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[2025] NSWSC 1417
General information, not legal advice.
Supreme Court of NSW
2025-11-27
Bennett J
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Medium Neutral Citation: Ward v Ward [2025] NSWSC 1417
Hearing dates: 14 October 2025
Date of orders: 27 November 2025
Decision date: 27 November 2025
Jurisdiction: Equity – Probate and Family Provision List – Probate
Before: Bennett J
Decision: (1) Subject to order 2, the parties are directed to bring in Short Minutes of Order to give effect to this judgment, providing them by email to the Chambers of Bennett J, by 4:00pm on 4 December 2025.
(2) If the parties fail to agree on a proposed form of orders, then by the time specified in order 1, each party is to provide its proposed form of orders to give effect to this judgment, along with short written submissions of no more than two pages in support of its proposed orders.
(3) The matter is stood over to the Registrar in Probate on 9 December 2025.
Catchwords: CIVIL PROCEDURE — Interlocutory applications — Third defendant seeking access to plaintiff’s/first cross-defendant’s and second-cross defendant’s social security records from Services Australia and taxation records from the Australian Taxation Office — Orders sought to compel plaintiff/first cross-defendant and second cross-defendant to request or authorise requests for documents — Where the substantive proceedings concern promises alleged to have been made to plaintiff/first cross-defendant in relation to a property — Consideration of what the appropriate test is when orders are sought to compel a party to request or to authorise a request for documents — Whether the categories of documents sought by third defendant are apparently relevant to the real issues in dispute
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 61
Social Security (Administration) Act 1999 (Cth), ss 207, 208
Taxation Administration Act 1953 (Cth), Sch 1, ss 355-30, 355-75
Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 42.7
Cases Cited: El-Helou v Smith [2009] NSWSC 741
Merkuloff v Yalisheff [2003] NSWSC 1183
Portal Software v Bodsworth [2005] NSWSC 1115
Rinehart v Rinehart [2018] NSWSC 1102
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Skytraders Pty Ltd v Meyer [2023] NSWSC 857
Tahana v Hines [2021] NSWSC 564
Tarbes v Taleb [2023] NSWSC 565
United Crib Blocks Construction Pty Ltd v Asmaro [2025] NSWSC 1156
Wang v Cai (No 2) [2021] NSWSC 1268
Wilson v Gillies (No 2) [2020] NSWSC 658
Wray v Wray [2007] NSWSC 164
Category: Procedural rulings
Parties: Monica Ross-Maranik, as administrator of the estate of Robert Leslie Ward (Applicant/Third Defendant)
Timothy James Ward (First Respondent/ Plaintiff/First Cross-Defendant)
Katrina Ward (Second Respondent/Second Cross-Defendant)
Representation: Counsel:
M Condon SC (Applicant/Third Defendant)
C Zucker (solicitor) (First Respondent/First Plaintiff/First Cross Defendant)
Solicitors:
Keypoint Law (Applicant/Third Defendant)
Zucker Legal (First Respondent/ Plaintiff/First Cross-Defendant)
Litigant-in-person (Second Respondent/Second Cross-Defendant)
File Number(s): 2020/00254555
Publication restriction: Nil
The applicant on the Motion is the third (and only active) defendant in the substantive proceedings, being the interim administrator of the estate of the late Robert Leslie Ward (the deceased). Without intending any disrespect or overfamiliarity, I will refer to the other family members in this dispute by their first names.
The respondents on the Motion are husband and wife. The first respondent, Mr Timothy James Ward (Timothy) is the plaintiff in the substantive proceedings, and first cross-defendant in the associated cross-claim. The second respondent, Mrs Katrina Ward (Katrina) is not a party to the substantive component of these proceedings but is the second cross-defendant on the aforementioned cross-claim. Where it is not necessary to distinguish between the interests of Timothy and Katrina, I will refer to them together as the respondents.
In the substantive proceedings, Timothy is seeking relief for promises allegedly made to him by the deceased concerning a property in Annangrove where Timothy and Katrina currently reside (the Annangrove p****roperty). The central issue of these proceedings is a determination of the beneficial ownership of the Annangrove property.
The cross-claim, which was commenced by the now inactive first and second defendants but appears to now be conducted by the applicant, seeks judgment for possession of the Annangrove property.
The first defendant, Ms Janelle Susan Ward (Janelle), and second defendant, Mr Christopher David Ward (Christopher), in the substantive proceedings are surviving children of the deceased, along with Timothy. They are also the first and second cross-claimants on the cross-claim.
As Janelle and Christopher were representing the deceased’s estate without a grant of probate, the applicant, as interim administrator, has taken on Janelle and Christopher’s positions in these proceedings, including in the cross-claim, which was commenced by a Statement of Cross-Claim filed on 13 October 2022.
The Motion was heard on 14 October 2025. Mr M Condon SC appeared for the applicant. Mr C Zucker appeared as solicitor advocate on behalf of Timothy. He also mentioned the appearance of Katrina. The applicant provided written submissions (A****WS), as did Timothy (TWS). Timothy’s submissions were also said to be made “in [Katrina’s] interests on an amicus basis”, given her interests “run parallel to those of Timothy” (TWS [3]).
In their respective written submissions, and in the course of the hearing, the parties referred to “related” proceedings. The Court was informed that in those related proceedings Timothy raises an issue as to the validity of the last will of the deceased, and in the alternative seeks a family provision order (see TWS [6]) (the P****robate proceedings).
I note however, that the Probate proceedings are not formally before me and that the Motion as filed is specifically in relation to the substantive proceedings.
For clarity and abundant distinction, I will refer to the substantive proceedings to which the Motion relates as the Property proceedings.
The deceased died on 21 May 2021. He was survived by his three children. His wife, Joyce Ward (Joyce), predeceased him in 2003.
The most recent form of the Statement of Claim relied on by Timothy in the Property proceedings is a Further Amended Statement of Claim filed on 8 November 2022 (the FASOC). By way of summary of the Property proceedings, Timothy pleads in the FASOC that in or about October 1995, he and the deceased entered into an agreement whereby Timothy would:
build a home on the Annangrove property at his expense;
maintain the property for a period of at least three years; and
pay the rates, utilities and outgoings of the Annangrove property.
