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[2026] NSWCA 37
procedural. The appellant was ordered to provide $100,000 security for the first respondent’s appeal costs within 28 days, either by payment into Court or by a bank guarantee acceptable to the first...
The Court ordered the appellant to provide $100,000 security for the first respondent’s appeal costs. It found special circumstances from the combined effect of the appellant’s limited role in the original trial compared with her broad appeal, the contradictor’s decision not to appeal, weak apparent prospects, and concerns about enforcement if the appellant had assets only in the United Kingdom. Because the appellant gave no evidence about her finances, she did not establish that the security would prevent her from pursuing the appeal. The order set deadlines and stated that non-compliance would lead first to a stay and then dismissal. This was a procedural decision, not a decision of the appeal’s merits.
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2,191 words · generated 08/10/2026
Williment v Waters [2026] NSWCA 37 is a procedural ruling by Adamson JA on an application for security for costs of an appeal. The hearing took place on 23 March 2026 and the decision was delivered on 25 March 2026. It did not determine whether the appeal against the probate orders would succeed.
6 cited instruments linked from this judgment.
The underlying dispute concerned the wills of Percy Lloyd Waters. His 2019 will left 21 per cent of the residue to Lavinia Williment, who had acted as his carer from about March 2008. Earlier wills made before or on 3 June 2009 left the residue equally to his daughters, Laura Waters and Victoria Goss. Later wills progressively increased Williment’s share. The primary judge found challenges to the 2019 will and the intervening wills made out, including challenges based on testamentary capacity, suspicious circumstances and undue influence. Probate in solemn form was granted to Waters for the 2009 will (paras 2–5).
Williment appealed, raising 16 grounds. Her first 15 grounds challenged the primary judge’s fact-finding on matters including capacity, suspicious circumstances and undue influence. Ground 16 challenged the treatment of the 2009 will, although the judgment noted that Williment had no interest under that will or earlier wills (paras 7, 43–45).
Waters sought $100,000 security for the costs of the appeal. The Court considered how Williment had participated in the proceedings below. She had become a defendant after filing an appearance in response to a notice of proceedings, but she did not propound the 2019 will or another will by cross-claim. When the case was heard, she said she did not propound any will and confined her closing submissions to undue influence (paras 15–16, 22–23). Kevin Emanuel, who had taken over conduct of the defence and cross-claim, did not appeal (paras 21, 40–42).
The Court ordered Williment to provide $100,000 within 28 days, either by paying the amount into Court or by providing a bank guarantee acceptable to Waters. If she did not comply, the proceedings against Waters were to be stayed until security was provided. If security remained unpaid after a further 28 days, the appeal was to be dismissed. Williment was also ordered to pay the costs of the security motion (para 54).
The governing provision was r 51.50(1) of the Uniform Civil Procedure Rules 2005 (NSW). It provides that, in special circumstances, the Court may order security for costs of an appeal. The parties agreed that an appeal application required special circumstances in addition to the matters that may justify security at first instance (paras 30–32).
Adamson JA adopted the principles summarised in Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247. They include that there must be special circumstances, that the inquiry should not be constrained by a general rule, and that impecuniosity alone will usually be insufficient. The principles also recognise that security would usually not be ordered if it stifled a bona fide, reasonably arguable appeal, and that the subject matter or public interest may matter (para 37).
The Court assessed the circumstances cumulatively. First, it considered the disparity between Williment’s role below and the reach of the appeal. Below, she had not taken on the task of propounding the wills and, by the end of the hearing, had confined her submissions to undue influence. On appeal, she challenged the primary judge’s findings across the case. Emanuel, who had conducted the defence and cross-claim, had elected not to appeal. Adamson JA held that these features together amounted to special circumstances (paras 39–42).
Second, the Court considered ground 16. Williment had no financial or forensic interest in the 2009 will, and the Court said she had no standing to challenge it, referring to Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36. The Court also noted the inconsistency between ground 16 and the position recorded in the joint statement of issues below. Adamson JA did not decide that Williment herself had acted without bona fides: the judgment expressly allowed that the ground might fairly be attributed to her legal advisers. The ground was nevertheless described as extraneous to her legitimate forensic interests and as adding to the special circumstances (paras 43–45).
Third, the Court considered the appeal’s prospects. It did not conduct a full merits review. It noted that the primary judge had seen and heard the witnesses and had made findings on capacity, suspicious circumstances and undue influence. Williment’s appeal challenged every material finding and the assessment of lay and expert witnesses. Adamson JA considered the prospects weak, while treating that assessment as one component of the security application rather than a determination of the appeal (paras 46–50).
