Williment v Waters (No 2)

1. [1]

   THE COURT: This is an application under s 46(4) of the Supreme Court Act 1970 (NSW) and Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.58 to discharge or vary orders of Adamson JA on 25 March 2026. By those orders, the appellant, Lavinia Williment, was required to provide security for the costs of the first respondent, Laura Waters, of appeal proceedings brought by Ms Williment in the sum of $100,000: Williment v Waters [2026] NSWCA 37. Pursuant to her Honour’s orders, as that security has not been paid, the appeal proceedings were stayed on 23 April 2026 and if security remains outstanding, the proceedings will be dismissed on 22 May 2026.

2. [2]

   The underlying proceedings were heard by Elkaim AJ at first instance: Waters v Frank; Frank v Waters [2025] NSWSC 1389 (substantive decision at first instance). They arose out of disputes relating to a number of wills made between 2009 and 2019 by Dr Percy Lloyd Waters (the deceased), who died on 4 September 2020 aged 101 years leaving an estate valued at $2.7 million. Ms Williment was the carer (and, on her account, friend) of the deceased from March 2008 until his death (save for a short period of no more than two weeks when Ms Williment was sacked from, and then reinstated in, her role as carer). Ms Waters is one of the deceased’s two daughters but was estranged from, and did not see or speak to the deceased, after around February 2009. The deceased’s other daughter, Victoria Goss, who has lived in the United States since October 1992, did not communicate with the deceased between 2009 and 2015, and thereafter saw him on her annual visits to Australia. The second respondent, Andrew Frank, was the deceased’s solicitor from 5 October 2011 and prepared four wills for the deceased between 2011 and 2019 (inclusive) (together, the impugned wills). He was the executor of those wills. The third respondent, Kevin Emanuel, was granted administration of the estate on 8 November 2024 (by orders of Lindsay J) after Mr Frank became ill and was excused from further conduct of the proceedings.

3. [3]

   On 30 April 2021 probate in common form of a will executed by the deceased on 5 August 2019 (the 2019 will) was granted to Mr Frank. By proceedings commenced against Mr Frank on 24 June 2022, Ms Waters sought orders revoking that grant of probate and instead granting probate to Geoffrey Murray (the deceased’s solicitor for many years up until Mr Murray’s retirement in June 2011, after which there was no evidence that he had contact with the deceased) of a will dated 3 June 2009 (the 2009 will). On 25 October 2022 Ms Williment filed a notice of appearance in those proceedings. On 21 November 2022, pursuant to orders of Hallen J on 14 November 2022, Ms Waters filed an amended statement of claim, naming both Mr Frank and Ms Williment as defendants.

4. [4]

   On 2 December 2022, Mr Frank brought a cross-claim against Ms Waters, seeking an order that there be a grant of probate in solemn form to the 2019 will, or alternatively, to wills made in 2017, 2016 or 2011. Ms Williment filed a submitting appearance on the cross-claim, which was defended by Ms Waters.

5. [5]

   On 22 June 2023 Ms Waters further amended her statement of claim to include a claim that:

6. [6]

   Thus, Ms Waters’ claims in the substantive proceedings below were that:

   1. (1)

      the impugned wills were invalid by reason of the deceased’s lack of testamentary capacity at the time of their execution, lack of knowledge and approval by the deceased in circumstances where they were executed in suspicious circumstances and (added by way of amendment on the first day of the trial, but advanced before then in submissions) Ms Williment’s undue influence; and

   2. (2)

      whilst recognising that this claim was precluded by the decision in Schwanke v Alexakis; Camilleri v Alexakis (2024) 114 NSWLR 459; [2024] NSWCA 118, that the gifts to Ms Williment under the wills were procured by equitable undue influence such that those gifts were held by Mr Frank on trust for the residuary estate.

7. [7]

   As already noted, in the cross-claim Mr Frank propounded the 2019 will, and in the alternative, each of the other impugned wills. The parties agreed before Elkaim AJ that, if none of the impugned wills should be admitted to probate then a grant should be made of the 2009 will. Elkaim AJ observed that “[t]his agreement took out of contention the validity of the 2009 will”.