Subject to Timothy fulfilling those obligations, Timothy says the deceased agreed that he would then transfer his legal interest in the Annangrove property (the deceased was the registered proprietor of that property) to Timothy after a period of three years.
It has been deposed that at the time of the agreement, Timothy was living with Katrina at a separate location.
Timothy pleads that he undertook and completed his end of the agreement, but that the deceased did not transfer to him the Annangrove property.
Timothy contends that in or about late January 1997, the agreement was varied to include that Timothy would:
construct a much larger dwelling which would include two separate and self-sustained houses with separate garage entries. The deceased and his wife would live in one house, while Timothy and his family would live in the other;
the deceased would lend Timothy some money to construct Timothy’s half of the dwelling;
Timothy would be responsible for all rates, utilities and outgoings, and would maintain both residences;
the deceased and his wife would remain in their half of the larger dwelling for the rest of their lives;
Timothy would provide care and assistance to the deceased’s wife during her lifetime; and
the deceased would transfer Timothy the legal interest in the Annangrove property after the dwelling had been constructed.
Timothy pleads that in or about 1998, the agreement was again varied such that:
the deceased would transfer his interest in the Annangrove property to Timothy through his will;
Timothy would repay the money he was loaned to construct Timothy’s half of the dwelling in weekly instalments of $100; and
after the aforementioned loan was repaid, Timothy would continue to pay $100 per week to the deceased for the rest of his life.
Timothy contends that the deceased upheld his end of the agreement, to transfer the Annangrove property through his will, in the deceased’s 2004, 2014 and 2016 wills. In each of those wills the Annangrove property was gifted to Timothy. The gifting of the Annangrove property through the aforementioned wills is not expressly pleaded, but Timothy gives evidence of those gifts in his affidavit sworn 29 July 2022, being an affidavit sworn as part of the Property proceedings.
Timothy says that following Joyce’s death in 2003, from about 2007 onwards, Timothy began to also care for the deceased.
However, it is alleged that in 2019, Timothy began experiencing significant stress as a result of his duties as a carer and consequently stepped back from that role.
It is alleged that in response to Timothy stepping back from his carer role, the deceased made a further will in 2019, removing the previous bequest of the Annangrove property to Timothy.
“3. An order that [Timothy] and [Katrina] (hereafter the cross-defendants) sign the forms annexed hereto and marked “A” and return the signed copy thereof via email to the [applicant] by 10am the day after this order is made.
- An order that the cross-defendants complete and sign the forms, annexed hereto and marked “B”, titled “Australian Taxation Office – Copies of returns request – individuals and authorised representatives” and:
a. return the completed and signed copies thereof via email to the [applicant] by 1 pm the day after this order is made; and
b. submit the completed and signed copies thereof to the Australian Taxation Office by 1 pm the day after this order is made, and provide written proof thereof to the [applicant] by the same time.
- An order that the cross-defendants apply through the ATO online services (linked through “myGov”) to request copies of their:
a. lodged income tax returns for the financial year commencing 1 July 2009 onwards
b. notice of assessments for the financial year commencing 1 July 2009 onwards
by 4 pm the day after this order is made, and provide a copy of the application via email to the [applicant].
6. An order that the cross-defendants provide to the [applicant] copies of the documents obtained pursuant to these orders within 24 hours of receipt.
…
8. Such further or other orders as the Court deems fit.
9. Costs.”
I note that prayer 7 was not pressed by the applicant (TR (part 1) P1 L47-48).
The documents forming Annexure A referred to in prayer 3 were two copies of a form titled “Freedom of Information”, with the subtitle “Request to access or change documents”. The form is directed to Services Australia and requests Services Australia to provide the applicant with access to various named categories of documents for the period 1 January 1995 to 31 January 2025. The categories of documents sought were:
“applications and supporting evidence submitted to Centrelink”;
“customer details, summary screens, debt screens, customer name and details screen”;
“payment summary screen”;
“tax and income summary screens”; and
“allowance and benefit history screens, pension history summary screens”.
Requests are made in relation to both Timothy and Katrina.
The documents forming Annexure B referred to in prayer 4 are directed to the Australian Taxation Office (ATO) requesting copies of tax documents, namely, tax returns, notices of assessment, and group certificates or payment summaries, for the period 1 July 1994 to 30 June 2019. As with Annexure A, there are two copies of the relevant form, as there are requests made in relation to both Timothy and Katrina.
Thus, documents are sought from Services Australia (including Centrelink) (prayer 3) and the ATO (prayers 4 and 5). Together, Services Australia and the ATO will be referred to as the Agencies.
Timothy opposed the Motion, though he did not dispute that, subject to relevance (his contention being the documents sought were of no relevance), the Court had the power to make the orders sought in the Motion.
For the reasons set out below, I propose to make the orders sought, subject to some amendments, directing Timothy and Katrina to obtain and produce the documents sought from the Agencies.
Before explaining the power this Court has to grant orders of the kind sought by the applicant, and the principles relevant to the grant of such relief, I shall briefly explain why the applicant’s application is even necessary. The reason it is necessary is that it is not possible for the applicant to obtain the tax and social security records of the respondents by the issue of a subpoena; Commonwealth legislation prohibits information of the kind sought by the applicant being provided by the Agencies to the applicant under a subpoena. While there was no dispute this was the case, I will set out the relevant legislative provisions.
With respect to the tax records sought from the ATO, the relevant prohibition is in s 355-75 of Sch 1 to the Taxation Administration Act 1953 (Cth) (TA Act). That section provides (emphasis added):
355**‑75 Limits on disclosure to courts and tribunals**
An entity who is or was a *taxation officer is not to be required to disclose to a court or tribunal *protected information that was acquired by the entity as a taxation officer except where it is necessary to do so for the purpose of carrying into effect the provisions of:
(a) a *taxation law; or
(b) the Foreign Acquisitions and Takeovers Act 1975, if the entity acquired the information because of a request under subsection 138(4) of that Act.