Finally, the Court addressed whether security would stultify the appeal. The onus was on Williment to establish that it would. She was present and available to give evidence about her financial circumstances but did not do so. The evidence indicated that she received the age pension, appeared to have no Australian assets, had a wealthy brother in England who had likely died, and might inherit under his will. The Court applied Jones v Dunkel and the evidentiary principle in Blatch v Archer in considering her failure to provide evidence about matters within her knowledge (paras 10, 27–29, 33–36). It concluded that she had not discharged her onus (para 51).
The judgment did not announce a new general test for appeal security. It applied the existing statutory and procedural framework: UCPR r 51.50(1), alongside r 42.21. Rule 51.50 requires special circumstances for security for appeal costs. Rule 42.21 lists matters potentially relevant to security, including the merits, impecuniosity, whether the impecuniosity was caused by the defendant, stultification, timing, enforceability in Australia and the convenience of enforcement in the non-resident plaintiff’s country. The rule also says that a natural person’s impecuniosity alone is not enough for an order (para 32).
The judgment’s account of the principles before this case is principally the summary in Preston at paragraph 18, which Adamson JA set out at paragraph 37. It also refers to Mr D v Ms P for the proposition that some consideration of prospects is necessary in the special-circumstances assessment, although detailed analysis is neither possible nor desirable on a security application (para 46). For enforcement concerns, the judgment refers to PS Chellaram & Co Ltd v China Ocean Shipping Co (para 34). It cites Fox v Percy and Lee v Lee in connection with the appellate significance of the primary judge’s opportunity to see and hear witnesses (para 48).
As to what changed after this decision, the judgment itself establishes only the result in this application and the legal materials it applied. It does not report any later judicial treatment of Williment v Waters, and no conclusion about subsequent treatment can be drawn from this text. Its contribution, on its face, is an application of the established special-circumstances framework to a particular combination of litigation conduct, appeal scope, prospects and enforcement concerns.
At paragraph 37, the judgment reproduces Preston’s statement that “impecuniosity, without more, will usually be insufficient”. In plain English, being unable to pay is not, by itself, a complete answer to an application for security. The Court must consider the whole circumstances and apply the appeal-specific threshold.
At paragraph 42, Adamson JA says the difference between Williment’s role below and the reach of her appeal, together with Emanuel’s decision not to appeal, amounted to special circumstances. This is the central reasoning on the conduct and scope of the case. It is a fact-specific conclusion, not a rule that any change in litigation position automatically justifies security.
At paragraph 36, the Court explains that Williment bore the onus of proving stultification and draws an inference from her failure to give evidence about her finances. In ordinary terms, the Court considered that information about her brother’s death and any inheritance was particularly accessible to her, while Waters could not readily obtain it. The judgment also records that Williment’s failure to give evidence left the Court without direct evidence from her about whether she could provide security.
At paragraph 48, Adamson JA describes the appeal prospects as “weak”. The basis was that the appeal challenged all material findings, including findings based on witness assessments made by the judge who heard the evidence. The passage should be read in context: the Court was deciding a security motion, not finally resolving those grounds.
At paragraph 51, the Court concludes that Williment had not established that security would stultify the appeal and that the matters, taken together, established special circumstances. In everyday terms, the judge considered the combined picture, rather than any single factor in isolation.
The orders at paragraph 54 specify the consequences. Security was set at $100,000 and due within 28 days. The appeal was to be stayed against Waters if the amount was not provided, and dismissed if it remained unpaid after a further 28 days.
The judgment may be relevant to security applications where a party seeks security for costs of an appeal and the asserted circumstances go beyond impecuniosity alone. The specific combination considered here included a broad appeal following a narrower role below, an original contradictor’s decision not to appeal, and a ground that the Court regarded as unrelated to the appellant’s interests (paras 39–45).
It may also be relevant where there is evidence of a practical risk that an adverse costs order would be difficult to enforce. Here, the Court considered the possibility that Williment might relocate to the United Kingdom, the possibility of an inheritance there, the apparent absence of Australian assets and the prospect of enforcement costs and delay in a foreign jurisdiction (paras 33–36). The judgment stresses that changing rental addresses, by themselves, were not particularly probative (para 35).
A further potentially relevant feature is whether the appellant provides direct evidence about financial circumstances said to make security stultifying. The Court placed weight on the absence of evidence from Williment, who was available to testify, and on the fact that the relevant information was within her knowledge (para 36). This does not mean that every failure to testify justifies an adverse inference. The reasoning here concerned the particular evidence, the onus, and the opportunity to give evidence.
Finally, prospects were relevant because the appeal challenged findings made after a trial at which the primary judge had seen and heard witnesses (paras 46–50). The judgment does not establish that weak prospects alone are sufficient for security. Its conclusion depended on the cumulative assessment.
The judgment is dated 25 March 2026 and the text provided contains no account of later cases applying, distinguishing, approving or disapproving Williment v Waters. It would therefore be unsupported to describe any later judicial treatment.
