Bardi v Giannaros (No 2)

HIS HONOUR: George Giannaros (deceased) lived a colourful but “hard living” life characterised by drinking, smoking and drug abuse (including cocaine). [1] He passed away on 15 September 2023 at the early age of 55 succumbing to the effects of an aggressive lung cancer diagnosed barely 7 weeks earlier in late July 2023.

The intensity of the deceased’s hard living has been rivalled if not surpassed by the litigious activity of his two lovers who are in heated dispute over property the subject of the deceased’s estate.

The defendant, Kalliopi Giannaros (Kelly or applicant), is the deceased’s spouse. They married in February 1995, the marriage lasting 28 years until the deceased’s passing. The plaintiff, Antzela Bardi (Angela or respondent), claims to be the deceased’s de facto partner, having met the deceased on 22 May 2018 in Glyfada, Greece (being introduced to him by a mutual friend, Jim). [2] She claims to have formed a romantic and sexual relationship with him for a period of approximately 5 years from about September 2018 continuing until his death. [3]

Kelly was born in 1973 and is now aged 52. She and the deceased were born in New South Wales, though are of Greek heritage. They have two children, Jasmine, born in 1995 (now aged 29), and Evan, born in 2000 (now aged 25).

Angela was born in Berat, Albania in October 1987 and is now aged 37. She moved to live in Athens, Greece when she was about 7 years old. [4] Angela had been in a relationship with a fiancé Lewis, [5] which ended in February 2017. [6]

Angela asserts that, after being introduced to the deceased through Jim, she cohabited with the deceased from September 2018, including in Jim’s apartment. [7] She says that their relationship developed in a context where the deceased discussed the “breakdown of his marriage” with her, [8] including assertions that Kelly cheated on him. [9] Angela states that the deceased expressed intentions to divorce Kelly from 2019 [10] and commit to a future life with Angela, [11] including marriage, [12] from about 2020. There is dispute as to whether the deceased was still sleeping with Kelly from 2021 onwards. [13] In any event, in 2021, the deceased gave Angela a “promise ring”. [14]

Contrarily, Kelly says she had a close and loving relationship with the deceased from 2018 until his death [15] and has already adduced a plethora of photos, Whatsapp messages and texts to support this. [16] Kelly contends that her and the deceased did not at any relevant time discuss ending their marriage, separating or divorcing, [17] and that she had no knowledge of the plaintiff until one night not long before the deceased died. [18] Kelly’s lack of prior knowledge of the relationship is contested. [19] Nonetheless, Kelly indicates that Eric, an employee of the deceased, informed her just before the funeral “a woman from Greece called Angela is over here, George was seeing her in Greece during his solo trips over there”. [20]

The dispute over the deceased’s estate has been formalised by Angela commencing proceedings seeking a family provision order pursuant to Chapter 3 of the Succession Act 2006 (NSW) (Succession Act). She claims eligibility principally on the basis of s 57(1)(b) (“de facto spouse eligibility”) or alternatively by means of s 57(1)(e) (“dependent household member eligibility”). [21]

Following the filing of the summons on 20 June 2024, the proceedings have undergone usual case management by the Probate Registrar in the Family Provision List. On 21 November 2024, the matter was referred to a Court Annexed Mediation for half day on 1 April 2025.

On 7 February 2025, Angela filed a notice of motion seeking expedition of the hearing of proceedings or, in the alternative, an order for interim provision out of the deceased’s estate. The catalyst for the filing of that motion related to Angela needing funds to complete purchase of an apartment in Glyfada, a town or suburb, south of Athens, alongside what is otherwise known as the Athens Riviera (Glyfada apartment). Ultimately, only the order for interim provision from the estate was pressed. On 27 February 2025, the notice of motion was heard and dismissed by Kunc J with indemnity costs. [22] His Honour delivered ex tempore reasons for judgment.

On 27 March 2025, Registrar Gerritsen ordered (or perhaps confirmed), the Court Annexed Mediation for 1 April 2025 and made further procedural directions. On 1 April 2025, the mediation proceeded but was not successful.

The applications before the Court are two notices of motion filed by Kelly:

Ms Lowson appeared for Kelly and Mr Wilson SC appeared for Angela.

I will cite the evidence in the proceedings, as I already have, by reference to the Court Book (CB), transcript pages (T) and exhibit numbers. I will cite the submissions by reference to Kelly’s outline of written submissions dated 16 May 2025 (KOS) and Angela’s outline of written submissions dated 16 May 2025 (AOS). Statutory section references will be to the Succession Act and statutory rule references will be to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) unless otherwise specified.

The security application was argued by reference to r 42.21 rather than the Court’s inherent jurisdiction. Kelly seeks security for costs in the sum of $75,000 and, alternatively, an order for the costs of registration and enforcement of any judgment for costs. [23]

Mr Wilson SC contends that the security application should be dismissed [24] and opposes the non-inspection application, seeking access to the documents. [25]

For the reasons that follow, I have determined to dismiss both the security for costs application and the non-inspection application.

Notwithstanding authorities suggestive that the Court makes an impressionistic evaluation rather than a ‘fine or detailed analysis of the merits’ [26] regarding prospects of success for the purposes of security applications, it was contested and argued with comprehensive vigour more akin to that of a final hearing and involved counsel advancing several contestable propositions, which I address below.

For the purposes of the application for interim provision, Kunc J addressed the question of whether Angela is an eligible person.

His Honour did not doubt that there was a serious question to be tried as to whether Angela was eligible, but in the circumstances of that (urgent) hearing was not satisfied on the balance of probabilities that she was so eligible. His Honour expressed his conclusions in that respect, as follows:

Angela’s claim for provision, set out in her initial affidavit [27] (leaving aside her interim provision claim for a sum to complete the purchase of the Glyfada apartment) is:

On the hearing before Kunc J, Angela’s claim for provision on the basis of de facto spouse eligibility was for no less than $600,000. [28] Mr Wilson SC had submitted that:

On hearing of the application before me, Mr Wilson SC submitted: [29]

Various of the r 42.21(1A) matters have no direct application to the circumstances of this case. [30] Thus, it is not suggested that: the proceedings are other than genuine; Angela’s impecuniosity is attributable to Kelly’s conduct; Angela is effectively in the position of a defendant; the proceedings involve a matter of public importance; there has been any admission or payment into court; there has been any relevant delay by Angela in commencing the proceedings leading to prejudice of Kelly; [31] or that the security sought is disproportionate to the importance and complexity of the subject matter in dispute.

The parties are agreed that the issues to be determined are whether:

The above description of issues is pitched at a fairly high level.

Ms Lowson’s submissions focused on the following matters: [32]

Mr Wilson SC addressed these points and additionally submitted that there had been a delay of 9 months (between 20 June 2024 and 27 March 2025) by Kelly in filing any application for security for costs. [33]

Despite the above-mentioned matters forming the forensic battleground, counsel in particular spent considerable time addressing 2 of the r 42.21(1A) matters, namely the prospects of success or merits of the proceedings and ease of enforcement.

Based on the parties’ outlines of submissions, the contestable underlying contentions (or assumptions) I have referred to above included that:

On hearing of the applications, Kelly relied upon 3 affidavits by herself, [34] 2 affidavits from Simon Konstantinidis, the solicitor on the record for Kelly in the proceedings, [35] and 3 affidavits from John Theodoropoulos, a solicitor in the employ of Konstan Lawyers. [36] In response to the applications, Angela relied upon 3 affidavits of herself [37] and an affidavit of her solicitor, Benjamin John Dornan. [38]

The documentary material was tendered and marked as exhibit JP-1. The Court Book is 700 pages in length. All of the affidavits read in respect of Kelly’s applications were read without objection. That included the second affidavit of Mr Konstantinidis which was sworn on the morning of the hearing of the application.

