Sun v Chapman

eligible person for the purposes of s 57(1) of the Succession Act 2006 (NSW) has been met Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law, s 20 Births, Deaths and Marriages Registration Act 1995 (NSW) Family Provision Act 1982 (NSW) Interpretation Act 1987 (NSW), s 21C Relationships Register Act 2010 (NSW) Succession Act 2006 (NSW), ss 3, 57, 59, 60 Trade Practices Act 1974 (Cth), s 51AA Uniform Civil Procedure Rules, r 51.53 Cases Cited: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; [2018] FCAFC 93 Antonovic v Volker (1986) 7 NSWLR 151 Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18 Beneficial Finance Corp Ltd v Karavas (1991) 23 NSWLR 256 Clarence & Crisp [2016] FamCAFC 157 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613 Falk & Falk (1977) FLC 90-247 Re Fulop Deceased(1987) 8 NSWLR 679 H v P [2011] WASC 78 Hibberson v George (1989) 12 Fam LR 725 House v The King (1936) 55 CLR 499; [1936] HCA 40 Joyce v Anderson [2020] WASCA 48 Lodin v Lodin [2017] NSWCA 327 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Optical 88 Ltd v Optical 88 Pty Ltd (2011) 197 FCR 67; [2011] FCAFC 130 Page v Hull-Moody [2020] NSWSC 411 Page v Page [2017] NSWCA 141 Pavey & Pavey (1976) FLC 90-051 Re Fulop Deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 90 ALJR 679 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Steinmetz v Shannon [2019] NSWCA 114 Sun v Chapman (No 2) [2021] NSWSC 1231 Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263 Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; 96 ALJR 337 Todd & Todd (No 2) (1976) FLC 90-008 Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Yesilhat v Calokerinos [2021] NSWCA 110 Category: Principal judgment Parties: Wei (Rose) Sun (Appellant/Cross Respondent) Michael Alan Chapman (Respondent/Cross Appellant) Representation: Counsel: A Sullivan QC with P Livingstone (Appellant) M Bridger (Respondent)

Solicitors: Wyatts Lawyers & Advisors (Appellant) Bainbridge Legal (Respondent) File Number(s): 2021/235929 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Citation: [2021] NSWSC 955 Date of Decision: 4 August 2021 Before: Emmett AJA File Number(s): 2020/12509

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] Ms Wei (Rose) Sun (the appellant and cross-respondent) and the late Robin Alan Richard Chapman (the deceased) commenced living together in 1998. Ms Sun deposed that she and the deceased met at a caravan park and after exchanging correspondence he invited her to come to Sydney to look after him. The Executor deposed that the deceased told him that Ms Sun responded to a newspaper advertisement seeking someone to provide domestic services in exchange for free accommodation. Between 1998 and the deceased's death on 2 February 2019 Ms Sun and the deceased lived together. Ms Sun cooked and cleaned for the deceased. Ms Sun deposed that they had an intimate relationship for about four or five years from about 1999, and witnesses reported seeing Ms Sun and the deceased holding hands in public. The deceased declared in a statutory declaration in 2003 that he and Ms Sun were living together in a de facto relationship. However, there was evidence of considerable antagonism between Ms Sun and the deceased during the last five years of the deceased's life. The deceased's last will was made in 1996. Ms Sun receives no benefit under that will. Mr Michael Chapman (the respondent and cross-appellant) is the Executor of the deceased's estate. Ms Sun applied for an order under s 59 of the Succession Act 2006 (NSW) that provision be made for her maintenance and advancement in life out of the estate of the deceased. Ms Sun's application for a family provision order was dismissed on 4 August 2021 by Emmett AJA (Sun v Chapman [2021] NSWSC 955). Ms Sun appeals the primary judge's decision. In a second judgment, delivered on 30 September 2021 (Sun v Chapman (No. 2) [2021] NSWSC 1231), the primary judge declined to order costs against Ms Sun. The respondent cross-appeals from that decision. The primary issues before this court were: In the appeal (i) whether the de facto relationship between Ms Sun and the deceased had ended before the deceased's death, (ii) the nature of appellate review of the primary judge's finding that the deceased and Ms Sun were not in a de facto relationship at the time of his death, (iii) whether the Court ought to grant leave to the parties in relation to their applications to adduce further evidence on appeal, (iv) whether, even if the de facto relationship ended before the deceased's death, the primary judge ought to have held that there were factors warranting the making of the application for a family provision in favour of Ms Sun as a person with whom the deceased was living in a close personal relationship at the time of his death, and (v) if there were factors warranting the making of the application for a family provision in favour of Ms Sun, what family provision order ought to be made, In the cross-appeal (vi) whether the primary judge erred in refusing to make a costs order against Ms Sun. Held, allowing the appeal, and dismissing the cross-appeal: (i) per White JA (Leeming JA and Brereton JA agreeing) The evidence did not establish that the de facto relationship between Ms Sun and the deceased had ended before his death: at [1], [20], [112], [188], [192]. H v P [2011] WASC 78; Clarence & Crisp [2016] FamCAFC 157; Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613; Hibberson v George (1989) 12 Fam LR 725; Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40; Page v Page [2017] NSWCA 141; Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17; Pavey & Pavey (1976) FLC ¶90-051; Falk & Falk (1977) FLC ¶90-247: cited. Todd & Todd (No 2) (1976) FLC ¶90-008: discussed. (ii) per White JA Whatever standard for appellate review is applied, the primary judge erred in not finding that the deceased and Ms Sun were in a de facto relationship at the time of his death: at [117]. House v The King (1936) 55 CLR 499; Yesilhat v Calokerinos [2021] NSWCA 110; Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9: discussed. (ii) per Leeming JA and Brereton JA It is insufficient, in an appeal raising a factual challenge as to whether a criterion for a claimant to be an eligible person for the purposes of s 57(1) of the Succession Act has been met, for a respondent to submit that the issue was an evaluative one, and is therefore to be accorded the deference given to a discretionary decision which admitted of a range of lawfully correct outcomes: at [13], [189]. Yesilhat v Calokerinos [2021] NSWCA 110; House v The King (1936) 55 CLR 499; Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9: discussed. Antonovic v Volker (1986) 7 NSWLR 151; Beneficial Finance Corp Ltd v Karavas (1991) 23 NSWLR 256; Nguyen v Taylor (1992) 27 NSWLR 48; Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613: cited. (iii) per White JA (Leeming JA and Brereton JA agreeing) The Court grants leave to the appellant and respondent in relation to their applications to rely upon further evidence in the appeal: at [1], [139], [195]. (iv) per White JA (Leeming JA and Brereton JA agreeing) Even if the de facto relationship ended before the deceased's death, the primary judge ought to have held that there were factors warranting the making of the application for a family provision in favour of Ms Sun as a person with whom the deceased was living in a close personal relationship at the time of his death: at [1], [20], [120], [188], [193]. Re Fulop Deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679; Lodin v Lodin [2017] NSWCA 327: cited. (v) per White JA (Leeming JA and Brereton JA agreeing) The appropriate family provision order is the discharge of Ms Sun's mortgage debt, on the assumption that Ms Sun's pension will be reinstated by the Department of Veterans' Affairs: at [1], [181], [186], [194], [195]. Page v Hull-Moody [2020] NSWSC 411; Steinmetz v Shannon [2019] NSWCA 114: cited. (vi) per White JA (Leeming JA and Brereton JA agreeing) The primary judge did not err in refusing to make a costs order against Ms Sun: [1], [186], [188].