The cases discussed in the judgment are authorities that Adamson JA used or referred to when deciding the motion, not later treatment of this decision. Preston supplied the special-circumstances principles. Mr D v Ms P addressed the limited role of prospects assessment on a security motion. PS Chellaram was cited on the cost, delay and risk of overseas enforcement. Jones v Dunkel and Blatch v Archer were applied to the missing financial evidence. Nobarani was cited concerning standing, while Fox v Percy and Lee v Lee supported the significance of the trial judge’s opportunity to assess witnesses (paras 34–37, 43, 46–50).
For professional use, the distinction matters: the judgment records its reasoning and the authorities it applied, but the provided material does not establish whether later courts have adopted its particular treatment of litigation conduct or its combined-factor analysis.
The judgment does not explain how much weight each factor would carry in a different case. Its conclusion was expressly cumulative. It is therefore unclear from this decision alone whether a similar disparity between a party’s role below and appeal scope, without the other circumstances present here, would amount to special circumstances.
The decision also does not determine the appeal’s merits. The assessment that prospects were weak was made for the security application, with reference to the trial findings and the appellate task (paras 46–50). Whether those findings would ultimately withstand appeal remained unresolved.
The judgment does not determine whether Williment had inherited from her brother, the value or location of any inheritance, or whether she could in fact provide the ordered security. It records only that the evidence suggested a possibility of inheritance and that Williment did not give evidence addressing it (paras 29, 33–36).
Nor does the decision set out a general threshold for what amounts to stultification, beyond the onus and factors considered in this application. The available text also does not resolve how the amount, staged provision or alternative forms of security should be determined in other cases. Here, the proposed staged approach was rejected, and security was ordered in one amount with deadlines (paras 26, 52–53).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on or using this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Williment v Waters [2026] NSWCA 37
Hearing dates: 23 March 2026
Decision date: 25 March 2026
Before: Adamson JA
Decision: (1) Order the appellant to provide security for the first respondent’s costs of the appeal in the sum of $100,000.
(2) Order that the security in order (1) be provided within 28 days either by payment of the amount into Court or by the provision of a bank guarantee that is acceptable to the first respondent.
(3) Order that, if the appellant fails to comply with orders (1) and (2), the proceedings against the first respondent be stayed until such time as the security is provided.
(4) If after a further 28 days, the appellant fails to provide the security referred to in orders (1) and (2), dismiss the appeal.
(5) Order the appellant to pay the first respondent’s costs of the notice of motion filed on 13 February 2026.
Catchwords: PRACTICE AND PROCEDURE — costs — security for costs — appeal — relevant factors — need for special circumstances — impecuniosity — where appellant has strong ties to the United Kingdom and the expectation of inheritance — whether appellant has established that an order for security will stultify proceedings — relevance of disparity between limited role played by appellant in the Court below and ambit of the appeal
Legislation Cited: Supreme Court Act 1970 (NSW), s 101
Supreme Court Rules 1970 (NSW), Pt 78, r 57
Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50
Cases Cited: Blatch v Archer (1774) 1 Cowper 63; 98 ER 969
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Dye v Commonwealth Securities Limited [2012] FCA 992
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Mr D v Ms P [2020] NSWCA 174
Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
PS Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 65 ALJR 642
Re Markham; Markham v Markham (1880) 16 Ch D 1
Schwanke v Alexakis; Camilleri v Alexakis (2024) 114 NSWLR 459; [2024] NSWCA 118
Theocharous v Theocharous [2025] NSWCA 243
Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52
Category: Procedural rulings
Parties: Lavinia Williment (Appellant / Respondent on the Motion)
Laura Marie Waters (First Respondent / Applicant on the Motion)
Andrew Philip Frank (Second Respondent)
Kevin Emanuel (Third Respondent)
Representation: Counsel:
L Ellison SC (Appellant / Respondent on the Motion)
J Brown / L McIntyre (First Respondent / Applicant on the Motion)
Submitting Appearance (Second Respondent)
Not applicable (Third Respondent)
Solicitors:
Mitchell Lawyers (Appellant / Respondent on the Motion)
Fleming Law t/as Walker and White (First Respondent / Applicant on the Motion)
Frank Law (Second Respondent)
File Number(s): 2025/500511
By notice of motion filed on 13 February 2026, Laura Waters, the first respondent, seeks an order against Lavinia Williment, the appellant, for security for the costs of the appeal, in an amount of $100,000.
Ms Williment appeals against the orders made by Elkaim AJ (the primary judge) on 28 November 2025 revoking the grant of probate in common form made on 30 April 2021 to Andrew Frank, as the executor of the will of the late Percy Lloyd Waters (the deceased) dated 5 August 2019 (the 2019 will) and granting probate in solemn form of the will of the deceased dated 3 June 2009 (the 2009 will) to Ms Waters.