Ms Lowson took a number of objections to Angela’s affidavit evidence. Specifically, there were a series of objections to words such as “cohabited”, “cohabitation”, “spouse”, “partner”, “live together” and “live together as a couple”. I made rulings regarding the objections.

The objections are understandable in a context in which a number of the above-mentioned words, whilst ordinary English words, are also terminology used within the statutory provisions bearing upon family provision eligibility, for example, “spouse”, [39] “living” (in a de facto relationship), [40] and “couple living together”. [41]

Such words may take on different shades of meaning over time. Thus, the verb “cohabit” (including the past tense “cohabited”) historically conveyed the meaning of dwelling or residing in company or in the same place. [42] However, modern usage of the word “cohabit” generally, or at least often, will convey the notion of living together in a sexual relationship. [43]

By way of practical guidance, it is convenient to make a few observations about objections to affidavits in family provision proceedings, particularly in the context of interlocutory hearings (though the following remarks might also well inform approaches taken on final hearings).

First, in relation to plaintiffs’ affidavits, most such affidavits are structured in accordance with the form of the affidavit in Annexure 1 of Practice Note SC EQ 7 (Practice Note) and adapted appropriately. Thus, in the opening part of such affidavits under the heading “eligibility to make a claim”, it is not merely usual but expected that a plaintiff will make some assertion regarding the basis of his or her eligibility. [44] Hence, where an assertion is made that the applicant “was living in a de facto relationship at the time of the deceased person’s death,” that statement is generally understood by judges and practitioners to be an assertion in conformity with the pro forma affidavit set out in the Practice Note rather than some form of conclusive statement which, unless objected to, constitutes an admission in the proceedings.

Secondly, long experience in the law reveals that those who prepare objections to affidavits are often concerned that certain words, if unobjected to, will constitute an admission. That is so even though words used in affidavits are usually contextualised. Practitioners should not readily fear that judges will disregard context when reviewing evidence or that decisive meaning will be attributed to certain words if admitted into evidence, where it is self-evident that the matter is in dispute.

One of the ways that legal practitioners may facilitate the just, quick and cheap resolution of the real issues on interlocutory applications is to discuss the content of objections, particularly where certain words are repeatedly used in the body of affidavit evidence, with a view to agreeing how such words should be understood. Such an approach can hopefully avoid overzealous contention consuming time in preparing lengthy objections and responses and time on the hearing in ruling on such objections.

Thirdly, the Practice Note expressly permits a form of informal proof of certain relatively common matters, unless the Court orders otherwise or reasonable notice is given that strict proof is necessary. This includes for example, appraisals of items of real property, estimates of other estate assets, estimates of items sought to be acquired or acquiring some form of renovation or refurbishment or other expenses, as well as descriptions of alleged physical, intellectual or mental disabilities coupled with medical or other reports. [45] There is an obvious coherence between the overriding purpose provisions of the Civil Procedure Act 2005 (NSW) (CPA) and the Practice Note in this regard. Thus, forensic decision-making regarding objections to evidence should be filtered through the touchstone of the overriding purpose and not merely address whether the content of an affidavit technically complies with the rules of evidence.

The deceased left an undated Will (believed by Kelly to have been executed on 4 September 2023), probate of which has been granted to Kelly on 25 June 2024. [46] In the events which occurred, the deceased left his entire estate to Kelly.

The inventory of property attached to the grant of probate [47] values the deceased’s estate at $4,545,545.88, comprising properties at Belmore, Roselands (Roselands No.1) and Nelson Bay and monies in two National Australia Bank accounts.

The inventory of property also refers to another property at Roselands (Roselands No.2) valued at $1,200,000 of which the deceased is said to have had a 50% share, being $600,000. At least as at 2 October 2024, the assets of the deceased’s estate had been transferred by Kelly to herself. [48]

Currently, the parties have widely differing estimates of the value of the deceased’s estate and the notional estate. [49] There are liabilities of the estate which, at least from Kelly’s perspective, reduces the value of the net estate. Angela agrees that there are certain liabilities of the estate, however (as will be seen below) they presented them differently within the joint schedule.

It is not necessary or appropriate on the application before the Court to make specific findings regarding the deceased’s estate. It suffices to note the following.

The hearing before Kunc J was an urgent hearing.

His Honour proceeded on the basis that the estate had a net value of $1.295m (represented by properties, with no significant cash). The extent of notional estate was not expressly addressed by his Honour in a context in which his Honour noted that: [50]

Two observations should be immediately recorded.

First, it was evident from the extent of materials before me in submissions that Angela now has a much different contention regarding the size of the estate and extent of notional estate. That has a bearing on the outcome of the application for security for costs, which I will address below.

Secondly, Ms Lowson emphasised that Mr Wilson SC had conceded during the interim provision application that there were sufficient assets in the estate to meet any award in favour of Angela (concession). [51] Mr Wilson SC’s response to that was that he was simply reiterating before Kunc J the effect of s 88(b) of the Succession Act (to the effect that the Court must not make a notional estate order unless, inter alia, it is satisfied that the deceased person’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made). [52]

The transcript of hearing reveals that Mr Wilson SC tendered certain material and there was an interaction between Mr Wilson SC and his Honour regarding notional estate, including relevantly the fact that certain properties had been transferred at least by transmission application to Kelly. [53] It is unnecessary to set out the full text of that interaction. My assessment of the interaction is that for the purposes of the interim provision application, Mr Wilson SC did not need to trouble his Honour with detail regarding notional estate. However, that does not mean that he was conceding that some understanding of the deceased’s wealth and financial resources, including any property that is capable of being designated as notional estate, is irrelevant for the Court to be aware of for the purposes of a final hearing (if indeed the matter goes to a final hearing).

The notion that an executrix in family provision proceedings should be relieved of any obligation to make disclosures about the size, composition, value and whereabouts of the estate or notional estate beyond certain limited disclosures is doubtful and was on the facts expressly rejected by Lindsay J in Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104; (2018) 17 ASTLR 64 (Grundy). Rather, his Honour emphasised that an executrix has a duty to assist the Court in identifying as fully and early as possible the actual and notional estate of the deceased person the subject of the proceedings, the condition and value of the estate at the date of trial, and the exact burden of the costs order likely to fall on the estate. [54]

White J at [53] in Farr v Hardy [2008] NSWSC 996, emphasised that executors have a duty to place before the court all evidence which is relevant, whether positively or negatively, to the factors which warrant the making of the application. [55] Thus, even where the plaintiff did not seek to disturb death benefits from a superannuation fund that did not form part of the estate [56] nor to have assets of a trust that is indebted to the estate designated as notional estate, [57] the executors were still required to make full disclosure of the position and circumstances of those matters. Properly construed, this is not strictly limited to circumstances where property is susceptible to being designated as notional estate or where the trustee of a trust may owe a debt to the estate. In particular, his Honour referenced comments of Kirby P in Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639; (1988) 92 FLR 67 that executors have a duty “to place all relevant evidence before the court”. [58]

On the hearing of the application before me, in the above context, both counsel acknowledged the obligations Kelly has to the Court of full disclosure. [59]

The deceased operated an electrical contracting business trading under the name Carrington Electrical Services (business). The business was operated through three corporate entities, being CE (the administration arm of the business), CES (the contracting arm of the business) and Carrington Electrical Services Group Pty Ltd (CESG – the labour hire arm of the business). [60]

Giannaros Holdings Pty Ltd (GH) is the sole shareholder of CES and CE. Carrington Developments Group Pty Ltd (CDG) is the sole shareholder of CESG. [61] The deceased was associated with two discretionary family trusts said by Kelly to hold the ownership of the business. The two trusts are:

In addition, it is said that the deceased has shareholdings being:

Notwithstanding the statement in the inventory of property at CB 607, it seems from the joint schedule provided by the parties that Roselands No.2 is wholly owned by Dumoylen.