Judgment

1. LEEMING JA: I have had the advantage of reading the judgments of White JA and Brereton JA in draft. I agree with the orders proposed by White JA, and with each of their Honours' reasons, save that in one respect I would go slightly further.
2. The threshold issue posed by the first ground of this appeal is the nature of appellate review of the trial judge's finding that the deceased and Ms Sun were not at the time of his death in a de facto relationship. Ms Bridger, who appeared for the respondent, Mr Chapman, maintained that that finding, although not in the exercise of a discretion, was nonetheless an evaluative judgment to which constraints in or analogous to House v The King applied. This Court heard argument from both sides on the point, including references to decisions of this Court in which divergent views have been expressed (although it is far from clear that what was said in Yesilhat v Calokerinos [2021] NSWCA 110 at [97], on which Mr Chapman relied, was the subject of submissions or that any reference had been given to the relevant passages in Page v Page [2017] NSWCA 141 or Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17). While I agree with White JA that whatever be the standard of appellate review there was appellable error on the part of the primary judge in not finding that the deceased and Ms Sun were in a de facto relationship, I think that this is an appropriate case to resolve an issue which was at the forefront of the respondent's oral submissions.
3. The question whether there was at the time of the deceased's death a de facto relationship is one that may be more contestable than some of the other categories of eligible persons defined in s 57(1) of the Succession Act 2006 (NSW). However, contestable factual questions may in principle arise even if an applicant claims to be, say, a child or a former spouse. A person may be a child without a birth certificate and there may be competing evidence (including expert evidence) as well as testimonial evidence on this issue. A former spouse may claim to have been married in an informal ceremony in another country which is recognised under Australian law. In short, the factual conclusion that a person is a child or a former spouse may be contestable in the same way as the questions posed under s 57(1)(b), (e) and (f). But all the criteria for eligibility are binary, in the sense that they admit of only one correct answer.

Legislative provisions

1. It is convenient to refer to the relevant statutory definitions and provisions. Section 3(3) and (4) of the Succession Act define a "close personal relationship". Those subsections provide: "(3) For the purposes of this Act, a close personal relationship is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. (4) For the purposes of subsection (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care - (a) for fee or reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation)."
2. Section 57 of the Succession Act prescribes who are the persons eligible to make an application for a family provision order in respect of the estate of a deceased person. Section 57 relevantly provides: "57 Eligible persons (cf FPA 6 (1), definition of "eligible person") (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 - (a) a person who was the spouse of the deceased person at the time of the deceased person's death, (b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death, (c) a child of the deceased person, (d) a former spouse of the deceased person, (e) a person - (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, (f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death."
3. "De facto relationship" is defined in s 21C of the Interpretation Act 1987 (NSW). Section 21C relevantly provides: "21C References to de facto partners and de facto relationships (1) Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the de facto partner of another person (whether of the same sex or a different sex) if - (a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or (b) the person is in a de facto relationship with the other person. (2) Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a de facto relationship with another person if - (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. (3) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case - (a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple."

The facts

1. The deceased was born on 12 November 1921 and was aged 97 when he died on 2 February 2019.
2. No clear finding that the deceased and Ms Sun had established a de facto relationship was made in the principal judgment. The furthest the primary judge went in that judgment was to say that a statutory declaration made by the deceased on 10 January 2003 was positive evidence that Ms Sun and the deceased were living in a de facto relationship (at [76]). In the second judgment dealing with costs (Sun v Chapman (No 2) [2021] NSWSC 1231) his Honour said (at [8]) that he had rejected the Executor's position that no de facto relationship had ever existed.
3. It is unnecessary to consider whether, and how far, the primary judge's reasons in his Honour's first judgment can be elucidated by his second judgment. On appeal, the Executor accepted that the primary judge had found that a de facto relationship had existed between Ms Sun and the deceased. He did not file a notice of contention that that finding was erroneous.
4. In any event, the evidence clearly established that such a relationship had existed. Ms Sun challenges the primary judge's conclusion that it had ceased to exist before the deceased's death.
5. For the reasons which follow, that challenge should succeed. It is necessary to consider whether any, and if so, what, order for provision should be made. Accordingly, it is necessary to set out the evidence of the existence, nature and quality of that relationship in some detail.
6. Ms Sun and the deceased commenced living together at his house in Seaforth in 1998. The deceased was then aged 78. Ms Sun was 40 years younger. She had emigrated to Australia from China. On 2 July 2001 she was granted a spouse visa (temporary).
7. There was conflicting evidence as to how the relationship started. Ms Sun deposed that she and the deceased met at a caravan park at Perisher and after exchanging correspondence he invited her to come to Sydney to look after him. The Executor deposed that the deceased told him that Ms Sun responded to a newspaper advertisement seeking someone to provide domestic services in exchange for free accommodation. The primary judge doubted Ms Sun's account, but noted that it was not challenged in cross-examination. Ms Sun's account is corroborated by a record of what the deceased told the police on 6 April 2014 (see [80] below)

Did the de facto relationship cease before the deceased's death?