The deceased was born in London in December 1918: J[4]. He had two daughters, Ms Waters, born in 1956, and Victoria Goss, born in 1957. His wife died in March 2003. In August 2006, when the deceased was 87 years old, he was struck by a motor vehicle when he was a pedestrian and suffered serious injuries. From that time on, he required a carer. From about March 2008, Ms Williment performed that role: J[15]. The deceased died on 4 September 2020 at the age of 101: J[19].
The deceased made a number of wills. In the wills made on or prior to 3 June 2009, his daughters shared the whole of his residuary estate in equal shares. In subsequent wills, Ms Williment was named as a beneficiary of a percentage of the residuary estate: 5% in a will made in 2011; 10% in a will made in 2016; 15% in a will made in 2017 and 21% in the 2019 will: J[22]-[23]. In the 2019 will, Ms Waters and her sister were each left 20% of the residue.
In the Court below, Ms Waters challenged the grant of probate in common form of the 2019 will that had been granted to Mr Frank, the first defendant in the Court below and the second respondent on the appeal. She submitted that the 2019 will and all preceding wills after the 2009 will were invalid by reason of the deceased’s lack of testamentary capacity, suspicious circumstances and the undue influence of Ms Williment. The primary judge found that each of these three challenges to the 2019 will and the preceding wills after the 2009 will was made out and, accordingly, granted probate in solemn form to Ms Waters in respect of the 2009 will. In addition, the primary judge found that both probate undue influence and equitable undue influence were made out. This finding was made in response to the submissions made to the primary judge that this Court’s decision in Schwanke v Alexakis; Camilleri v Alexakis (2024) 114 NSWLR 459; [2024] NSWCA 118 was incorrectly decided (which is raised in the notice of contention filed on behalf of Ms Waters).
Kevin Emanuel, the third respondent on the appeal, became the third defendant and the first cross-claimant in the Court below, as he replaced Mr Frank, who, as a result of his indisposition, was unwilling to propound the 2019 will in the application for a grant of probate in solemn form.
His Honour erred in finding the interpartes [sic] agreement about the 2009 Will [J169] took out of contention the validity of the 2009 Will, when indicators of cognitive impairment as found by his Honour, go back to 2006 [J178].
On 1 December 2025, Ms Waters’ solicitors, who had been made aware of Ms Williment’s intention to appeal, wrote to Ms Williment’s solicitors, asking them to provide a statement of Ms Williment’s assets and liabilities. No response was received to that request. Nor did Ms Williment’s solicitors respond to a request made on 3 February 2026 to confirm whether her legal advisers were acting on a no-win, no-fee basis.
In October 2025 when Ms Williment was giving evidence in the Court below, she confirmed that she was in receipt of the age pension. Ms Williment was asked in cross-examination whether she had “financial savings at the time [she was looking after the deceased]”, to which she responded:
I did have, not here, and I had a wealthy brother.
Evidence tendered in the Court below indicated that cheques and funds transferred from an account in the deceased’s name were used to pay Ms Williment’s rent and credit card bills. As far as the evidence before me revealed, the first of these payments was made on 1 December 2010 and the last was made on 7 July 2020, shortly before the deceased’s death.
On 9 December 2021 (after the deceased’s death), Mr Frank recorded in a file note (admitted into evidence in the Court below) that he had seen Ms Williment at the Northmead Anglican Church. She had asked him for a letter for her landlord, which stated how much she was getting in the deceased’s will. He noted that he refused to provide one but suggested that she send a copy of the 2019 will to her landlord. Mr Frank noted:
I subsequently heard from someone else that [Ms Williment] had told that person that she was probably returning to England to look after her brother.
On 24 June 2022, Ms Waters filed a statement of claim seeking a grant of probate in solemn form of the 2009 will and a revocation of the probate granted in common form of the 2019 will. Mr Frank, the executor of the 2019 will, was named as the sole defendant. On 15 August 2022, Mr Frank filed a defence and cross-claim of which Ms Waters was the cross-defendant. In the cross-claim, Mr Frank sought an order that the 2019 will be admitted to probate in solemn form. In the alternative (in descending order), he sought similar orders in respect of the 2017, 2016 and 2011 wills of the deceased. Mr Frank served a notice of proceedings on all interested persons, including Ms Williment (as she was a beneficiary under all the wills which he propounded), in accordance with the Supreme Court Rules 1970 (NSW) (SCR), Pt 78, r 57.
At the next directions hearing, on 14 November 2022, Mr Dupree of counsel appeared for Ms Williment, instructed by Mr Mitchell, solicitor. Mr Stevens, solicitor, appeared for Mr Frank and Mr Brown appeared for Ms Waters. Hallen J asked Mr Dupree why Ms Williment had filed a notice of appearance in circumstances where Mr Frank was propounding all of the wills under which she was a beneficiary. The following exchange occurred:
HIS HONOUR: I'm just trying to find out - have you filed an appearance as a result of the cross-claim or as a result of the statement or claim or both?