The deceased also held property in Greece, [63] including:

It appears that the deceased transferred his interest in 45 Fish Butchery to other business partners for no consideration prior to his death. [65]

In summary, the position from the joint schedule is as follows: [66]

Evidently, the parties structured their positions differently. In calculating the net estate assets, Kelly took into account the debts of the estate. When applying the same method to Angela’s values, Angela’s estimate of the net estate assets (ignoring notional estate) is between 2,049,049 [69] and 3,049,049, [70] compared to Kelly’s estimate of $1,169,049.

This manner of setting out the joint schedule led to it extending to 20 pages and did not facilitate ease of reading. On first blush, it gives the impression that the parties are in much more disagreement than they actually are. Ideally, to facilitate hearings (whether interlocutory or final) parties should co-operate in preparing joint schedules in a way that facilitates ease of reading and understanding of what is in contention.

The parties agree that the Belmore property ($1.88m) and Roselands No.1 ($1.36m according to the plaintiff and $1.3m according to the defendant) are assets of the deceased’s estate and subject to mortgages in agreed amounts. The parties also agreed as to the value as at 30 June 2023 of (a) CE net $263,012 (b) CES net $2,154,680; and (c) CESG net $159,522.

The main estate value differences between the parties appear to be as follows:

Angela completed high school in Athens in about 2007 and a diploma of business administration in 2010. However, she graduated at a time when unemployment rates were very high in the midst of the Greek government debt crisis and was unable to find employment in that field. Periodically, she worked odd jobs in hospitality. [71]

It appeared to be common ground between counsel that the last time Angela had any paid employment was in 2021. [72] She has had either training or some experience working as a beautician. [73] In April 2019, she commenced a 9 month aged care course at ALG College in Sydney with the deceased paying (through others) for all of Angela’s education fees, agent fees and legal fees for her visa. [74] Angela states that the deceased arranged for her to stay from April 2019- February 2020 at an apartment in McMahons Point owned by a friend of the deceased, Theodore. [75] She returned to Greece for approximately 10 days in September 2019. [76] By November 2019 she had almost completed the course. [77] However, it is unclear whether she was awarded a degree or certificate. [78]

There is no dispute that the deceased transferred to Angela via a joint bank account in Greece a sum of €203,649 in the three years prior to the deceased’s death, which Kelly asserts at 2024/2025 exchange rates amounted to approximately AUD $330,000-$350,000. [79] According to Angela, [80] the monies in the joint account were used for: (a) everyday living expenses of her and the deceased; (b) payment of a deposit for the an apartment in Athens in which she would reside and also from where she would operate a beautician studio; and (c) for renovations to the apartment.

In August 2024, Angela was living with her mother (an aged pensioner) in her mother’s rental accommodation without paying any rent. [81] She relied upon her savings to pay everyday expenses. [82] Currently, Angela is unemployed, [83] and has no source of income. [84]

Unable to obtain work in Greece, she recently travelled to Switzerland to seek work in the hospitality industry [85] (possibly as a waitress). [86] Whilst there is no evidence that she has secured employment, she indicates she may return to Switzerland if she can find affordable accommodation, anticipating income of €4,000 per month. [87]

Mr Wilson SC indicated, in response to my query as to how she gets by with no income, that she relies on her savings in a context where she is still living with her mother. [88] Ms Lowson disputed that Angela was living on her own savings. She contended that Angela was living on money that the deceased had given her, having regard to the fact that she withdrew approximately €25,000 from a joint account on 13 September 2023. [89]

Mr Wilson SC, in response to my musing, appeared to embrace the notion that Angela was getting by depending on or relying upon her mother at least to some degree for meeting expenses. [90] That is my impression, though the extent of any such reliance is unclear.

Subsequent to entering into possession of the Glyfada apartment and prior to completion, she undertook some initial renovation and repair works to enable her to operate a beautician business from the apartment. As matters currently stand, it is uninhabitable and she is unable to lease it to a tenant. [91]

Angela’s assets and liabilities as at 8 May 2025 were stated as being as follows: [92]

Submissions on the application especially focused upon aspects involving the Glyfada apartment and accordingly I will set out some details regarding this.

Angela deposed to the fact that prior to the hearing of the application for interim provision, she had sought a loan from the bank to complete the purchase of the Glyfada apartment and that her application was rejected. [93] She further deposed to making extensive enquiries about borrowing from family and friends. [94]

Angela completed the purchase of the Glyfada apartment by paying €234,000, [95] with a loan she was able to secure from Nikos Koube (the son of a friend of her father) of €179,800. The terms are that the principal of the loan is to be repaid within one year being 27 February 2026, that no interest will accrue on the principal if it is repaid on or before that date, and if it is not repaid by that date she is to pay default interest at 8% per annum. [96] The terms of that loan agreement are in evidence. [97]

Ms Lowson, under a heading “Plaintiff’s conduct of these Proceedings”, stated that, having regard to Angela’s evidence in these applications, it is apparent that Angela had explored if not secured an alternative method of funding purchase of the apartment. She submitted that the premise of Angela’s interim provision application, namely that she would lose the opportunity of finalising the purchase of the apartment and/or seek a damages claim if it failed was “putting the best spin on it – and not the whole truth”. [98]

It is not obvious to me that the fact that Angela may have been exploring alternative funding or even signed a loan agreement by the time that Kunc J was dealing with the interim provision claim necessarily means that a case was being advanced on an untruthful premise. The exploration of alternative funding or signing of any loan agreement may have been attended by uncertainty right up until the agreement was signed and, in any event, might not have been known to those advancing her case. I do not regard it as being appropriate for me to make any finding that Angela’s pursuit of the interim provision application was on a “not the whole truth” basis.

Angela states the property is uninhabitable and she is unable to lease it to a tenant. She indicates that she owes more than €206,300 although does “not have the risk of a claim for damages to reinstate the property to a liveable condition”. [99] It is not entirely clear to me what Angela means by that negated risk.

Relevantly, Angela asserts she has no capacity to borrow further monies, stating as follows: [100]

Further, Angela believes that if she were ordered to pay security for costs she would not be able to do so with the consequence that it would stifle the proceedings. [101]

On the hearing, Ms Lowson objected to Angela’s evidence about seeking a loan from the bank and it being rejected. Ms Lowson upon clarification did not dispute the fact that Angela had sought a loan, but rather intimated that Kelly had sought clarification as to when the loan application had occurred. [102]

Kelly contested the value of the property. Mr Konstantinidis arranged for an estate agent, Effie Manolaki, in Athens to provide an appraisal. Ms Manolaki provided a drive-by valuation enclosing the photographs of the outside of the building, noting that she had not inspected inside the apartment (Glyfada appraisal). [103] The apartment is a first-floor apartment of a hundred square metres with three bedrooms, one bathroom, but no parking available. The apartment property was constructed in 1975.

Based on the following circumstances, the property was estimated as having a value of €3,500 per square metre for a total of €350,000: the residential property market in Athens had experienced an annual increase of greater than 10% per annum in certain areas since COVID-19 restrictions were removed; Glyfada is a popular suburb at the start of the Athenian Riviera area; there is a neighbouring area which has undergone Europe’s largest urban regeneration project, said to increase the value of the entire Athenian Riviera region; the apartment size, layout, and many amenities are suitable for a wide range of buyers; and, although the apartment is older and has not been renovated, its potential for renovation or updating adds value.