“Protected information” and “taxation officer” are defined in s 355-30 of Sch 1 to that Act as follows:
355**‑30 Meaning of** protected information and taxation officer
(1) Protected information means information that:
(a) was disclosed or obtained under or for the purposes of a law that was a *taxation law (other than the Tax Agent Services Act 2009) when the information was disclosed or obtained; and
(b) relates to the affairs of an entity; and
(c) identifies, or is reasonably capable of being used to identify, the entity.
(2) Taxation officer means:
(a) the Commissioner or a *Second Commissioner; or
(b) an individual appointed or engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office.
There was no dispute that:
the tax records sought by the applicant were “protected information” within the meaning of the TA Act;
the protected information sought by the applicant was information acquired by an entity “as a taxation officer” so as to engage s 355-75 of Sch 1 to the TA Act and thus prevent a subpoena concerning the respondents’ tax records from being effective; and
the two exceptions to the prohibition in s 355-75 of Sch 1 to the TA Act were not engaged.
With respect to the social security documents sought from Services Australia, the relevant prohibition is in s 207 of the Social Security (Administration) Act 1999 (Cth) (SSA Act). That section provides (emphasis added):
207 Protection of certain documents etc. from production to court etc.
An officer must not, except for the purposes of the social security law or the Royal Commissions Act 1902**, be required**:
(a) to produce any document in his or her possession; or
(b) to disclose any matter or thing of which he or she had notice;
because of the performance or exercise of his or her duties, functions or powers under the social security law to:
(c) a court; or
(d) a tribunal; or
(e) an authority; or
(f) a person;
having power to require the production of documents or the answering of questions.
Similarly, there was no dispute that
the documents sought by the applicants from Services Australia comprised documents or matters an officer (as defined in s 201A of the SSA Act) would have had possession of or notice of because of that officer’s performance or exercise of their duties, functions or powers under “the social security law” (another defined term under the SSA Act), such that s 207 of the SSA Act was engaged and the applicant could not obtain those records by subpoenaing Services Australia; and
the exceptions to s 207 were not engaged in this case.
However, what is possible (at least, what has not been prevented) is for someone to request their own documents about themselves. Additionally, s 208(1)(b)(ii) of the SSA Act allows a person to authorise another person to obtain documents about that first mentioned person. Thus, for the applicant to be able to obtain the documents and information she seeks, she must either have Timothy and Katrina themselves request the documents and transmit them to the applicant once received or, for the social security documents sought from Services Australia, obtain the consent of Timothy and Katrina for the documents to be released to her directly. The applicant has correctly identified these possible paths, and the respondents do not deny their availability.
In considering the legal basis upon which the Court may make the orders sought in the Motion, the Court was greatly assisted by the helpful written submissions in relation to whether the Court has power to make the orders sought, as provided by Mr Zucker on behalf of Timothy. Mr Condon SC, for his part, stated he was indebted to Mr Zucker for his submissions as to this part of the law, submitting they “very fairly and properly set out the principles” (TR (part 2) P27 L50-P28 L2). In this context, the applicant focussed her submissions “on the apparent relevance of the documents sought” (AWS [6]).
To resolve the issue of whether to make the orders sought, the following questions must be answered:
Does the Court have the power to order a party to provide its consent in relation to a request for documents, or to otherwise require a party to make a request for documents itself?
Do the documents sought have apparent relevance to the issues in dispute?
“[14] When a person brings a claim in the Supreme Court in its Equity jurisdiction, that person is saying to the court that they want that claim adjudicated according to law and equity. With certain types of claims, such as claims for relief against forfeiture, the plaintiff will have no locus standi unless he or she abandons all common law rights: Jervis v Berridge (1873) LR 8 Ch App 351, 358.
[15] That principle does not extend to all litigation in equity, as is clear from Lodge v National Union Investment Company Ltd [1907] 1 Ch 300 and see J & S Holdings Pty Ltd v NRMA Insurance Ltd (1982) 41 ALR 539 (Full Federal Court). However, it has a wide application so that claims by infants not to have to repay monies because of the defence of infancy, or people borrowing money from unregistered money lenders seeking return of securities but not seeking to repay the money, when they come to equity are deemed to have abandoned all their common law rights to such defences.
[16] As Isaacs J said in Langman v Handover (1929) 43 CLR 334-5, when applying these principles, in many cases the Court requires the plaintiff to be ‘rectus in curia’, before being heard. A rough Australian translation is ‘Fair Dinkum with the Court’.
[17] When a person does bring proceedings in this Court, he or she is under an obligation to assist the court in coming to a fair conclusion. If a person deliberately says to their opponent and to the court ‘I will not co-operate’ then the usual consequence is that their action is stayed until they do co-operate.”
I note that at [10]-[11] and [18]-[19] of that decision, Young CJ in Eq expressly considered that he had the jurisdiction to make orders of the kind sought by the applicant in this case. However, his Honour ultimately did not make the orders the defendant in that case sought, and instead stayed the plaintiff’s proceedings, requiring him to obtain himself the information sought by the defendant in that case.
In considering these principles, the question arises as to whether the Court has the power to enforce a party to be “fair dinkum with the Court”.
Section 56 of the CPA directs that the Court must seek to give effect to the overriding purpose of the CPA and of rules of court in their application to civil proceedings, being to facilitate the just, quick and cheap resolution of the real issues of the proceedings. Moreover, each of the parties to civil proceedings has a duty to assist the Court in furthering the overriding purpose, and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court (s 56(3)). To that end, s 61(1) of the CPA provides that the Court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.
In El-Helou v Smith [2009] NSWSC 741 (El-Helou), Harrison J considered the broad application of s 56 of the CPA, in the context of an application similar to the instant one by the applicant. His Honour was dealing with an application by the defendant in that case seeking an order that the plaintiff provide an executed authority to enable the defendant to obtain information held by Centrelink in relation to the plaintiff. This was in the context of a personal injuries claim, where the material sought was said to contain information relevant to assessing the plaintiff’s health prior to the motor vehicle accident the subject of El-Helou. At [23], his Honour said:
“Having commenced these proceedings, the plaintiff fell under and remains bound by an obligation as far as reasonably possible to assist the Court to arrive at a fair conclusion. In the absence of even the hint of some proper reason, (for example but without attempting to be exhaustive) whether founded upon a statutory prohibition or an allegation of prejudice or the demonstration of some legitimate forensic disadvantage or claim of confidentiality or the assertion of privilege, it is difficult to discern any reason why it is not in the interests of the just, quick and cheap disposition of the proceedings to make an order in the terms sought by the defendant. It is also appropriate to bear in mind that despite the plaintiff’s attitude to the provision of the requested authority, it is not out of the question that the material that is sought by the defendant may turn out to be wholly supportive of the plaintiff’s claims in these proceedings. Such an outcome would have potential beneficial consequences for the just, quick and cheap resolution of this case.”