DUPREE: Neither, your Honour. We've filed our appearance pursuant to the notice of proceedings that we were served with by my learned friend's claim.
…
HIS HONOUR: Well, Mr Dupree, you, of course, by filing your appearance, you become a defendant in the proceedings--
DUPREE: We have elected to, your Honour. Yes.
HIS HONOUR: --but I want to make it perfectly clear to you, in circumstances where Mr Stevens is propounding each of the wills which benefit in you in any event, that you will be at risk as to costs.
DUPREE: And your Honour, like the sphinx, we may be silent. It's the--
HIS HONOUR: Mr Dupree, that's what I'm trying to raise with you. Now that you've filed an appearance, I have to require Mr Stevens at least to file an amended cross-claim which names you as a defendant. That's why I'm raising the matter with you. Whether we need to go through all of this or whether, in the circumstances - in light of Mr Stevens' involvement, and defending the proceedings - that we don't.
(Emphasis added to indicate the effect of Ms Williment’s filing a notice of appearance: see SCR, Part 78, r 58.)
1. Notes that Lavinia Williment has filed an Appearance in response to a Notice of Proceedings served by the Defendant [Mr Frank] in the proceedings.
2. Notes that the legal representative of Ms Williment has been informed that the Wills in which she has an interest are the Wills being propounded by the Defendant in a Statement of Cross-Claim filed 15 August 2022 and that, by her joinder in the proceedings, costs are going to be incurred by both of the Plaintiff and the Defendant.
3. Notes that the legal representative of Ms Williment has been informed that she will be at risk as to costs by seeking to be joined in circumstances where the Wills in which she has an interest are being propounded by the Defendant.
4. Grants leave to the Plaintiff to file and serve an amended Statement of Claim by 4:00 p.m. on Monday, 21 November 2022.
5. Grants leave to the Defendant to file and serve an amended Statement of Cross-Claim by 4:00 p.m. on 21 November 2022.
6. Orders Ms Williment to file and serve a Defence to the amended Statement of Claim and also to the amended Statement of Cross-Claim by 4:00 p.m. on 28 November 2022.
- Orders the Plaintiff to file and serve a Defence to the amended Statement of Cross-Claim by 4:00 p.m. on 28 November 202.
8. Stands the matter over for further directions before the Succession List Judge on Monday, 5 December 2022.
On 21 November 2022, Ms Waters filed an amended statement of claim in which she added Ms Williment as a second defendant in accordance with Hallen J’s direction. This amended pleading contained allegations of suspicious circumstances (involving Ms Williment), special disability (as between the deceased and Ms Williment) and undue influence (at the hands of Ms Williment) in respect of the 2019, 2017, 2016 and 2011 wills.
Approximately two years later, at a directions hearing on 1 November 2024, Mr Brown appeared for Ms Waters, Mr Stevens appeared for Mr Frank and Mr Mitchell appeared for Ms Williment. By that time, Mr Frank was no longer capable of propounding the 2019 will. The question arose whether a new defendant ought be added or whether Ms Williment could take on Mr Frank’s role of propounding the 2019 will.
Mr Brown submitted that Ms Williment ought perform this role since, although she had not filed a cross-claim propounding the same documents, her defence alleged that the grant of probate in common form in respect of the 2019 will ought remain in place and not be revoked. The following exchange occurred between Lindsay J and Mr Mitchell:
HIS HONOUR: Well, Mr Mitchell, I don't want to put this in a way that is not right, but coming to the crunch what's being proposed is that your client will take a primary role, effectively, as de facto first defendant. Is that something that she's able or willing to embrace?
MITCHELL: No, your Honour. No, your Honour, that's been made clear. She's not willing to take the, I suppose, heavy lifting of the case and we say it wouldn't be appropriate for her to do so given she doesn't represent the interests of the entire estate, we've got many beneficiaries.
HIS HONOUR: Right. The problem with this case is a surplus of beneficiaries, is it, surplus of people who have an interest in the estate?
MITCHELL: My client's interest is limited to at best, 21% [under the 2019 will], at worst 5% [under the 2011 will] on the contested wills, or to the plaintiff she gets the whole cake, which is half [a reference to Ms Waters’ entitlement to 50% of the residuary estate under the 2009 will], if that assists.
At this directions hearing, Mr Stevens confirmed that the estate comprised $2.7 million of which $2 million was in a controlled monies account and $700,000 was in a trust account. On Mr Brown’s application, the matter was stood over for seven days.
On 8 November 2024, Lindsay J ordered that Mr Frank be excused from further conduct of the proceedings and that Mr Emanuel be joined as third defendant and be given conduct of the proceedings relating to the defence and cross claim on the basis that his costs would be paid from the estate on an indemnity basis. Administration of the estate was also granted to Mr Emanuel, limited to the defence and cross-claim and representing the interests of the deceased in the proceedings.
