my sister's puppy who had heart problems and didn't have long to live at this point. Ruff passed away on 13 September 2013. Garry had a huge portrait made of Ruff and installed in their master bedroom in Sydney. 7. My younger sister Jayshree and I travelled and stayed with Kalpana and Garry in Sydney, Canberra, Gold Coast and Thredbo. Sydney was their home. however, they often travelled to their other properties, mainly to Canberra as they had business there. Every time we would speak on the phone to Kalpana, I would ask: "Where in the world are you guys now? At home in Sydney or travelling?" 8. In late 2013, I was invited to celebrate New Year's Eve at Kalpana's home in Pyrmont. Garry and my sister celebrated many milestones in their Sydney home. … 12. In September 2017, I had a conversation with Garry, he said to me: "We are looking at building a home in Sydney somewhere on the water. It's not going to be cheap, but this will be where we will be retiring. We want a backyard for Zac to run around, plus your sister wants a pool. We are looking to see if we can buy an old home to demolish and rebuild." 13. Last year in July 2018 Garry said to me: "Your sister has found her new dream home in Sydney at Versace. It's on the same wharf where we live now. It's a big apartment, plenty of room for everyone including Zac. We will sell the Pyrmont home and move to Versace." Garry went on to tell me: "We will be buying the Versace apartment in both names, so your sister feels secure. You know I will look after her." Unfortunately, this never eventuated as Garry passed away a few months later.
3. Ms Vyas was cross-examined on another issue, being as to why she transferred a property that was in her and Kalpana's name to Toby. The cross examination on the domicile issue was as follows [T 18/10/21 269.24-269.44]: Q. And I suggest to you that you're mistaken that Garry told you that he was living in Pyrmont at that time. What do you say about that? A. Garry and Kalpana lived in Pyrmont, Sydney house. That's their home. Since their marriage, they've been living there. That's the only home they have and that's where I was visited them. Q. So let's just be clear about this. You say that's the only home that you say that Gray and Kalpana ever had; is that right? A. That's the only home they both lived in as a couple after marriage. Q. And did they live there - do you say they live there all the time? A. Yes, they lived there all the time but Garry and Kalpana had businesses in Canberra, so they would visit Canberra too. So I know they - they must have been having properties in Canberra. I don't know how many or what, but they have - they visit Canberra for their business purposes. Q. I suggest to you that you're just completely mistaken about the idea that they lived there all the time; what do you say about that? A. I'm not mistaken; I'm sure they are because I know which was - which was my sister's home where she's living. I know my sister because I talk to her every day. She lived in Pyrmont Sydney.

Cross-examination of Kalpana's domicile witnesses discontinued

1. First thing on the next morning of the hearing I was advised that senior counsel for the defendants had informed senior counsel for Kalpana that the defendants did not wish to cross-examine the remaining domicile witnesses who had made affidavits in Kalpana's case.
2. I do not know why senior counsel for the defendants made that tactical forensic decision. It may be that senior counsel took the view that his cross-examination of the first three domicile witnesses had not yielded any concessions that were beneficial to the defendants' case. However, from my perspective, the cross-examination of the first three domicile witnesses called by Kalpana was extremely valuable, albeit entirely unhelpful to the defendants' case. The effect of the cross-examination of the three witnesses was to satisfy me that their evidence had provided a consistent and valuable insight into the apparent real subjective intention of the deceased.
3. It is unfortunate that the Court did not have the opportunity to hear oral evidence from Kalpana's remaining domicile witnesses. In the circumstances, I consider that the proper course is to accept the evidence that the witnesses who were not cross-examined have given, except to the extent, if any, that the evidence is inherently improbable or it is inconsistent with the objective evidence.
4. I will now turn to the evidence given by Kalpana's additional domicile witnesses. It will be necessary to set out the material parts of their affidavits.

Lin Zhang

1. Lin Zhang said that she had been a friend of the deceased for approximately 20 years. She was introduced to Kalpana by the deceased in 2013. She shared a close friendship with Kalpana and helped her operate her shop. Lin Zhang said that she witnessed the couple's relationship blossom into a genuine and loving marriage, and the deceased frequently said to Lin Zhang privately that Kalpana was the love of his life.
2. Lin Zhang gave the following evidence in her 10 July 2019 affidavit: 4. Before their move to Sydney, Garry said to me: "Lynn, I've asked Paris to find a place in Sydney, somewhere she can call her home. It's not fair to Paris living in Mugga Way as there is no privacy." 5. After Garry and Paris were married in 2013, we went to dinner with our mutual friends. Garry said to me; "Guess what, Paris, and I have decided to move to Sydney to live. We found an amazing place at Sydney wharf, right across from the Star Casino." 6. When they purchased their apartment in Pyrmont in mid-2013 Garry said to me: "We'll have you over for dinner once Paris has finished decorating and we're moved in". 7. Paris did her best to create a warm and welcoming home for Garry and herself. Their home in Pyrmont was decorated very differently to their other properties. I believe they bought the Barton property fully furnished as it was a temporary move from Mugga Way. 8. Garry and Paris frequently spoke about retiring soon. I once asked Garry about his plans for his businesses when he retires, he said to me: "Well, I was planning on running away to the Caribbean somewhere warm and look what happened when Paris walks into my life. It won't be long, and I'll be able to run my business from anywhere so we will stay in Sydney." 8. On many social occasions, and most recently at a dinner at the Ottoman, Garry's favourite restaurant in Canberra, Garry would tell me about their life in Sydney. He said to me; "Paris has turned Pyrmont into something special. I feel really at home there." He said words to the effect of; "I love Sydney Lin, but due to current work commitments I have to keep coming back to Canberra." Garry and I had known each other for a long time, and he would often confide in me his goals and plans for the future. He often told me his plan was to "retire in our Pyrmont home." 10. Based on what was said to me in the preceding paragraphs and what I observed, I always thought the Pyrmont property was their home. I was graciously invited to stay at Garry and Paris Pyrmont home whenever I was in Sydney for longer periods of time, approximately once or twice a year. We would have lovely dinners and sit on their balcony. I have very fond memories with the both of them in their Pyrmont home.

Peter John Adams

1. Peter John Adams said that he knew the deceased for 26 years and regarded him as his best friend. Mr Adams spoke to the deceased almost daily. As he lives in Sydney, often these conversations were by telephone, but Mr Adams and the deceased did see each other almost weekly. Mr Adams also travelled many times with Kalpana and the deceased.
2. Mr Adams said in his 22 July 2019 affidavit: 3. I believe the property located at Pyrmont was bought as a home by Garry to live in with Paris as husband & wife. Prior to purchasing in Pyrmont, Garry would often say to me over the phone, or in person when we met: "Canberra is too bloody cold. Paris and I are moving to Sydney. My hips and knees are deteriorating and I'm looking forward to living a more comfortable life in Sydney." He also said to me; "Mate, I might drive you crazy as I am coming to live in Sydney. We might be coming down the Spit Bridge area which is really close to you." He and Paris eventually bought in Pyrmont in 2013. 4. I often visited Garry and Paris in Sydney. During one visit I observed Garry and Paris together fitting out the Pyrmont property. While showing me through the place and their new purchases, they both referred to the property as "our home". In one conversation I had with Garry in person, I asked him how he and Paris were getting on decorating the apartment, Garry said: "Paris is doing it for us, she loves it and is very good at it. It is her job to do the decorating and I want her to do it." 5. In 2013, Garry commissioned a large abstract painting depicting Sydney Harbour as a masterpiece for their new home to be painted by my uncle Ian Duncan. 6. I spent a large amount of time with Garry and Paris in Sydney as they were only half an hour away from where I live. I would meet Garry almost weekly in restaurants such as Nick's Seafood opposite their Pyrmont home, Fortune of War, The Rocks and many more. It always appeared to me as though Garry and Paris had moved to Sydney on a permanent basis to establish their life here. 7. Through my frequent contact with Garry, I was aware he would spend time in Canberra for his businesses. He would mostly travel to Canberra on a Monday and returned to Sydney again a few days later. When he would return to Sydney, Garry would often call me and say, "I am back mate, lunch tomorrow?" … 9. Garry died unexpectedly. From my observations and discussions with him, he was happy with his wife. He died after a long holiday he was looking forward to and he called me regularly to inform me of his and Paris' adventures whilst overseas.

Vilayphone Dubois

1. Vilayphone Dubois said that she had known Kalpana for 10 years and the deceased for six years. She considered them both to be good friends and would catch up socially several times a week in both Sydney and Canberra. When she visited Kalpana and the deceased in Sydney, she would stay at the Pyrmont apartment.
2. In her 31 July 2019 affidavit, Ms Dubois said: 5. On 15 December 2015, I caught up with Garry and Paris at Nick's Seafood in Darling Harbour to have lunch. Garry was very happy, talking about his Pyrmont home as we could see it from across from the restaurant. Garry said: "Phone, I'm so happy we chose Sydney to start our lives fresh. Paris wants to refurbish the apartment and change the tiles in the bathroom. What do you think? Otherwise we were thinking of maybe building something nice in Point Piper so we can have a newer and bigger home and Paris can design and style our new home, how she would like." 6. On 8 January 2016, we were heading out to dinner at the Riley Street Garage in Woolloomooloo. While Paris was getting ready, Garry and I sat on the balcony at their Pyrmont apartment. While we waited. Garry said: "Isn't our home beautiful? It's got a warm and homely feel to it. Paris and I put a lot into decorating this place. I know you helped Paris and attended stores with her and I thank you for that." 7. Before heading out to the restaurant, Garry and I had another, more personal conversation in relation to his and Paris' properties as follows: Garry said: "I upset Paris when I bought the Barton apartment and didn't put her name on title. We had many conversations about it, and Paris felt insecure." I said: "You know Paris really adores you, Garry, and it's important for you to make Paris feel secure in this marriage. Paris was very hurt at the time." Garry said: "I should have done things differently Phone, Paris is my princess, it is my job to look after her."
3. Ms Dubois also gave evidence of conversations with the deceased in which he told her on 12 May 2018, a day before his birthday, that he had made a will which left Kalpana "more than enough money to be financially comfortable for the rest of her life."

Kevin Xu

1. Kevin Xu was employed for a time to clean the Barton apartment. He cleaned for Kalpana from 2008 or 2009 until 2013 and then for Kalpana and the deceased from 2015.
2. Mr Xu gave the following evidence in his 18 July 2019 affidavit: 4. In May 2013, Garry and Paris were heading to Manila for a holiday, Garry told me they were looking at purchasing a house in Sydney and said; "once we find a place, we will be moving to Sydney. We will still have you clean as we will be coming back for work." 5. In August 2013, Garry said to me; "Kevin, we bought an apartment in Sydney and we will be moving in soon. We would like you to work for us full-time in Sydney. I can put your family up in an apartment in China Town rent free. You could be our driver in Sydney and your wife could cook and clean for us. I will pay you both a good salary." While this was a wonderful offer, I had a good job in Canberra and declined. 6. Paris and Garry would spend majority of their time in Sydney but would travel to Canberra for work. Paris would call me from Sydney and let me know when they would be back in Canberra, usually on a Monday and ask me to clean before their arrival. 7. One night we had dinner with Garry and Paris at the Golden Century in Sydney, Garry said to me; "You have to come over and see our new home. It's right on the water, you can fish from the balcony." Garry told me he was happy living in Sydney, and it felt like "home". 8. I travelled to Sydney a lot with my partner and I would catch up with Garry and Paris whenever we all could in Sydney. 9. While I was cleaning Garry and Paris' Barton property in 2017, Garry was visiting from Sydney and said to me; "Once the development for Statesman Hotel is complete, we will leave Canberra permanently and I will fully retire in Sydney." 10. Garry and Paris treated me more like a friend than an employee and would share with me their plans and overseas adventures. Garry had told me he was looking at another larger apartment in the same complex. He was laughing and said to me; "It's in the same complex, thank God. We won't be moving far this time." …

Noel Sutton

1. Noel Sutton met Kalpana in about 2000 and in the years from 2000 to about 2012 he developed a social relationship with her.
2. In his 16 July 2019 affidavit, Mr Sutton gave evidence of receiving a text message from Kalpana on 9 June 2013, advising him that she had married the deceased and was moving to Sydney to a property they had purchased in Pyrmont. Mr Sutton subsequently had a conversation with Kalpana in which Kalpana said to him words to the effect: "I'm so happy, Garry and I are moving to Sydney, Garry will still work in Canberra and stay down there when he is working, I am furnishing the Pyrmont home." Mr Sutton annexed to his affidavit a copy of the text he received from Kalpana, which included: "I'm also moving to Sydney bought a new place at syd wharf pyrmont". Mr Sutton said that he only spoke to the deceased a few times over the years, mainly small talk.