Mr Wilson SC on the hearing of the application seemingly acknowledged that by reason of the above-mentioned evidence (notwithstanding it was not a “complete valuation”) there was equity in the Glyfada apartment which would be available through the execution process. [104]

Ms Lowson submitted that there was no evidence regarding the circumstances of payment of Angela’s costs, any security involved and the extent to which she is risking costs herself. [105]

In response to Ms Lowson’s submission, Mr Wilson SC clarified that Angela has no liability to her legal representatives if she is unsuccessful. He added that there is no contingency amount. [106] That position is consistent with the fact that her list of assets and liabilities does not disclose any deposit of funds to Mr Dornan’s firm or any disclosure of security in respect of fees or costs. [107]

Having set out the background and Angela’s financial circumstances, I will now address the relevant principles regarding security for costs applications and factors that bear upon such applications.

The power to order security for costs has been described as essentially an exercise in risk management as the Court balances the interests of the parties having regard to their legitimate interests both as applicant and respondent. [108]

The object of a security order is to have a fund available within the jurisdiction against which a judgment for costs can be enforced if the plaintiff is ultimately unsuccessful in the proceedings. [109]

Kelly’s application for security for costs was based on the circumstance that Angela is ordinarily resident outside Australia. [110]

In such a circumstance, 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. [111]

In determining whether it is appropriate to make such an order for security for costs, the Court may have regard to 14 enumerated matters and such other matters as it considers relevant. [112] The 14 matters are:

The provisions do not: (a) require that all or any of such matters must be taken into account; (b) prioritise the list of matters; (c) specify any particular weight to be given to any such matter; or (d) direct or mandate that any of the matters listed will necessarily be of decisive significance in determining the application for security. [113]

In PS Chellaram & Co Ltd v China Ocean Shipping Company [1991] HCA 36; (1991) 102 ALR 321 (Chellaram), McHugh J stated: [114]

An order for security for costs cannot be made merely on account of the impecuniosity of a ‘natural person’ plaintiff. [115]

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. [116] Failure to comply with such an order permits the Court to order that the proceedings be dismissed. [117]

In construing r 42.21, it is necessary to have regard to the purpose or object underlying the provision so as to adopt a construction that would promote that purpose or object rather than a construction that would not. [118] Further, the Court must seek to give effect to and best advance the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in any proceedings when it interprets and exercises any power given to it by the UCPR. [119]

The strength of a plaintiff’s case can impact the Court’s discretion vis-à-vis security for costs because, the weaker the plaintiff’s case, the greater the likelihood that costs will be ordered against the plaintiff should the matter be litigated. [120] Both Ms Lowson and Mr Wilson SC accepted this. [121] Ms Lowson emphasised that a weak case increases the risks to the defending party of incurring costs where those costs may not be recoverable because the plaintiff is a non-resident of Australia. [122]

Generally, the evaluation of the strength of the plaintiff’s case is necessarily tentative and largely ‘impressionistic’. [123] Exceptional cases aside, authorities ‘counsel against undertaking too fine or detailed an analysis of the merits’. [124]

Dal Pont observes that, historically, in the absence of special circumstances, in a case where costs follow the event, a natural non-resident plaintiff will be ordered to lodge security precisely because of the difficulty of enforcing the judgment for costs overseas. [125]

In Chen v Golden Land Enterprises Pty Ltd (No 2) [2022] NSWSC 985 (Chen), Parker J also addressed the origins of the procedural principle which informs r 42.21(1)(a) and the changes of approach over time having regard to systems establishing reciprocal enforcement of judgment between countries. [126]

In Chellaram McHugh J stated: [127]

Nonetheless, by reference to the decision of Gaudron J in Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521 [128] (Singer No.1), Dal Pont observes that: [129]

Dal Pont notes that “the trend of the cases shows that the ease and convenience of enforcement procedures in the plaintiff’s country of residence will ordinarily be a primary consideration” [130] and conversely [131] “that the judgment would be simple to enforce is a powerful factor against the making of a security order”. [132]

Further, Dal Pont notes that another consideration is whether the foreign jurisdiction in question has legislation entitling Australian judgments to be registered and enforced in it. [133] In such a case he observes that a defendant who goes to the expense of registering a costs order obtained from an Australian court will be in a position no worse than had the plaintiff been resident in Australia, [134] the rationale being: [135]

Dal Pont suggests reciprocity of enforcement is not necessarily conclusive against an order for security. [136]

Curiously, Dal Pont does not address the decision of Gzell J in Lo Surdo v Public Trustee [2003] NSWSC 837 (Lo Surdo). In that case, the plaintiff who claimed to be a child of the deceased and was domiciled in Italy commenced a family provision claim in circumstances where the estate had been almost completely distributed. He sought an order designating certain real property in New South Wales as notional estate. The active defendant was a daughter of the deceased and the sole beneficiary under the deceased’s Will. The defendant asserted that the plaintiff had been adopted by another family with the consequence that he was not a child of the deceased nor otherwise eligible. The defendant applied to stay or strike out the proceedings and alternatively sought an order for security for costs. The plaintiff had no assets in Australia, but did have assets in Italy.

Mr Wilson SC relies on Gzell J’s statement that, whilst non-residence is a pre-condition to the exercise of the Court’s discretion, there must be something more to justify an order. [137] His Honour had particular regard to the existence of effective reciprocal legislation permitting enforcement of judgments in a foreign country. [138] Italy was a country having such reciprocity. [139] His Honour referred to the decision of Gaudron J in Singer No.1, and the “special nature” of costs orders in family provision proceedings. [140] His Honour dismissed the application for security for costs, observing that: [141]

In Milosevska v Milosevski [2019] NSWSC 711 (Milosevski), Hallen J referred to Lo Surdo. His Honour referred to the fact that security for costs applications were “somewhat unusual” in family provision cases though “not unheard of”. His Honour set out a helpful summary of general principles in relation to applications for security for costs, [142] and I have had regard to them.

His Honour observed that the general principles that he had outlined do not support, entirely, the proposition that “there must be something more to justify an order” (in the case of non-residence). [143]

Mr Wilson SC noted [144] that Lindsay J in Battenberg had cited Lo Surdo. Specifically, Lindsay J identified what the “something more” was, stating: [145]

In any event, in Milosevski, Hallen J observed that Lo Surdo was a case “very different” to the case before him. [146] In Milosevski, the plaintiff had no assets in New South Wales or in Macedonia and there was no evidence that Macedonia had legislation entitling an Australian judgment to be registered and enforced in that jurisdiction nor was it a jurisdiction where there is a reciprocal right of enforcement pursuant to the Foreign Judgments Act and Sch 2 to the Foreign Judgments Regulations. [147]

Ms Lowson submitted that there is no general rule that a costs order against a person resident outside Australia must be limited to the costs of enforcement, citing Chen at [51]. The submission, so far as it goes, is correct. However, it is not evident to me that the judgment of Parker J expressly supports that contention as distinct from being consistent with it.

The approach to costs in family provision proceedings inform the Court’s exercise of discretion in determining whether to make orders for security for costs.

Generally, costs are in the discretion of the Court, subject to the CPA, rules of Court and any other Act. [148] If the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. [149] In family provision proceedings, the purpose of the jurisdiction, character of the proceedings and specific legislation [150] inform the approach of the Court both as to costs [151] and security for costs. [152]

Ordinarily (leaving aside costs offers) the costs of a successful applicant will be ordered to be paid out of the estate calculated on the ordinary basis. [153]

In Milosevski, Hallen J directed some comments to costs orders in respect of unsuccessful applicants in family provision proceedings. His Honour stated:

In particular, his Honour noted some limitations to the passage appearing in the third edition of Dal Pont’s “Law of Costs”. His Honour stated:

Very broadly speaking, his Honour’s observations accord with my experience. At least in New South Wales, the terminology deployed by Dal Pont may no longer be apt.