I was also referred to the more recent decision of Tahana v Hines [2021] NSWSC 564 (Tahana). Similarly to Harrison J, Cavanagh J was dealing with an application by the first defendant and its insurer (another defendant) seeking an order that the plaintiff provide a signed authority to the applicant-defendants for them to obtain the plaintiff’s records from Centrelink. This was in the context of a personal injuries claim by the plaintiff, where the plaintiff was claiming damages for economic loss. His Honour considered whether his Honour had the power to make the orders sought at [25]-[38], concluding that Pt 6 of the CPA, in particular s 61 read with s 56, provided the source of the Court’s power to make the orders sought in that case.
On this issue, the applicant in her written submissions referred to (at AWS [7]) what Meek J said in Tarbes v Taleb [2023] NSWSC 565 on the issue of the Court’s jurisdiction (at [295]-[298]):
“[295] It has been commonplace at least in estate litigation and family provision claims, for information relating to the recipient of a pension to be requested to execute an authority (for example such as the form noted above) to enable an authorised party to obtain any relevant information from Centrelink held or maintained by Centrelink in relation to the pension recipient.
[296] Execution of such an authority is not necessarily limited to a context in which an opposing party may wish to either obtain information where none is known or test information which is proffered. Indeed, an applicant might wish to execute an authority to enable the provision of information to the Court to facilitate the proof of the applicant’s financial circumstances, or potentially even to quell suspicions of an opposing party.
[297] Whilst the Court is mindful of the importance of privacy considerations, where there is resistance by a social security recipient in providing information, frequently orders are made requiring a party to execute an authority to enable the obtaining of such information: Tahana v Hines at [50]; El-Helou v Smith [2009] NSWSC 741 at [25] per Harrison J; Wray v Wray [2007] NSWSC 164 at [17] per Gzell J; Merkuloff v Yalisheff [2003] NSWSC 1183 (Merkuloff v Yalisheff) at [19] per Young CJ in Eq (as his Honour then was) (although, as noted below, the mechanism adopted by his Honour in that case was more nuanced).
[298] Whilst there is a direct mechanism pursuant to the provisions of the SSAA for the obtaining of such information, in Merkuloff v Yalisheff, Young CJ in Eq (as his Honour then was) expressed no doubt that he had power to make an in personam order directed to an applicant to cause Centrelink to produce documentation to him under the Freedom of Information Act 1982 (Cth): at [19]. His Honour, mindful of avoiding or limiting the wastage of legal costs, addressed the matter indirectly by making an order that the plaintiff’s proceedings be stayed until the plaintiff forwarded to the defendant the information required (regarding the former’s receipt of unemployment benefits from Centrelink). His Honour considered that how the plaintiff obtained that information was a matter for the plaintiff: at [19].”
While it was common ground between the parties that the Court has the requisite power to make the orders sought by the applicant, I am independently satisfied that this is the case.
The authorities I was taken to establish that the Court has the requisite power to direct a party to provide their consent in relation to a request for the production of documents held by a third party in so far as it facilitates the quick, just and cheap resolution of the proceedings before it.
However, the authorities I was referred to by the parties dealt only with applications requiring a party to authorise another party to obtain the first party’s social security documents from the relevant Commonwealth agency. I was not referred to any authority which considered whether the Court has the power to order a person themselves to request information about themselves, noting that is what prayers 4 and 5 are the applicant’s Motion are seeking. That being said, there is no reason to treat this kind of direction any differently. Requiring the respondents to approach the ATO and obtain their own records so that they can then be provided to the applicant is no different in substance to requiring the respondents to authorise the applicant to obtain the documents. In either case, practically speaking, the respondents are the bridge between the information held by the relevant agency and the applicant. Orders of the kind made in Tahana and El-Helou and sought in prayer 3 in the Motion require the respondents to allow the applicant access to that metaphorical bridge. Orders of the kind sought in prayers 4-5 of this Motion are doing the same thing. What is said by Cavanagh J in Tahana at [32] and by Harrison J in El-Helou at [23] is equally applicable in justifying why the Court has power to make an order requiring a party to obtain its own records from somewhere else and then provide them to the requesting party, noting the breadth of the power given to the Court by s 61(1)-(2) of the CPA.
The real issue in dispute between the parties on the Motion was whether the documents sought from the Agencies were in fact “apparently relevant” to the issues in dispute in the Property proceedings. The applicant acknowledged that submissions as to the appropriate test were also only “implicit in the submissions of both parties” (TR (part 2) P10 L7). The applicant submitted that given the orders were being sought as a substitute for a subpoena, it followed that the Court should apply the test used to assess whether a subpoena seeking the production of documents possesses a legitimate forensic purpose (ie, the test of apparent relevance) (TR (part 2) P10 L7-23). Timothy’s written submissions proceed on the same footing (see TWS [22]-[23], see also [15]-[20]).
It should be said that the authorities to which I was referred did not directly state a “test” that the Court should apply in deciding whether to make the orders of the kind sought by the applicant.
In the context of accepting the Court had the power to make an order, Timothy made submissions in relation to matters the Court ought to have regard to when considering whether the Court ought to exercise its discretion to make the orders sought by the applicant. In doing so, the Court was referred to Tahana. Timothy submitted, and as was already discussed above, the Court in that case was of the view that it was entitled to make an order requiring the plaintiff to provide the defendant-applicants in that case a signed authority to obtain Centrelink records, pursuant to ss 56 and 61 of the CPA. In considering whether to exercise the Court’s discretion to make the order sought, Cavanagh J stated (emphasis added):
“[16] It has occasionally been said by this and other Courts that a plaintiff who seeks substantial damages from a defendant based on a loss of income should be prepared to expose his or her financial affairs to the Court as part of the claim.