8. [8]

   By way of background it can be noted that:

   1. (1)

      in the 2009 will, 50% of the deceased’s residuary estate (after some specific bequests to the deceased’s niece’s family and to friends) was to go to each of Ms Waters and Ms Goss (and broadly the same bequests were made in an earlier will dated 25 June 1999);

   2. (2)

      in the impugned wills, over time, the deceased increased the gifts to Ms Williment, decreased the gifts to each of Ms Waters and Ms Goss, and he also made varying gifts to the former carer of the deceased, friends and charities; and

   3. (3)

      in the 2019 will, 20% of the deceased’s residuary estate plus jewellery was to go to each of Ms Waters and Ms Goss; 21% to Ms Williment; 20% to the deceased’s niece (and her family); 10% to Alexandra Fraser (Ms Waters’ daughter) and the remainder to the former carer of the deceased, friends and charities.

9. [9]

   After a hearing which took place between 20 and 31 October 2025, in the substantive decision at first instance Elkaim AJ revoked the grant of probate to Mr Frank of the 2019 will, granted probate in solemn form to Ms Waters of the 2009 will and dismissed the cross-claim. On 19 December 2025 his Honour made orders as to costs, in effect providing that the costs of Ms Waters, Mr Frank and Mr Emanuel could be recovered from the deceased’s estate on an indemnity basis and making no order as to the costs of Ms Williment: Waters v Frank; Frank v Waters (No 2) [2025] NSWSC 1586 (costs decision at first instance).

10. [10]

    By notice of appeal filed on 16 January 2026 Ms Williment appeals against the substantive decision at first instance. Mr Emanuel has filed a submitting appearance in respect of that appeal. By notice of contention filed on 13 February 2026 Ms Waters contends that Elkaim AJ’s decision should be affirmed on additional grounds, including on the basis of equitable undue influence on the deceased by Ms Williment.

11. [11]

    Ms Waters’ application for security for costs in the sum of $100,000 was also filed on 13 February 2026. The application was heard on 23 March 2026 and Adamson JA made orders on 25 March 2026. Her Honour’s reasons for making her orders (at [1] above) were, in summary:

    1. (1)

       special circumstances (as required by UCPR, r 51.50(1)) were constituted by:

    2. (2)

       Ms Williment had failed to discharge her onus of establishing that an order for security would stultify the appeal; and

    3. (3)

       counsel for Ms Williment did not take issue with the quantum of security sought.

12. [12]

    By notice of cross-appeal filed on 7 April 2026, after Adamson JA ordered that security be provided, Ms Waters appealed against the costs decision at first instance, seeking orders including that Mr Frank pay Ms Waters’ costs on the ordinary basis and that Mr Frank indemnify the estate for the costs of Mr Emanuel. The cross-appeal raises substantive issues as to whether Mr Frank had actual or constructive knowledge that the impugned wills could not be supported or was reckless as to this, and whether his Honour erred in finding that Mr Frank was not the, or a, cause of the litigation.

13. [13]

    On this application for review, Ms Williment seeks leave to rely upon evidence that was not before Adamson JA, comprising:

    1. (1)

       a will dated 6 April 2020 of Barry James Williment, Ms Williment’s brother, leaving 10/100 shares of equal value of his residuary estate to Ms Williment (Barry Williment’s Will); and

    2. (2)

       a grant of probate of Barry Williment’s Will issued on 13 May 2025 recording that the application for probate stated that the gross value of Mr Williment’s estate in the United Kingdom was £174,700 and the net value amounts to £88,344 (the UK probate).

This Court’s jurisdiction

1. [14]

   In order to succeed on this application, Ms Williment ordinarily would be required to show that there has been a material error of law or fact in the decision sought to be reviewed, or a disregard of some material consideration or the taking into account of an irrelevant consideration, or that the decision was plainly unreasonable and therefore wrong: Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152 at [27]; McGinn v Cranbrook School [2016] NSWCA 226 at [1] (Beazley P), [4] (Gleeson JA) and [42] (Simpson JA); Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 at [4] and [6]; Fokas v Mansfield (No 3) [2017] NSWCA 315 at [22]. An applicant under s 46(4) of the Supreme Court Act bears a heavy burden: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48].

2. [15]

   However, as is well established, courts in general have power to vary, discharge or suspend an interlocutory order where “circumstances arise which warrant in the [court’s] view a cessation of the continuance of the order as earlier made”: Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447-448 (Isaacs J) cited with approval in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 178; [1981] HCA 39. As to this, in Proietti v Proietti [2025] NSWCA 11 at [21] this Court explained that “[t]he variation of interlocutory orders generally requires a material change of circumstances to be established”; see also Moore (a pseudonym) v The King [2024] HCA 30 at [26].

3. [16]

   Consistent with this authority, in Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2014] NSWCA 417, where this Court considered an application under s 46(4) of the Supreme Court Act to set aside orders of Sackville AJA that security for the costs of an appeal be provided, Basten JA said (at [6]):

4. [17]

   In circumstances where the Court is satisfied that there is a material (or significant) change of circumstances warranting the cessation or variation of an interlocutory order, under s 46(4) of the Supreme Court Act the Court may re-exercise the discretion exercised by the single Judge of Appeal including, if appropriate, by reference to additional evidence.

Change of circumstances

1. [18]

   Two matters were relied upon by Ms Williment as material changes of circumstances since the orders of Adamson JA were made: the filing of the notice of cross-appeal by Ms Waters and the making available to the Court of Barry Williment’s Will and the UK probate.

2. [19]

   As to the first of these, we are satisfied that the filing of the notice of cross-appeal constitutes a material change of circumstances from those that were before Adamson JA. In oral submissions before her Honour, counsel for Ms Waters noted that there was “still time to file cross appeals”, and a notice of intention to cross-appeal was filed on 16 January 2026, but her Honour was not informed that a cross-appeal would be filed nor was she told what grounds might be raised.

3. [20]

   The cross-appeal challenges order 3 of the costs decision at first instance, in which Elkaim AJ ordered that Mr Frank was entitled to recover his costs from the estate of the deceased on an indemnity basis. Mr Frank is the respondent to whom the cross-appeal is directed but Ms Williment and Mr Emanuel are also respondents.

4. [21]

   In the cross-appeal Ms Waters contends that Elkaim AJ took into account irrelevant matters such as his finding that he “had the distinct impression that in his dealings with the deceased [Mr Frank] may well have not noticed the influence of the second defendant because of his friendship with the deceased” and that Elkaim AJ should have taken into account that Mr Frank had “actual or constructive knowledge, or would have had such knowledge had he not been reckless” that the wills he was propounding could not be supported. In circumstances where Elkaim AJ did not make a finding that Mr Frank had such knowledge, this contention will require some examination of the evidence and factual findings in the substantive proceedings below. Similarly, Ms Waters’ contention in the cross-appeal that his Honour mistook the facts in failing to find that Mr Frank was the, or a, cause of the litigation will require analysis of the findings, and likely also the evidence, in the proceedings below.

5. [22]

   As was accepted by counsel for Ms Waters, the efficient and sensible course is for the cross-appeal to be heard with the appeal with one set of books for both. The same counsel will no doubt be briefed on the cross-appeal and the appeal, and the hearing of the cross-appeal will require preparation and submissions by reference to the detail of the findings (and potentially also the evidence) in the proceedings below. The costs of the cross-appeal will, to a not insignificant extent, overlap with the costs of the appeal. Moreover, counsel for Ms Waters confirmed in oral submissions that the cross-appeal will proceed irrespective of whether the orders of Adamson JA are set aside and, if not, irrespective of whether the appeal is dismissed pursuant to her Honour’s orders. The filing of the cross-appeal thus necessarily diminishes the extent to which the time and costs of the appellate proceedings will be occasioned solely on account of the appeal. In circumstances where the orders of Adamson JA were predicated upon evidence of Ms Waters’ solicitor estimating that Ms Waters’ ordinary costs of the whole of the appeal would be $101,075 (inclusive of GST), and her Honour ordered security for costs in the sum of $100,000, and it is now apparent that Ms Waters will herself be prosecuting appellate proceedings involving detailed factual analysis, the filing of the cross-appeal is a material change of circumstances which warrants the variation or cessation of the orders made by Adamson JA. It is thus necessary for this Court to re-exercise the discretion exercised by her Honour.

6. [23]

   The second matter relied upon by Ms Williment, the making available to the Court of Barry Williment’s Will and the UK probate, does not constitute a material change of circumstances given that Ms Williment did not suggest, still less seek to prove, that that material was not available to her by the time of the hearing before Adamson JA. However, as was conceded by counsel for Ms Waters in oral submissions, there could be no objection to this evidence being taken into account on the re-exercise of the discretion.

The substantive decision at first instance

1. [24]

   We have already noted the orders made by Elkaim AJ in the substantive proceedings below. His Honour summarised his reasons for making those orders as follows (at [25]-[26]):

2. [25]

   In making those findings, Elkaim AJ placed considerable reliance upon the opinions of Professor Carmelle Peisah, a psychiatrist specialising in old age, instructed by Ms Waters, which his Honour accepted. Prof Peisah had not met the deceased but prepared her report on the basis of “extensive” documentary material (it is not clear, on the evidence before this Court, to what material she had access). His Honour’s finding that the deceased did not have testamentary capacity was reached by “[i]nserting Prof Peisah’s opinion into the requirements of testamentary capacity”, in circumstances where a number of lay witnesses and the deceased’s treating doctors did not share Prof Peisah’s view of the deceased’s capacity. His Honour also discounted the forensic significance of the deceased’s notes as to his testamentary wishes because he found that Ms Williment was exerting undue influence over the deceased.

3. [26]

   His Honour relied upon the presence of Ms Williment when the impugned wills were read back to the deceased, her “unquestionable influence” over the deceased and the growing complexity of the wills as supporting his finding that Mr Emanuel had not established that the deceased had an accurate knowledge of the content of the wills and approved them. It can be noted that one of the opinions of Prof Peisah that Elkaim AJ accepted was that the deceased “may not have fully appreciated or understood what he was executing” and “probably lacked awareness of those who did NOT have a claim on his bounty”. As to probate undue influence, his Honour agreed with Prof Peisah that there was “an extreme risk of undue influence” in the impugned wills and that the deceased was emotionally captive to Ms Williment. His Honour also relied upon a range of circumstantial factors (some of which were interlinked) being the susceptibility and vulnerability of the deceased, Ms Williment’s control of his bank accounts, payments made by the deceased to Ms Williment, her presence when the impugned wills were executed and the increasing benefits to her under the wills and observed that these factors would be the factors establishing equity undue influence.

4. [27]

   As this summary demonstrates, his Honour’s key findings were interlinked and were in significant respects reliant upon Prof Peisah’s opinions.

The grounds of appeal raised by Ms Williment

1. [28]

   Ms Williment relies in her notice of appeal upon 16 grounds of appeal. These challenge his Honour’s:

   1. (1)

      factual findings, which are contended either to be erroneous or to be undermined by failure to engage in critical factual enquiries (grounds 1 and 2);

   2. (2)

      approach to the test for, and findings as to, testamentary capacity (grounds 3 and 12);

   3. (3)

      approach to or, in some cases, reliance upon, the evidence of various witnesses:

   4. (4)

      findings as to whether the deceased had knowledge and approval of the wills (ground 13), suspicious circumstances had been allayed (ground 14) and that probate undue influence had been proved (ground 15); and

   5. (5)

      finding that the parties’ agreement referred to at [7] above “took out of contention the validity of the 2009 Will, when indicators of cognitive impairment as found by his Honour, go back to 2006”.

Relevant principles

1. [29]

   Under UCPR, r 51.50(1), “[i]n special circumstances, the Court may order that such security as the Court thinks fit be given for costs of an appeal”.

2. [30]

   Principles relevant to ordering security under UCPR, r 51.50 were summarised by Basten JA (Ipp JA and Hoeben J agreeing) in Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18]:

3. [31]

   The existence of special circumstances is a necessary, but not necessarily sufficient, condition. Matters relied upon as special circumstances are likely also to weigh in favour of the residual discretion: Brown v King [2022] NSWCA 75 at [8]-[10] (Kirk JA).

4. [32]

   As to the relevance of stultification, in Cassaniti v Katavic [2022] NSWCA 230 Macfarlan JA held that (at [13]):

5. [33]

   The fact that an order for security for costs will stultify an appeal is not determinative but will usually be a significant factor guiding the exercise of the Court’s discretion whether to make an order for security for costs: Yandil Holdings Pty Ltd v Insurance Company of North America (1985) 3 ACLC 542, at 545; see also Tyneside at [46]; Brown at [10].

6. [34]

   As Basten JA explained in Pioneer Park Pty Ltd (In liq) v Australia and New Zealand Banking Group Limited [2007] NSWCA 344 at [51], the likelihood that an order for security will stultify proceedings is not established merely by reference to impecuniosity. It has often been said that a respondent to an application for security bears the evidentiary onus of establishing that an order for security would stultify an appeal; see eg Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240 at [28]; Boros v Pages Property Investments Pty Ltd [2021] NSWCA 50 at [25]; Marks-Isaacs v Fowler [2005] NSWCA 37 at [24] (Handley JA). There is, however, no inflexible rule that the respondent to an application for security must always lead evidence going to stultification. As was emphasised by Clarke J in Yandil at 545, much will depend upon the circumstances of the particular case. For example, where there is evidence that individual respondents to applications for security are impecunious but no evidence suggesting that there is someone who might stand behind them or might reasonably be expected to make funds available to meet an order for security, or that there is any real likelihood of them coming into significant funds to enable them to provide security, then stultification might readily be inferred.

Should security for costs be ordered

1. [35]

   We are satisfied that, in this case, no order for security should be made.

2. [36]

   Ms Waters relies upon three matters as constituting special circumstances warranting an order for security under UCPR, r 51.50.

3. [37]

   The first matter Ms Waters relies upon as special circumstances is that the appeal is “of an unreasonable nature” having regard to the disparity between the limited role taken by Ms Williment below and her notice of appeal which challenges all of the key findings of Elkaim AJ. In this regard, Ms Waters relies upon the fact that in oral submissions in the substantive proceedings below senior counsel for Ms Williment expressly limited Ms Williment’s involvement to responding to Ms Waters’ claim that the gift to Ms Williment should be excised from the impugned wills by reason of equitable undue influence. She did not propound any will. Ms Waters also places reliance upon the fact that, when Mr Frank became indisposed such that he was no longer available to continue as an active party to the proceedings, Ms Williment declined to take over his role in propounding the impugned wills, and upon the fact that neither Mr Frank nor Mr Emanuel, who at different times did propound the impugned wills, have sought to appeal against the substantive decision at first instance.

4. [38]

   We are unpersuaded that these matters, whether alone or in conjunction with other matters relied upon, constitute special circumstances supporting an application for security.

5. [39]

   Ms Williment, as a beneficiary under the 2019 will which Ms Waters sought to challenge, was served with a notice of proceedings and filed a notice of appearance on 25 October 2022. She attended a mediation in the proceedings on 31 October 2022. At a directions hearing before Hallen J on 14 November 2022 her counsel explained that her involvement was because she wished “to preserve her entitlement in respect of the 2019 will, and it's on that basis she is here”. It is of some significance that at that directions hearing Hallen J made it clear to her that:

6. [40]

   Ms Williment filed a defence on 1 December 2022, denying many of Ms Waters’ allegations and raising a number of matters which, she alleged, answered Ms Waters’ allegations, but as already noted, in the cross-claim she filed only a submitting appearance.

7. [41]

   On 1 November 2024, there was a directions hearing before Lindsay J when Mr Frank became ill and unavailable to continue to conduct the proceedings. Ms Waters’ position was that the court should not appoint any replacement for Mr Frank, or at least should not give the replacement any guarantee about their exposure to costs, given that Ms Williment was an active party in the proceedings opposing Ms Waters’ relief. Ms Williment declined to take on the role of propounder of the 2019 will on the basis that she was not willing to take on the “heavy lifting of the case” and it was not appropriate for her to do so in circumstances where there were a number of beneficiaries under the various impugned wills and Ms Williment did not represent the interests of the estate as a whole. Lindsay J (without expressing any criticism of the position taken by Ms Williment) found that there had to be “some substitute” for Mr Frank because the public interest required that there be a real contradictor “where there’s a number of fractured interests in the estate…”. His Honour also observed that Ms Williment would have an exposure to costs, by implication referring to the risk that she would have if she were to propound the cross-claim and seek to take on the role previously assumed by Mr Frank.

8. [42]

   By orders of 8 November 2024 his Honour excused Mr Frank from further conduct of the proceedings, save as to costs, appointed the proposed administrator, Mr Emanuel, and directed that he be joined as third defendant and be given conduct of the proceedings so far as it relates to the defence and cross-claim, and that his costs be paid from the estate on an indemnity basis. In the substantive proceedings before Elkaim AJ, Ms Williment filed two sets of written submissions, made oral submissions and senior counsel for Ms Williment cross-examined various witnesses at the hearing. As to the focus of Ms Williment’s involvement in those proceedings, senior counsel for Ms Williment explained at the commencement of the hearing before Elkaim AJ that:

9. [43]

   At the hearing before Elkaim AJ, Mr Emanuel submitted that he was not “the proper contradictor to defend the ‘equity’ claims” as the relief sought by Ms Waters “affect[ed] only [Ms Williment]” and made it plain that the division between his role and that of Ms Williment at the hearing would be that he would conduct the defence of the probate claims and Ms Williment would conduct the defence of the equity claims. This was described by senior counsel for Ms Williment before Adamson JA as “an active effort to avoid duplication at trial”. As Ms Williment submitted, she was obliged to seek to defend the benefit which passed to her under the impugned wills.

10. [44]

    Mr Emanuel, as administrator, has no financial interest in appealing against the orders of Elkaim AJ and it is by no means clear that he could be indemnified by the deceased’s estate for his costs were he to do so. By contrast, Ms Williment has a real financial interest in doing so.

11. [45]

    In these circumstances, it is not a special circumstance that Ms Williment is appealing against the whole of the judgment of Elkaim AJ whereas before Elkaim AJ she assumed a more limited role. In circumstances where it had been made plain to her, by Hallen J, that she could be at risk as to costs on account of her involvement in the proceedings, and there were a number of beneficiaries under each of the impugned wills, it was readily explicable why she did not seek to take over the conduct of the cross-claim after Mr Frank became indisposed, and why she assumed the role she did in the proceedings at first instance. It is also readily explicable why she would seek to appeal from the whole of the judgment below once it was apparent that neither Mr Frank nor Mr Emanuel would seek to do so.

12. [46]

    The second matter Ms Waters relies upon as special circumstances is that the appeal is “of an unreasonable nature” having regard to ground 16 of the notice of appeal, which contends that Elkaim AJ erred in not considering the validity of the 2009 will, in circumstances where Ms Williment agreed before Elkaim AJ that the validity of that will was not in issue and has no financial interest in challenging the validity of that will.

13. [47]

    Ms Waters is correct that Ms Williment will face real difficulties in prosecuting ground 16 in circumstances where it was agreed between the parties before Elkaim AJ that the 2009 will should be admitted to probate if the impugned wills failed. However, ground 16 is premised on a narrow contention which relies upon the finding of Elkaim AJ that a diagnosis of dementia by Dr Gupta in 2020 was not unique given other indicators of cognitive impairment in the deceased’s medical records going back to 2006. In the context of the appeal and cross-appeal as a whole, it is highly unlikely that ground 16 will require expansive submissions or detailed reference to evidence, or will put Ms Waters to any significant additional cost or inconvenience. The main focus of the appeal will inevitably be on the other grounds of appeal.

14. [48]

    In these circumstances, we are not satisfied that ground 16 of the notice of appeal is itself a special circumstance.

15. [49]

    The third matter Ms Waters relies upon as special circumstances is the combination of what Ms Waters submits are the “poor prospects” of the appeal and the agreed position that Ms Williment is impecunious such that Ms Waters is unlikely to be paid her costs of defending the appeal if this Court orders that Ms Williment pay Ms Waters’ costs of the appeal.

16. [50]

    The primary difficulty with this contention is that, whilst the Court may consider the merits of the proposed appeal, an application for security is not to be turned into a preliminary hearing of the appeal: Mualim v Dzelme [2020] NSWCA 333 at [8]. In circumstances where the material before this Court does not include all of the evidence before Elkaim AJ or the full transcript of the proceedings at first instance, it is very difficult to express any reliable view as to prospects beyond their being reasonably arguable; see Eco-Pact Pty Ltd v The Law Society of NSW [2024] NSWCA 206 at [107]-[109].

17. [51]

    Whilst we recognise that Ms Williment must succeed in overturning the three different bases upon which Elkaim AJ found that the impugned wills should be set aside, the evidentiary foundation and analysis which led to those findings is interlinked such that if, by way of example, Ms Williment were able to show error in the reliance by Elkaim AJ on the evidence of Prof Peisah, that might undermine significant aspects of his Honour’s reasoning on each of the grounds upon which his Honour found that the 2019 will was not valid.

18. [52]

    Moreover, whilst this is a case where there were multiple witnesses who gave oral evidence and were cross-examined before Elkaim AJ, his Honour made an adverse credibility finding only about Ms Williment, and that finding was predicated upon his assessment of the comparison between Ms Williment’s oral evidence and file notes written by Mr Murray in 2009 and 2010 when he was the deceased’s solicitor. It is also of some significance that key evidence, such as that of Mr Frank, was given only by affidavit. Further, the challenges Ms Williment makes to his Honour’s reliance on the opinions of Prof Peisah are primarily predicated not upon Prof Peisah’s credibility or reliability as a witness but upon the weight which should properly be given to her opinions having regard to the lay evidence relied upon by Mr Emanuel and Ms Williment before Elkaim AJ (which included affidavit and some oral evidence from a number of the deceased’s treating doctors) and upon the ambit of the opinions she expressed (and Elkaim AJ accepted).

19. [53]

    Thus, despite Ms Williment’s impecuniosity, we are not satisfied that there are special circumstances meriting an order for security.

20. [54]

    Whilst in these circumstances it is unnecessary to reach a concluded view as to stultification, we are satisfied on the evidence now before this Court, which includes Barry Williment’s Will and the UK probate, that a grant of security for costs in any significant sum is likely to stultify Ms Williment’s appeal. The evidence adduced by Ms Waters in support of her contentions as to Ms Williment’s impecuniosity discloses that Ms Williment does not have any significant financial resources. She is in receipt of rental assistance and a Centrelink aged pension. Whilst in her evidence before Elkaim AJ she said she “did have” financial savings and had a wealthy brother, she also said that “like many people” she “lost a lot of money in 2008”. It was also apparent from evidence at trial that on occasion the deceased assisted Ms Williment in meeting her rent and credit card obligations and took steps to repair her credit rating. She lives in rented accommodation and has lived in four different premises in the past four years. All of these matters support an inference of impecuniosity. Moreover, the evidence showed that solicitors and counsel were acting on a no-win no-fee basis on the appeal, which also supports an inference of impecuniosity. We have also had regard to the following exchange during the oral evidence of Mr Mitchell, Ms Williment’s solicitor, before Adamson JA:

21. [55]

    Beyond this, it is now clear that Ms Williment was only entitled to some £8,834 under her brother’s will in the United Kingdom. That is unlikely to enable her to pay any significant sum as security.

22. [56]

    Nor, even having regard to the failure of Ms Williment to put on evidence as to her financial resources (save for the material relating to her brother’s will which was belatedly put before this Court), would we draw an inference that there is some, undisclosed, financial resource to which Ms Williment has access, or that she has some, significant, undisclosed financial resource.

Conclusion

1. [57]

   Given the matters set out above, and that neither party made submissions as to costs, costs should be reserved.

2. [58]

   The orders of the Court are:

   1. (1)

      Set aside the orders of Adamson JA on 25 March 2026.

   2. (2)

      Dismiss the notice of motion filed by the respondent on 13 February 2026.

   3. (3)

      Reserve costs.