• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

JUDGMENT

1. By notice of motion filed on 27 September 2024, the plaintiff seeks urgent interlocutory relief, the substance of which is as follows: "Declare that the Second Defendant is not permitted to invite or arrange for the Second Defendant's new wife from Bangladesh (Bangladesh wife) to enter, stay at, nor reside at the Punchbowl premises; noting and finding that the Bangladesh wife does not presently reside in Australia nor presently have a right to enter nor live in Australia and that she presently remains overseas since the Second Defendant married her in 2022, but also noting and finding that the Second Defendant has informed the Plaintiff of his intention to bring the Second Defendant's new Bangladesh wife to Australia to live with him at the Punchbowl premises."
2. The nub of the matter is this. The plaintiff and the second defendant both live at a house on Punchbowl Rd, Punchbowl (the Punchbowl house). They were married on 29 September 2003 and divorced in February or March 2022. The plaintiff and second defendant have four children, aged 6, 15, 17 and 19, all of whom live with them at the Punchbowl house.
3. The plaintiff has, from birth, suffered from cerebral palsy. She is restricted to a wheelchair and communicates with the assistance of a computer. She receives full-time in-home care which is funded by the NDIS.
4. The Punchbowl house is a large, two-story ten-bedroom residence that accommodates the plaintiff's special needs. There are five bedrooms upstairs and five downstairs.
5. In 2022, after the divorce was finalised, the second defendant travelled to Bangladesh where he married Rifat Jasmine, before returning to Australia alone. The second defendant has referred to his new wife as Rifat in his affidavit and, without intending any discourtesy, I will do the same.
6. In August 2024, the second defendant travelled to Bangladesh again and returned to Australia in September with Rifat, who has now taken up residence with him in the upstairs part of the Punchbowl house. Rifat is in Australia on a temporary visa and speaks no English.
7. The orders now sought would have the effect of requiring Rifat to leave the Punchbowl house until the principal proceedings are resolved. In order to understand the basis on which those orders are sought, it is necessary to say something about the ownership of the Punchbowl house and the related dispute, which is an aspect of the principal proceedings.
8. At the time of her death, the Punchbowl house was registered in the name of the plaintiff's mother, the late Qamar Jahan Sattar. Mrs Sattar died on 19 October 2019, having made a will on 5 October 2019 (the Will).
9. Unfortunately, the Will was not drafted by a solicitor and has given rise to serious dispute as to the terms of which the Punchbowl house is to be held and by whom. Pursuant to orders made on 10 November 2022, letters of administration (with the Will annexed) were granted to the first defendant, Ms Goodwin, on 4 May 2023, who has had the administration of the estate since that time.
10. The Will relevantly includes the following: "I revoke all my former wills. I, Qamar Jahan Sattar, Date of Birth 11/11/1947 born In India and an Australian Citizen, am writing this Will in my full sense. I APPOINT my son-in-law, Mohammad Mahmud Alam born 01-01-1979 to be the Executors and Trustees of this Will (my Trustees). My trustee and executor, after attending to payment of my debts, shall hold the balance of my estate (residual estate) and deal with my residual estate in accordance with the following provisions: My executor shall distribute my residual estate to the trusts in accordance with the following Testamentary Trust: I am giving all my movable and immovable Property [the Punchbowl house] to my only daughter SAQIBA MEHAR SATTAR. ... Property details which go to Saqiba Mehar Sattar are: 1. [The Punchbowl house] 2. Three town houses… at Hampden Road, Lakemba, NSW 2195. All the above mentioned properties are in my Single Name (Qamar Jahan Sattar) Town Houses are managed by Metro Strat, Wangee Road, Lakemba, NSW 2195. Phone No. 80652707. The balance of the residual estate is to be transferred to my grandchildren, and the Trustee will manage it until they turn 21. Sar Saqiba and the Trustee will decide the proportions to each grandchild … Instructions I instruct and direct the Executor and Trustee to open an account in both names, Saqiba Mehar Sattar and Mohammad Mahmud Alam, to receive the rent from the properties in that account. I instruct and direct the Executor and Trustee that under any circumstances he will not sell any of my estate. I instruct and direct the Executor to take all actions necessary to ensure that all my Grandchildren till their age of 21 years have the ability and freedom to reside at [the Punchbowl house] with their mother and father. They will stay as long as they want. No one is allowed to evacuate any one of them. Future distribution of Property will depend on the wishes of my daughter Saqiba Mehar Sattar. As an executor my son-in-law Mohammad Mahmud Alam is responsible to look after all my Grand Children and my daughter with their needs, food, education, sports. Whatever money comes from rent of the town houses, he will use them for all the expenses of the children only. … My main concern is that my daughter Saqiba Mehar Sattar will spend the rest of her life in comfort, with her Children and her Husband. I direct my executor and trustee to take actions necessary to ensure that my daughter Saqiba Mehar Sattar will reside on Ground Floor in the house No[the Punchbowl house] with her Children and her Husband. The Trustee must not give permission, under any circumstances, to anyone other than those specified in this Will, to live in [the Punchbowl house]. If in future Mohammad Mahmud Alam's parents wish to come to Australia then all under signed witnesses should be consulted by Mohammad Mahmud Alam for the duration of their stay, which should not exceed more than 30 days. In case any unwanted event like sickness, disability or death happens to Mohammad Mahmud Alam, then all undersigned witnesses will appoint any one among them to look after Saqiba Mehar Sattar and the children and the management of their expenses, they have the rights to charge any suitable amount against this service and their loss of time. …"
11. By her further amended statement of claim, the plaintiff seeks additional provision from Mrs Sattar's estate pursuant to s 59 of the Succession Act 2006 (NSW), as well as other orders in relation to the Punchbowl house. In particular, she contends that she is, in substance, entitled to the Punchbowl house as a specific legacy (or, as pleaded, that she is the "sole beneficiary" of the house and that she is entitled to be registered as the owner) and that the second defendant has no entitlement to occupy the house.