[17] However there are limits and I agree with the defendants that it would not be appropriate to make the orders sought unless there is a legitimate forensic purpose in requiring the plaintiff to authorise release of the information from the Department, which the defendants suggest there is.
[18] Plainly, an order shall not be made in circumstances in which the defendant is simply engaged in what is conventionally known as a fishing expedition. There is merit in the plaintiff’s submission that, having regard to what is said to be the high point of the defendants’ medical evidence, it is difficult to see what the relevance of such documents could be. However, Mr O’Keefe refers to other reports which are annexed to the affidavit of his solicitor, Leah Pryde, dated 7 May 2021, and refers more generally to the claims by the plaintiff.
[19] As I understand the position, the plaintiff has been in receipt of social security benefits for some years and has been providing information to the Department in support of his entitlement.”
“[21] The defendant contends that the documents are clearly relevant. I agree. The fact of an application by the plaintiff to Centrelink for assistance is potentially relevant to the determination and assessment of her level of capacity from time to time as well as the capacities of her father and her children. …”
In Wray v Wray [2007] NSWSC 164 (Wray) at [9]-[11], and at [16], a case to which the applicant referred, Gzell J appears to have proceeded on the basis that it was appropriate to determine whether the documents sought under the Centrelink authority requested by the plaintiff in that case were relevant, as part of considering whether the plaintiff’s application in that case should be granted. I acknowledge that Gzell J did not expressly outline any “test” that needed to be satisfied, but his Honour’s approach suggests I should be satisfied the documents sought by the respondents are “relevant” in some sense to the proceedings before I grant the orders sought by the applicant.
I note that Merkuloff says nothing as to whether the documents sought need to be “relevant” before an order is to be made.
Taking what Cavanagh J has said in Tahana in the paragraphs quoted above with the approaches taken by Harrison J in El-Helou and Gzell J in Wray, where the “relevance” of the documents sought was part of their Honour’s reasoning in making the orders sought in the applications determined in those cases, leads me to the conclusion that I should be satisfied that the documents sought by the applicant are “relevant” in some sense. The parties proceeded on the basis that the test is the same as that for a valid subpoena, ie, the documents sought must be apparently relevant. I will accordingly proceed on the basis of that common position.
The applicant, for her part, submitted (AWS [8]) that no narrow view of relevance should be taken, and relied on what the Court said in El-Helou at [23] (quoted earlier in these reasons).
More broadly, the applicant relied in her written submissions on what Bell P said in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown) at [64]-[65] (emphasis in original):
“[64] But it does not follow – and this is the vice in the Secretary’s submissions – that the fact that it may not be able to be shown that the subpoenaed documents will or are likely to assist the party that has issued the subpoena (or that it is ‘on the cards’ that that party will be assisted) means that the issuing party lacks a legitimate forensic purpose. Putting the matter slightly differently, that the issuing party is likely to be assisted in its case by production of the subpoenaed documents may make it more likely that that party’s purpose will be held to be legitimate, but the issuing party’s inability to show that the subpoenaed documents are likely to assist its case will not necessarily mean that the subpoena has not been issued for a legitimate forensic purpose. It may, however, depending on the circumstances of the case, be more difficult to establish the legitimacy of the forensic purpose in such circumstances.
[65] It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are ‘apparently relevant’ or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.”
“Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could “possibly throw light” on the issues in the substantive proceedings, or that it appears to be ‘on the cards’ that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings.”
“[43] As to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose:
… it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will.
[44] Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]):
… the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise.
[45] In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have ‘a sufficient apparent connection to justify their production or inspection’ (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from Property relevance) will be satisfied if the material has apparent relevance and is established if the documents called for ‘could possibly throw light on the issues in the main case’ (at [24]), (citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306).
[46] More recently, Gleeson JA, in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]).
[47] Whether the formulation of the test in civil proceedings is best expressed as an ‘on the cards’ test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could ‘possibly throw light on’ an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2)); or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that ‘it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]’), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA).
[48] Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a ‘fishing expedition’, in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said:
A ‘fishing expedition’, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere ‘fishing expedition’.
[49] Whether a party has cause to believe that particular documents exist is a relevant factor (in conjunction with the potential relevance of the documents sought and the breadth of the subpoena) in determining whether the subpoena is oppressive and/or constitutes ‘fishing’.
[50] In Universal Press Pty Limited v Provest Limited [1989] FCA 402, Hill J stated (at [9]-[10]):
Like Clark J, as his Honour then was, in Southern Pacific Hotel Inc v Southern Pacific Hotel Corporation (1984) 1 NSWLR 710 at p 717, I am of the view that there are two separate grounds for setting aside a subpoena that are often confused. The first, to which I have already referred, is the ground that the subpoena is so widely framed as to be burdensome and oppressive and therefore an abuse of process. The second, often linked with the first, is that the subpoena requires the addressee, being a third party to the litigation, to produce all documents which may afford evidence of the matters in dispute between the parties, is thus used as a way of obtaining discovery against a person not party to the litigation and so should be set aside (cf Small’s case supra).
Where the objection to a subpoena is that it is a misuse of the process of the Court for the purpose of discovery, what is usually meant is that it is an abuse of process to require a person not a party to litigation to form a judgment as to what is relevant to the issues joined in a proceeding to which he is not a party: National Employers’ Mutual Association Ltd v Waind & Hill (1978) 1 NSWLR 372 at p 382. It does not follow that a subpoena, issued in circumstances where the person requesting its issue is uncertain whether any documents exist which fall within the description in the subpoena, that description being otherwise precise, will be bad…”
In sum, the authorities cited above make clear that when a party seeks to prove that a claim for the production of documents is made for a legitimate forensic purpose, the issuing party will need to show that the documents sought are “apparently relevant” to the issues in dispute by showing the documents sought will materially assist on an identified issue or that there is a reasonable basis beyond speculation that it is likely the documents will so assist. It will be sufficient that they could “possibly throw light” on the issues in the Property proceedings.