1. Ms Sun and the deceased lived together until his death. The primary judge concluded that prior to the deceased's death they had ceased to live together as a couple.
2. The respondent submitted that a de facto relationship continues only for so long as the indicia which give rise to the relationship continue to exist (H v P [2011] WASC 78 at [56]-[58]; Clarence & Crisp [2016] FamCAFC 157 at [51]-[52]). This cannot be wholly true because, as the respondent accepted, a de facto relationship does not end because one partner has to live separately from the other for reasons of health (Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613 at [32]-[34]). In her written submissions, Ms Sun submitted that the relationship continued unless the deceased communicated to her that the relationship was at an end. She submitted that it was significant that "there was never any communication of a separation by the deceased to [her]". That is undoubtedly a relevant circumstance and, in some cases, might be decisive (Hibberson v George (1989) 12 Fam LR 725 at 740). But it is not determinative.
3. The question whether Ms Sun and the deceased were living in a de facto relationship at the time of the deceased's death depends upon whether they had a relationship as a couple living together (s 57(1)(b) of the Succession Act and s 21C(2)(a) of the Interpretation Act).
4. Section 21C does not define what is meant by a relationship "as a couple". Section 21C(3) specifies circumstances to be taken into account in determining that question. The cases dealing with adjustment of the property interests of parties in a de facto relationship, and the ordinary meaning of that expression, is that it refers to a "coupledom", that is, a relationship like the relationship of marriage. (H v P at [53]-[55]). This may also be inferred from the particular matters specified in s 21C(3).
5. In concluding that the relationship of coupledom had ceased before the deceased's death, the primary judge referred in particular to hospital records, which his Honour considered to be equivocal (at [94]) and police records, which his Honour found conveyed the overall impression that the relationship between the deceased and Ms Sun was that of patient and carer (at [107]).
6. The relationship of patient and carer is not inconsistent with a continued relationship of husband and wife or de facto husband and wife.

Hospital records

1. Dr Ian Tang, a senior medical officer with Greenwich Hospital reported to the deceased's general practitioner of his visit to the deceased in his home on 12 December 2018. Dr Tang wrote: "It was a pleasure to see Mr Robin Chapman, along with Rose his partner, in his home on 12/12/2018". After referring to his medical conditions and medications, Dr Tang continued: "Thank you for referring Mr Robin Chapman, who is a 96 year old gentleman with a presumed diagnosis of a metastatic upper GIT malignancy. Unfortunately I did not have, nor could I access any details regarding his condition. Rose his partner indicated he was not for surgery or systemic therapy. He was extremely hard of hearing and his thinking was concrete. I note he had multiple admissions in October for abdominal pain, confusion and suicidal ideation. … Robin's mood is low, he feels depressed and I note a psychiatrist review in Jan this year, the impression I had from that letter was that Robin's view was Rose should be looking after him more. He vacillates between feeling down and telling me he is 'fighting fit'. … Robin told me point blank without any prompting that he does not want to go to a nursing home. I did not discuss advanced care planning or end of life locations during this review. Rose suspects he wants to have his end of life care at home. Rose later took me aside and told me that Robin needs to go to a nursing home as she could not cope with his care needs. Robin has been apparently pouring water into her car engine in order to stop her from going to work, I assume in an attempt to get her to stay and look after him. She is currently on a few weeks of leave but will have to go back to work soon."
2. The discharge summary from Royal North Shore Hospital of 17 January 2019 noted in "Social/Functional History": "Home with partner Rose - primary carer. 20 year de facto relationship Supportive son (police officer) …"
3. Under the heading "Carer Stress" it was recorded: "Primary reason for presentation related to carer stress and concerns about patient and carer safety at home. Medical team and social work involvement throughout admission to facilitate care and safety on discharge. Planned for respite at Whiddon, Hornsby - bed available. Rose, partner, and Michael, son, originally in agreement - Robin adamant on returning home. On reconsideration Rose and Michael declined respite bed, preferring to take Mr Chapman home. This is against the medical advice of the team due to concerns about patient and carer safety at home. A discussion with DVA Services at Home regarding support on their return home revealed Mr Chapman is well known to DVA and currently utilising all available services. No scope for increasing at this time. Rose was present with social worker for the conversation and is aware of the situation. Still planning on discharging home."

Police records

1. The dementing condition is borne out by the police records. The primary judge accurately recorded that those records indicated reasonably frequent involvement by the police in the deceased and Ms Sun's domestic affairs between 2014 and 2018. Complaints were made by both of them against the other. After setting out police reports between 6 April 2014 and 11 November 2018, the judge found: "[107] There are clear inconsistencies in the complaints made to police. On the one hand, the reports refer to a de facto relationship having existed some years previously. On the other hand, one report refers to a continuing de facto relationship. The reports indicate considerable antagonism between Rose and Richard over the last five years of Richard's life. There are frequent references to Rose as Richard's carer, although there are also references to their having been in a de facto relationship sometime earlier. The overall impression created by the police reports is that the relationship between Richard and Rose was that of patient and carer."
2. The police report of 6 April 2014 was of a complaint made by the deceased concerning Ms Sun. The police notes record that they had been living together for about 14 years with Ms Sun as a companion and housekeeper for him. The police recorded that "They have never been in an intimate relationship" (something Mr Chapman later contradicted in his dealings with the police). That police note records the deceased's telling the police that he met Ms Sun whilst on a ski trip, which is consistent with her evidence and contrary to the Executor's evidence as to what he was told by the deceased.
3. The deceased complained of Ms Sun having got angry and their having had an argument and that she spat on him twice. He declined to make a statement. He showed the police a typed document about incidents and the police advised him to make a statement at the police station and bring the document with him. He is reported as saying that he would like Ms Sun to seek medical treatment to control her random outbursts.
4. The police record of 23 February 2016 was of another complaint by the deceased over an argument when, according to the record, Ms Sun was packing a suitcase for a trip to Hong Kong and he noticed that she was packing a box of chocolates which he then grabbed and hid from her.
5. The record of 27 June 2016 is of a complaint made by Ms Sun where the police were called because the deceased had complained about the food she provided and knocked his dinner plate off the table in frustration. The police attended at about 7.25pm and both parties were informed that if they could not live together in harmony, it might be best if they no longer resided together. Ms Sun said she would look into alternative residential arrangements.