Nathan Heaton

1. Nathan Heaton said that he had been a friend of Kalpana for approximately 10 years. He first met the deceased at a dinner party Kalpana hosted at her apartment in Barton. Mr Heaton said that he frequently socialised with both Kalpana and the deceased while they were dating and after they were married. Mr Heaton said that both Kalpana and the deceased told him on occasions that they were looking forward to moving to Pyrmont in Sydney.
2. Kalpana and Mr Heaton were acquainted because they had worked together at Medicare Australia from around 2009, where they were both directors of their respective teams. Although Mr Heaton gave some evidence concerning the deceased's intention to resettle in Sydney, his evidence was more relevant to the circumstances in which Kalpana gave up her employment in the ACT. Mr Heaton said in his 19 July 2019 affidavit: 4. In 2013 Paris and I discussed her move to Sydney and went through the possible options regarding her role at Medicare Australia. She had mentioned having to leave her role with DHS and was worried. I had mentioned the possibility of working remotely from Sydney. However, that was not possible. 5. Paris left her executive level position at Medicare Australia shortly after purchasing their Pyrmont home in 2013. Paris very much enjoyed her work and I believe this would have been a major decision for Paris as her role with Medicare Australia was very secure and in resigning, she lost a very lucrative pension.
3. This evidence tends to corroborate Kalpana's evidence that she gave up her secure employment in the ACT as part of the arrangement with the deceased that they would relocate to Sydney and make their married life there.

Edward John Walsh

1. Edward John Walsh is a solicitor of this Court who said that he knew the deceased for approximately 10 years from 2008 until his death in 2018. Mr Walsh never acted for the deceased as his solicitor and their friendship was purely social.
2. Mr Walsh gave the following evidence in his 1 August 2019 affidavit: 5. From 2013, after Garry and Paris married, I began to socialise more frequently with Garry as he was spending more and more time in Sydney. On one occasion in mid-2013 Garry said to me: "Paris and I have moved here to Sydney, I've still got a lot of work in Canberra but we live here now". I cannot recall the exact place Garry and I had this conversation. However, it was over lunch one afternoon. I do recall it was in Sydney. Except for only a few Christmas parties at Garry's hotel (either the Kambah Tavern or Statesman Hotel), both in the ACT, all my contact with Garry was in Sydney. 6. I would socialise with Garry and Paris frequently at many restaurants in Sydney. Garry was always hospitable and nearly always with Paris. On these occasions, Garry would say things to me like: "I enjoy Sydney living in Sydney more than Canberra"; and "This is our new start in Sydney"; and "Our home is so relaxing at Pyrmont; I can get away from work there."

Trevor Francis Quilkey

1. Mr Quilkey said that he had known the deceased for approximately 35 years. He had a very close relationship with the deceased and enjoyed many social engagements with him. The deceased introduced Mr Quilkey to Kalpana in about 2012 or 2013.
2. Mr Quilkey gave the following evidence in his 1 August 2019 affidavit: 6. In early 2013, I went to dinner with Garry and Paris again at Beppi's restaurant Sydney. I recall Garry said to me: "I want to buy a place in Sydney for Paris and I." I lived in NSW at the time and asked him if was going to move permanently. Garry said to me: "Yes, Paris and I discussed it and we are ready to move, we will start looking at property shortly." 7. After Garry and Paris married, they returned to Australia from an overseas trip and purchased their apartment in Pyrmont shortly after. Garry phoned me and said: "Guess what, we found a place in Sydney right on the water, I am looking forward to moving away from Canberra with my wife." 8. Garry sounded to me very excited to begin his married life with Paris, and shortly after at a lunch at Nick's Seafood restaurant at King Street Wharf, Sydney, he told me that they would now be residing at Pyrmont. I was pleased to hear this as it meant I would see more of Garry and Paris living in Sydney. Garry was a proud man and regularly spoke very highly of his wife Paris and how wonderful their home was in Pyrmont. 9. Over the next few years I visited Garry's and Paris townhouse at Pyrmont on approximately five or six occasions. It was a lovely property. I observed they had wonderful furnishings, many family photos and other memorabilia. In particular, I noticed Garry's "natty wardrobe". Garry was a wonderful dresser and it was my observation his clothing and personal belongings were located in Pyrmont. 10. Garry loved socialising in both the ACT and NSW. He would often call me when he returned to Sydney and we would have lunch or dinner. Garry said to me in 2015 whilst out to lunch: "I'm glad to be back home in Sydney, I socialise a lot in Canberra, but mainly with business associates, as you know, mate, that's where I do a lot of business. Sydney is where I can relax and socialise with my friends." … 12. I enjoyed socialising with Garry and being in his company. Garry would say to me on many occasions in Sydney when we would catch up; "It's good to see you. Mate, no work bullshit, just a good catch up when I'm home." I was under no confusion that Garry treated his Pyrmont property with his wife Paris as their home. Garry reiterated to me in Sydney on more than one occasion: "Sydney is our home, we love Pyrmont and living on the water". 13. Garry has had businesses in Sydney and across NSW for at least 20 years and had never bought a property in NSW to live prior to meeting and marrying Paris. Garry would typically stay in boutique 5 Star hotels when in Sydney. Once he met Paris & bought Pyrmont, from my discussions with him and observations, he no longer ever stayed at hotels in Sydney again.

Millie Sepkembo Omonei

1. Millie Sepkembo Omonei said that she had known Kalpana and the deceased since 2012 and spent a lot of time with the couple over the years and considered them to be very close friends.
2. Ms Omonei gave the following evidence in her 1 August 2019 affidavit: 3. I attended a dinner with Garry and Paris on 19 April 2013 at Chairman Yip restaurant in Canberra. Garry said in front of our mutual friends at the dinner table, "Paris, you should have a look at some properties in Sydney, something easy to take care of, and preferably by the water." 4. I was with Paris when she began looking at homes in Sydney. Paris told me that she and Garry had further discussed the move from Canberra. She said Garry wanted to keep their business and home life separate. They also loved socialising in Sydney. 5. Garry led a very busy lifestyle in Canberra, and they wanted somewhere away from that, where they could relax. I brought this up with Garry during a dinner in Canberra. He said to me; "We are married now, it'll be good to have our own home somewhere away from Canberra. Paris and I both love Sydney." And "My knees are playing up, so I prefer the warmer weather." I told Garry how I was going to miss Paris when they moved to Sydney, Garry said: "It's only a short flight to Sydney or you can always take Murray's bus, it gets you right into the CBD in three hours!". 6. After Garry and Paris' meeting with James Crow in June 2013, their real estate agent who sold them the Pyrmont apartment, Garry told me how he was eager to finalise his purchase in Sydney. He said to me, "I'm tired of Canberra and dealing with the drama there." During a social gathering in late June 2013 with Garry and Paris, I discussed how lovely the Pyrmont apartment was with Paris and Garry. Garry said to me: "If Paris likes it, we will buy it. Our very own home in Sydney". I asked him what he thought of it and Garry said, "I saw it briefly with Paris in May and it looked good. I don't care what it costs, I think we will enjoy it there Millie - looks good!" 7. Garry wanted Paris to feel at home in their Pyrmont property. He asked me my opinion on the property. I told him when Paris and I initially walked into view it, Paris said, "wow, I think I just found my new home!", Garry said to me, "well, as long as my bride feels at home, I'm happy with her decision". 8. The Pyrmont (sic) was their first purchase together as husband and wife and he asked Paris to decorate the apartment however she liked. On 23 August 2013, we had dinner at Beppis restaurant in Sydney. Garry said to Paris in front of me, "Darling decorate the apartment however you like, don't buy anything from Freedom, we want the best of the best, this is our home after all". I helped Paris move some of her belongings from her original apartment in Canberra to make it feel cosy and comfortable. 9. Garry, Paris, and I would catch up almost twice a week for dinners and events with our mutual friends Villayphone Dubois, Robert Leticq, Lin Zhang, Briand (sic) and Rabia Morris and Peter Princi. The social gatherings occurred in Canberra and Sydney. 10. When inviting guests over for private dinners or events in Sydney, Garry and Paris both referred to the property as their "home". Garry would call me and say words to the effect of "we're having a dinner party at home in a couple of weeks if you can make it, you're welcome to stay (sic) our place if you can make it up." I would always travel to Sydney and stay with Garry and Paris while catching up. 11. Garry and Paris maintained property in Canberra and would stay there while attending to business or attending social events with friends. Annexed hereto and marked "A" is photograph of us attending a dinner at our mutual friend's. 12. On 25 March 2016, my partner and I were having a drink in the Qantas Lounge with Garry and Paris. Annexed hereto and marked "B" is a photograph of the four of us at the airport. We were going on a joint holiday to New Zealand. We were mucking around and singing the Qantas advertisement, "I still call Australia Home." Garry said, "It should have been, 'I still call Sydney home!'." Garry said later in the conversation. "Once my businesses can run by themselves, Paris, and I can sit on our balcony here in Sydney, right on the water and relax, no more travelling to Canberra for meetings and things." 13. On occasions Garry would attend to business in Canberra and Paris would stay in Sydney. He said to me: "If I have to go back to Canberra for business and Paris wants to stay here (Sydney), you're always welcome to stay and spend some time with Paris at our home".

Andrea Umdenstock

1. Andrea Umdenstock said that she had known the deceased since May 2016 when they met in Las Vegas and quickly became great friends.
2. Ms Umdenstock gave the following evidence in her 15 July 2019 affidavit: 2. I found Garry to be honest and funny. He had just bought a perfume for Paris when we met and I told him he was a "sweet husband". He proceeded to show me photos of his wife, Paris, and we spoke about his life in Australia. I told him I had been to Australia when I was 21 to see my then boyfriend compete in a ski competition. I told him we drove from Canberra to Sydney for competitions. Garry said to me "Paris and I live in Sydney, right on the harbour there." He told me he used to live in Canberra but that he had bought Paris a beautiful condo on the harbour. 3. I met Paris in December 2016. Garry and Paris came over to the United States for a holiday and visited me in San Francisco. Garry introduced me to his wife Paris, he said to me prior "You and my wife Paris will get along really well I think". We went out to dinner in San Francisco at a place I had suggested. Paris and I quickly became friends. 4. In April 2017 I visited Garry and Paris in Australia and stayed with them at their home in Sydney. Garry said to me "Do you like our home? I told you it was right on the water. It was good for us to start fresh here". They took me out to all of their favourite restaurants on the harbour. 5. Garry would call me from time to time and tell me how proud he was of Paris when she opened up her business. "Lusso by Paris". Although he would say, "I know I should just retire in Sydney with Paris", he wanted her to open a boutique, so that she had something to do during trips to Canberra while he checked on his businesses. 6. I came back to Australia to attend the launch of "Lusso by Paris" in Canberra. Garry told me he didn't enjoy going to Canberra socially because of his ex-wives and that he had many bad memories there. After the event, Garry was excited to leave Canberra and return home to Sydney. He kept talking about the clam chowder and Alaskan Crab legs he loved to eat in Sydney. He said to me "right, let's get home (referring to Sydney). I'll take you to the best seafood place in Australia! It's right by our place." 7. During my multiple visits to Australia since meeting in 2016, I always stayed in Sydney at Garry and Paris' home in Pyrmont. The three of us would sit on the Patio at the Pyrmont listening to Jazz music. Garry would be telling us jokes and we would all watch the Boats come and go. He would say to me, "how relaxing is this" and "can it get any better?". He told me about a large boat in the harbour and how it would leave for private night tours and that he would just watch the ferry take people up and down the channel. He said to me "we (referring to him and Paris) are so lucky to call this place home." 8. [Rejected]. When he and Paris came to visit in December 2016, he told me the house he owned in Canberra was a "bit of a burden," and that his children "live there for free". 9. During Garry and Paris' most recent trip to the United States in 2018, I spoke to Garry about his health as he was in a wheelchair. He mentioned his upcoming surgery and told me, "I can't wait to feel better so that I can dance with Paris at Toby's wedding, we're having the entire bridal party at our place (referring to Sydney). 10. To the best of my knowledge, I had always believed that Garry and Paris lived in Sydney and travelled to Canberra for work or certain social events only.