The applicant submitted that a fact in issue is Timothy’s capacity to make the payments particularised in the FASOC, both one-off and ongoing, and the source of funds available to him over time (AWS [11]-[12]).
The applicant, at AWS [17]-[20], also pointed to evidence already available that she says suggests some of the regular payments made by Timothy to the deceased were rental payments. This includes evidence that the deceased told his long-standing lawyer that Timothy paid him rent, and that Timothy had received rental assistance from the government. Timothy denies he paid rent to the deceased, and in turn asserts that the regular cash payments ($100 weekly) made by him were not rent, but rather, the repayment of a loan.
It was submitted that documents recording Timothy received rental assistance from the Commonwealth “will shed light on the nature of any understanding between Timothy and the deceased” (AWS [21]). In this, it was submitted that the production of the documents would provide evidence of Timothy’s financial position more broadly, which will be relevant to assessing his capacity to make payments, assessing his need to borrow from the deceased at the time he was allegedly loaned money by the deceased, and assessing whether Timothy acted to his detriment at the time he says he did (AWS [21]-[22]).
It was said that the production of more recent documents, for both Timothy and Katrina, will also inform his family provision claim (AWS [23]). However, as noted in [9]-[10] above, Timothy’s family provision claim forms part of the Probate proceedings, rather than the Property proceedings, which are the subject of the Motion. The extent to which the Court, in deciding this Motion, may have regard to the terms of the pleadings in the “related” Probate proceedings when assessing the apparent relevance of documents to the Property proceedings is not clear. I did not receive submissions addressing this point.
During the hearing, the applicant submitted, inter alia, that Timothy has deposed that he was a full-time carer for both of his parents. It followed that any documents produced by Services Australia would shed light onto whether he claimed his carer’s pension, and whether, absent full-time employment, he received any social security benefits which would have been used in the financial contributions to the property allegedly made by Timothy from 1995.
In her oral submissions, the applicant addressed the issue of the basis of the claim for orders in relation to Katrina (as opposed to just Timothy), who is not a party to the principal component of the Property proceedings, and is only a party to the cross-claim by dint of her residing in the Annangrove property with her husband. On this issue, the applicant submitted that Timothy and Katrina were a “single financial unit” (TR (part 2) P26 L7) or “an economic unit” (TR (part 2) P22 L12), and thus any assessment of Timothy’s financial undertakings, commitments, and circumstances more broadly will necessarily involve an assessment of Katrina’s financial circumstances.
“FINANCIAL CONTRIBUTIONS
92. Documents of a financial nature paid by my wife, and I are being collated and are available on request but are itemised as follows:
- water bills issued by Sydney Water in which my wife, Katrina Ward, and I have paid the sum of $17,156.03 from 2000 to 2019.
2. electricity bills issued by Integral Energy and Origin Energy in which my wife and I have paid the sum of $28,295.77 between 2003 and 2019.
3. council rate notices issued by Baulkham Hills Shire Council (now called Hills Shire Council) in which my wife and I have paid the sum of $38,213.21 between 1996 and 2001.
4. statements issued by NRMA showing building insurance payments in which my wife and I have paid the sum of $24,377.21 between 2001 and 2019.
5. statements issued by NRMA showing contents insurance payments in which my wife and I have paid the sum of $8,741.75 between 2000 and 2018.
6. statement issued by Soul Pattinson Pharmacy showing pharmacy expenses in which my wife and I have paid the sum of $1,218.75 between 2014 and 2019.
93. In addition to paying all expenses for the Annangrove property my wife and I have spent considerable time, labour and money on the maintenance and beautification of the Annangrove Property which has been carried out at the Defendant’s insistence. Receipts to verify such expenses are being collated and will be available upon request but are itemised as follows:
a. receipts for carpet and tile flooring upgrades in which my wife and I have paid the sum of $5,167.00 between 1998 and 2000.
b. receipts for items purchased for property maintenance and improvement in which my wife and I have paid the sum of $13,838.41 between 2000 and 2019.
c. receipts for general maintenance and upkeep in which my wife and I have paid the sum of $23,907.76 between 1996 and 2019.
94. Between 1995 and 2019 my wife and made financial contributions to the Annangrove Property with both physical labour and financial resources; and photographs of physical labour and financial resources which I have purchased, contributed, replaced and installed at my wife and I’s expense appears at pages 54-79 of Exhibit TW-2, itemised as follows:
a. front gate of the Annangrove Property which my wife and I purchased and installed at my own expense. …”
[see also subparagraphs b, c, d, e, f, g, h, i, k, n, o, q, r, t, w, x, y, z, aa, bb, cc, dd, ee, ff ,ii or jj for references to payments made on behalf of “my wife and I”.]
Having regard to Timothy’s own evidence, I accept the applicant’s submission that Timothy and Katrina may be considered as a single financial or economic unit. To that end, to the extent that any apparent relevance attaches to particular documents in relation to Timothy, I accept that that same apparent relevance will attach to the documents of Katrina. Further, it is my view that any full disclosure of Timothy’s financial circumstances would not be possible without the disclosure of Katrina’s financial circumstances also.
On the issue of relevant time period in relation to which documents should be produced, having regard to the terms of the FASOC, together with the (disputed) narrative set out above at [12]-[21], and the evidence contained in Timothy’s affidavit cited above, I also accept that any inquiry as to the respondents’ financial circumstances will relevantly commence around 1994, and continue until the time that Timothy ceased caring for the deceased in 2019.
I note the applicant seeks the production of documents up to 2025, stating (at AWS [23]) that “[t]he production of more recent documents will also speak to the income and assets of the plaintiff and his spouse, which will inform his family provision claim”. However, as already noted at [62] above, the extent to which the Court, in deciding this Motion, may have regard to the “related” Probate proceedings is not clear.
On the issue of relevance in relation to the documents sought from Services Australia, I accept that the documents may be relevant to the issue of any government rental assistance received by the respondents, to the issue of whether Timothy was a carer as he alleged, and to the issue of what financial means he had, and the reason for their relevance is because information about receipt of government benefits sheds light on the facts. In this, I accept there is a reasonable basis beyond speculation that it is likely the documents will assist any determination of the facts in issue.