Department of Veterans' Affairs

1. The deceased had served in the Royal Australian Navy during World War II. Since 2000, the deceased was paid a service pension at the "single rate" and was so paid until 9 December 2018 when documents were provided by Ms Sun that confirmed that she and the deceased had been in a "partnered relationship" since 2002.
2. It appears that on 17 July 2018 Ms Sun lodged a form with the Department of Veterans' Affairs entitled a "Representative Initiated Request" in which she stated that she was in a de facto relationship with the deceased and wished to be appointed as his representative being "permitted to act and enquire". She stated that "the client is still able to make their own decisions but needs or wants help with DVA matters". She attached photographs to support her claim that they were in a de facto relationship.
3. On 19 July 2018 the Department advised Ms Sun that to proceed with her application the Department required a form, which the Department included with its letter, to be signed by Mr Chapman.
4. On 28 August 2018 the Department advised that the form received was incomplete because it had not been signed by the deceased.
5. It can be inferred that a completed form was provided. On 5 February 2019 the Department wrote a letter addressed to the deceased (who had died three days previously) advising that his service pension had been reduced with effect from 10 December 2018. This was because of income paid by the New South Wales Health Service to his "de facto".
6. On 11 June 2020 the Department advised the Executor that, following the receipt of documents provided by the deceased's de facto, Ms Sun, that she and the deceased had been in a partnered relationship since 2002, the calculation of his service pension had been reassessed at the partnered rate, taking into account her income from employment effective from 1 July 2003. This had resulted in an overpayment of service pension. The Department demanded payment of $186,883.29 as a result of the overpayment.
7. Ms Sun gave evidence that the deceased said to her in about 2018 that "we need to apply for a DVA partner pension. You can then stop working and stay at home to look after me full time". The primary judge did not accept that evidence. He was not persuaded that the deceased prepared any document in relation to the pension from the Department of Veterans' Affairs (J [77]). His Honour also concluded: "[85] The circumstances of Rose's communications with the Department of Veterans' Affairs were not the subject of evidence. It is of significance that the question of whether Richard was entitled to a single rate of service pension was raised by Rose only shortly before the death of Richard."

Relationship Certificate

1. The second piece of evidence on which Ms Sun relied but which the primary judge discounted was a relationship certificate issued by the Registrar of Births, Deaths and Marriages on 21 January 2019. His Honour noted that the application for the relationship certificate was required to be accompanied by a statutory declaration by each person in the relationship and was required to include a statement that the person was in a relationship as a couple with the other person, was not in a relationship as a couple with anyone else, and that he or she wished to register the relationship (at [85]). His Honour said: "[87] Rose contends that the act of registration under the Relationships Act was significant, as evidencing the fact that Richard considered himself to be in a de facto relationship with her at that time. She asserts that it is powerful evidence that the relationship did not evolve from partner to carer in the years following 1998. That would be so, if it were to be accepted that Richard participated in the steps taken to register and obtain the Relationship Certificate. While Rose claimed that Richard had a part in completing documents that led to the issue of the Relationship Certificate, the documents were not in evidence. [88] The Executor regarded the relationship between Richard and Rose towards the end of Richard's death as 'very turbulent' with multiple occasions of police intervention, as indicated below, and said that Richard complained about Rose on almost every occasion that he saw him. The Executor would have expected Richard to tell him if he had any intention of registering his relationship with Rose as a de facto relationship but Richard did not ever tell him that he had any such intention. Accordingly, the Executor was surprised to find that the relationship had been registered and considered the registration as 'very unusual' in the context of the increasing complaints made to him by Richard. In the circumstances, I consider that there is real doubt as to whether Richard had much to do with the obtaining of the Relationship Certificate or in the preparation of documents that led to the issue of the Relationship Certificate."
2. I see no error in that conclusion given the primary judge's doubts as to Ms Sun's credibility.
3. Although the registration of the certificate would establish that Ms Sun and the deceased were de facto partners within the meaning of the Interpretation Act, it does not mean that they were in a de facto relationship. It is only an indicium of a de facto relationship of greater or lesser strength according to the circumstances. Given the primary judge's reservations as to Ms Sun's credibility, the fact that the document signed by the deceased was not tendered, the evidence as to his declining mental health, and the lateness with which the certificate was registered (21 January 2019, only days before his death), the judge was not in error in giving the document little weight.

Conclusion on de facto relationship

1. Nonetheless, for the reasons above, the evidence overwhelmingly pointed to the existence of a de facto relationship which continued up to the deceased's death. The primary judge erred in not so concluding.
2. Ms Bridger, who appeared for Ms Sun, submitted that the primary judge's conclusion that the parties were not in a de facto relationship at the time of the deceased's death could only be overturned if a House v The King (1936) 55 CLR 499 error were established. If it be necessary to establish a House v The King error, that error is established because the primary judge's finding was based upon a mistaken view of the facts (at 505).
3. There is authority in support of Ms Bridger's submission that the principles in House v The King are applicable to the determination of whether the parties were in a de facto relationship: Yesilhat v Calokerinos [2021] NSWCA 110, where Macfarlan JA (with whom Bathurst CJ and, in this respect, Brereton JA agreed (at [1] and [161]) said: "[97] His Honour's finding that a de facto relationship did not exist was dependent on credit findings in a number of respects and was an evaluative finding taking account of 'matters of opinion, impression, speculation and estimation', analogous to the exercise of discretion. It was therefore a finding to which the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 apply. An appellate challenge to such a finding fails unless the appellant demonstrates that 'the judge has in some way mistaken the facts or the legal principles to be applied or otherwise demonstrated error, which may be discernible only on the basis that the result is outside a reasonable range' (White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152 at [61], [87]-[88])."
4. I respectfully doubt whether that is so. Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 establishes that a decision under s 59(3) of the Succession Act as to whether adequate provision has been made for the proper maintenance, education and advancement in life of an eligible applicant is an evaluative decision, analogous to a discretionary decision, to which the principles in House v The King apply. But whether the parties are or were in a de facto relationship is not a discretionary decision. Although the decision involves matters of evaluation, the evaluation is not of the strength of an applicant's claim on a testator's testamentary bounty including his or her moral claim on the deceased and present and future needs; but rather requires a characterisation of facts as found against the statutory phrase as to whether the parties were living together as a couple having regard to the indicia provided for in s 21C. Such a question appears to me to be more analogous to a question as to whether, at any particular time, there was a relationship of dependency between the applicant and the deceased (Succession Act s 57(1)(e)(i)). It has been held that the appellate standard of review in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 rather than House v The King is applicable to that issue (Page v Page [2017] NSWCA 141 at [39] and [41] per Leeming JA (with whose reasons on this issue Basten JA agreed (at [21]); Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [53]-[55] per Payne JA (with whom Macfarlan JA (at [1]) and Sackville AJA (at [140] agreed)).