Your Honour will determine my client, and having read the written submissions, my client does not propound any will. That's the task of the first [Mr Frank], and then the third defendant [Mr Emanuel]. My client's specifically here and is named as a defendant in response to the allegations directed at her: that if … any of the subject wills are admitted [to probate] the particular clause with my client should be excised. I have said, and I confirm that my client neither consents [n]or oppose[s]: I'll let Mr Stevens deal with that task because he is propounding the will. In the sense that there are no further particulars and no further evidence I'm not prejudiced.
In closing submissions to the primary judge, Mr Ellison confined his submissions to the question of undue influence.
Ms Waters relied on the disparity between the deliberately circumscribed position which Ms Williment adopted in the Court below and the wide ambit of the appeal as a special circumstance for the purpose of ordering security for costs (as addressed below).
29 At this stage, it is difficult to accurately estimate the first respondent's costs of the appeal. However, I generally estimate the following professional costs and disbursements on the indemnity basis to be at least the following:
(a) Senior junior counsel: $47,850 (incl GST)
(b) Junior counsel: $17,600 (incl GST)
(c) Professional fees $47,500 (incl of GST)
30 In my experience, and on the ordinary basis, approximately 75% is allowed for professional fees and 100% for disbursements. On this basis, I generally estimate the first respondent's ordinary costs to be around $101,075 inclusive of GST.
Ms Williment did not give evidence as to her financial circumstances. The only evidence relied on in opposition to the application for security for costs was given by her solicitor, Mr Mitchell, in his affidavit of 2 March 2026. He deposed that Ms Williment’s legal representatives are acting on a “no-win, no-fee” basis. He also said that Ms Williment has the benefit of two costs orders made on 22 May 2023 and 19 June 2023, neither of which has been assessed or paid.
I rejected the following sentence in Mr Mitchell’s affidavit on the basis that it was a conclusion, the foundation of which was unstated:
If the First Respondent's Notice of Motion succeeds, the Appellant will be denied the right to prosecute her appeal the judgment of Acting Justice Elkaim.
It was common ground that, in order to obtain an order for security for costs of an appeal, it was necessary for Ms Waters to establish special circumstances in addition to the usual matters which are regarded as warranting such an order in first instance proceedings. It was also common ground that Ms Williment was present in Court for the hearing of the application for security for costs and did not give evidence although she was available to do so.
Rule 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides:
51.50 Security for costs
(1) In special circumstances, the Court may order that such security as the Court thinks fit be given for costs of an appeal.
(2) Subject to subrules (1) and (3), no security for costs of an appeal is to be required.
(2A) If an appellant or cross-appellant fails to comply with an order under this rule, the Court may order that the appellant’s appeal or cross-appellant’s cross-appeal be dismissed.
(3) Subrules (1), (2) and (2A) do not affect the powers of the Court under rule 42.21 (which relates to security for costs).
42.21 Security for costs
(1) If, in any proceedings, it appears to the court on the application of a defendant—
(a) that a plaintiff is ordinarily resident outside Australia;
…
the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant’s costs of the proceedings and that the proceedings be stayed until the security is given.
(1A) In determining whether it is appropriate to make an order that a plaintiff referred to in subrule (1) give security for costs, the court may have regard to the following matters and such other matters as it considers relevant—
(a) the prospects of success or merits of the proceedings,
(b) the genuineness of the proceedings,
(c) the impecuniosity of the plaintiff,
(d) whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct,
…
(f) whether an order for security for costs would stifle the proceedings,
…
(l) the timing of the application for security for costs,
(m) whether an order for costs made against the plaintiff would be enforceable within Australia,
(n) the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff.
(1B) If the plaintiff is a natural person, an order for security for costs cannot be made merely on account of his or her impecuniosity.
(2) Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct.
(3) If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff’s claim for relief in the proceedings be dismissed.
…
Although Ms Williment is not ordinarily resident outside Australia, she lives in rented accommodation, the location of which changes relatively frequently (which may be explained by the vicissitudes of the rental market or non-payment of rent as a result of her impecuniosity) and has family ties to the UK. Further, there is some evidence that Ms Williment’s brother was “wealthy”, had died since the hearing and that she expected to inherit under his will. These matters are relevant to two factors: whether Ms Williment will remain in Australia and whether she has established that an order for security will stultify the proceedings.
If Ms Williment relocates to the UK, and her appeal is unsuccessful, Ms Waters will be put to the cost, delay and risk of enforcing a costs order in a foreign jurisdiction: see PS Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 65 ALJR 642 at [7] (McHugh J). This factor is significant in the present case where it would appear that Ms Williment has no assets in Australia and, in effect, lives from hand to mouth here. I do not regard the two outstanding costs orders as bearing on her financial position. She has taken no steps to quantify or assess these orders, which is understandable, given that she has appealed the principal orders made by the primary judge.