In relation to the documents sought from the ATO, I also accept that those documents are apparently relevant to the facts in issue. In accepting this, I have considered the applicant’s acknowledgement that the records sought from the ATO will not reflect actual savings in bank accounts. However, in circumstances where primary documents may no longer be available, the ATO documents might well be the best evidence available. On this, the applicant submitted (TR (part 2) P19 L12-19):
“CONDON: And if this was a case that had ‑ and it’s odd in facts ‑ five years ago, one could probably look for more direct forms of material; bank statements, emails, whatever, but the source of this, or the starting point for this estoppel claim is the offence that took place at a time when the bank statements probably no longer exist, at least as a composite whole, where there’s no suggestion of emails. One has to look at, not the direct evidence ‑ one would have in a more recent state of affairs ‑ but what one draws from the few documents that have any historical currency.”
Timothy submitted in writing that any enquiry into his financial position was not something “which of itself should disturb the rights to privacy of communications with Centrelink and the ATO that are enshrined in the legislation.” It was said that this was all the more so “when it is realised that neither Centrelink nor the ATO would be aware of, or would have records of, domestic expenditure, private payments or personal loan arrangements” (TWS [16]).
On the issue of rights to privacy, the Court is mindful of the importance of the privacy considerations in relation to the documents sought from and held by the Agencies. However, I accept the applicant’s submissions that the documents have an apparent relevance to the facts in issue, and that the production of the documents could have potential beneficial consequences for the just, quick and cheap resolution of this case. In this, as Timothy is the plaintiff in the substantive proceedings, the Court requires that Timothy be “rectus in curia” before being heard (that is, to use Young CJ in Eq’s expression, be fair dinkum with the Court).
In his written submissions (at TWS [17]), Timothy acknowledged that in bringing a family provision claim “as a backup claim in the related [Probate] proceedings”, he has a duty to disclose his financial circumstances. However, he submitted that the critical time for such disclosure is the time when the court is considering the application (per s 59(1)(c) of the Succession Act 2006 (NSW)) (TWS [17]). In oral submissions, Timothy accepted that as Katrina is a member of Timothy’s household, her financial circumstances are relevant to his family provision claim (TR (part 2) P33 L8-10).
Again, as already mentioned above (at [62] and [69]), the extent to which the Court, in deciding this Motion, may have regard to the terms of the pleadings in the “related” Probate proceedings, which includes the family provision claim, is not clear. I will return to this issue at [86] below.
Timothy also refers to the disputed issue as to whether rent was paid by him and submits that this is of “miniscule relevance” to the issue to be decided by the Court (TWS [19]). Timothy also queried whether the Centrelink or ATO records would in any event disclose any alleged rent payments (which are denied) and submitted that the quest for documents may well be futile (TWS [20]-[21]).
In so far as the narrow issue of the putative rent payments is concerned, I accept the submission that the documents from the Agencies are not likely to provide direct evidence on this issue. However, I accept that the Centrelink documents are capable of disclosing government rental assistance documents, should they exist, as well as carer’s pension documents, should they exist. I also accept that the ATO documents will provide some evidence as to the funds available to Timothy by way of income, and their source, for the relevant period, which at a higher level, goes to a number of real issues in the proceedings, including the issue of Timothy’s capacity to perform the obligations under the claimed agreement with the deceased.
“28. Everything that is said above [regarding Timothy] applies to Katrina Ward.
29. But the reasons why no order should be made against her go further. There is no evidence that she has made any payments to her father-in-law whether they be classified as rent or otherwise. There is no claim by her to an entitlement to ownership of the Annangrove property or to a share of the estate of the deceased. She is joined to the proceedings only as an occupier of the property. Nothing in her Centrelink or taxation records is or can be relevant to the fact of whether she is entitled to remain in occupation or not. There is no issue in the proceedings that if Timothy Ward is not entitled to remain in occupation of the Annangrove property then neither is his spouse.
30. The very fact of the administrator seeking access to Centrelink and ATO documents of Katrina Ward over a 30 year period is an indication of the oppression and lack of a proper forensic purpose in the Notice of Motion now before the Court generally.”
For the reasons already explained, and evidence already referred to, I have accepted the submission made by the applicant that Timothy and Katrina are an economic unit, and thus any documents from the Agencies properly sought in relation to Timothy will also be properly sought in relation to Katrina.
In relation to the nature of the documents sought, Timothy questioned the use to be made of the ATO documents, after which the following exchange took place, which led to a concession by Timothy (TR (part 2) P31 L10-42):
“HER HONOUR: Just going back to that, remember at the very beginning when Mr Condon was starting and I asked him about the relevance of knowing income for example in relation to the savings and he talked about the fact that 30 years ago you mightn’t be able to get the bank statements and in fact knowing the income, and that period of time and certainly later would be relevant and in terms of the commitments that were made over time in terms of maintaining the property or paying various outgoings, his income is going to be relevant and that’s where you will find it in the tax return. What do you say about that?
ZUCKER: What I say as this case will ultimately be presented is what happens 30 years ago is not going to bear greatly on the outcome of this litigation. Timothy Ward says that he provided physical assistance to his parents over a long period and that he did financial contributions to the house. I don’t understand the fact of his doing things at the house to be in contest, probably the extent of that is the case, and will the court be assisted by whether he had odd-job income or permanent income or something like that 30 years ago, in my submission the answer will be no because it’s so far back.
HER HONOUR: But he does say for example, if I can find the further amended statement of claim, he does talk about outgoings, money that he spent in 1995 and around there and then he talks at later points in 97 and other periods of time of money he actually spent then. Then he talks about how at an outgoing level he maintained paying rates and all of those things. So there are lump sums that he is saying that he paid earlier on 30 years ago and then he is saying that he is continuing to pay. Isn’t it relevant to be able to look at his income and say, well I mean at an indirect way what income did he have and what did he have available for him to actually make those payments?
ZUCKER: I have to accept that your Honour, I have to accept that without any knowledge of what’s going to turn up in the accounts and without any knowledge whether the Tax Office will have anything.”
In relation to the range of time for which documents should be produced, it is Timothy, by virtue of his particularisation of events in the FASOC, that has set the scope of any particular range of time over which documents will be properly sought.