Close personal relationship

1. The primary judge found that it was probable that the deceased and Ms Sun were living in a close personal relationship at the time of his death (at [121]) but was not persuaded that, having regard to all of the circumstances of the case, there were factors that warranted the making of an application for a family provision order by Ms Sun (at [140]). The reason for the latter conclusion was that: "[143] I am mindful of the 20 years of cohabitation of Richard and Rose. However, I do not consider that the evidence supports a conclusion that the gifts made by Richard in the Will were otherwise than in accordance with community expectations of a man in his position. Having regard to the relationship between Richard and Rose described above including in particular their financial independence, I do not consider that community expectations would be that Richard should make provision for Rose from his estate."
2. With respect, this reason conflates the question as to whether a family provision order should be made in favour of Ms Sun if she is an eligible applicant, with the question whether, as a person living in a close personal relationship with the deceased at the time of his death, and having formerly been in a de facto relationship with him, and having regard to the care she continued to provide and her dependence on the deceased for accommodation, she would be regarded as a natural object of the deceased's testamentary intentions (Re Fulop Deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 at 681; Lodin v Lodin [2017] NSWCA 327 at [5]-[10], [106]-[107], [113]-[119]).
3. Had I not concluded that Ms Sun was in a de facto relationship with the deceased at the time of his death, I would nonetheless have held, having regard to the applicable principles, that there were factors that warranted her making her application.
4. As appears from [143] of the primary judge's reasons quoted above, his Honour was evidently of the view that the evidence did not establish that if Ms Sun were an eligible applicant, she was entitled to an order for provision out of the deceased's estate for her proper maintenance, education or advancement in life (s 59(1)(c)).

Applications to adduce further evidence on appeal

1. Before dealing with that question, it is necessary to address applications made by both parties to adduce further evidence on appeal. An important part of the background to those applications is that the primary judge, in reaching his conclusion that community expectations would not require that the deceased make provision for Ms Sun from his estate, observed that no evidence was adduced to suggest that the outcome of the proceedings would affect Ms Sun's entitlement to continued receipt of a pension from the Department of Veterans' Affairs as the deceased's de facto partner, notwithstanding his Honour's conclusion to the contrary. The Executor contended before the primary judge that that pension had a value of approximately $670,000. The judge assumed that Ms Sun would continue to receive the pension.
2. By notice of motion filed 19 January 2022, Ms Sun sought leave to rely upon a further affidavit of her solicitor, Mr Mitchell Broom. The primary judge's first judgment was delivered on 4 August 2021. Mr Broom attached a letter from the Department of Veterans' Affairs to Ms Sun dated 18 November 2021. The Department stated that Ms Sun was no longer eligible for the Gold Card nor to receive the War Widow Pension. The basis for that decision was that the Department had been advised of the primary judge's judgment in which, according to the Department, the judge found Ms Sun not to be the de facto partner of the deceased from 2015.
3. Although, when the two judgments are read together, the primary judge found that a pre-existing de facto relationship had ceased before the deceased's death, his Honour did not identify the date from which that relationship had ceased.
4. The Department advised Ms Sun that: "The Court decision stated that overall evidence suggests that Mr Chapman and you were in a de facto relationship from about 2003 to 2014, but by 2015, this relationship had broken down, and from then to the time of the[sic] Mr Chapman's death, you were not in a de facto relationship. This means that from 2015, Mr Chapman and you were not members of a couple for the purpose of the VEA. Therefore it is determined that you are not entitled to receive the partnered service pension granted from 10 December 2018 and the War Widow Pension granted from 3 February 2019, from the Department of Veteran Affairs. The overpayment has been calculated for the period 10 December 2018, the date you were granted Service Pension, until 2 November 2021, and the day prior to the Department cancelling your War Widows Pension and cancelling your Gold Card entitlement."

Should any, and if so what, family provision order be made in favour of Ms Sun?

1. The primary judge made the following findings that are relevant to this question: "[130] In her affidavit of 8 January 2020, filed in support of her summons of 14 January 2020 Rose said that she wished to remain living in the Seaforth property and was seeking provision from Richard's estate to enable her to maintain the Seaforth property, to maintain and replace a motor vehicle, to travel to China to visit her ageing parents each year and assist them and to supplement her modest income so that she could participate in social activities, including dining out and interacting with people fluent in Mandarin. The affidavit did contain evidence of her financial circumstances as follows: • $50,000-$55,000 gross per year income from her sterilisation work in Hornsby Hospital; • $940 Veteran's Affairs income per fortnight; • Kariong property purchased in 2014 for $580,000; and • Loan secured on the Kariong property of approximately $600,000. [131] In her affidavit of 25 June 2020, Rose gave evidence of the circumstances in which she met Richard and their life together at the Seaforth property. In that affidavit, Rose gave some evidence about selling "the Shortland property" on 21 February 2020, from which she received the sum of $118,960.04 after paying the amount secured by a mortgage of that property and other expenses of the sale. She said that, shortly after that she told Peter that she would help him pay off his study loan. She said that over the years she had helped Peter financially from time to time. No further particulars were provided in the affidavit. [132] In her affidavit of 10 August 2020, Rose said that, prior to May 2017 she owned a unit in Dee Why, which she sold in May 2017 for $725,000. She said that, after payment of the amount secured by a mortgage of that unit and other expenses of the sale, she received about $240,000. She said that she gave the proceeds of the sale to Peter to assist him and his wife with paying for their wedding and purchasing a property of their own. [133] In her affidavit of 25 February 2021, Rose said that she works on a full-time basis as a sterilisation technician at Hornsby Hospital, where she earns $50,000-$55,000 gross per annum. Thus, she is presently employed and it was not suggested that she will not continue to have an income from that employment for the foreseeable future. She also receives fortnightly payments of approximately $940 from the Department of Veterans' Affairs, apparently on the basis that she and Richard were living in a de facto relationship, something that the Executor disputes. [134] The Executor contends that the pension from the Department of Veterans' Affairs should be assessed as having a present value of approximately $670,000 and that the Court should assume that Rose will continue to receive the pension. That may depend upon whether the Department of Veterans' Affairs will continue to accept that Rose is entitled to such a pension. However, Rose did not proffer any evidence as to the circumstances in which she is entitled to the pension and no evidence was adduced to suggest that the outcome of these proceedings would affect her entitlement to continued receipt of that pension. [135] Income tax returns lodged on behalf of Rose for the years ended 30 June 2014 to 30 June 2019 disclose total income for those years as follows: • 2014 - $88,962 (gross salary $45,042 + $43,920 rent); • 2015 - $85,126 (gross salary $48,076 + $37,050 rent); • 2016 - $79,385 (gross salary $49,144 + $30,241 rent); • 2017 - $87,523 (gross salary $49,269 + $38,254 rent); • 2018 - $70,738 (gross salary $47,338 + $23,400 rent); • 2019 - $91,626 (gross salary $48,573 + $42,820 rent). [136] Rose also said in her affidavit of 25 February 2021 that she owns a property situated at Kariong, which, the Executor accepts, has a value of $925,000. In the affidavit of 8 January 2020, Rose said that the Kariong property was purchased in or around 2014 for $580,000. No particulars were provided of the source of the purchase price or the circumstances of the purchase of the Kariong property. Rose says that she spends approximately $2,700 per month on the Kariong property but gave no evidence of the nature of that expenditure. Rose said that Peter previously resided in the Kariong property and paid rent of $650 per week but that she now receives no rental payments from the Kariong property. [137] Rose also said in her affidavit of 25 February 2021 that her typical monthly expenses are as follows: • Groceries $650; • Clothing $300; • Motor vehicle $250; • Gas, electricity, telephone, council, water bills for the Kariong property $310 per month; • Home insurance for the Kariong property $96; • Medical $40; and • Social outings, holidays, recreation expenses $400. Rose also said that gas, electricity, telephone, council and water bills for the Seaforth property amounted to $285 per month and that insurance for the Seaforth property amounted to $92 per month. [138] As at 1 June 2019, Rose had a liability to National Australia Bank of about $518,941.92, which is secured on the Kariong property. In a supplemental submission, Rose sought leave to reopen to tender a bank statement in respect of an account with National Australia Bank showing a debit balance as at 31 December 2020 of $79,713.61. No further evidence was proffered as to the current balance. In the circumstances, I do not consider that leave to re-open should be granted. [139] The Executor complains that Rose adduced no evidence as to her savings or credit balances in any bank account, the value of her motor vehicle, her superannuation entitlements or a loan made to her sister. Rose asserts that, prior to the hearing, there was "extensive pre-trial disclosure" of her financial affairs. Be that as it may, it is for the plaintiff in an application for a family provision order to satisfy the Court as to the matters referred to in s 59 of the Succession Act. Having regard to the state of the evidence, it is well-nigh impossible to form a fair view as to Rose's financial position. … [141] The material advanced on behalf of Rose as to her financial circumstances was less than clear. The evidence indicates that, between January 2017 and June 2018, Rose made gifts of sums in excess of $800,000 to her son. While those gifts were made during Richard's lifetime, there was no evidence that Rose and Richard ever discussed Rose's finances or her intentions to make gifts to her son. She was, of course, perfectly entitled to do so. However, it is a relevant factor in considering whether or not provision should be made for her out of Richard's estate. [142] Richard appears to have regarded the Executor, as his youngest child, very favourably. However, the evidence suggests that there was not frequent intercourse between Richard, on the one hand, and other members of his family, being his other children and his grandchildren, on the other. Nevertheless, his surviving daughter clearly had contact with Richard, albeit somewhat infrequently. [143] I am mindful of the 20 years of cohabitation of Richard and Rose. However, I do not consider that the evidence supports a conclusion that the gifts made by Richard in the Will were otherwise than in accordance with community expectations of a man in his position. Having regard to the relationship between Richard and Rose described above including in particular their financial independence, I do not consider that community expectations would be that Richard should make provision for Rose from his estate."

Available estate

1. Ms Li, the solicitor for the Executor, made an affidavit on 25 March 2022. She deposed that the current assets of the estate available for distribution amounted to $2,076,877.34. She anticipated that further counsel's fees to be paid would be in the vicinity of $20,000.
2. A sum of $123,950.27 was paid to the Department of Veterans' Affairs on 16 February 2022 from estate funds. It may be anticipated that, having regard to the finding above that, the parties were in a de facto relationship until their death the Department will require repayment of a further sum of approximately $60,000 in recoupment of overpayment made to the deceased up to his death (see paras [105] and [131]-[132] above).
3. If Ms Sun is entitled to an order for provision then she may be entitled to her costs out of the estate. Those costs would be assessed on the ordinary basis (subject to any offer of compromise she may have made).
4. Mr Broom deposed (affidavit 25 March 2022) that on a party/party basis (that is, the ordinary basis) he estimated Ms Sun's costs and disbursements of the proceedings below and of the appeal to amount to $267,062.
5. In her affidavit of 8 April 2022 Ms Li deposed that after payment of counsel's fees, current funds held in trust total $2,040,746.74. With the further repayment to be made to the Department, possibly with interest, and further expenses of administration (there are multiple beneficiaries as explained below), the final estate ultimately available for distribution would exceed $1.95 million. But if Ms Sun's costs are payable from the estate this figure could be reduced to about $1.7 million.

Beneficiaries' entitlements under the will

1. The deceased made his last will on 22 October 1996. This was before he commenced his relationship with Ms Sun. The will was filled out by the deceased in handwriting using a will form of the kind available from a stationer. The primary judge noted that the intended effect of the will is not entirely clear but all persons who could possibly have an interest under it had agreed on how it should be construed. Appendix 1 to his Honour's reasons set out the agreement between all beneficiaries as to how the estate should be shared. The net proceeds of sale of the Seaforth property were agreed to be distributable as to one third to the Executor, and as to two thirds to the Executor's former wife, and the deceased's other children, with substitutionary gifts to their offspring for those other children who predeceased him. That appendix is annexed to these reasons.
2. The bulk of the estate consists of the proceeds of sale of the Seaforth property. That property was sold in July 2021 for $2,400,100 (J [4]) which was 92.3% of the value of the deceased's estate at his death (J [4]). The deceased gave his residuary estate to the Executor, as well as one third of the proceeds of sale of the Seaforth property.
3. The residuary estate would be liable to pay the testamentary and administration expenses including the expenses of the litigation, in priority to the specific gifts of shares of the proceeds of sale. The residuary estate would now be exhausted. Subject to any contrary order as to how the burden of any family provision order should be borne, the burden of that provision and administration expenses, so far as they are not recouped from the residuary estate, will be borne by the parties listed in Sch 1 proportionally in accordance with the agreed proportions.
4. The Executor proposed that if an order for provision in favour of Ms Sun were made the burden of the order should be borne by the beneficiaries proportionally. The Executor adduced evidence of the financial needs of seven of the beneficiaries.

Ms Sun's financial circumstances

1. In an affidavit of 18 August 2021 (made after delivery of the first judgment and before delivery of the second) Ms Sun deposed that she was receiving a fortnightly pension from the Department of Veterans' Affairs of approximately $960 per fortnight.
2. As noted above at [123] the Department determined to cancel the pension on 18 November 2021.
3. It is likely, but not certain, that that pension will be reinstated following this court's decision and arrears paid.
4. I will proceed on the assumption that Ms Sun's entitlements as a de facto spouse of the deceased will be reinstated by the Department of Veterans' Affairs. In case that assumption proves to be wrong, the estate distributable to the beneficiaries of the 1996 will should not be fully distributed until the Department's position is made known.
5. Ms Sun continues to work full-time as a sterilisation technician at Hornsby Hospital. She deposes that she earns approximately $1,207 per week before tax or approximately $62,764 per year. On re-instatement of her pension her earnings (before tax) per year will be about $87,724 (assuming the pension is paid without deduction of tax).
6. Ms Sun owns a property at Kariong where she now resides, having moved there after the Seaforth property was sold. At trial it had an agreed value of $925,000 (J [136]). While she lived at the Seaforth property she obtained rent from the property but that has ceased.
7. As at 14 March 2022 the mortgage debt on the Kariong property was $555,601.
8. Ms Sun is 60. Her superannuation balance as at 12 March 2022 was about $200,000. She has minimal credit balances in her bank accounts and small credit card debts. She formerly owned some shares but these were sold and the proceeds applied to her mortgage, credit cards and repayment of disbursements incurred by her solicitor.
9. It is not now the case, if it ever were, that Ms Sun has not made adequate disclosure of her financial circumstances.
10. A relevant consideration in assessing Ms Sun's moral claim on the deceased's testamentary bounty are matters summarised by the primary judge at paras [131]-[132] of his reasons quoted at [128]. That is, in around May 2017 Ms Sun sold a unit she owned in Dee Why. She deposed that after payment of the mortgage debt and expenses associated with the sale she received about $240,000 which she gave to her son. She deposed: "As part of my culture, when a man gets married, it is important that he is able to own a property to share with his wife. It is respected within the culture to be able to provide one's wife with financial stability, including a property. Before I sold the property, I told Richard about my intentions. He … did not raise any issues with it. … At the time of the sale of the Dee Why property, I had been living with Richard at the Seaforth property for many years, and as such, I felt quite secure in the fact that I had a home with him. Accordingly, at the time, I felt that I could afford to look after my son. My son has since purchased a property at Ermington with his wife. I understand that they are currently renting out that property."

Financial circumstances of other beneficiaries

1. The Executor is 51 years of age. In his affidavit of 20 June 2020 he deposed to having an annual base salary of $67,000 gross but did some additional shifts (as a full-time corrections officer) when they were available. His wife earned approximately $56,000 per annum gross. Their combined monthly net income was approximately $8,000. They have monthly expenses of about $8,661. This includes rent, child support payments for the Executor's children and the expenses of his wife's children from her previous marriage, now aged 16 and 17. They both had credit card debts and personal loans. The Executor owns a property in Tumbarumba which he purchased in 2011 for approximately $265,000. The rental income is about enough to meet the mortgage repayments. The Executor deposed that, in addition to the mortgage debt of $212,000, he and his wife have other debts including a personal loan, a Centrelink debt payable by his wife, and two personal loans totalling $95,700. Neither has health insurance. The Executor deposed that he used to have a policy but had to cancel it as he could not continue to meet the premium. He deposed that he would like to use his inheritance from his father's estate towards repaying the debts he and his wife owe, and then applying the balance towards savings for contingencies of life and towards the purchase of a property in the western suburbs of Sydney to provide him and his family with permanent accommodation.
2. The deceased's eldest son, Richard Chapman, in his affidavit of 12 June 2020, deposed that he received a monthly pension of $1,120. He lived with his wife in a house at Oxford Falls which they jointly owned. He then estimated the value of the property to be $1.6 million. He said the property was ageing and in need of repair, which he estimated would cost tens of thousands of dollars. It was subject to a mortgage of $25,000. He had small credit card debts. His and his wife's joint income was $3,370 per month and their expenses were of the same order.
3. The deceased's daughter, Ms Corrine Mulder, is 62. In her affidavit of 12 June 2020 she deposed that she worked as a cleaner and had a weekly income of about $300 per week. In her affidavit of 25 February 2022 she deposed that she received a Centrelink subsidy that varied between $400 to $500 per fortnight, which supplemented her earnings then said to be approximately $200 per week, or $400 per fortnight. She deposed that her monthly expenses were $1,666. On that basis, after taking into account the Centrelink supplement, Ms Mulder's income would be just sufficient to meet her estimated monthly expenses. She had two credit card debts totalling approximately $7,000. Her house is unencumbered but required renovations. She had obtained a quote for the renovations of approximately $25,000 which she could not afford to pay. She deposed to having a number of health concerns which would require regular treatment and even potential surgery. She has minimal superannuation.