Susan Chesum

1. Susan Chesum said that she had known Kalpana since 2016 and met the deceased in the same year. Ms Chesum said that she had become a very close friend of Kalpana and they had been on several holidays together.
2. Ms Chesum said in her 23 July 2019 affidavit: 3. Garry and Paris had a Versace apartment on the Gold Coast which they ended up selling. I attended a dinner there in November 2017 and then their 'goodbye party' for the apartment the same month. When I asked why they were selling, Garry said to me: "We intend on spending as much time as possible in Sydney." 4. In August 2016, I caught up with Garry and Paris in Canberra, it was freezing cold. Garry and Paris had just come back from a holiday in Las Vegas and had lots of stories to tell. Garry was complaining about the cold. I asked them why they stay in Canberra when they have a lot of options to live somewhere warmer. Garry said to me: "I have to make a buck somehow." And went on to say: "We are in Canberra for business, we're heading home to Sydney in a few days". 5. Garry had told me that Sydney is the place he and Paris felt "relaxed". They loved socialising at the many restaurants on the harbour. If I was overseas and unable to make these social events, I would always see their photos or hear about it when I would chat to Paris. In late 2016 I visited Garry and Paris at their home in Sydney. I commented on how beautiful it was and Garry said: "Paris has done a great job. No place like home." One of Garry and Paris' favourite things to do in the Pyrmont (sic) was to sit on the balcony looking out to the water and watch the "world go by." 6. In December 2016, after coming back from Bali, I caught up with Garry and Paris. We had a Christmas party with mutual friends in Canberra before they were heading for a cruise. We talked about Zac, Garry and Paris' puppy. Garry said: "Zac is a Sydney boy, he comes from Penrith. He is the boss! He is more playful and happier in our Sydney home. He is our baby and loves hanging out in his balcony. He barks at all the boats, so they all know him now. We all enjoy our time at home in Sydney." 7. Garry and Paris travelled very frequently. On one occasion in November 2017, I was speaking to Garry about travel and where they might want to go next. I suggested Kenya as I had been there earlier. I told him once he gets there he might not want to return. Garry said to me: "Of all the places I have travelled to, I would still live in Sydney". 8. I was aware that Garry and Paris spent time in Canberra, however, I knew Sydney was their home.

Anousak (Noy) Phachanthavong

1. Anousak Phachanthavong is the owner of Thai Chang Rai Restaurant in Kingston ACT. Mr Phachanthavong said that he had known the deceased for about 15 years as he regularly dined at the restaurant. He got to know Kalpana from the time she began dating the deceased in 2012. He has catered for many of Kalpana's and the deceased's private rooftop parties and events for their friends.
2. Mr Phachanthavong said in his 23 July 2019 affidavit: 8. Garry and I would always chat every time he came in, Garry would say to me: "Noy we are going back home to Sydney tomorrow morning for a few days, so it's going to be an early night." And: "I'm looking forward to just chilling out with my wife and our puppy Zac. Have you seen a photo of Zac? I am over Canberra Noy, if it wasn't for my business in Canberra, I would say 'goodbye' to Canberra." 9. I've always believed Garry and Paris's home was in Sydney. [Rejected]. 10. Garry said to me during one of his dinner at my restaurant: "Noy we are off to Las Vegas soon." I asked Garry when they were leaving, he said: "We are going home (referring to Sydney) for a few days before we take off on our overseas trip. Paris and I love spending a day or two just to make sure we are totally relaxed before we go away. We also want to make sure Zac is settled at home when we go away for long periods." 11. Garry showed me pictures of his home in Sydney. He would tell me how he was very keen to retire there in Sydney. Garry suggested I open another restaurant in Pyrmont where they lived, so they could dine there without having to come back to Canberra once they retire. Garry said to me: "I can buy the building in Sydney, Noy, and you can rent it and run the restaurant." 12. Garry and Paris were very proud of their home in Sydney and always spoke about the lovely view and how it was very close to the city. 13. To the best of my knowledge, from what Garry said to me, Paris and Garry wanted to continue living in Sydney and were thinking of selling their existing home to buy our "bigger" and "nicer" place in Sydney.
3. The second sentence in par 9 and par 13 were only admitted as evidence of the deponent's state of mind.

Melissa Rixon

1. Melissa Jane Rixon said that she had known Kalpana since 2016, as she was a customer of Kalpana's shop called "Lusso by Paris".
2. Ms Rixon said in her 2 August 2019 affidavit: 6. On one occasion in 2016 I was chatting with Paris at Lusso. I asked her what her movements were for the week and she replied: "I'm heading back home and will only be at work until midday today, my husband will be picking me up soon to drive us back. We want to miss the peak hour traffic in Sydney, so we can be home in time to head out to dinner." From this conversation, I understood Paris lived in Sydney with her husband. 7. On another occasion in 2017 at Lusso, during the course of our conversation, Paris said to me: "My husband and I have a beautiful home in Sydney, we love it there. We only come to Canberra for our businesses. I love high end fashion. However, Lusso is something my husband wanted me to do while he attended to his own business when we are in Canberra." 8. Paris had mentioned to me that she and her husband had property in Canberra to stay in while they visited, however, always look forward to returning to Sydney. From what was said to me, I believed Sydney to be her home and principal place of residence together with her husband.
3. The last sentences of pars 6 and 8 were only admitted as evidence of the deponent's state of mind.

Tobias Findlay

1. Kalpana's son, Toby, affirmed an affidavit dated 24 July 2019 in which he gave evidence in support of Kalpana's claim that the deceased was domiciled in NSW at the date of his death. Toby gave evidence in par 7 of a conversation at a restaurant after Kalpana and the deceased had returned to Australia after their marriage in May 2013 in which the deceased said to Toby: Toby, I think your mum found her dream home in Sydney, we are both looking forward to moving there. It's in Darling Harbour.
2. Toby also gave evidence of a conversation at a restaurant that he described as being recent in which the deceased said to him: Toby, I love living in Sydney, if it wasn't for my bloody business in Canberra, I would never have to go back there.
3. Finally, Toby said in par 13: In 2017 my mother and Garry were talking about retiring in Sydney. Garry said, words to the effect: Your mother and I are looking at buying a bigger place to live. We love living in Sydney and we both feel so relaxed when we come here.
4. It is notable that Toby gave his evidence in terms of Kalpana and the deceased wanting to retire in Sydney, and that the deceased only spent a lot of his time in the ACT because of the need to attend to his business interests there.

Witnesses called by the defendants on the domicile issue

1. I will turn now to a consideration of the evidence given by the witnesses for the defendants on the issue of the deceased's domicile.

John Grenville Buxton

1. John Grenville Buxton said that he had known the deceased for over 50 years. He gave evidence of working for the deceased at the Kambah Inn restaurant and driving a leased cab in 2002, when he had a heart attack, following which he stopped working. After that time, Mr Buxton helped out the deceased, largely with office work.
2. Mr Buxton referred to going to the Realm, being the Barton penthouse, with cheques for the deceased to sign after he had returned from a long trip overseas. Mr Buxton said that the deceased was overseas for about 1 to 2 months in total every year for the last few years. Mr Buxton estimated that he saw the deceased 3 to 4 days a week in Canberra for the last five years, except when he was travelling overseas. As well as having dinner with the deceased, Mr Buxton said that he caught up with the deceased at the weekend for a pub lunch or a few beers on Saturday afternoon. Until his health deteriorated, according to Mr Buxton the deceased used to meet his friends at the Kambah Inn nearly every afternoon from 4 PM to 6 PM. Mr Buxton had lunch with the deceased and his other friends almost every Friday and often at other times during the week.

Diana Joy Buxton

1. Diana Joy Buxton is the wife of John Grenville Buxton. She gave evidence that she cleaned the Mugga Way property once a week on Thursday. She said that the deceased and Kalpana only lived at Mugga Way for the first year of their marriage, and then they moved to live in the penthouse at the Realm in Barton. She said that the deceased often spent a day or so every one or two weeks at Mugga Way. The deceased often slept on the couch downstairs.

Stephen Bray

1. Stephen Bray was the accountant for the deceased personally and for all of his companies for the last 26 years. He always met with the deceased for conferences at the deceased's business offices in Newcastle Street, Fyshwick, ACT or over lunch in Canberra. The deceased kept all his business records and share registers at his Fyshwick office. Mr Bray said that the deceased and he met for lunch, sometimes with other associates of the deceased, two or three times a week at various locations in the Canberra region.

Jaimie Peter O'Donnell

1. Jaimie is the deceased's oldest child. Jaimie said that during most weeks during the past several years he had seen the deceased at least 2 to 3 times a week, particularly in the mornings. This was apparently in Jaimie's capacity as the manager of the Statesman Hotel before Jaimie took leave due to ill health. Jaimie said that he was aware of the deceased's trips overseas and knew from conversations that the deceased often flew in and out of Sydney for business. Quite often, the deceased would be back by late afternoon.

Mark Patrick Duggan

1. Mark Patrick Duggan is a businessman who invests in hotels. He met the deceased in 1994, and the pair became good friends and began to do business together in the hotel industry.
2. Mr Duggan said that he only met Kalpana a few times and visited the Pyrmont apartment on one occasion before they all went out to dinner. Mr Duggan said that he used to meet the deceased about once every 4 to 6 weeks when the deceased came to Sydney.
3. Mr Duggan said that in the last two or three years when the deceased was not overseas he met with the deceased about 8 to 10 times a year when he was in or passing through Sydney. Usually after lunch, the deceased would say that he had to leave to catch a bus or plane back to Canberra. He added at par 11(c) of his 25 September 2019 affidavit: "On only a couple of times I recall Garry saying: "I am in Pyrmont. Do you want to come out to have a couple of beers?".
4. Mr Duggan gave evidence about the deceased's involvement with the Pyrmont apartment in pars 13 to 19 of his affidavit. Mr Duggan said that, over lunch in about 2013 or 2014, the deceased said to him: "I am looking for a place to buy to use instead of hotels when I am doing business up here. If I do more business in Sydney, if we expand Amazonia it will be convenient." Some weeks later the deceased said to Mr Duggan: "I've done the deal. It gives me a place to stay if I'm up here as I can do more business in Sydney. If we expand Amazonia, it would be convenient.".
5. Mr Duggan gave evidence of having a small circle of Sydney friends with the deceased who regularly had lunches. Mr Duggan said that when he spoke to the deceased on the phone, the deceased usually said that he was in Canberra, and that he rarely said: "I'm in Pyrmont". He said that often the deceased would say when they met before lunch: "I've just driven up," or "I've just flown in." Mr Duggan said that at no time could he recollect the deceased's stating that he was staying or living in Pyrmont, save for him saying, on one occasion: "I'm staying up tonight."
6. Mr Duggan said that the deceased said he bought the penthouse in Barton so "would we've somewhere to live". He said that he had kept his home in Mugga Way, "So I can escape back there if she gets too difficult," or words to that effect.

William Sui

1. William Sui said that he owns the restaurant known as Bambusa Asian Cuisine in the ACT. The deceased was a regular patron at the restaurant, coming at least 30 times or more a year with his friends. The deceased visited the restaurant mostly for lunch at a minimum of once a week or once a fortnight, but sometimes he came twice a week. On about two occasions a year, the deceased was absent from the restaurant for two or three weeks. Mr Sui said that he met Kalpana who came with the deceased to the restaurant perhaps a few times a year over the past four or so years.