Although I do not consider that Ms Williment’s change of address is particularly probative, her lack of fixed abode would tend to magnify the cost, delay and risk of enforcement of any adverse costs order, particularly one which needs to be enforced in the UK, being the only jurisdiction where there is a possibility that she has assets.
Ms Williment bears the onus of establishing that an order for security would stultify her ability to prosecute the appeal. Ms Williment, though available to give evidence, has chosen not to give any evidence as to her financial circumstances. Such evidence as is available suggests that she may have inherited, or be about to inherit, funds or assets in the UK from her brother. In these circumstances, it is appropriate to draw a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference that her evidence would not have assisted her resistance to the application for security. The principle in Blatch v Archer (1774) 1 Cowper 63 at 65; 98 ER 969 at 970 – that all evidence is to be weighed according to the proof which is within the power of one side to have produced and the power of the other to have contradicted – is also relevant. It can be inferred that Ms Williment knows when her brother died and whether she is a beneficiary under his will and has chosen neither to reveal such matters to the Court nor to give evidence (which would have subjected her to cross-examination). These are not matters which are reasonably ascertainable by Ms Waters, except to the limited extent possible in the course of cross-examining Mr Mitchell as to his knowledge of Ms Williment’s financial position.
(1) no order for security should be made in the absence of “special circumstances”;
(2) consideration of what may constitute special circumstances should not be fettered by some general rule of practice;
(3) impecuniosity, without more, will usually be insufficient;
(4) an order may be appropriate if the appeal is shown to be hopeless, unreasonable or of an harassing nature;
(5) where a bona fide and reasonably arguable appeal would be stifled by an order for security, such an order should usually not be made, and
(6) the subject matter of the appeal, including an issue as to the liberty of the individual, or a public interest may provide a reason for not imposing a security order which would stifle the continuation of the appeal.
Mr Brown relied on the narrative set out above as to the forensic course taken by Ms Williment in the Court below. He argued that, by filing a notice of appearance in response to the notice of proceedings Ms Williment chose to become a party to the proceedings, in circumstances where her interest (in propounding the 2019 will and, in the alternative, all the wills prior to that date but after the 2009 will) relevantly corresponded with that of Mr Frank, and, after he was excused, of Mr Emanuel. Mr Brown submitted that Ms Williment had brought about a situation where she was a defendant to the proceedings and yet had not filed a cross-claim (since she was apparently content for Mr Frank and, subsequently, Mr Emanuel, to do the work of propounding other wills).
Mr Brown submitted that it was significant that Mr Emanuel, who acted as the contradictor to Ms Waters’ case in the Court below, has apparently elected not to appeal against the orders made by the primary judge. Further, he submitted that it was also significant that, in the appeal, Ms Williment was seeking an order that Ms Waters’ second further amended statement of claim be dismissed and that probate in solemn form be granted of the 2019 will. He submitted that Ms Williment’s position on appeal was much broader than the limited role she elected to play in the Court below. He relied on the circumstances that Ms Williment did not challenge any aspect of Ms Waters’ claim in the Court below other than the allegations of undue influence and did not propound the 2019 will, or any other will, by cross claim or otherwise.
Ms Williment’s forensic choices in the Court below, which resulted in her being joined as a defendant to the proceedings, gave her an automatic right of appeal (since she was a party). Had she chosen not to have been joined as a party, it would have been necessary for her to apply for leave to appeal as an affected person or witness: s 101 of the Supreme Court Act 1970 (NSW); Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52, referring to Re Markham*; Markham v Markham* (1880) 16 Ch D 1 (where a potential beneficiary under a will who was not party to administration proceedings was granted by the Court of Appeal leave to appeal despite having not been a party to the cause); and Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [62] (Basten JA). However, the ambit of Ms Williment’s role in the Court below was very much more limited than the ambit of her appeal to this Court. She is, in effect, seeking to exercise a right of appeal which could have been exercised by Mr Emanuel, who has chosen not to exercise it.
I regard the disparity been Ms Williment’s role in the Court below and the ambit of the appeal to this Court, as well as the circumstance that Mr Emanuel has chosen not to appeal against the primary judge’s orders, as amounting to special circumstances for the purposes of UCPR, r 51.50(1).
It is also significant that Ms Williment’s notice of appeal contains ground 16 (extracted above), in respect of which she can have no conceivable financial or forensic interest. She is not a beneficiary under the 2009 will or any will executed prior to the 2009 will. She is not entitled to take on an intestacy, being unrelated to the deceased. Accordingly, she has no standing to challenge the 2009 will: Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [49] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ). Her position is to be contrasted with that of Ms Waters and Ms Goss, who have an interest in all wills, as they would be entitled on an intestacy.