12. The basis of the relief she claims in relation to the second defendant's occupation of the Punchbowl house is a little unclear. No doubt she would be entitled to evict him if, as she claims, she is the sole beneficiary of the house, because in that event he would simply be a trespasser. But she also seeks orders to evict him under s 66 of the Succession Act. Whether or not the Court could and should make such an order was not explored in argument, but my conclusions about other aspects of the present dispute mean that this does not matter.
13. By a cross-claim filed on 9 June 2023, the first defendant seeks the following relief: "A declaration that upon a proper construction of the will of the late Qamar Jahan Sattar ("the deceased") dated 5 October 2019: a) the first cross-defendant is entitled to receive the whole of the legal interest in the property situated at [the Punchbowl house], subject to a right of residence in favour of the deceased's four grandchildren until they reach the age of 21 years; and b) the rest and residue of the deceased's estate is held on trust for the deceased's grandchildren until they attain 21 years of age, with the income generated from the properties forming part of residue to be applied for the maintenance of the grandchildren only."
14. By a cross-claim filed on 28 September 2023, the second defendant seeks orders that would give effect to yet a further alternative construction of the Will, as follows: "A determination whether, on a proper construction of the will of the late Qamar Jahan Sattar ("deceased") dated 5 October 2019, and in the events that have happened: a) The First Cross-Defendant receives the absolute interest in the property situated at [the Punchbowl house], but subject to a right of residence in favour of the Cross-Claimant and the Deceased's four grandchildren, such right of residence to cease when all of the deceased's grandchildren have reached the age of 21 years; and b) The rest and residue of the deceased's estate is held on trust for the deceased's grandchildren until they attain 21 years of age, with the income generated from the estate forming part of residue to be applied for the maintenance of the grandchildren only."
15. Further, the second defendant seeks other relief that would recognise and give effect to what he contends to be his equitable estate or interest in the Punchbowl house. That claim has been the subject of pleadings and broadly rests on two related propositions, being as follows: 1. The Punchbowl house was purchased in the joint names of the plaintiff and second defendant for a sum of $428,000 in about 2007 and was financed largely by a mortgage. The second defendant contends, and the plaintiff does not admit (but does not deny) that he made all of the mortgage payments. 2. In 2014, the house was transferred into the name of the late Mrs Sattar for no consideration, in circumstances where the second defendant had no intention of thereby relinquishing his equitable interest. This, again, is the subject of a non-admission by the plaintiff.
16. By way of relief, the second defendant seeks orders that the estate account to him for his interest in the property, or that the Punchbowl house otherwise be charged to reflect his interest. In the alternative, he also seeks various orders under the Succession Act, including s 59.
17. When the matter was first listed for hearing on 1 October, I raised a concern that the relief sought in the notice of motion did not appear to be in aid of any existing right or interest of the plaintiff to occupy the Punchbowl house, or to exclude occupation of any other person, in circumstances where the estate was in the process of being administered and where, as a result, the question of who should or should not occupy the premises was a matter for the administrator. As counsel for the second defendant pointed out by reference to Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] AC 694 and Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45, while the estate remains in administration no beneficiary has a right to possession of any estate property. The matter was adjourned for several days to allow the administrator to consider the position and, specifically, to consider whether it was appropriate to allow Rifat to continue to occupy the house having regard to the terms of the Will.