Leo Jack Stanley Channon

1. Leo Jack Stanley Channon was a son-in-law of the deceased. He is married to the deceased's daughter Vanessa. From late 2011 until June 2015, Mr Channon and Vanessa lived in an apartment controlled by the deceased in Kent Street, Sydney. During that time, the deceased invited the couple to have a weeknight dinner with him about once every 4 to 6 weeks. Mr Channon recalled Vanessa saying to him: "Dad's in town again, he's just telephoned so we're going out to dinner tonight." Usually, Laura and her then husband, Lee, would join the party for dinner and, from 2013, Kalpana would sometimes join as well.
2. Mr Channon gave evidence in par 6 of his 27 September 2019 affidavit of statements made by the deceased at dinner as to why he was in Sydney, in the following terms: a. On several occasions at dinner Garry said he was flying out of, or had flown back into Sydney International Airport on one of his frequent business or holiday trips as he was not able to fly internationally out of Canberra. b. On other occasions at dinner he said words to the effect: "I'm in Sydney for business". Garry spoke about a number of his Sydney-based business associates including Mark Duggan, John from ING (whose surname I cannot recall but whom I knew was based in Sydney and arranged a lot of the finance for Garry's business dealings), Mischa (whom I knew to be his jeweller, but I am not aware of his surname) and Peter Adams. c. On one occasion I recall Garry saying he was in Sydney because he was: "working on potential pub opportunities in western Sydney". He used to say it was "a bit wild out there" because patrons had to "pass through metal detectors to gain entry to the premises". d. Sometime after this dinner during another dinner Garry said: "I'm here to look at pub opportunities in King's Cross". Soon afterwards, I became aware that he had purchased an interest in the Empire Hotel in King's Cross together with Mark Duggan.
3. Mr Channon gave evidence that he would ask the deceased: "When do you go back to Canberra?" And the deceased would respond: "I'm heading home tomorrow." Mr Channon said that at no time did the deceased refer to Sydney as his home in any conversations that he had with the deceased, nor did he ever express to Mr Channon an intention or desire to move to Sydney.
4. Mr Channon gave evidence of visiting Canberra with Vanessa on four occasions after 2011. He said that he observed the deceased visiting his mother, who lived near the Mugga Way property, quite regularly, saying words to the effect: "I'll see you again soon, Mum, most likely next week." Mr Channon observed the deceased to spend a lot of time going to his office at Fyshwick and working and socialising at his Canberra hotel businesses. He said that the deceased was proud of the wine cellar and private dining room that he had built at the Mugga Way property.

Abraham van Arkel

1. Abraham van Arkel said that he had known the deceased for 25 years. He met the deceased socially and became good friends and confidants with the deceased in business.
2. Mr van Arkel said in his 29 September 2019 affidavit: 3. At least 2 or 3 times a week, unless Garry was overseas or away on business, he, I and mutual friends would meet for lunch ...
3. Mr van Arkel identified a number of the friends and the restaurants in which lunches took place, all of which were in Canberra. Kalpana was not present at the lunches. Mr van Arkel met Kalpana once or twice at birthday parties.
4. Mr van Arkel said: 6. My conversations with Garry included knowing when our lunches were not on for a week or two. Garry would say to me or others in the group: "I won't see you for a while. We are off to…" and he would mention places such as Las Vegas, Milan and Hong Kong, or cruises he was taking. I was aware that in the last few years, Garry often travelled overseas.

Lee Peter Burney

1. Lee Peter Burney was the partner of the deceased's daughter, Laura, between 2013 and March 2018. Mr Burney said that Laura and the deceased had a close relationship. In 2012, the deceased offered to buy an apartment in Sydney for them to live in while they saved money for a house. The deceased said that he wanted to buy an investment property in Sydney. Mr Burney said that he and Laura would see the deceased about once a month or so when he came to Sydney. Mr Burney met Kalpana at a restaurant in 2013.
2. Mr Burney gave the following evidence in his 1 October 2019 affidavit on the subject of the Pyrmont apartment: 7. In that same year, Garry had bought the Empire Hotel in King's Cross. He said to me on one of his visits: "I will be in Sydney a lot more for business and am thinking about buying a property to stay in while I'm in town. It is better than staying in hotels, which just wastes money. It's a good time to buy right now." 8. Garry later bought 8/56a. Pirrama Road, Pyrmont at Sydney Wharf ("the Pyrmont property"). 9. After the property was furnished, Garry said to both Laura and I: "can you water the plants?" We agreed. We had a fob and key and I visited the empty apartment once or twice a week to do this. Usually, Laura was with me and at other time I did the watering. 10. I recall visiting Garry and Kalpana at the Pyrmont property on … occasions.

Peter Michael Conway

1. Peter Michael Conway said that he had known the deceased since 1982 or 1983. Mr Conway described himself as a company director and registered lobbyist. He worked on various projects with the deceased concerning the master plans relevant to the redevelopment of Curtin and Kambah.
2. For the past four years Mr Conway had visited the deceased's Fyshwick office at least once a week and sometimes more often, except when the deceased was travelling overseas. Mr Conway estimated that he met with the deceased between 30 and 40 times a year at the Fyshwick office, and then they would adjourn to their regular restaurants for lunch. When the deceased left the lunches he would often say "I'm off to see Mark", or "I've got to talk to ING about financing," or "I've got to keep ING in the loop."
3. Mr Conway could recall dropping the deceased off at the Mugga Way property and the Realm in Barton. During his last year the deceased started to ring and invite Mr Conway to join the deceased's daughter for lunch on Saturday. Mr Conway gave evidence of statements made by the deceased at lunch to the effect that Kalpana wanted her family to be close to the penthouse in the Realm, so she moved her son into the deceased's unit next door: "But he's not paying rent, so I'm going to throw him out."
4. In relation to the Pyrmont apartment, Mr Conway said in par 11 of his 1 October 2019 affidavit that the deceased told him about the apartment shortly after he bought it but the deceased did not mention it very much after that.

Ashley Grace O'Donnell

1. The deceased's daughter, Ashley, gave evidence in her 1 October 2019 affidavit relevant to the issue of the domicile of the deceased at the date of his death. From November 2011, Ashley lived in a self-contained apartment with her partner behind the Mugga Way property.
2. Ashley gave the following evidence on the subject of the deceased's domicile: 11. I am swearing this affidavit primarily in relation to the question of domicile and/or cross-vesting which I am informed and verily believe is before this Honourable Court on 16 October 2019. I have limited the rest of this affidavit to matters which I am informed and verily believe are relevant to these issues only. 12. Kalpana O'Donnell swore an affidavit on 23 July 2019, filed 2 August. 2019 and filed 20 supporting affidavits which state that Garry thought the property located at Unit 8 56A Pirrama Road, ('Pyrmont') was his 'home'. 13. At no time in any conversation with me, has Dad ever referred to Pyrmont as 'home'. 14. In paragraph 18 of her affidavit. Kalpana states that she and my father moved from Mugga Way in December 2014 because she had no privacy and a snake had bitten my father's dog. 15. It is not the case that Kalpana and Dad's privacy was affected as at no time did I enter the large family home, except to feed the dog in the laundry and when invited for drinks and dinner together. 16. In conversation when we went out or socialising, Kalpana referred to the Mugga Way property as "the mausoleum". She once commented to me, "I don't like all the family photos around the place. It's like a mausoleum." 17. Kalpana and Dad did move to the 27/11 Sydney Avenue, Barton (the penthouse") in December 2014. a. Dad was hospitalised a few months later in February 2015. b. That month Dad had returned to Mugga Way. [Rejected]. c. Dad was also unwell and spent most of his time lying on the couch. d. Dad then returned to the penthouse. e. A few days later, Kalpana sent a text to me saying: "come and get him." She then accompanied me as I drove Dad to hospital. He was bleeding out and Dad often said to me after this incident: "you saved my life." f. To be exhibited at AO2 are medical records relating to this medical emergency. 18. Dad loved his home at 30 Mugga Way, Red Hill, ('Mugga Way') and always referred to it as 'home'. a. From December 2014, he and Kalpana lived at 27/11 Sydney Avenue, Barton ('the penthouse) unless they were travelling - [rejected]. On those times, Dad would then come back to Mugga Way and say to me after saying some derogatory things about his wife, words to the effect: "I just want some peace and quiet." b. I also know of these return to home visits because I would cook for Dad every night when he was at Mugga Way or we would go out to dinner. c. This would happen for about 4 days at a time, every couple of months for the past three years. d. Sometimes this occurred a few months in a row and at other times there would be a gap - especially when he and Kalpana travelled overseas. e. At other times, Kalpana would go on her own to Sydney or Perth. Her parents and sister live in Perth. During those times, I would meet with my father at the penthouse. I estimate this occurred 4 times a year until he was so ill that I was with him every day. 19. Although Dad really felt that Mugga Way was his home. He had difficulty climbing the stairs and when he decided on the Barton Penthouse after they had looked at others, he felt it was suitable as it was on a single level apart from the pool. Dad had had a double knee replacement in 2017. As this was to be their home Dad said to me: "I can get a lift in for the pool." In papers we have had to go through, since our Father's passing I observed a quote for putting in this lift. 20. [Rejected]. Dad always told me where he was and where he was going when travelling, so this pattern was regular. 21. [Rejected].

Laura Elspeth O'Donnell

1. Laura gave the following evidence on the issue of the domicile of the deceased at the date of his death in an affidavit apparently sworn on 1 October 2019: 5. The plaintiff claims that Pyrmont property was my father's 'home' during his marriage. She deposes in her affidavit of 23 July 2019 that he "lived there half the time." 6. I have never heard my father referred to the Pyrmont property as 'home'. 7. About once every two months, and more often if he was about to go overseas, Dad would take me out to dinner. These invitations usually on the telephone were usually at very short notice. During the conversations Dad would say: "I have been in Sydney for a few days for business but are you around for dinner tonight? I am heading home tomorrow to Canberra. Make a reservation for us all or wherever you like, sweetie." I would book dinner for Dad, the Plaintiff - Kalpana (also called 'Paris'), myself and anyone else Dad had invited along. 8. [Rejected]. 9. [Rejected]. 10. Distillery Drive was very close to the Pyrmont property Dad had bought in 2014. During the time that my then husband, Lee and I lived in Distillery Drive, he and I would have to water the plants at the Pyrmont property 1 to 2 times a week. Dad asked me to do this, saying: "I don't want the plants to die. I am not there often enough to keep them watered." 11. We continued doing this for two years until the plants wilted when we were away. [Rejected]. 12. Dad telephoned me more after my marriage broke down in 2016. He was very concerned for me. He would call me frequently and during those calls, he would comment about what he was doing such as: a. "I'm about to catch Ashley for dinner." Ashley lived in Canberra. b. "I was at The Statesman for dinner." The Statesman is in Canberra. c. "Lady and Milo have had a couple of T-bones this week." Lady and Milo are Dad's dogs that lived with Ashley at 30 Mugga Way Red Hill, Canberra.

Vanessa Alicia-Wyn Channon

1. Vanessa gave evidence in an affidavit affirmed on 2 October 2019 on the subject of the domicile of the deceased at the date of his death. She said that in November 2018 when the deceased's doctors advised that the deceased had reached the palliative stage: "Kalpana vigorously agitated to take Dad "home" to Barton for his final days despite clear medical evidence that he was not a good candidate for end-of-life care at home".
2. Vanessa annexed to her affidavit a number of documents that were produced in the context of the deceased's hospitalisation and death. Those documents, including documents produced by Kalpana, noted the Mugga Way property as the deceased's residential address and the Barton penthouse as Kalpana's address. Earlier documents produced in the context of the deceased's medical care were to similar effect.
3. Vanessa gave evidence in her 2 October 2019 affidavit on the subject of "the investment property at Pyrmont, New South Wales" in the following terms: 16. In 2011, after my husband and I returned from living overseas, Dad purchased the property for us to reside in in Sydney. The property was purchased in the name of one of Dad's Trust Companies. He said he wanted to give us a: "head start on saving for a house deposit" and that he "enjoyed spending time with you when I'm up here for business." This property and the one he purchased for my sister Laura to reside in are those he referred to in his Statutory Declaration signed at the time of signing his Will. 17. At the time, I protested that Dad was: "being too generous", but he brushed this aside and said: "it is a solid investment. It makes me happy to be able to look after my family". 18. My husband and I lived in Sydney from December 2011 until June 2015. 19. During the time we lived in Sydney, I would have dinner with Dad when he visited Sydney. [Rejected]. I recall that we would catch up about once per month to once in every six weeks or so. My husband Leo, my sister Laura and her then husband Lee would often join us for dinner. After about mid-2013, Kalpana would sometimes join us. 20. Dad and I regularly discussed the Sydney property market as my husband and I were actively looking at buying our own house there. Dad was a shrewd property investor and had an eye for opportunity. From 2011, he advised that the property prices would only increase as they had not yet recovered from the global financial crisis. I trusted his judgment. By 2013, Dad said to me: "the Sydney market is going to run hot" which I took to mean it was going to be a good time to buy in Sydney. 21. Prior to Dad purchasing the Pyrmont apartment, Dad stayed at 403/2 York Street, Sydney, when visiting Sydney which is an apartment that he bought with Peter Adams. 22. In October 2013, Dad invited my husband and I to see the Pyrmont apartment he had bought and to have lunch with him and Kalpana… 23. Before going out for lunch, dad showed off the apartment and its harbour views. He appeared to be very proud of the deal he had struck for his apartment. [Rejected]. He said: "It will achieve solid growth as it can never be built out" and "it's a sure thing". 24. Dad did not refer to the Pyrmont property as 'home' or 'his home' at any time during this lunch, or in any conversation I had with him after the purchase of the Pyrmont property. He at no time said to me that he was moving away from Canberra to reside in Sydney. Dad did say to me: "The apartment is walking distance to you and Laura. I'm looking forward to spending more time with you and my new granddaughter when I am in Sydney for work". 25. [Rejected]. 26. [Rejected]. 27. Throughout my life, I have known Dad to consistently purchase real estate as an investment. Over the years I am aware he held various properties, such as in Bateman's Bay, Sydney and on the island of Capri in the Gold Coast. He would often do these up and sell these assets to make a profit. 28. When Dad was in or about to come to Sydney and caught up with me, I would invariably ask: "Hi there. What are you doing up here?" Dad would respond: (a) "I'm having a meeting in Burwood," or "I'm looking at a pub in Burwood," (b) "I'm meeting with the bank." (c) "I'm meeting Mischa," (d) "Mark and I are looking at an opportunity in Kings Cross." 29. I disagree with Kalpana's assertion in her affidavit that Dad said he "wanted to purchase a larger property in Sydney and retire there". Dad often joked about retiring, but in the same breath would say: "I'd be bored to death without my work". 30. At no time did Dad advise me that he was moving to Sydney. At no time did Dad call Pyrmont 'home'. At no time did he say when telling others where he was going: 'I'm going home to Pyrmont.' 31. If I ever heard Dad referring to a property as 'home' it was always the Mugga Way property. It was an emotional purchase for him. I know this because he often told the story that after "growing up, peeling potatoes at the back of a hotel in Goulburn, I promised myself: 'when I grow up I'll buy the best house in the best street in Canberra." When he bought the Mugga Way property Dad felt that he had 'made it.' He used to say when speaking fondly of this house: "When I got the keys, I knew I had made it". 32. After my husband and I moved to Brisbane in June 2015, I spoke with Dad every two weeks to three weeks on the phone or texted with him. 33. If at the time of these telephone calls Dad was travelling, he would often refer to Canberra as his home. For example, he would say: (a) "I'm looking forward to catching up with my mates for a beer at the Statey [The Statesman Hotel] when I get home". (b). This was one of Dad's favourite places to spend time and not just because his Trust company had an interest in it. His son, Jaimie worked in the Statesman Hotel for many years. 34. [Rejected]. To date, the walls of the Mugga Way property remain adorned with photographs of Dad's children and grandchildren. Unfortunately, due to the debt of Dad's various companies, we took advice and have had to place the Mugga Way property on the market for sale. It is held in Trust as a result of 1992 Court Orders when finalising his divorce from Fiona O'Donnell.

Cheryl Ann Brewer

1. Cheryl Ann Brewer said that she knew the deceased since about 1990. She worked in various capacities at the Statesman Hotel between 1990 and 1992 and from March 2010. She was the full-time manager for about 18 months but from September 2011 to the date of her 3 October 2019 she was a part-time accounts and payroll clerk.
2. Ms Brewer said in relation to the issue of the deceased's domicile at the date of his death: 8. I saw Garry nearly every week when he came in to sign his cheques. He was pedantic about signing his cheques. 9. My workflow was set up to ensure I had the papers and cheques read (sic) for Garry to sign and view. 10. Initially Garry would come in on a Friday and then when my days changed after I returned to part-time work in 2011, he would come in on Tuesdays. If unable to make it in, Garry would telephone me and say: a. "I am on my way to… (wherever he was going). I can't get in to sign the cheques. What's there?" b. I would then tell Garry what was needed to be signed and Garry would say: "Then okay, just sign them. I'll see you next week." c. Garry usually told me when he was going overseas. He would say: "oh love, I'm going overseas. I'll be back in a couple of weeks." d. If he was going away for a length of time, for example, to Milan where I knew from conversations he went several times, he would tell me and give me the date saying words to the effect: "I am coming home on…" or "I'm going to Italy and will be back on…" and he would give a date. 11. Garry was a man of habit and routine. I expected him and saw him nearly every Tuesday. If he was not there I would ring Garry and ask "are you coming in?" 12. Except for a few weeks about twice or three times a year, Garry came in regularly and was never away for more than a few days at a time. 13. Otherwise, if not telling me in person he left, he would telephone me and say: "I'm on my way to (an overseas destination or wherever he was going). I recall him naming Hong Kong, 'Vegas, Hawaii one year, and Italy. 14. There were periods of a few weeks at a time when Garry did not come into the hotel. a. In the last few years these occurred at least twice a year. b. I do know he went to Italy to buy stock for his wife. I know this because Garry said to me: "I'm going to Italy to buy shoes." c. I also recall him saying on one occasion: "I'm going up to Sydney to buy a pub." d. I then knew I had to manage things at The Statesman in his absence. 15. I am aware that John Buxton was the person who looked after the other businesses and cheque books which he had Garry sign. He prepared the cheques for the companies Fashionable Leasing and Evenlong. I did the checks for Belboa and Bresheld companies. 16. Towards the end, Garry was very sick and would sometimes come for a short time and ask me to sign the "rest of them" (being the cheques). 17. At no time did Garry ever tell me that he was moving to live in Sydney and he rarely spoke about Pyrmont. 18. [Rejected].

James Llewellyn Crow

1. James Llewellyn Crow is a real estate agent who sold the Pyrmont apartment to Evenlong Pty Ltd ATF Newcastle Unit Trust. The deceased negotiated the purchase.
2. Mr Crow gave the following evidence in his 30 September 2019 affidavit: 7. Last year in late 2018, I had spoken to another owner in the building and been advised of Garry's passing. a. Soon after Garry died, I sent a text offering my condolences to Paris. b. I followed up with a few short text messages in case the Pyrmont property was being sold. c. A little later in about March 2019, I received some urgent text stating words to the effect: "James, I really need your help. Can you write a letter and say that when you were negotiating the price in Pyrmont, Garry said he was buying it for me." I ignored the text as this was not the case. d. About 2 weeks later I received about two more texts asking in words to the effect: "It was bought for me, wasn't it? Are you able to provide me with a letter on letterhead stating the property is worth 6 1/2 million dollars?" I ignored these texts as this was not true.

Further objective evidence relevant to the deceased's domicile

1. Although a comparison of the days the deceased spent in Sydney compared to Canberra in percentage terms is material to the determination of his domicile, it is not determinative. At the time the deceased arranged for the acquisition of the Pyrmont apartment, substantially all his business interests were in the ACT, although he had some business interests in other places, including Sydney, and over the years he visited Sydney from time to time to pursue business in this State. Given the reality of his business interests, it was possible that, in the period after the Pyrmont apartment was acquired, the deceased could have decided to make Sydney his chief residence in circumstances where he was nonetheless required to spend most of his time in Canberra to manage his businesses.
2. The defendants tendered the results of an analysis that they had carried out of the deceased's mobile phone records that had enabled them to determine the relative percentages of the time that the deceased was apparently in Canberra, Sydney or elsewhere. The analysis showed that the deceased spent a much smaller proportion of his time in Sydney when compared to Canberra. As the analysis put in evidence by the defendants was only given in relative percentage terms, I decided that it was appropriate to analyse the evidence of the deceased's location from day to day more thoroughly.
3. The defendants tendered the deceased's mobile phone records for the period from about 7 January 2014 to the date of the deceased's death. Vanessa gave evidence in pars 3 and 4 of her 21 July 2021 affidavit that the deceased's mobile phone number was always the one number. The telephone records show that the deceased frequently made mobile telephone calls during each day. The approximate location of the deceased when he made the calls is shown by the description of the site of the mobile telephone receiving tower stated in the telephone records. As the locations were mostly well-known Australian place names, it was a relatively easy - although time-consuming - exercise to make a judgment as to what the deceased's location was in most days. I carried out this exercise on a line-by-line basis for the whole of the period by marking the deceased's apparent location on a calendar that I arranged to be printed out for each year. The telephone records only allowed an identification of when the defendant apparently made a mobile phone call from a location in the Sydney metropolitan area, which did not prove that the deceased stayed on that day at the Pyrmont apartment. It was sometimes possible to tell whether the deceased had travelled from Canberra to Sydney on a particular day or in the reverse direction on another day. Some days it appeared that the deceased had travelled to Sydney to take a flight from Sydney airport.

2015 First 7.2 64.5 18.3 Second 6.9 66.9 16.2 Third 14.7 74.3 3.0 Fourth 11.7 59.5 21.3 Total 40.5 265.2 58.8 364.5

2016 First 18.1 62.3 10.6 Second 8.3 59.3 22.5 Third 7.8 55.3 28.6 Fourth 16.0 67.7 8.0 Total 50.2 244.6 69.7 364.5

2017 First 8.5 53.2 25.3 Second 8.0 63.7 17.3 Third 9.3 64.5 18.2 Fourth 11.8 63.8 16.5 Total 37.6 245.2 77.3 360.1

2018 First 9.5 56.5 24.0 Second 14.5 70.8 4.7 Third 11.7 52.8 26.2 Fourth 0 9.0 10.0 Total 35.7 189.1 64.9 289.7

Grand total 211.0 1185.5 335.8 1732.3 Percentage 12.2% 68.4% 19.4%

1. The analysis that I carried out was unsurprisingly consistent with the percentage exercise undertaken by the defendants. The primary conclusion that is supported by this analysis is that the deceased's presence in Sydney over the period was not really consistent with the deceased treating the Pyrmont apartment as his chief residence, and only residing in Canberra as a result of the necessity to manage his principal businesses in that jurisdiction.
2. A summary of the conclusions that I have drawn as a result of the exercise is as follows:

• There was no particular pattern in relation to the deceased's presence in Sydney. That was so over the whole of the period.
• The evidence of the deceased's presence in Sydney was not consistent with the deceased spending his weekends in Sydney and living in Canberra during the weekdays for business purposes.
• The evidence was not consistent with the deceased spending holiday periods in Sydney and living in Canberra at other times.
• The deceased rarely spent many consecutive days in Sydney. I have not determined the number precisely, but it appears that the highest number of consecutive days was 5 days (starting on 16 April 2018), although on a relatively small number of occasions the deceased spent 4 or 3 consecutive days in Sydney.
• On most occasions when the deceased had returned to Australia after a relatively lengthy overseas trip, he appears to have returned relatively immediately to Canberra, and not stayed for a significant period in Sydney. While that may be consistent with the deceased's business needs being pressing at the end of a period overseas, it would be natural for the deceased to spend at least a little time at his home after returning from a lengthy trip in order to acclimatise.

1. Kalpana's mobile phone records were only in evidence for the period 6 December 2017 to 7 May 2019. An analysis of Kalpana's phone records for the portion of that period in which the deceased was alive generates a very similar result to that which I have described above for the analysis of the deceased's phone records.
2. A number of additional aspects of the objective evidence are of significance to the determination of what was the deceased's own view as to his chief residence after the date of the acquisition of the Pyrmont apartment.

Conclusion as to the deceased's domicile at the date of his death

1. I have found the task of determining the deceased's domicile at the date of his death a very challenging one, given the principles that must be applied, the conflicting evidence, and the seriousness of the consequences of the decision. For the following reasons, I am satisfied that, on the balance of probabilities, the deceased remained domiciled in the ACT at the date of his death and had not acquired a domicile of choice in NSW.
2. Although the deceased maintained and used residences in both jurisdictions, it is clear that, measured by the relative time that the deceased spent in the ACT and the significance of his work there in the maintenance of his businesses, the deceased's predominant physical connection remained with the ACT. On all significant occasions when the deceased was called upon to state his own understanding of his place of residence he stated an address in the ACT. As I have explained above, not only did the deceased spend by far the greater proportion of his time in the ACT, but the analysis that I carried out, based upon the deceased's telephone records, did not paint a picture of the deceased's use of the Pyrmont apartment that appeared to be very consistent with the deceased believing that the Pyrmont apartment was his chief residence.
3. While I have generally accepted as being reliable the evidence given by the independent witnesses called by Kalpana on the issue of the deceased's domicile, I do not regard that evidence as being sufficiently persuasive to justify a conclusion that the deceased had acquired a domicile of choice in NSW. Some of the witnesses appear to have exaggerated their appreciation of the proportion of the deceased's time that he spent living at the Pyrmont apartment. Although the evidence of a number of Kalpana's witnesses concerning the statements made by the deceased about his intention to make his home in Sydney is persuasive, much of it is consistent with the deceased expressing an intention to retire in Sydney after he had managed to arrange his business affairs in a way that would permit that outcome. The evidence is, in reality, consistent with the deceased foreshadowing a change in the circumstances of his permanent residency that would, if it had occurred, have led to him acquiring a domicile of choice in NSW.
4. A comparison of the evidence given by Kalpana's witnesses with the evidence given by the defendants' witnesses concerning the statements made by the deceased as to the place that he considered was his home suggests that the deceased may have embellished his evidence concerning his preferred place of residence in the first case, and that he may have withheld providing statements on that subject in the second case. If the deceased was in fact seriously contemplating establishing his home in retirement in Sydney, he may well have been hesitant to inform his children and his friends and associates in the ACT of that intention.

Kalpana's devastavit claim

1. Kalpana's statement of claim filed in this Court on 7 July 2021 sought a declaration that the defendants, as executors of the deceased's estate, committed a devastavit by wrongfully depleting the estate of its assets. As subsidiary relief, Kalpana sought an order for an enquiry as to damages for the devastavit committed by the defendants, or alternatively damages, or in the further alternative that the defendants give an account on a wilful default basis, or as a final alternative that the defendants pay her equitable compensation or an account of profits.
2. Kalpana pleaded that, by reason of her having commenced her family provision claim in this Court pursuant to Chapter 3 of the Succession Act, as well as having commenced her proceedings in the Supreme Court of the ACT pursuant to s 8 of the Family Provision Act, Kalpana "has standing to bring this claim, or will have standing upon an order for provision being made": see par 5. The defendants denied that Kalpana has standing and said that Kalpana's application for family provision relief does not provide her with standing.
3. The defendants admitted that part of Kalpana's allegation in par 7 that alleged that as executors they owed a duty to beneficiaries to preserve, protect and administer the assets in the deceased's estate, but they did not admit Kalpana's claim that the same duty was owed to creditors, and they denied that the duty was owed to family provision applicants.
4. The act on the part of the defendants that Kalpana pleaded constituted a devastavit was the transfer by the defendants on 21 July 2019 of shares held in the name of the deceased in Bel Boa Pty Ltd to Duboti Pty Ltd: see par 10. The defendants admitted that the transfer occurred and that it occurred without any consideration being paid to the deceased's estate. The defendants denied that the transfer was a breach of duty, as alleged by Kalpana in par 12, which was in the following terms: 12. In the premises, the Defendants dissipated an asset of the Estate as a result of their wilful neglect. Particulars (a) The deceased beneficially owned the said shares in Bel Boa. (b) A search of the records maintained by ASIC would have indicated to the Defendants that the deceased owned the said shares at the time of his passing. (c) The deceased's shareholding in Bel Boa represented a valuable asset of the estate. (d) As pleaded in [11], the Defendants caused the shares in Bel Boa to be transferred without receiving any consideration thereof. (e) The Defendants did so when they knew that the Plaintiff had brought proceedings for a family provision order.

Anna's original claim in the Family Court

1. On 4 November 2014, Anna commenced proceedings in the Family Court of Australia at Canberra (the Family Court) against the deceased in proceedings No CAC 1543/14 for a declaration under s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between Anna and the deceased and, I infer, for orders altering the property interests of the parties under s 90SM of that Act and possibly other relief under Pt VIIIAB Div 2. The Court was not given a copy of the initiating process.
2. Anna apparently did not seek property orders under s 15 of the Domestic Relationships Act 1994 (ACT) on the basis that she and the deceased had been in a domestic relationship within the meaning of that term in s 3 of that Act.
3. As I understand the evidence, the proceedings were set down for hearing on 12 October 2015, solely to determine the preliminary issue of whether Anna and the deceased had been in a de facto relationship, so that the declaration could be made under s 90RD, as a condition to the Family Court being able to make property and other orders at a later time. Both Anna and the deceased were represented on the hearing by senior counsel experienced in family law matters.
4. Although the purpose of the hearing was to determine a threshold question as to whether a de facto relationship had existed between the parties, the parties reached a settlement on all issues relevant to the claim. Although the copy of the deed that is in evidence is undated, it was apparently made on 12 October 2015. A term of the deed of settlement was that Anna's application for a declaration under s 90RD of the Family Law Act that a de facto relationship existed between Anna and the deceased was dismissed, and an order was made to that effect (Order 2). An order was made by consent under s 15 of the Domestic Relationships Act that required the deceased to transfer a residential property and a motor vehicle to Anna (Order 3). The settlement led to an order being made by consent granting leave to Anna to commence the proceedings out of time (Order 1). An order was made discharging existing costs orders as well as an order that the parties bear their own costs of the proceedings (Order 4).

Deed of settlement between Anna and the deceased

1. The orders noted that the parties had entered a deed of settlement and release that was placed on the court's file. Pursuant to that deed, the deceased agreed to pay Anna $1 million.
2. The deed recited that the deceased denied the existence of the de facto relationship alleged by Anna. It further recited that Anna had advised the deceased immediately prior to the commencement of the hearing that it was her intention to claim alternative relief on the basis that the parties were in a domestic relationship for the purposes of the Domestic Relationships Act from 2000 until July 2013. It was recited that Anna had also informed the deceased that, bearing in mind the state of his health, it was Anna's intention to make an application to the Supreme Court under the Family Provision Act 1969 (ACT) for further provision out of the deceased's estate after his death.
3. Recital E of the deed provided: E. At the date of entering into this Deed, O'Donnell and Gray: (a) have obtained independent legal advice about the terms of the Deed and the effect on each party of entering into this Deed; and (b) have full knowledge of the facts and circumstances of the release (provided by each party in this deed) and of their/his/her rights and claims.
4. There was no evidence led in the present proceedings upon which the recital in sub-par (a) could be challenged. At the heart of Anna's claim is a challenge to the recital in sub-par (b).
5. There was also a recital that, notwithstanding that the deceased asserted that there was only a friendship between the parties over the relevant period, the deceased would consent to a declaration that he and Anna were in a domestic relationship pursuant to the Domestic Relationships Act, and that he would consent to the extension of the period for the commencement of applications under that Act.
6. Recital G of the deed is also relevant to the determination of the claim now made by Anna. It provided: G. For the purpose of the property adjustment provisions of the Domestic Relationships Act 1994 (ACT): (a) O'Donnell has property with the net value of not less than $70m; (b) the property [to be given by the deceased to Anna] which is owned by O'Donnell has a value in the range of $2m to $3m; (c) Gray owns [a residential property] that has a value of around $800,000.

Relevant terms of the Domestic Relationships Act

1. As it is relevant to the orders that were made by the Family Court on 12 October 2015, it may be noted that "domestic relationship" is defined in s 3(1) of the Domestic Relationships Act 1994 (ACT) in the following terms: 3 Meaning of domestic relationship (1) In this Act: domestic relationship means a personal relationship between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other and includes a domestic partnership but does not include a legal marriage.
2. It is not necessary to set out all the other provisions that govern the making of an application for orders adjusting property interests under the Domestic Relationships Act, though it may be noted that s 13(1) required that the application be made no more than two years after the day on which the relationship ended, but s 13(2) empowered the court to grant leave to a person to apply for an order after the end of the two-year period if specified circumstances existed.
3. Section 15(1) of the Domestic Relationships Act provided: 15 Property orders (1) On application by a party to a domestic relationship, a court may make an order adjusting the interests in the property of either or both of the parties that seems just and equitable to it having regard to - (a) the nature and duration of the relationship; and (b) the financial or non-financial contributions made directly or indirectly by or on behalf of either or both of the parties to the acquisition, conservation or improvement of any of the property or financial resources of either or both of them; and (c) the contributions (including any in the capacity of homemaker or parent) made by either of the parties to the welfare of the other or any child of the parties; and (d) the matters referred to in section 19 (2), as far as they are relevant; and (e) such other matters (if any) as the court considers relevant.

Circumstances in which the Family Court orders were made

1. "De facto relationship" is defined in s 4AA of the Family Law Act. It is not necessary for the Court to examine the difference between the meaning of this term and a "domestic relationship" for the purposes of the Domestic Relationships Act. Nor is it necessary to examine the nature of the property orders that may be made under each Act or the relative attractiveness of those orders. It is sufficient for present purposes to note that Anna commenced proceedings in the Family Court for orders against the deceased that could be made only if she established that there had been a de facto relationship between the parties. That was a threshold issue to be determined at the hearing on 12 October 2015.
2. Following negotiations in which both parties were represented by senior counsel and solicitors, Anna agreed to accept an order made by consent by the Family Court in its accrued jurisdiction under the Domestic Relationships Act. The deceased's consent extended to an order permitting Anna to bring her claim under that Act out of time. The parties also consented to orders being made in favour of Anna under s 15 of the Act, in addition to the deceased's covenant in the deed to pay Anna $1 million. This complete settlement was reached even though the parties had not been required to serve evidence for the purposes of the application that went beyond the issue of whether Anna and the deceased had been in a de facto relationship. In consideration of the deceased's covenants in the deed of settlement, Anna agreed to release his estate from any application by her for further family provision under the legislation of any Australian State or Territory.
3. When Benjamin J made the consent orders on 15 October 2015 and noted the terms of the deed of settlement, his Honour was not in a position to satisfy himself that the terms of the order were just and equitable from the perspective of either or both parties. The evidence that had been served went to the issue of whether the parties were in a de facto relationship, and not whether they were in a domestic relationship. The evidence would only have incidentally, if at all, been relevant to the orders for the adjustment of the property interests of the parties that were actually made under s 15 of the Domestic Relationships Act. The transcript recorded that his Honour said that the parties had come to a solution that was a credit to them because: "I think the expression in this case is that it would have been all duck and no dinner, because there was no intermediate position that a Court could come to. It was either the Court has jurisdiction, and it would go on for another hearing, which would have run for days, I would have thought, or it would have been dismissed as the Court being without jurisdiction." This comment by his Honour reflected the contingency that Anna faced. If she failed to establish a de facto relationship her claim would fail completely. Consequently, upon the advice of her legal advisers, she may have thought it prudent to accept a compromise of her claim that afforded her substantial success in the proceedings.

Anna's family provision application in the ACT

1. On about 20 September 2019, Anna filed an originating application in the Supreme Court of the ACT to commence proceedings No SC 470 of 2019 against the executors of the deceased's estate for further provision for Anna's maintenance, education or advancement in life pursuant to s 8 of the Family Provision Act 1969 (ACT) out of the estate of the deceased. The basis upon which Anna claimed eligibility was that she was the de facto spouse of the deceased between 2000 and 2013. The basis of eligibility claimed by Anna was that provided for in s 7(1)(a) of the Family Provision Act that she was a partner of the deceased person. "Partner" is defined in s 7(9) as meaning someone who was the domestic partner of the person at any time. A note to the section refers the meaning of domestic partner to the Legislation Act (2001) (ACT). Under s 169(1) of that Act, a domestic partner is a person who lives with another person in a domestic partnership. "Domestic partnership" is defined in s 169(2) as being a relationship between two people "living together as a couple on a genuine domestic basis." It may be noted that Anna may possibly also have been an eligible person under s 7(1)(b) as a person who was in a domestic relationship with the deceased. Section 7(9) refers the meaning of "domestic relationship) to the Domestic Relationships Act.
2. Anna has not commenced proceedings in this Court under s 59 of the Succession Act. The Court was informed by Anna's counsel that she was not eligible to make an application under that Act. That may be because eligibility under s 57(1)(b) of the Succession Act of a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death would not apply to Anna as her relationship with the deceased had ended before his death.
3. Paragraph 5 of Anna's affidavit in support of her family provision application stated Anna's understanding that probate issued in the ACT in March 2019 declaring assets of $10 million. As I have recorded above, the inventory of property prepared by the executors recorded the net value of the deceased's property in the ACT as being $6,463,024. The gross value of the deceased's assets was said to be $10,262,192. To that extent, Anna's stated understanding was then correct. However, as noted above, it was agreed between Kalpana and the executors following the end of the hearing that the value of the deceased's estate is in fact $2,058,460.11, subject to the payment of any orders for costs that may be made in any of the proceedings. I will consider below whether any of the evidence led in Anna's proceedings justifies the Court in concluding for the purposes of her application that the estate has a value greater than that which was agreed as between Kalpana and the executors.