Consideration of what order should be made

1. There are no hard and fast rules as to the approach to be taken to the awarding of provision to a surviving wife or de facto wife out of her partner's estate and there is no general rule that a widow's claim is paramount. Nonetheless as a general guideline a testator will usually owe a moral duty to his widow of a long marriage, so far as the estate permits, to make provision for her to ensure that she is secure in her accommodation, has an adequate income and a fund for modest luxuries and contingencies (Steinmetz v Shannon [2019] NSWCA 114 at [98]-[109], [151]).
2. The respondent submitted that Ms Sun's mortgage debt was $518,000, relying upon an admission made to that effect by Ms Sun in cross-examination. In the court below, after judgment was reserved, the plaintiff filed a supplementary submission seeking to reopen his evidence to tender a bank statement of an additional debt owed to the bank said to be secured by the mortgage of $81,364.49. The Executor did not dispute that that material had been disclosed prior to trial but objected to the further evidence. The Executor did not dispute that Ms Sun had two housing loans but said she had failed to provide evidence of that. The Executor submitted that a defendant had no responsibility to tease out of a plaintiff evidence of what might be her or his financial position. There was no challenge to the authenticity of the record. The primary judge refused the tender because the balance shown was the balance of the debtors at 31 December 2020 and not the current balance (at [138]).
3. Ms Sun provided updated evidence as to her financial position after the hearing of the appeal, as she was required to do. The Executor contended that, on the basis of the admission she made in cross-examination that the mortgage debt was $518,000, it should not now be accepted that the mortgage debt is as deposed to by Ms Sun as being $555,601.16. That sum, however, is consistent with the bank statements which she annexed to her affidavit of 25 March 2022. Ms Sun gave an explanation in her affidavit of 13 April 2022 in relation to her admission in cross-examination that the mortgage debt was $518,000. For my part I find that explanation wholly convincing. Objection was taken to the reading of that affidavit but I see no reason to reject it.
4. The Executor submitted that the relationship between the deceased and Ms Sun was not harmonious, that she did not assist the deceased to build up and maintain his estate, and that she was financially independent of the deceased, having had her own property, and did not need the deceased to provide her with security of accommodation or with a fund to meet unforeseen contingencies. He submitted that the deceased's providing her with rent free accommodation, enabled her to build up her assets.

18 Persons Entitled to the Distributable Estate 1. Michael Alan Chapman (the Executor); 1/3rd share (33.33%) of the net proceeds of sale of the Seaforth Property and residue, 2. Christine Chapman (former wife of the Executor); 2/21 share (9.52%) of the net proceeds of sale of the Seaforth Property, 3. Peter Chapman (son of Richard); 2/21 share (9.52%) of the net proceeds of sale of the Seaforth Property, 4. Richard Chapman (son of Richard); 2/21 share (9.52%) of the net proceeds of sale of the Seaforth Property, 5. Corrine Mulder (daughter of Richard); 2/21 share (9.52%) of the net proceeds of sale of the Seaforth Property, 6. Ranald Mannell (grandchild of Richard); 1/42 share (2.38%) of the net proceeds of sale of the Seaforth Property, 7. Peter Richard Mannell (grandchild of Richard); 1/42 (2.38%) share of the net proceeds of sale of the Seaforth Property, 8. Joanne Summers (grandchild of Richard): 1/42 share (2.38%) of the net proceeds of sale of the Seaforth Property, 9. Leah Gaye Mannell (grandchild of Richard), 1/42 share (2.38%) of the net proceeds of sale of the Seaforth Property, 10. Gopi Bellard (nee Andrews) (grandchild of Richard); 1/63 share (1.579%) of the net proceeds of sale of the Seaforth Property, 11. Bhavani Stone (nee Andrews) (grandchild of Richard), 1/63 share (1.579%) of the net proceeds of sale of the Seaforth Property, 12. Yamuna Brennan (nee Andrews) (grandchild of Richard); 1/63 share (1.579%) of the net proceeds of sale of the Seaforth Property, 13. Jai Andrews (grandchild of Richard); 1/63 share (1.579%) of the net proceeds of sale of the Seaforth Property, 14. Karna Varjita Das Chapman (grandchild of Richard); 1/63 share (1.579%) of the net proceeds of sale of the Seaforth Property, 15. Siddha Andrews (grandchild of Richard); 1/63 share (1.579%) of the net proceeds of sale of the Seaforth Property, 16. Peter Gareth Gardner Chapman (grandchild of Richard); 2/63 shares (3.175%) of the net proceeds of sale of the Seaforth Property, 17. Jake Gardner Chapman (grandchild of Richard); 2/63 shares (3.175%) of the net proceeds of sale of the Seaforth Property, 18. Brodie Alan Gardner Chapman (grandchild of Richard); 2/63 shares (3.175%) of the net proceeds of sale of the Seaforth Property.

Endnotes

1. Sun v Chapman [2021] NSWSC 955.
2. [2021] NSWCA 110 at [161].
3. [2021] NSWCA 110 at [97].
4. (1936) 55 CLR 499; [1936] HCA 40.
5. As to which in this context see the debate in Antonovic v Volker (1986) 7 NSWLR 151; Beneficial Finance Corp Ltd v Karavas (1991) 23 NSWLR 256; Nguyen v Taylor (1992) 27 NSWLR 48.
6. (1979) 142 CLR 531; [1979] HCA 9.
7. Todd & Todd (No 2) (1976) FLC ¶90-008 at 75,079; approved in Pavey & Pavey (1976) FLC ¶90-051 at 75,211-3 (FamCAFC); Falk & Falk (1977) FLC ¶90-247 at 76,333 (FamCAFC).
8. Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613 at [32]-[34] (per curiam).
9. Re Fulop Deceased (1987) 8 NSWLR 679 at 681; Lodin v Lodin [2017] NSWCA 327 at [5]-[10] (White JA), [106]-[107], [113]-[119] (Sackville AJA). 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: 26 July 2022