Further, ground 16 is at odds with the forensic position Ms Williment took in the Court below, as evidenced by the Joint Statement of Issues, which read:
There is no issue in the event the court is not satisfied the contentious Wills should not be admitted to probate, that … a grant should be made to the plaintiff of the 2009 Will.
It is, of course, neither possible nor desirable to make a detailed analysis of an appellant’s prospects of success on an appeal in the context of the determination of an application for security for costs. That having been said, some analysis must be undertaken for the purposes of the “special circumstances” calculus that the authorities indicate should be undertaken.
Mr Ellison submitted that the appeal could not be regarded as having poor prospects in circumstances where:
in four separate wills made over the course of about eight years (in 2011, 2016, 2017 and 2019), the deceased progressively decreased the percentage benefit to his children and correspondingly increased the benefit to Ms Williment;
each of those four wills was prepared by the same solicitor who had known the deceased; and
the deceased had given written and oral instructions and annotated draft and previous wills.
The primary judge had the undoubted advantage of seeing and hearing the witnesses, including Ms Williment: see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. His Honour found that the deceased lacked testamentary capacity for each of the four wills post-dating the 2009 will and that there were suspicious circumstances and relevant undue influence on the part of Ms Williment, which rendered each of these wills invalid. In order to succeed on the appeal, Ms Williment must overturn the primary judge’s findings as to testamentary capacity, suspicious circumstances and undue influence. In effect, Ms Williment challenges every material finding made by the primary judge and his Honour’s assessment of all of the witnesses, lay and expert. I do not consider that her prospects of appeal can be regarded as other than weak.
Nor do I accept Mr Ellison’s submission that the primary judge’s preparedness to grant a stay of the orders indicated that his Honour harboured a doubt as to the correctness of the orders or held any view as to the prospects of appeal. Trial judges routinely grant stays of orders in order to ensure that an appeal is not rendered nugatory.
The lack of prospects of success of an appeal in circumstances where the appellant is apparently impecunious, at least in the jurisdiction where the appeal is brought, is also significant and may, in some cases, amount to special circumstances: Preston at [18]. In Dye v Commonwealth Securities Limited [2012] FCA 992 (applied in Theocharous v Theocharous [2025] NSWCA 243 at [11] and [14] (Ball JA)), Emmett J said at [28]:
While impecuniosity ought not to be a bar to a person prosecuting a reasonable claim at first instance, the position on appeal is fundamentally different. At the appellate level, there has already been a determination adverse to the person against whom security for costs is sought. If there is a substantial risk that, if successful, the respondent will be deprived of costs, that outcome would clearly be unjust. In a sense, it is giving to a person who has been on the receiving end of an adverse determination by the courts, a free hit at great cost to the other party in the appeal proceeding. It is against those principles that I shall consider the matters addressed by the parties.
(Emphasis added.)
Mr Ellison did not take issue with the quantum of security sought. Mr Brown suggested that it could be ordered in tranches. I do not favour that approach. If the true position is that Ms Williment cannot provide security or is unwilling to hazard, for the purposes of her appeal, funds or an expectation of funds to which she may have access in the UK, it is in the interests of the parties and of the administration of justice that this be known sooner rather than later.
I have also made provision in order (4) for the appeal to be dismissed if security for costs is not provided within a total of 56 days (28 days after the last day on which Ms Williment is required to provide security for costs). This order is designed to obviate the need for Ms Waters to file a notice of motion for an order dismissing the proceedings if Ms Williment has not provided security for costs as ordered.
For the reasons given above, I make the following orders:
Order the appellant to provide security for the first respondent’s costs of the appeal in the sum of $100,000.
Order that the security in order (1) be provided within 28 days either by payment of the amount into Court or by the provision of a bank guarantee that is acceptable to the first respondent.
Order that, if the appellant fails to comply with orders (1) and (2), the proceedings against the first respondent be stayed until such time as the security is provided.
If after a further 28 days, the appellant fails to provide the security referred to in orders (1) and (2), dismiss the appeal.
Order the appellant to pay the first respondent’s costs of the notice of motion filed on 13 February 2026.
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Williment
Waters [2026] NSWCA 37
(2006) 67 NSWLR 372
(2003) 214 CLR 118
(1959) 101 CLR 298
(2019) 266 CLR 129
(2018) 265 CLR 236
(1991) 65 ALJR 642
(2024) 114 NSWLR 459
(2000) 49 NSWLR 429
The appellant was ordered to provide $100,000 security for the first respondent’s appeal costs within 28 days, either by payment into Court or by a bank guarantee acceptable to the first respondent. If she failed to comply, the proceedings against the first respondent were to be stayed until security was provided. If she still failed to provide security after a further 28 days, the appeal was to be dismissed. The appellant was also ordered to pay the first respondent’s costs of the motion.