18. When the matter returned for further hearing on 10 October, the administrator indicated that, notwithstanding the terms of the Will and in the light of the evidence to which I will refer shortly, she did not propose to take any action to require Rifat to leave the premises. She indicated that if a request were to be made for the estate to fund temporary accommodation for Rifat pending the final hearing, she would likely seek judicial advice as to the appropriateness of making such funding available and as to the terms on which it might be made.
19. The plaintiff submitted that it would be appropriate to hear the notice of motion at the same time as any such judicial advice application. However, the second defendant was not willing to pursue a solution that involved moving Rifat out of the Punchbowl house to live on her own, and the plaintiff was not willing to pursue a solution that involved the estate funding alternative accommodation for both the second defendant and Rifat (and the children, who in that event would likely go with their father). That being so, there is no immediate prospect of any judicial advice application and so it is appropriate for the notice of motion to be determined now.
20. The plaintiff submitted that she has a good arguable case that she is entitled to the relief now sought at a final hearing. She submitted that if she is correct in her case that she alone is entitled to the Punchbowl house under the Will, then she will at that stage be entitled to possession and therefore to exclude Rifat (and the second defendant) from the premises as a trespasser. Against this, the second defendant pointed out that the Will clearly contemplates that he is in any event entitled to continue to occupy the premises in order to continue to care for the children and that, on its proper construction, he would be entitled to do so with his wife.
21. The question of whether the plaintiff is or will be entitled to the whole of the Punchbowl house to the exclusion of all others is a matter that is very much in dispute. The parties' respective positions as to that matter have been the subject of pleadings and evidence. The matter has been listed for final hearing before Richmond J, commencing on 10 February 2025. In those circumstances, and because I have otherwise reached a firm view that the balance of convenience does not favour the grant of the relief now sought, I will refrain from expressing a view as to the relative strength of any party's case so far as those ultimate questions are concerned.
22. As far as the balance of convenience is concerned, I make the following observations.
23. The second defendant is the primary carer of the children, all of whom live at the Punchbowl house. Three of the children are school-aged. Although it is a matter that unquestionably causes grief and humiliation to the plaintiff, Rifat is married to the second defendant and now assists with the care of the children. Rifat does not speak English. She is on a temporary visa. Neither she nor the second defendant can afford alternative accommodation. The second defendant earns about $1,100 after tax per week. Neither of them has any wish for her to live separately at this point and, if she were to be ordered to leave the Punchbowl house, the second defendant has said that he would wish to leave with her and that the children would want to go with him if that occurred. If the upshot of the final proceedings is that the second defendant is not entitled to continue to occupy the Punchbowl house, I infer that that he, Rifat and the children will all move away.
24. The first defendant has given consideration to the terms of the Will and remains content for Rifat to continue to live at the Punchbowl house.
25. It is true that an order requiring Rifat (but not the second defendant) to leave now would have the effect of restoring the status quo as it existed prior to Rifat's arrival. But it would not be an order that conforms with the primary relief which the plaintiff seeks in the main proceedings. That is because the primary relief she seeks requires both Rifat and the second defendant to leave the premises. Despite this, she has not sought orders for the second defendant to leave the premises in the meantime. No doubt she wants to keep her children living with her, a situation which is difficult to achieve unless the second defendant stays to care for them. But that, ultimately, is a situation which her proceedings seemed designed to prevent.
26. I accept that the present situation is emotionally upsetting and humiliating for the plaintiff. The decision by the second defendant to move Rifat into the Punchbowl house given the present situation between the plaintiff and the second defendant strikes me as provocative. However, it is necessary for me to weigh up the impact of the orders she seeks on all concerned. The proceedings have been on foot since 15 March 2023, in which time the second defendant has been permitted to continue to occupy the Punchbowl house. He has been married to his new wife for the whole of that period. Now that Rifat is here and given her circumstances, and given the plaintiff's unwillingness to allow the estate to finance accommodation that would allow them both to move out while the dispute is resolved (which is the only way they could afford to do so), the balance of convenience favours the maintenance of the present unpalatable situation for the time being.
27. The Punchbowl house is very large and, although it has not proved possible for Rifat to isolate herself from the plaintiff entirely (the plaintiff can see her coming and going from the house and can smell cooking smells, for example), she has mostly been able to do so. Common sense dictates that both she and the second defendant should do their utmost to respect the plaintiff's privacy.
28. I therefore dismiss the notice of motion. I will reserve the question of costs to the final hearing.
29. The order of the Court will be: 1. Dismiss the notice of motion filed 27 September 2024.