ACT family provision application cross-vested to this Court

1. As I have noted above, on 16 October 2019, the Supreme Court of the ACT made an order cross-vesting Anna's family provision application to this Court. In determining that application, this Court would have to apply the Family Provision Act. As also noted above, that Act contains no provision for the designation of notional estate of the deceased. Any order for further family provision that is made in favour of Anna would have to be made out of the deceased's actual estate.

Legal basis for setting aside Family Court orders

1. The provision that empowers a court, with jurisdiction to do so, to set aside the deed of settlement is s 28 of the Domestic Relationships Act, which provides: 28 Variation and setting aside of orders If, on the application of a person in respect of whom an order under section 15 or 19 is in force, a court is satisfied that - (a) there has been a miscarriage of justice because of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance; or … the court may vary the order or set it aside and, if it thinks fit, make another order under this part in substitution for the order.
2. The issue of whether the deed of settlement should be set aside is critical to the outcome of Anna's application for further family provision out of the estate of the deceased. If the deed is not set aside, the effect of clause 5.2.2(d) will be that the executors will plead the deed of settlement as an absolute bar to Anna's claim. It must be noted that the Family Provision Act does not have a provision that is equivalent to s 95(1) of the Succession Act to the effect that a release by a person of the person's rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the Court.
3. Clause 5.2 of the deed of settlement appears to be expressed in terms of releases of Anna's claim and not covenants not to sue. Anna has not contested the validity of clause 5.2 on the basis that it is contrary to public policy, if not approved by a court under a statutory provision such as s 95 of the Succession Act. Consequently, it is not necessary for the Court to consider the issues dealt with by the High Court in Lieberman v Morris (1944) 69 CLR 69; [1944] HCA 13 and Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40.

Family Court application to set aside earlier orders and for other relief

1. Anna's application for orders setting aside the deed of settlement and the orders made by the Family Court on 12 October 2015 was made by an initiating application filed in the Family Court in Canberra at some time in 2020, as No CAC 1389/2020. The Court does not have a copy of the original initiating application. An amended initiating application was filed in the Family Court on 18 August 2021, and further amended by order made by Gill J on 24 August 2021. As amended by leave, the first two orders sought by Anna were: 1. That, by way of determination as a preliminary threshold issue, order 3 made by consent, in the Family Court at Canberra on 12 October 2015 expressly pursuant to the provisions of s 15 of the Domestic Relationships Act (1994) ACT be set aside pursuant to the provisions of s 28 of the said Act, upon the basis that that then respondent, the late Garry Francis O'Donnell, ("the Deceased"), failed to make any proper or adequate financial disclosure to enable the Court to determine that the said orders were just and equitable. 2. That by further way of determination as a preliminary threshold issue, the term of the Deed of Settlement and Release signed by the parties pursuant to the provisions of the Family Provision Act (1969) ACT and directed to remain on the Court file, be declared to be null and void and to be and to be of no force and effect whatsoever, upon the orders made on 12 October 2015 being set aside pursuant to order 1 herein, as a consequence of clause 2.1 of the said Deed.
2. If these orders are made, then Order 3 made on 12 October 2015 in favour of Anna under s 15 of the Domestic Relationships Act will be vacated and the deed of settlement will be declared void.
3. The basis relied upon by Anna in order 2 for an order setting aside the deed of settlement is clause 2.1 of that deed which has been set out above. Under that provision, if the Family Court did not make the orders to which the parties consented under the terms of the deed, the deed would not take effect. The Family Court did make those orders, so the deed did take effect. I understand Anna's submission to be that if the orders are vacated, the implied effect of clause 2.1 is that the deed of settlement will cease to have effect. That appears to be the basis for Anna's claim for an order that the deed of settlement be set aside. As I understand the position taken by the executors, they do not dispute that the deed of settlement should be set aside if the Family Orders are set aside.

Anna's submissions

1. Anna served an outline of submissions dated 6 October 2021 before the commencement of the hearing and final written submissions dated 28 October 2021 that augmented the initial submissions. Anna's counsel also addressed the major themes in Anna's submissions orally. In view of the discussion of the procedural history of Anna's claim that has been set out above, it will be appropriate to note the following features of that claim as it was ultimately put to the Court.
2. First, whatever may have been said to Gill J, Anna did not propound a case that the deed of settlement and Order 3 made on 12 October 2015 should be set aside under s 28(a) of the Domestic Relationships Act on the ground of duress caused by Anna's then legal advisers. The true ground upon which Anna challenged the validity of the deed of settlement and Order 3 was the suppression of evidence; in particular, that the deceased did not fully disclose his true financial position.
3. Secondly, even though, as I have explained above, Gill J cross-vested to this Court Anna's claim in order 7 of the amended initiating process, which appears to claim an order varying the orders made by Benjamin J on 12 October 2015, even if orders 1 and 2 setting aside the deed of settlement and Order 3, and the orders sought in orders 3 to 6 for the adjustment of the deceased's property in favour of Anna, these orders were not pursued at the hearing before me. In fact, as best I can tell, nothing was said at the hearing about the relief sought in order 7 of the amended initiating application.
4. Thirdly, and more significantly, nothing was said at the hearing or in Anna's submissions about her claim for further family provision under s 8 of the Family Provision Act that had been cross-vested to this Court from the Supreme Court of the ACT. It may be that Anna appreciated that her claim for further family provision in competition with Kalpana's claim would not be strong, given the evidence as to the ultimate value of the deceased's actual estate. For whatever reason, Anna only prosecuted her cross-vested claim made in orders 1 and 2 of the amended initiating application. Anna's counsel accepted that, if her application that the Court make those two orders failed, she would fail in these proceedings and would not be entitled to further prosecute her proceedings in the Family Court. Counsel made it clear that if Anna succeeded in obtaining orders that had the effect of setting aside the deed of settlement and vacating Order 3, the course Anna would follow would be to pursue her claims in orders 3 to 6 of her amended initiating application in the Family Court. Anna apparently chose that course based on an understanding that the Family Court's jurisdiction would extend beyond making orders that applied only to the actual estate of the deceased, and that the Family Court could "look behind the corporate veil" and "dismantle trusts": see [T 720.8]. It is not necessary for this Court to make any comment on that expectation on Anna's part.

Kristina's and Jurek's family provision claims

1. On 26 November 2019, Kristina and Jurek filed a summons in this Court seeking orders that provision be made for their maintenance pursuant to s 59 of the Succession Act out of the estate and/or notional estate of the deceased.

The consequence of the Court's finding as to the deceased's domicile

1. As the Court has found that the deceased was domiciled in the ACT at the time of his death, and as the Court has found that the deceased did not die owning immovable property in this State (even allowing for the possibility that the application of the notional estate provisions in the Succession Act might have the effect that immovable property in this State was part of the notional estate of the deceased) this Court does not have jurisdiction to make the family provision orders sought by Kristina and Jurek.
2. Unlike Kalpana and Anna, who commenced proceedings in the Supreme Court of the ACT for family provision under s 8 of the Family Provision Act, which have been cross-vested to this Court, the application made by Kristina and Jurek depends upon this Court having jurisdiction to make family provision orders in their favour under s 59 of the Succession Act.
3. Nonetheless, the parties to Kristina's and Jurek's application have contested all issues on the assumption that the Court might find that it had jurisdiction to entertain Kristina's and Jurek's application for further family provision in these proceedings. The Court is therefore faced with the difficulty that many complex and contentious issues remain for determination, but if the Court's decision on the jurisdiction issue stands, the time and effort required to decide the remaining issues will be wasted. Nonetheless, the Court must risk the waste by devoting at least enough attention to the determination of the remaining questions so that the findings made will obviate, to a reasonable extent, the risk of unacceptable delay and inconvenience if the Court's determination of absence of jurisdiction is overturned. In the face of its belief that the exercise is unnecessary, the Court is entitled to temper the level of detail that it addresses in determining the remaining issues.

Entitlement to bring application

1. The first issue is whether Kristina and Jurek have established that they are entitled to make their application, which brings with it a question of eligibility and a question whether there are factors that warrant the making of the application.
2. Kristina and Jurek are plainly domiciled in the ACT, which has been the place of their long-term permanent residence, but have not made an application for provision under s 8 of the Family Provision Act because they are not eligible under s 7 of that Act. Kristina and Jurek claim to be eligible to make an application for family provision under s 59 of the Succession Act on the basis that they satisfy the eligibility criteria in s 57(1)(e), which provides: 57 Eligible persons (1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person - … (e) a person - (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who … was, at that particular time or at any other time, a member of the household of which the deceased person was a member, …
3. Satisfaction of those criteria is not sufficient of itself to ensure eligibility, as it is also necessary for applicants who seek family provision on that basis to satisfy s 59(1)(b), which requires Kristina and Jurek, who are only potentially eligible beneficiaries under s 57(1)(e), to satisfy the Court that, having regard to all the circumstances, there are factors which warrant the making of the application.

Were Kristina and Jurek wholly or partly dependent on the deceased?

1. The relevant head of eligibility in this case is that provided by s 57(1)(e), which in this case imposes two requirements. The first requirement is that Kristina and Jurek establish that they were, at any particular time, wholly or partly dependent on the deceased person: Succession Act, s 57(1)(e)(i).
2. Whether the applicant was wholly or partly dependent on the deceased person is a question of fact, and that fact is determined by the answer to the question: "has reliance on another to fulfil a need been shown?": Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [71], [78] (Payne JA, with whom Macfarlan JA and Sackville AJA agreed at [1] and [132] respectively).
3. Dependency requires a consideration of the whole relationship, considering "past events and future possibilities": Purnell v Tindale [2020] NSWSC 746 at [154] (Henry J), citing Ball v Newey (1988) 13 NSWLR 489 at 491 (Samuels JA, with whom Hope and Mahoney JJA agreed at 490 and 493 respectively); and Spata v Tumino at [68], [78] (Payne JA).
4. Emotional dependency alone does not satisfy the condition in s 57(1)(e)(i); the dependent person must, at least, be beholden to the deceased person "for some material or physical help or succour": Skinner v Frappell [2008] NSWCA 296 at [85] (Young CJ in Eq, with whom Basten and Campbell JJA agreed at [17] and [22] respectively); Purnell v Tindale at [155] (Henry J), also citing Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347 (Hope AJA, with whom Clarke and Sheller JJA agreed at 344).
5. It is not legitimate to read the phrase 'partly dependent' as requiring a finding that the dependency be "significant" or "substantial"; rather it means that the dependency be "more than minimal": Chisak v Presot [2022] NSWCA 100 at [47], [57] (White JA, with whom Macfarlan and Gleeson JJA agreed at [1] and [2] respectively).
6. The evidence in my view clearly establishes that Kristina and Jurek were substantially dependent on the deceased for a considerable proportion, if not all, of the period of the relationship between Anna and the deceased. In my view, this conclusion is sufficiently established by an analysis of the comprehensive affidavit that the deceased affirmed in the proceedings commenced by Anna in the Family Court for relief on the basis that she was the de facto partner of the deceased. The affidavit was affirmed on 4 June 2016, and was tendered in the proceedings commenced by Kristina and Jurek as annexure to Ashley's 29 September 2020 affidavit. The deceased's affidavit conceded a significant number of aspects of Anna's claim concerning the nature of the relationship that she had with the deceased, while attempting to establish that the relationship was only one of friendship 'with benefits' (to repeat an expression used by the deceased). The deceased repeatedly asserted that, although he had a sexual relationship with Anna for some of the period, he almost never stayed overnight at the house in which she was living, and Anna almost never stayed overnight at the Mugga Way property that the deceased claimed was his only home in Canberra before he met Kalpana.

Were Kristina, Jurek and the deceased members of the same household?

1. The second requirement is that Kristina and Jurek establish that they were, at the time when they were dependent upon him, or at any other time, members of the household of which the deceased person was a member: Succession Act, s 57(1)(e)(ii). In Yesilhat v Calokerinos [2021] NSWCA 110 at [104], Macfarlan JA (with whom Bathurst CJ and Brereton JA agreed at [1] and [123] respectively) stated: [104] … At least in ordinary circumstances, membership of a household involves the persons concerned living together, and as summarised by the primary judge (at [765]) citing Kingsland v McIndoe [1989] VR 273, "a degree of continuity and permanency of living arrangements and a form of special familial relationship". Other relevant authorities to similar effect were recently summarised by Henry J in Purnell v Tindale [2020] NSWSC 746 at [157]-[162].
2. I respectfully adopt the summary of Henry J in Purnell v Tindale referenced by Macfarlan JA: [158] The Act does not specify a particular length of time during which Mr Purnell must have been a member of the same household as the deceased and the period during which he and the deceased shared the same household does not necessarily have to coincide with the period during which he says he was wholly or partly dependent on her: Wolff v Deavin [2012] NSWSC 1315 at [30] (Macready AsJ). [159] Central to the concept of being a member of a household is people "living together" in a home: Benny v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep). This is consistent with the Oxford English Dictionary definition of "household" being "the inhabitants of a house considered collectively; a group of people (esp. a family) living together as a unit; a domestic establishment (including any servants, attendants, etc.)". [160] Prima facie, there must be some element of residence or living of the two people concerned in the same house. It is not sufficient for a person to visit on a regular basis without regularly staying overnight: Wagstaff v Wagstaff (Supreme Court (NSW), Windeyer M, 6 November 1991, unrep); Marning v Staniforth (Supreme Court (NSW), 25 March 1987, Hodgson J, unrep); Bezjak v Wyatt at [79]. [161] The phrase 'household' is abstract and is to be contrasted to the word 'house'. There are no hard and fast rules as to what constitutes a household, and the point at which a living arrangement becomes a household is one of degree. A person can be a member of two households. As Hallen J notes, it is the characteristics and dimension of the domestic relationship that makes a "house" a "household": Russell v NSW Trustee and Guardian [2013] NSWSC 370 at [38], [39]; Spata v Tumino [2017] NSWSC 111 at [48], not disturbed on appeal, Spata v Tumino [2018] NSWCA 17 at [58]; Marning v Staniforth (Supreme Court (NSW), 25 March 1987, Hodgson J, unrep); Wolff v Deavin [2012] NSWSC 1315. [162] The concept of membership of a household also connotes a degree of continuity and permanency of mutual living arrangements. There is no set period of time in which a person has to be a member of the household, but they must be a member of the same household as the deceased for some period: Bezjak v Wyatt [2018] NSWSC 199 at [78] and [79]; Amprimo v Wynn [2015] NSWCA 286 at [90] citing with approval statements made by Bryson AJ in Porthouse v Bridge [2007] NSWSC 686 and McLelland J in Munro v Lake (Supreme Court (NSW), 8 February 1991, unrep); Russell v NSW Trustee and Guardian [2013] NSWSC 370 at [35] to [51] and the cases cited there.

Are there factors that warrant the making of the application?

1. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J (as his Honour then was) said of the use of the word "factors" in the equivalent s 9 of the Family Provision Act 1982 (NSW): "… This suggests that the "factors" referred to in this subsection are factors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased." This statement of principle has been generally followed, including in the recent decision of the Court of Appeal in Sun v Chapman [2022] NSWCA 132 at [120] (White JA), [193] (Brereton JA); see also Lodin v Lodin [2017] NSWCA 327 at [5]-[7] (White JA), [106]-[107], [113]-[119] (Sackville AJA).
2. I have found this issue to be a difficult one to determine in the circumstances of the present case. First, it does not arise if I am correct in my conclusion that the deceased was domiciled in the ACT at the date of his death and he was not entitled to any immovable property situated in this State at that time. In that respect the issue is academic. Secondly, Kristina and Jurek did not address the issue in their submissions. The executors dealt with the issue in sparse terms in par 312 of their outline written submissions. Thirdly, Kristina and Jurek are not eligible to make claim under the Family Provision Act, which is the relevant legislation of the only jurisdiction with which the relationship between the deceased and Kristina and Jurek had any connection. That relationship had no real connection at all with this State, so the commencement of Kristina's and Jurek's claim for provision under s 59 of the Succession Act is an opportunistic attempt to take advantage of the more liberal criteria for establishing eligibility under that Act than under the Act that is most clearly pertinent to their relationship with the deceased.
3. I have concluded that, were it necessary for this Court to decide the issue, I would not accept that Kristina and Jurek have established that there are factors that warrant the making of their application for family provision.
4. First, the relationship of Kristina and Jurek with the deceased was only a de facto 'step' relationship for a period of about 13 years that ended about 5 years before the death of the deceased. The deceased's primary relationship was with Anna, but, to the extent that he financially supported Anna, it followed as a practical matter that he supported her children who lived with her. The evidence establishes that the deceased maintained a warm relationship with Kristina and Jurek, and because he was a wealthy man and generous by nature he provided Anna's children with many material benefits that they would otherwise not have enjoyed.

Measure of proper and adequate provision

1. In Bassett v Bassett, the Court of Appeal (Bell P, Leeming and Payne JJA) at [95]-[97] approved the observations made by Hallen J in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [66], concerning the importance of counsel for the claimant in a family provision case being in a position to assist the Court with an identification of what provision is being sought. That assistance may be expressed approximately or within a range, but it is necessary in order to enable the Court to efficiently determine what provision ought to be made for the claimant. In the present case, neither claimant committed themselves to any particular claim in relation to the further provision that they sought. Both identified a small number of specific needs. Kristina said in her affidavit, at pars [68] and [69], that she wished to purchase accommodation in the eastern suburbs of Sydney, and that she needed a capital sum to assist her to have a start in life. Jurek's evidence, in par [68] of his affidavit, was that he wished to acquire a business so that he may become self-supporting, he needs a capital sum to assist him in life, and he wishes to acquire a home in the Canberra city area.
2. I have found that this Court does not have jurisdiction to make family provision orders in favour of Kristina and Jurek under the Succession Act because the deceased was not domiciled in NSW at the date of his death. I have also found that, even if the Court did have that jurisdiction, it should not be exercised in favour of Kristina and Jurek because there are not factors that warrant the making of the application as is required by s 59(1)(b) of the Succession Act. If I am wrong in both of those findings, it will follow that the deceased was domiciled in NSW, and as a consequence the Court will have jurisdiction to designate property of the O'Donnell group as notional estate of the deceased. That would have the effect that, in principle, there would be property available to make family provision orders in favour of Kristina and Jurek. Whether such orders should be made would depend upon many factors, including the competing claims of Kalpana and the deceased's children. I do not propose to attempt to assess what orders for family provision should be made in favour of Kristina and Jurek in these hypothetical circumstances. The reason is that Kristina and Jurek have not provided evidence of the cost of the maintenance that they claim to require with sufficient specificity to enable the Court to assess what family provision orders should be made in their favour on a basis that does not involve guesswork. If it became necessary for me to do so, I would call for further submissions concerning the family provision orders that would be appropriate. It may be that the state of the evidence would have the result that the most that the Court could do would be to assess an appropriate lump sum to be paid to each of the claimants.

Consideration of Kalpana's family provision claim

1. Having dealt with Kalpana's devastavit claim, and the claims made by Anna, Kristina and Jurek, I will now consider the significance of the evidence led by the parties concerning Kalpana's claim for family provision.
2. The Court must consider the application of s 8 of the Family Provision Act, which I have extracted above. Section 8(3), in pars (a) to (j), lists criteria for the Court's consideration, although par (k) permits the Court to consider any other matter it thinks relevant. By reference to the listed criteria, I consider that Kalpana conducted herself as a loving, faithful and supportive wife, who moulded her life to the deceased's wishes: see par (a). That said, because of the lifestyle she enjoyed, Kalpana's conduct was very much in her own interests, at least as long as the deceased was alive.
3. The defendants suggested that the relationship was tempestuous. It may have been on occasions. The incident whereby the deceased deceived Kalpana into thinking she was a joint purchaser of the Barton penthouse would reasonably have infuriated any wife. Much of the evidence given by Kalpana's domicile witnesses that has been set out above strongly supports the conclusion that the deceased was content with his marriage. There has been nothing in Kalpana's character that would diminish her entitlement to testamentary support by the deceased.
4. As to par (b), Kalpana was married to the deceased, although the duration of the relationship was relatively short, at about five years. However, had the deceased not died at the relatively young age of 68 years, there is no reason to think that the relationship would not have continued for much longer. Kalpana did relatively little to contribute to the deceased's property or financial resources for the purposes of par (c). As it has happened, although the deceased made many valuable gifts to Kalpana, the benefit of those gifts has largely proved to be ephemeral. As to par (d), I am satisfied that Kalpana made reasonable contributions to the marriage as a homemaker, although an effect of the deceased's wealth was that the role of Kalpana as homemaker may not have been as onerous as it might have been in other circumstances.
5. I will consider the criteria in pars (e) to (g) more fully below in relation to the detail of the evidence. As the deceased's children are all adults, the deceased was not responsible for their support for the purposes of par (h). Paragraphs (i) and (j) are not material in the present case.

Conclusion

1. The result is a family provision order will be made in favour of Kalpana in the proceedings that she commenced in the Supreme Court of the ACT that will give her all of the property in the actual estate of the deceased that is available to be distributed. Kalpana's claim for family provision commenced in this Court and for relief in respect of the claimed devastavit by the defendants will be dismissed. All of the claims made by Anna, Kristina and Jurek will be dismissed.
2. Given the interrelationship between the proceedings it will be necessary for the Court to receive submissions from the parties as to the costs orders that should be made.
3. As there may be some complexity in the formulation of the orders that should be made in favour of Kalpana, I will also receive submissions from Kalpana and the defendants as to the form of the orders that should be made in favour of Kalpana.
4. My Associate will arrange with the solicitors for the parties in the new law term for a directions hearing to deal with all outstanding issues next year.

Need for law reform

1. The outcome of these proceedings causes me respectfully to recommend that all of the authorities in this country who have a role in law reform revisit the question of whether the family provision legislation in each jurisdiction should empower the courts of those jurisdictions to designate notional estate of deceased persons and to explore the possibility of introducing substantially common legal provisions for that purpose.
2. Kalpana has succeeded in obtaining an order for further provision out of the estate of the deceased, but not for the amount that I have determined would have been fair to her. Given all of the circumstances of the case, that is because fairness could only have been achieved if the Court had been empowered to make an order designating part of the property of the O'Donnell group as notional estate of the deceased. The absence of that power turned on the issue of the domicile of the deceased at the date of his death. The finding that the deceased was domiciled in the ACT was fatal to the prospect of fairness being achieved in this case.
3. As Brereton JA has said extrajudicially: In my view, the proper measure nowadays of the community's expectation as the basic minimum which testators should provide for their spouses, even in an unhappy marriage, is that provision which the surviving spouse would have received pursuant to Part VIII of the Family Law Act had the parties separated and instituted such proceedings. In a happy marriage, the standard might well exceed this … The dutiful spouse who finds upon her husband's death that no or inadequate provision has been made for her is then in no worse position than a spouse who has separated before death and commenced property proceedings. … There is neither social sense nor legal logic in a surviving spouse who has not instituted proceedings before the other dies being in a position worse than would have been the case had such proceedings been instituted. Even more so where the surviving spouse was not separated but remained happily married until the death of the other, should such spouses not be in a worse position vis-a-vis the estate of the other than had the marriage failed … If the outcome did in fact depend upon the chance of whether property proceedings had or had not been instituted before death, or resulted in a 'dutiful' spouse who remained happily married to the deceased being worse off than if he or she had separated from the other, there would be justifiable cause for complaint.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2022