Ms Lowson initially submitted that “under the current rules and the current legislation, it is common for a plaintiff to bear their own costs if they are unsuccessful in a family provision matter”. [154] Later, she stated: [155]

Resort to generalisation regarding family provision costs is a little fraught.

Evidently, for security for costs purposes, in assessing likely cost outcomes, the default rules in rr 42.1 and 42.20 apply to family provision proceedings. [156] However, High Court and Court of Appeal authority still indicates that family provision cases stand apart from cases in which costs follow the event and that costs orders in such cases generally depend on the “overall justice of the case”. [157] True it is that the “overall justice of the case” is “not remote from costs following the event”. [158] Nonetheless, family provision cases call for additional “liberality and discrimination” in considering whether to exercise the discretion to override the usual rule. [159]

The very fact that costs “generally depend on the ’overall justice of the case’” distinguishes such costs outcomes from the general run of cases where costs follow the event, and invites nuance.

Specifically, one reason for the more liberal approach to costs is that “although family provision claims can only succeed or fail, those binary outcomes tend to conceal difficult and even “borderline” questions of the nature of the evaluative and discretionary judgment of such claims”. [160]

For the above reasons, the character of family provision proceedings may with other relevant factors be a consideration which leads to an outcome against the ordering of security. [161]

On the hearing, Mr Wilson SC made a submission (as explained below) referable to exceptions to the general rule that costs follow the event which apply to probate proceedings. As I have previously commented in Guamani at [185], the probate costs exceptions are usually identified by reference to the decision of Powell J in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 (Hodges) at 709E-G namely that:

Mr Wilson SC submitted that if Angela is unsuccessful in the family provision claim, there is doubt that the court would order her to pay costs because: [162]

During oral submissions, Mr Wilson SC developed the submission [163] referring in particular to comments by Barrett JA in Chapple v Wilcox as follows:

I do not regard the comments of Giles JA in Jvancich No.2 (properly construed) as supporting the proposition that so-called probate cost exceptions [164] have some meaningful application to costs in first instance family provision proceedings.

In Jvancich No.2, the Court of Appeal was dealing with the question of the costs of family provision proceedings both at first instance before a Master and on a successful appeal. The costs decision was delivered by Giles JA. Each of Handley JA at [1] and McColl JA at [22] agreed with Giles JA.

Giles JA in addressing the costs of the proceedings before the Master in particular addressed and rejected [165] a faint submission that costs should be limited to a ceiling of $35,000 in accordance with the observations by Young CJ in Eq in Moore v Moore [2004] NSWSC 587 at [43]-[47].

Giles JA then went on to address the costs of the appeal in a context in which the appellant had submitted that the appeal was adversary litigation and the normal rule that costs follow the event ought to apply and the respondent had conversely submitted that in a successful appeal the costs of both parties are generally ordered to be paid out of the estate (though acknowledging that in rare cases the respondent is ordered to pay the costs). [166]

His Honour addressed the cases relied on by the respondent. In both Hunter v Hunter (1987) 8 NSWLR 573 and Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23, successful appeals resulted in costs of all parties being paid from the estate without discussion in the reasons. His Honour referred to the comments of de Groot and Nickel in Family Provision in Australia and New Zealand (1st ed, 1993, LexisNexis) at [902.4(a)] that:

His Honour then stated “some assistance may be gained from the disposition of appellate costs in probate proceedings” before considering the decision of Perpetual Trustee v Baker [1999] NSWCA 244 (Baker). That was a probate appeal case where his Honour along with Brownie AJA said the following regarding the extension of the probate exceptions to the normal costs rules at [15]:

Having considered Baker, his Honour Giles JA in Jvancich No.2 then used the same line of reasoning to comment that the costs approach at first instance in family provision proceedings may inform the approach to costs orders on appeal:

Accordingly, it seems to me his Honour was drawing an analogy with the way that the exceptions that apply at first instance in probate proceedings may be relevant for the purposes of an appeal, to make the point that a similar extension can apply to costs approaches in family provision proceedings, [167] rather than suggesting that probate principles should inform family provision costs determinations.

I accept that Barrett JA in Chapple v Wilcox at [141] appears to have construed the comments of Giles JA in Jvancich No.2, as giving rise to the possibility that costs in family provision proceedings might be informed by the fact that:

However, assuming for the moment that Barrett JA proceeded upon that understanding, on the facts, his Honour gave the proposition short shrift, relevantly stating:

Mr Wilson SC, whilst maintaining the above-mentioned submission, frankly acknowledged that in his experience (which is considerable in family provision litigation) he had rarely, if ever, heard the “investigative costs exception” submission put to a first instance judge in family provision cases. [168]

That acknowledgement accords with my experience. In decades of being involved in family provision litigation as counsel and more recently as a judge, I cannot recall any particular instance of such a submission having been put let alone a beneficial costs order in favour of an unsuccessful family provision plaintiff (whether by allowing the plaintiff some measure of costs or relieving the plaintiff of the obligation of paying a defendant’s or the estate’s costs) premised on the basis of analogous application of the so-called probate costs exceptions such as the “testator cause exception” or the “investigation exception”.

In probate proceedings, the so-called costs “investigation exception” is in respect of circumstances reasonably calling for investigation of the validity of the Will. Family provision proceedings are premised either on an intestacy or on the validity of the deceased’s final Will.

Further, the Court determines the issue of adequacy of provision as at the time that the Court is considering the application, having regard to the facts known to the Court at the time that the order is made. [169] This reflects a statutory purpose to permit events subsequent to the death of the testator (or intestate person) to be taken into account, both in determining the need for, and in formulating an order for, provision. [170] That also accords with the statutory regime under the Family Provision Act 1982 (NSW) (FPA) [171] but differs from the regime under the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW). [172]

More significantly, other than in Chapple v Wilcox, the Court of Appeal does not appear to have construed any of the comments of Giles JA in the same way as Barrett JA had alluded to.

Beazley JA in Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424 at [78] extracted Palmer J’s comments in Re Sherborne in which his Honour referenced the decision of Giles JA in Jvancich No.2 at [6] but in addressing an issue regarding maximum costs orders. That case can be readily put aside.

In Salmon v Osmond, as I noted above, Beazley P at [174] (McColl and Gleeson JJA agreeing at [180] and [181] respectively) referenced the decision of Giles JA in Jvancich No.2 as follows:

The same observation of Giles JA was also referenced by the Court of Appeal in Haertsch at [16]. No particular reference was made regarding his Honour’s comments on disposition of appellate costs in probate proceedings.

In DJ Singh v DH Singh [2018] NSWCA 30 (an appeal involving both probate and family provision issues), Gleeson JA made reference to at least part of the decision of Giles JA in Jvancich No.2 and stated: [173]

Leeming JA at [319] and White JA at [326] relevantly agreed.

In the above circumstances, I do not consider that there is binding Court of Appeal authority to the effect that the question as to what order ought to be made in relation to the costs of an unsuccessful family provision plaintiff is necessarily or even generally informed by analogous application of the so-called probate cost exceptions such as the “testator cause exception” or the “investigation exception”.

Conceptually, I accept that, in any given case, some facts as to the testator’s conduct or the circumstances in which the Will was made might bear upon the question of costs, having regard to the overall justice of the case. However, that is a much different proposition to approaching the question of costs in family provision cases through the prism of, or specifically by reference to, whether the testator’s conduct has been the real or effective cause of the litigation or gave rise to some legitimate investigative purpose in respect of the validity of the Will or scheme of testamentary disposition.

In any event, on the facts, Mr Wilson SC did not specifically identify what aspects of this particular case might invoke the “investigation exception” (nor even the “testator cause exception”).

The financial circumstances of an unsuccessful family provision applicant may be a material consideration, though not necessarily a compelling (let alone decisive) consideration in assessing an appropriate costs order. [174] In Singer No.1, Gaudron J observed at 522 that:

Materially, the Court of Appeal in Haertsch addressed the circumstances of impecuniosity in relation to cost outcomes of an unsuccessful family provision applicant as follows:

Family provision legislation divides eligible persons into two classes: [177] one being lawful and de facto spouses and children, [178] who are generally “regarded as natural objects of testamentary recognition” (spouse/children eligibility); and the second being others such as former spouses, dependent grandchildren or household members, [179] or those living in a close personal relationship with the deceased at the time of the deceased’s death, [180] “who, without more, are not generally so regarded” (other eligibility).

A person is in a “de facto relationship” with another person if (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. [181] A de facto relationship can exist even if one of the persons is legally married to someone else. [182]

In determining whether two persons “have a relationship as a couple”, all of the circumstances of the relationship are to be taken into account, including any of 9 specified matters, in determining whether the persons have a relationship as a couple. [183] Human relationships are “infinitely mutable”. [184] The enquiry as to the existence of the relationship is essentially a holistic one.

Membership of a household is ultimately a question of fact. [185] There are risks in placing a gloss on eligibility, and consequently a higher threshold than the statutory provisions require, by conflating eligibility with the question of whether there are factors which warrant the making of an application (factors warranting) and/or with whether adequate provision has been made for the applicant. [186]

As a matter of construction, for the purposes of s 57(1)(e) “dependent household member eligibility”, there is no requirement for the facts which give rise to alleged dependency to coincide or co-exist with those that give rise to membership of a household. The same position applied regarding the equivalent eligibility provisions under the FPA: see Valenta v Valenta (Supreme Court (NSW), Powell J, 19 June 1991, unrep: BC9101879) at 24.

Regarding the requirement of “living together”, the Court of Appeal has stated (omitting footnotes): [187]

Needless to say, the fact that a couple do not own an apartment but live in an apartment owned by someone else does not preclude a finding that they are living together or are in a de facto relationship.

The same is true for eligibility based on membership of a household. A person can be a member of a household of which the deceased is a member even if neither of them own the property in which they reside together.

For example, in Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep), [189] membership of a household and dependency was found in circumstances where some 65 years prior to the hearing of the proceedings, a niece then aged 5 had lived with her aunt (the deceased) then aged 27 in a house not owned by the aunt, for a period of approximately six months. The niece in need of care received it from the deceased amongst others, which care involved matters such as: [190]

In the case of “dependent household member eligibility”, the Court may only make a family provision order if it is satisfied that there are factors which warrant the making of the application: s 59(1)(b).

Whilst not language appearing in s 59(1)(b), in Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 at 681D-E, McLelland J indicated that the factors referred to in that subsection, are factors which when added to facts which render the applicant an “eligible person” give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased. That indication has been consistently endorsed and acted upon by the Court of Appeal. [191]

Whether there are “factors warranting” involves an evaluative judgment requiring consideration of all the circumstances, taking into account community standards and the expectations of those making testamentary dispositions. [192]

There is no legal principle that so-called “bare satisfaction of eligibility criteria” necessarily dictates a low level of provision or necessarily moderates the amount of provision such an applicant might receive. This is true of both the spouse/children eligibility and other eligibility.

The notion that there is some hierarchy of provision to applicants such that widows are generally accorded “primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in [Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40]” was dispelled by the Court of Appeal in Bladwell v Davis [2004] NSWCA 170 (Bladwell). [193] That does not gainsay that a type of provision ‘primacy’ might arise in a specific case. However, if that were to occur it would be by dint of the facts rather than as a legal axiom. [194]

Neither a finding that an applicant “barely” qualifies as eligible within one or other category nor the fact that an applicant is within the latter (other eligibility) class necessarily defines or creates any ceiling regarding the level of provision that the applicant can or will receive. There are various reasons for that.

One principal reason is that the assessment of whether adequate provision has not been made for an applicant and what if any provision ought to be made for such an applicant is a multifaceted assessment.

Further, (as noted above) the legislation creates a type of filtering process with claims. The Court may not make provision in the case of “other eligibility” unless the Court is satisfied that there are factors which warrant the making of the application. [195] Thus, subject to the factors warranting jurisdictional threshold being satisfied, other eligibility applicants are practically equated with those in the spouse/children eligibility class as being natural objects of testamentary recognition.

Lastly, outcomes in family provision claims are quintessentially fact specific. The assessment of whether an order should be made and the nature of any such order [196] “involves a broad evaluative judgment which is not to be constrained by preconceptions and predispositions”. [197]

Thus, at least for the above reasons, a lawful widow might in one case, depending on the facts, receive only a small amount of provision or additional provision. A grandchild in another case might receive a much larger amount of provision.

The size of the deceased’s estate and existence of notional estate are relevant matters in family provision proceedings for the purposes of considering whether an applicant has been left without adequate provision and, if so, what if any provision ought to be made.

Having regard to the value of the estate and the property that might be susceptible to being designated as notional estate, the deceased’s estate would be regarded as “a relatively large estate” or a “large estate”. [198]

The statutory provisions do not suggest any different approach in assessing the question of whether an applicant has been left without adequate provision or what if any provision ought to be made specifically because an estate happens to be large. [199]

However, in large estate cases, financial needs and competition for their satisfaction out of the estate are often absent. An order for provision is likely to have more limited adverse effects on other beneficiaries. [200] Thus, it has been said that the Court is free to make a more liberal assessment of what is proper provision in the sense that competition for limited resources is much reduced or eliminated and unqualified by competing claims. [201]

In Anasson v Phillips, Young J expressed this concept in the following terms (at 20-21):

In Lloyd-Williams v Mayfield, Bryson JA at [32] stated:

In Grundy, Lindsay J expressed the same concept in these terms at [114]:

Where beneficiaries do not make a disclosure of their financial circumstances, certain inferences arise. Thus, I have previously noted it has been said that: [202]

Having set out the relevant principles, I will now set out some contentions regarding the facts relevant to the security for costs application.

There is contention in the proceedings regarding precisely the time and dates in which the plaintiff spent in the company of the deceased in Greece.

Part of the contention is that the plaintiff in her initial affidavit made a number of assertions regarding the length of period of time during which she “cohabited” with the deceased. It included for example a period between September 2018 and December 2018 (intimating a period of approximately 3-4 months). [203] The defendant sought to counter that evidence by providing extracts of pages from the deceased’s passport [204] and a table setting out various stays of the deceased in Greece. [205]

The parties were directed to prepare a table of dates to clarify common ground and facilitate ease of the dispute regarding time and dates. The parties prepared a schedule which runs to 8 pages.

The parties are seemingly agreed that the deceased spent the following time with Angela at Jim’s apartment, although for Kelly this is couched in terms of “maximum number of days”:

Nonetheless, Ms Lowson for her part submits that the deceased’s presence in Greece for an extended period was not because he wanted to spend time with Angela but rather because he became stuck in Greece due to COVID quarantine requirements and being unable to secure a flight home. [206]

The parties are seemingly agreed that the deceased spent the following time with Kelly in Greece:

Other timings and dates regarding time Angela spent with the deceased in Greece are contentious. This includes periods contended by Angela as follows:

Most of Kelly’s dispute in respect of the above-mentioned periods relates to Angela’s evidence being silent about where the deceased stayed in Greece during that time other than the generalised statement that they “lived together as a couple in a number of residences”.

The schedule also lists certain occasions in which the deceased spent time in Greece without either Angela or Kelly being present and other occasions in which the deceased was in Greece at a time in which both Kelly and Angela were also in Greece with him, spending some time with each of them and some time without them.

The joint schedule also addressed other cohabitation in Sydney. Thus, the plaintiff contends that she stayed in Sydney with a friend of the deceased between December 2018 and March 2019 and in an apartment in Sydney arranged by the deceased between April 2019 and February 2020.

On or about 19 April 2021, the deceased, according to Angela, expressed his love for her and his wish to purchase a diamond “promise ring” for her. [207] On 27 April 2021, the deceased purchased the ring and later sent Angela a photo of the ring. [208] In September 2021, when he was in Greece, the deceased gave the “promise ring” to Angela. [209] There was a conversation as follows:

There was some debate on the hearing regarding the significance of the gift of the ring.

The Macquarie Dictionary (online ed) defines promise ring as:

The Oxford English Dictionary (online ed) defines promise ring as:

Mr Wilson SC submitted that, in context, the giving of the ring connoted an element of commitment to a relationship by the deceased and disputed that it amounted to a “‘pre-de facto relationship’ relationship”. [210]

Ultimately, the significance of the gifting of a “promise ring” is context specific. The interaction between the giver and receiver reveals and/or defines the significance of the gift of the ring.

Quite apart from the significance of the ring in terms of what it conveyed as a promise, Ms Lowson submitted that the message at Court Book p. 420 suggested that Angela expressed disappointment with the ring purchase, giving rise to an inference that the importance of the ring to Angela was less to do with promise and more to do with the value. [211]

Some of that interaction is set out in the Court Book. However, not all of it.

Commencing on 19 April 2021, the deceased sent Angela a message: [212]

It is unclear what the reference is to “Asimina”.

Seemingly, on the same day, Angela responded. However, the full message response is not recorded. What is recorded is: [213]

On 26 April 2021, there are a series of messages between the deceased and Angela. Yet again the context is not entirely clear. However, part of that exchange suggests that the deceased was planning to go on holidays with Angela and she enquired what discussion he had had with Kelly. [214]

The exchange occurred over the space of approximately 6 minutes (14:41-14:47). Certain of the responses appear a little out of sync, seeming to respond to a penultimate message rather than the instant message. The messages include the following:

Later that evening, there is a photo of Angela sent at 23:10.

On 27 April 2021 (the following morning) the messages are as follows:

The message material, including attached photos, in the Court Book, clearly invites some consideration as to their meaning. However, I do not accept Ms Lowson’s submission that Angela was more concerned with the value of the ring than the promise associated with it.

It is premature at this point to draw any provisional let alone firm conclusion regarding the exchange of messages. Nonetheless, a few things may be noted. First, any messages that immediately predate and postdate [215] the message of 19 April 2021 regarding the promise ring have not been reproduced. Secondly, there is at least a gap of 7-8 days between the initial message of 19 April 2021 and the message on 26 April 2021. It will be relevant to know what if any messages were sent during that time.

Ms Lowson [216] and Mr Wilson SC [217] made lengthy and detailed submissions regarding de facto spouse eligibility, addressing the 9 matters referred to in s 21C(3) of the Interpretation Act. I have had particular regard to those respective submissions. Without reciting them all, I will highlight a number of those submissions and other aspects which were emphasised in oral submissions.

Despite Ms Lowson contending that it is not necessary on this application to determine whether or not Angela is an eligible person, [218] she spent a considerable part of her written and oral submissions focusing on and challenging factual matters, seemingly for the purpose of demonstrating that Angela’s disputed claim to eligibility would fail or is in any event speculative. [219] She outlined the “circumstances” said to give rise to the dispute regarding eligibility as follows: [220]

In respect to the factor of the “nature and extent of their common residence”, Ms Lowson also submitted that because Jim was a pre‑existing friend of hers prior to her meeting the deceased, the question of the circumstances of her residing in Jim’s apartment are unclear. [222]

Ms Lowson disputed that the apartment could constitute a “common residence”, asserting that it was “simply a place” and that one could not give an “elevated meaning” to living together in circumstances where they were residing together in an apartment that neither of them owned. [223] On being pressed by me regarding the submission, Ms Lowson seemingly accepted that it was not necessary for persons to have some form of financial ownership or contribution to use of an apartment for it constitute a “common residence” but nonetheless asserted that “absence of it diminishes the characterisation as a common residence, when that is being relied upon to support a finding of a de facto relationship”. [224]

Ms Lowson accepted that for membership of a household it was not necessary for the deceased or the plaintiff to own the property in which the household is said to be constituted but seemingly disputed that it could arise “simply by living in somebody else’s place”. [225] Further, she stated that there “is no suggestion, for example, that Jim’s apartment was a launching block to some other accommodation for them to share together”. [226] During the hearing, Ms Lowson disputed that the period in which Angela and the deceased lived together in Jim’s apartment for at least 120 days could qualify as “membership of a household”. [227]

Further, Ms Lowson suggested the passport extracts were more reliable than Angela’s affidavit evidence. [228] Based on the table, one might have the impression that the so-called 3-4 months initial period between September 2018 and December 2018 was in fact only limited periods of 38 days (19 September – 27 October 2018) and 12 days (25 November – 7 December 2018).

Ms Lowson also submitted that Angela has called no evidence of any other person to depose to her asserted relationship. [229]

Ms Lowson contended that Angela’s case was “weak” (particularly put on the footing of a de facto relationship), [230] and that is an “overriding consideration” [231] that I should give “significant weight” to in the overall balancing exercise [232] or at least “greater weight”. [233]

Ms Lowson submitted: [234]

In developing that submission, Ms Lowson contrasted Kelly’s evidence regarding the deceased’s time spent in Greece and the periods of time she states that she was in Greece with him, in each case drawn from passports, [235] with Angela’s evidence regarding periods of cohabitation drawn from her diary and her “records”. [236] She contended that Kelly’s evidence drawn from passports was a “more accurate description of those visits”. [237]

Ms Lowson did not contend that the mere fact that the deceased was married precluded a finding of a de facto relationship. Nonetheless, she argued that Angela’s evidence is to the effect that her relationship with the deceased “was a prospective relationship that was dependent upon the deceased leaving the marriage with [Kelly]”. [238] In response to a query from me, Ms Lowson contended that there was no relationship of any consequence between Angela and the deceased until separation, divorce or death occurred between Kelly and the deceased. [239]

Ms Lowson [240] emphasised Angela’s following evidence: [241]

She asserted that the deceased had not left Kelly and there is evidence that the plaintiff was becoming impatient with him. [242]

Pausing at this point, I am not satisfied that that evidence defines Angela’s relationship with the deceased. In any event, Mr Wilson SC expressly eschewed any notion that Angela’s relationship with the deceased was dependent upon a separation or divorce from Kelly. [243]

Ms Lowson submitted that: [244]

Other aspects of Ms Lowson submissions focused on what was said to be incompatibilities and confusion [245] or other lack of clarity [246] in Angela’s evidence, including in respect of the residence in which she asserts she spent time with the deceased. [247]

Mr Wilson SC submits that the plaintiff has good prospects of success in her family provision claim and principally [248] asserts she has “de facto spouse eligibility”. [249] He relied on the plaintiff’s evidence that she was in a romantic and sexual relationship with the deceased from 2018 until his death in September 2023.