Noting the terms of the Motion, I accept that an appropriate range will commence from “early 1995” (per FASOC [5]) and thus commence on 1 January 1995. In relation to the ATO records, the appropriate commencement date will be the commencement of the financial year which will include “early 1995”, that being the financial year commencing on 1 July 1994.
Determining the end date of the range is more problematic. If I am to determine the appropriate date range using only what is pleaded in the FASOC, I am of the view that the end date of the range would be 2019, given the real issues for determination raised in the Property proceedings, which provides the touchstone for any consideration of “apparent relevance”.
In circumstances where payments and other forms of reliance described by Timothy have at times been claimed to extend “to 2019”, without more detail (for example, see Timothy’s affidavit at [92]), I propose to extend the end date of the range to 31 December 2019.
The applicant has sought copies of documents up until 2025 however, with the justification in relation to “apparent relevance” being their relevance to Timothy’s family provision claim. As already noted, the family provision claim forms no part of the Property proceedings and is not otherwise referred to in the FASOC. As a result of this being the case, I do not believe that, in relation to this Motion, I can properly make an order facilitating a request for documents to be produced relating to years beyond 2019.
To the extent that each of the applicant and Timothy accept that documents from the Agencies may well be relevant to Timothy’s family provision claim (as appeared to me on the hearing of the Motion), I consider it open to the parties to the Probate proceedings, to the extent they are able to agree, to seek appropriate orders by consent from the Court in relation to those proceedings, essentially in the same terms as any orders ultimately made in these proceedings, in order to fill the documentary gap between 2019 and 2025. Should this occur, any request forms for documents submitted to the Agencies may then cover the whole of the date range sought in these proceedings (ie 1 July 1994 to 2025), having been so authorised by orders made in these proceedings (as a result of the Motion), together with any consent orders subsequently made in the Probate proceedings.
Of course, this will be a matter for the parties to the Probate proceedings, having regard to the need to take steps which will facilitate the just, quick and cheap resolution of the real issues in those proceedings.
In relation to the terms of the relief sought by the applicant, Timothy submitted that any final orders made by the Court should not be in the form originally sought. Timothy submitted various alterations to the prayers of relief contained in the Motion ought to be made if the Court were otherwise minded to grant the applicant’s application. For her part, the applicant indicated she did not oppose the Court’s final orders accounting for the alterations to her prayers for relief suggested by Timothy (TR (part 2) P28-29, see also P32 L26-44).
I propose to make the amendments to the orders sought by Timothy which appear both proper and reasonable.
To account for the fact the relief to be granted will not be what is originally sought in the Motion, the Court will direct the parties to provide an agreed form of orders. So that there is no doubt, the final relief should include orders to the following effect:
orders that, within two weeks of final orders being made, the respondents:
(a) provide to the applicant the appropriate signed authority to obtain the documents from Services Australia sought by the applicants; and (b) submit the relevant forms to the ATO to request the tax documents sought by the applicants;
with the documents to be for the period 1 July 1994 (for the ATO documents)/1 January 1995 (for the Services Australia documents) to 31 December 2019;
The parties respectively sought their costs on the Motion. Despite both parties seeking their costs, no submissions were made in relation to costs.
The usual order as to the costs of an interlocutory application is that the costs of the application be costs in the cause: UCPR r 42.7(1), Wilson v Gillies (No 2) [2020] NSWSC 658 at [11] (Rees J); Wang v Cai (No 2) [2021] NSWSC 1268 at [61] (Ward CJ in Eq); Skytraders Pty Ltd v Meyer [2023] NSWSC 857 at [2] (Richmond J); United Crib Blocks Construction Pty Ltd v Asmaro [2025] NSWSC 1156 at [98]-[100] (Bennett J).
I do not consider it appropriate, at this stage, to order the applicant have her costs. It is clear the applicant has been successful, largely, on the Motion. That being said, it is uncertain as to who might benefit from the documents sought from the Agencies. That would depend on what is said in the documents. As such, whether the expense of the Motion was a justified one for which the applicants should be compensated is not one that can be judged now. The merits otherwise of the parties’ respective cases also cannot be judged now.
There is no other reason apparent to me that I should otherwise exercise the Court’s costs discretion in a party’s favour.
The costs of the Motion should be costs in the cause. The Short Minutes of Order prepared by the parties should reflect this costs outcome.
For the reasons set out above, I make the following orders:
Subject to order 2, the parties are directed to bring in Short Minutes of Order to give effect to this judgment, providing them by email to the Chambers of Bennett J, by 4:00pm on 4 December 2025.
If the parties fail to agree on a proposed form of orders, then by the time specified in order 1, each party is to provide its proposed form of orders to give effect to this judgment, along with short written submissions of no more than two pages in support of its proposed orders.
The matter is stood over to the Registrar in Probate on 9 December 2025.
**********
Ward
Ward [2025] NSWSC 1417
(1982) 41 ALR 539
(1929) 43 CLR 334
(1995) 127 FLR 105
(1984) 154 CLR 404
(1989) 16 NSWLR 14
(1984) 1 NSWLR 710
(1978) 1 NSWLR 372
The above narrative is in contention between the parties. It has been set out for the purposes of providing context, as well as to provide some broad understanding of the real issues in dispute, which will in turn provide a framework for any consideration of the “apparent relevance” of documents (see below). The narrative is not to be construed as containing any finding of fact in these proceedings.
The applicant supported this submission by taking the Court to an affidavit sworn in the Property proceedings by Timothy on 29 July 2022 (Timothy**’**s affidavit), which was in evidence on the Motion, which included statements from Timothy such as:
At [22]: “I spoke to my wife, and we agreed to put all our effort and life’s savings into the Annangrove property to develop it as our future home.”
At [42]: “I only accepted my father’s offer to build a home on the Annangrove Property so that my wife and I could remain debt free while living in a better area.”
At [62]: “On or about 19 August 1997 [m]y wife and I invested our savings into the Annangrove home and gave money to my father to contribute the cost of my home.”
The Court was also taken to part of [92], and it will be noted that [92], [93], and part of [94] relevantly provide the following evidence (emphasis added):
On behalf of Katrina, Timothy made the following written submissions: