Plaintiff v First Defendant

1 This is an application by summons dated 16 January 2026 (the Summons), which was heard in the Practice Court on 19 January and 21 January 2026.

2 The plaintiff seeks orders in the following terms:

(a) on or before 4:00pm on 21 March 2026, the first defendant shall obtain a certificate containing the final amount owing to the National Australia Bank (NAB) from the estate of Dr Theong Ho Lo (the Deceased) pursuant to the loan agreement referred to in the Mortgage Default Proceeding as at 21 April 2026 (the NAB payout figure);

(b) that pursuant to rule 38.01 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic), on or before 4:00pm on 21 April 2026:

(i) the second defendant, Team TH Low Pty Ltd (ACN 161 048 102) in its capacity as trustee of the TH Low Super Fund, pay to the first defendant, Kim Hau Low, in her capacity as executor of the will of Theong Ho Low, deceased, the NAB payout figure;

(ii) the first defendant, Kim Hau Low, in her capacity as executor of the will of the Theong Ho Low, pay the NAB payout figure to the NAB;

(iii) the first defendant, Kim Hau Low, take all steps necessary to enable NAB to discharge mortgage numbered AQ335843S registered on the title to the property known as Unit 3, 26 Westgate Street, Pascoe Vale South, Victoria, described on Certificate of Title Volume 11889 Folio 061.

3 An application for joinder of Ms Low in her personal capacity was also made pursuant to the Summons. Having regard to the fact that the orders sought by way of injunction did not bind or need to bind Ms Low in her personal capacity, it was not necessary or appropriate to deal with the application to join her in the course of the business of the Practice Court. That application can be re-enlivened in the course of the proceeding, if any party is so advised.

4 The principles on an application of this type are not in issue.

5 The applicable principles were articulated by the High Court in Australian Broadcasting Corporation v O'Neill.[1] The test was summarised by O'Bryan J in Squirrel Limited v Cadmon Advisory Pty Ltd[2] as follows:

The test for an interlocutory injunction was stated by the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65]-[72]. There are two principal questions. The first is whether the plaintiff has made out a prima facie case in the sense that, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be entitled to relief. The second is whether the inconvenience or injury which the plaintiff would be likely to suffer were an injunction refused outweighs or is outweighed by the injury which the defendant would suffer were an injunction granted. The Court explained that the phrase "prima facie case" does not mean that the plaintiff must show that it is more probable than not that at trial it would succeed. It is enough that the plaintiff shows a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. The requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.

6 The applicable principles are not separate and independent of each other but must be examined together.[3] Thus, a doubtful claim which satisfies the 'prima facie case' or 'serious question to be tried' threshold may still attract interlocutory relief if there is a significant balance of convenience in favour of it.[4]

7 As the Court of Appeal has observed,[5] ultimately the court should take the course that appears to carry the lower risk of injustice if it should turn out to be wrong, in the sense of granting an injunction to a party who fails to establish the asserted right at trial or failing to grant an injunction to a party who succeeds at trial.

9 The plaintiff was the long-term domestic partner of the Deceased. On the plaintiff's case, her relationship with Dr Low spanned 23 years. It began in 2002 when the plaintiff was 32 and the Deceased was 46. On the plaintiff's case the relationship only ended when the Deceased died unexpectedly on 6 May 2023 after suffering a major stroke.

10 At all times during the relationship between the Deceased and the plaintiff, the Deceased was married to Kim Hau Low. It appears that Ms Low was not aware of the Deceased's relationship with the plaintiff.

11 In 2017, the Deceased purchased Unit 3, 26 Westgate Street, Pascoe Vale South, Victoria (the Pascoe Vale Unit). On the plaintiff's case, the unit was purchased for the plaintiff to live in. The plaintiff alleges that she paid $40,000 towards the purchase price of the Pascoe Vale Unit. Most of the balance of the purchase price was funded by a loan from NAB to the Deceased of approximately $700,000. The current indebtedness on the loan as at 20 January 2026 was recorded to be $721,193.44. Ms Low is a guarantor under the loan.

12 To secure the repayment of the loan, NAB was granted a mortgage which was registered on the title to the Pascoe Vale Unit.

13 The plaintiff has lived in the Pascoe Vale Unit since it was purchased. The plaintiff's case in this proceeding is that the Deceased promised, in various ways, that he would buy the Pascoe Vale Unit for the plaintiff and use the money in his superannuation fund to pay off the NAB loan and discharge the mortgage when he retired, so that the Pascoe Vale Unit could be transferred to the plaintiff. The plaintiff submits that she relied on the Deceased's promises to her detriment and gave up her secure Housing Commission unit and contributed $40,000 towards the purchase price of the Pascoe Vale Unit.

14 The Deceased died on 6 May 2023 leaving a will dated 18 December 2013. The will names Ms Low as executor and leaves the Deceased's entire estate to Ms Low. As I have said, Ms Low is the first defendant in her capacity as executor of the will. It is common ground that there are insufficient assets in the Deceased's estate to pay off the NAB loan. I note that the will does not direct the executor to pay off the NAB loan or leave the Pascoe Vale Unit to the plaintiff. This is readily explicable because the will was made before the Pascoe Vale Unit was purchased.

15 The second defendant is Team TH Low Pty Ltd (ACN 161 048 102) in its capacity as trustee of the TH Low Super Fund**.** The Deceased was a director of Team TH Low Pty Ltd and a member of the TH Low Super Fund up until his death. The proportion of the superannuation fund referable to the Deceased's death benefit is sufficient, in overall asset terms, to discharge the NAB loan. However, the discharge of that liability would require the second defendant, being the superannuation trustee, to sell existing real property and then distribute the proceeds of that sale to the estate for the purposes of extinguishing the loan. Distribution to the estate is necessary because NAB requires that the loan be discharged by the counterparty to the loan, being the Deceased (and therefore the executor of his estate, Ms Low).

16 In this proceeding, the plaintiff seeks a declaration, amongst other things, that Ms Low in her capacity as the executor of the estate of the Deceased and the second defendant, as trustee of the TH Low Super Fund, be estopped from denying the Deceased's promises to the plaintiff. The representations and assurances relied upon by the plaintiff are set out in an amended statement of claim dated 19 December 2024. They were accepted by counsel for the defendant to be a bona fide summary of the underlying claims said to give rise to the alleged serious questions.

(a) the Deceased would buy the house for the plaintiff, described as the first representation;

(b) the Deceased assured the plaintiff that the house he was going to purchase would be hers, described as the second representation;

(c) the Deceased was purchasing the Pascoe Vale Unit solely in his name, so it would be easier to transfer to the plaintiff when he retired in the future - the third representation;

(d) the Deceased would use the money that he contributed to his superannuation, to pay off the NAB mortgage loan secured against the Pascoe Vale Unit, described as the mortgage payment representation;

(e) the Deceased promised to transfer the title to the Pascoe Vale Unit into the plaintiff's name when he retired, described as the fourth representation;

(f) that following settlement of the property in or about September 2017, that the Pascoe Vale Unit was now the plaintiff's captured by the fifth and sixth representations;

(g) the plaintiff should not worry and that the Pascoe Vale Unit was the plaintiff's, described as the seventh representation;

(h) the plaintiff should return the Housing Commission apartment as she now had a house of her own, and that there were people that needed the Housing Commission apartment, described as the eighth representation;

(i) the plaintiff should not worry as the Deceased would transfer the Pascoe Vale Unit into the plaintiff's name when he retired, described as the ninth representation;

(j) the Pascoe Vale Unit was the plaintiff's and that no one could kick her out, described as the tenth representation; and

(k) the Deceased would pay off the NAB loan with his superannuation and transfer the title to the Pascoe Vale Unit into the plaintiff's name when he retired, described as the mortgage payment assurance.

18 The plaintiff seeks, amongst other things, the following relief against the estate of the Deceased:

(a) a declaration that the first defendant be estopped from denying that she holds the Pascoe Vale Unit on constructive trust for the plaintiff;

(b) a declaration that the first defendant holds the Pascoe Vale Unit on constructive trust for the plaintiff;

(c) in the alternative, a declaration that the first defendant holds the Pascoe Vale Unit on resulting trust for the plaintiff, to the extent of the plaintiff's contribution to the purchase price.

19 The relief sought against the second defendant includes that there be a declaration that the trustee of the superannuation fund be estopped from denying that it holds so much of the deceased death benefit from the TH Low Super Fund, as is required to pay the NAB mortgage loan registered on the title of the Pascoe Vale Unit, on constructive trust for the plaintiff.

20 Further, by paragraph L of the prayer for relief in the amended statement of claim, the plaintiff seeks an order that the second defendant do all such things and execute all such documents as are necessary to pay the NAB loan from the Deceased's death benefit and the TH Low Super Fund.

21 On 5 December 2025, NAB commenced a proceeding to seek to recover possession of the Pascoe Vale Unit, on the basis that the estate is in default of the repayment obligations under the NAB loan (the Mortgage Default Proceeding)

22 The first defendant has submitted that there is no defence to this claim and that NAB is therefore presumptively entitled to a default judgment in respect of its application to recover the property. No party seriously contended otherwise. NAB was represented at the hearing and was granted leave to make submissions as necessary. I was assisted by the appearance of Mr Koutsodontis on NAB's behalf. As a consequence of the matters I have canvassed, unless interlocutory relief of the type contended for is granted, it is inevitable that the Pascoe Vale Unit will be sold and the proceeds of that sale realised, in order to meet the estate's liability to NAB.

23 The difficulty created in the present case is that the superannuation money capable of meeting the payment of the NAB liability, is the subject of a binding death nomination in favour of Ms Low in her personal capacity. That binding death nomination was made on 5 September 2017 and was allocated to Ms Low in its entirety, or in the event of Ms Low pre-deceasing Dr Theong, to their son and daughter in equal proportions.

25 This difficult case, at least at an interlocutory stage, owes its difficulty not to the conduct of either the plaintiff or the defendants, but to the conduct of the Deceased. In particular, the absence of an ability to meet the NAB loan out of assets either in his estate or by way of a nomination in favour of the plaintiff from his superannuation fund.

26 Ultimately, I have determined that the application for injunctive relief must be refused. I do not do so lightly, recognising that the consequence of the order is that NAB will take possession of the Pascoe Vale Unit and realise it for the purposes of discharging the Deceased's indebtedness to NAB, with the effective consequence that the plaintiff will no longer reside at the Pascoe Vale Unit.

27 However, I am compelled to that regrettable conclusion by the following matters.

28 I cannot be satisfied on the evidence that the plaintiff's claims give rise to a strong serious question. That is because there is very limited evidence presently adduced on the application which establishes the representations contended for. Without detailed and substantive evidence conforming to the case as pleaded, I cannot be satisfied that the case is a strong case, despite the preparedness of counsel for the defendants to accept that there was at least a serious question. It is necessary to differentiate for present purposes between the existence of a serious question on the one hand and the existence of a strong serious question on the other.

29 In evaluating the serious question, I also note that:

(a) The representations relied upon are silent as to what would occur in the event of the Deceased's death.

(b) The representations relied upon are inconsistent with the binding death nomination executed by the Deceased, which was executed at a time contemporaneous with the alleged making of a number of the critical representations and at the time of the settlement of the Pascoe Vale Unit. The fact of the contemporaneous binding death nomination in favour of Ms Low (and thereafter their children) at that time militates against the plaintiff's claim. Not only did the plaintiff fail to nominate the plaintiff as a primary beneficiary, the plaintiff was not a beneficiary in the event that Ms Low died before Dr Theong.

30 Counsel for the plaintiff was unable to direct me to any authority in which a court had refused to give effect to a binding death nomination, because of an asserted equitable interest on the part of another party in the superannuation monies. Moreover, the juridical foundation for making an order of this type, in circumstances where the legal entitlement of Ms Low to the monies the subject of the superannuation fund, arose without notice to her of the plaintiff's alleged interest, was not developed in submissions. This was despite the plaintiff being squarely on notice of this in the defendants' submissions, when the defendant stated at paragraph 21 of their submissions.

31 The ultimate contention of the plaintiff is that an equitable estoppel precludes the superannuation trustee from acting on the binding death nomination to which the innocent third party, Ms Low, is putatively entitled. Unaided by considered reference to authority and legal principle in the plaintiff's submissions, I have not been satisfied that there is a sufficiently firm legal foundation for this Court to order, on this application, that the superannuation trustee ought to be mandated to distribute monies in a manner contrary to the terms of the binding death nomination.

32 The plaintiff is seeking an order which has the effect of requiring the superannuation trustee to contravene its obligations, by distributing assets of the superannuation fund to a person or entity other than the beneficiary of the binding death nomination. This reality was conceded by counsel for the plaintiff, although he described the resulting state of affairs as being 'temporary'.

33 A further reason as to why the summons must be dismissed is that the form of relief sought, which facilitates payment of the NAB loan by monies in the superannuation fund, is tantamount to an order for final relief.

34 Once the payment to the estate occurs, there is no identified legal basis upon which the estate can be compelled to refund the monies to the superannuation fund. If the plaintiff's claims ultimately fail, she will not have control over the Pascoe Vale Unit and therefore, the repayment of monies advanced by the superannuation fund to discharge the mortgage cannot be facilitated by legal obligation. Put simply, once paid out, the monies in the superannuation fund will not be capable of being compelled by legal obligation back to the superannuation fund, in the event that the court finds the plaintiff does not have an interest in those monies. Thus, whilst it is possible that practically Ms Low may be capable of being restored into the same economic position if the order is found to have been wrongly made, as she is the beneficiary under the will and the recipient of the binding death nomination, the legal effect of the order cannot be undone. The replenishment of the trust fund cannot be compelled by imposing a binding obligation on the estate.

35 The question can be analysed in another way. If the order sought by the plaintiff was granted now, there would not be a legal necessity for the plaintiff to advance a claim that she was entitled by the operation of equitable estoppel to the repayment of the NAB loan using the Deceased's superannuation. She will have already achieved that very outcome by interlocutory order. Her claim as a matter of legal necessity would be confined to needing to establish that the property itself is held on constructive trust for her.

36 A further reason which militates against the granting of the injunction is that counsel for the plaintiff conceded that it may be ultimately difficult for the defendants to establish the quantum of their loss in enforcing the undertaking as to damages. Moreover, as counsel for the plaintiff properly conceded, if meaningful loss is in fact suffered, which cannot be ruled out on the evidence, the plaintiff's undertaking is frail having regard to the limited income and assets available to her.

37 Finally, the proposed form of order has a number of unsatisfactory features.

38 First, it requires the superannuation trustee to undertake a forced sale of the real property of the trust (the Trust Unit). Whilst the property is currently advertised for sale, the orders sought force the trustee to effect the sale within the next 90 days, irrespective of whether it determines the offer to be satisfactory and commercially desirable. There are sound commercial reasons as to why the trustee may not wish to do so.

39 Second, it also forces the trustee to sell the Trust Unit in a way which may not maximise the sale price because, absent curial intervention, the Trust Unit held by the trust fund could be sold as a 'job lot' together with other units owned by Ms Low personally.

40 Third, NAB, a non‑party, has not unconditionally consented to the proposed orders but would require a deed of forbearance to be executed. No such deed has been prepared, let alone agreed. There is therefore no concrete assurance at present that the imposition of these orders would result in NAB delaying enforcement action. There is also no assurance that the putative counterparty to the deed of forbearance, being the estate of the Deceased, would be willing to execute such a deed. No order was sought in this proceeding mandating that the executor execute the presently undrafted and unparticularised deed.

41 Fourth, the regime that is contemplated would also place Ms Low at further risk, as the liability under the loan would continue to escalate and the potential for the ultimate realisation of the Pascoe Vale Unit to be insufficient to discharge the liability would potentially enliven risk on her part as guarantor; or detriment to her, in the form of a reduced sum available to the estate and ultimately Ms Low herself.

42 For all of these reasons, the application for injunctive relief must be refused.

[1] [2006] HCA 46; (2006) 227 CLR 57, 68 [19] (Gleeson CJ and Crennan J) and 81-84 [65]-[72] (Gummow and Hayne JJ with whom Gleeson CJ and Crennan J agreed).

[2] [2019] FCA 1006, [38].

[3] Nicholas John Holdings Pty Ltd v Australia & New Zealand Banking Group Ltd [1992] VicRp 98; (1992) 2 VR 715, 723.

[4] Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464, 472.

[5] Bradto Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65, 73 [35] (Maxwell P and Charles JA).