Mr Wilson SC also submits that even if the claim of “de facto spouse eligibility” is rejected, an alternative claim of “dependent household member eligibility” [250] is an overwhelming one. [251]

He did not accept that the evidence that might be put on in a final hearing was complete. [252] I understood from his response to a question from me that he was mindful that Jim [253] might be a material witness although acknowledged they had not turned their mind to the question of further witnesses. [254]

He contended that parties may have a relationship as a couple living together even though they maintain separate residences, citing as a recent example, The Estate of Daniele Claudio Legler [2024] NSWSC 726 (Legler). There were a different set of circumstances in that case. Whilst the plaintiff (who was successful in establishing she was in a de facto relationship with the deceased at the time of death) spent some time apart from the deceased and the exact dates of shared residence was unclear, Pike J found they lived together for most of the time either in Portugal or in temporary accommodation when travelling. [255] Further, rather than the plaintiff maintaining a separate residence, it was emphasised that she in fact had no permanent residence of her own. [256]

Mr Wilson SC emphasised the evidence of Angela that they started their relationship by living together in that period of time between September – December 2018. [257]

Despite the intimation by Mr Wilson SC that there may be additional evidence in Angela’s case, I will assess the prospects of success based on the existing evidence.

Angela’s case is that she is eligible on the basis of “de facto spouse eligibility” and “dependent household member eligibility”.

The fact that the deceased was lawfully married at the time of his death does not, for family provision purposes, preclude an applicant from asserting that she was in a de facto relationship with the deceased as at the time of his death. [258]

Ms Lowson’s submissions came desperately close to asserting that the prospect of success is necessarily weighted more than other criteria in assessing security for costs applications. Clearly in any given case, prospects of success may assume “great weight”. However, that would arise simply by force of the facts rather than as a legal truism.

In any event, I am not persuaded that the prospects of Angela’s claim are as “weak” as Ms Lowson intimated.

It is not necessary for me to make any concluded findings regarding eligibility. I accept that there is some force in Ms Lowson’s submissions regarding the prospects of success of Angela’s claim to “de facto spouse eligibility”. However, it seems to me that the tenor of Ms Lowson’s submissions overstate what is required to establish eligibility and in particular that individuals were “living together as a couple”. That overstatement in my assessment has underpinned her contentions that Angela is not an eligible applicant and, if “barely eligible”, has weak prospects.

It seems to me that Angela’s claim to de facto spouse eligibility has reasonable prospects. I do not consider that it has what would be called “good prospects” but on the other hand I do not regard it as being “speculative” (Ms Lowson’s word) or weak.

On Angela’s alternative case, I do not accept that Angela has weak prospects of establishing “dependent household member eligibility”. It suffices to make the following observations.

By reference to the evidence regarding the time Angela spent in the company of the deceased in Greece, I find that there are reasonable to good prospects of establishing that Angela is a member of a household of which the deceased was a member.

Angela asserts that she was financially dependent upon the deceased for about 5 years. [259] She states they have a joint bank account in Greece into which he made substantial deposits used for payment of rent and living expenses. In addition, she says that he also paid for rent and living expenses when she lived in Sydney. [260] Mr Wilson SC emphasised that Angela was financially dependent upon the deceased [261] and indeed Ms Lowson accepted that (at least to some degree). [262]

In light of the evidence, I accept for interlocutory purposes that Angela has reasonable to good prospects of succeeding on “dependent household member eligibility”.

In the event the Court finds that Angela only has dependent household member eligibility, Mr Wilson SC submits the Court will be satisfied that there are factors warranting her application, in particular, based on the promises and representations made to Angela by the deceased regarding his commitment to a future life, ownership of the Glyfada apartment [263] and the giving of the promise ring. [264]

It is clear that, as part of the general contention that Angela’s prospects were weak, Ms Lowson either disputed that there were factors warranting or at least contended that that requirement had weak prospects. [265]

Insofar as Angela’s claim relies upon dependent household member eligibility, I reject the contention that Angela has weak prospects of establishing factors warranting.

It seems to me that there are reasonable to good prospects of satisfying the factors warranting requirement.

Notwithstanding that Angela’s evidence is disputed and untested, I accept Mr Wilson SC’s submissions that the provision of the promise ring and other promises committing to a relationship provide a sufficient basis to find that there are reasonable to good prospects of establishing factors warranting. In addition, I note her evidence as follows supports her prospects regarding factors warranting:

The interaction between matters bearing upon whether there are factors warranting and adequacy of provision tests of ss 59(1)(b) and (c) has been the subject of recent comment in the Court of Appeal in Frank and Howitt. Facts relevant to one matter may, in any given case, be relevant to the other.

In Howitt, Free JA at [81] (Ward P at [1] and Kirk JA at [2] agreeing) observed:

In determining whether to make a family provision order and the nature of any such order, the Court may have regard to a number of matters under s 60(2) and any other matter the Court considers relevant: s 60(1)(b); s 60(2)(p).

Ms Lowson stated that even if, contrary to Kelly’s position, Angela establishes that she is an eligible person, Angela faces another significant hurdle in persuading the Court that the provision by the deceased was inadequate, citing non-exhaustively, the nature of the relationship between herself and the deceased, the inter vivos gifts to her of €203,000 and the fact that it had been used by Angela to purchase the Glyfada apartment. [276] She submitted that: [277]

Mr Wilson SC submitted that the plaintiff has good (or at least reasonable) [278] prospects of success, submitting: [279]

Mr Wilson SC emphasised the extent of the deceased’s moral duty by reference to promises that he would buy Angela an apartment in Athens, divorce Kelly and marry Angela. [280]

He further submitted that the plaintiff had performed household duties. Angela in her affidavit addresses her contributions to the deceased’s estate and welfare stating: [281]

He submitted that Kelly has not put her financial circumstances in issue and so there is no competing financial claim (at least at this stage of the proceedings). [282]

Despite the ardent submissions of Ms Lowson attempting to persuade me that Angela’s claim for provision is weak, I disagree.

There is no need for me to exhaustively go through the various s 60(2) matters. However, based on the current evidence and acknowledging there are a number of disputed facts of varying significance which remain to be tested and contextualised, I find that there are reasonable to good prospects of Angela obtaining an order for provision, having regard to the details of her relationship with the deceased, the nature and size of the deceased’s estate, her financial position and claim for provision, the inter-vivos gifts including the promise ring, the lack of any current financial competition by Kelly on the deceased’s estate (though not ignoring her status as a beneficiary) and the fact that there are no other competing claims against Angela’s claim.

Greece is not a country that has relevant reciprocity with Australia for the purposes of s 5(1) of the Foreign Judgments Act and the Foreign Judgments Regulations. [283] Mr Wilson SC acknowledged this. [284]

Nonetheless, there is availability of enforcement of the judgment of an Australian court in Greece. Each party adduced some evidence regarding enforcement procedures in Greece.

Angela adduced from Reveka Koutsi, a Greek Attorney-at-Law, some very limited evidence regarding enforcement, referred to by Mr Wilson SC, [285] as follows: [286]

An official English translation of Article 780 was not provided by Ms Koutsi. A copy of the Greek Civil Procedure Code is accessible via the Greek Ministry of Justice website. [287] However, self-evidently, it is recorded in Greek with no associated English translation. Thus, apart from the assertion regarding the procedure for recognising the foreign decision in accordance with Article 780, in the absence of translation, it can truly be said that “it is all Greek to me” [288] and of very marginal assistance to the Court.

Perhaps for the above reasons, Mr Wilson SC embraced [289] the evidence that had been adduced by Kelly from Dimitrios Anastasopoulos, an Attorney-at-Law who practises in Athens, Greece, regarding the enforcement options available if a judgment was obtained in Kelly’s favour against Angela (and the estimated associated costs with those options). [290]

Mr Anastasopoulos is a lawyer at the Supreme Court of Greece with 25 years of experience in litigation and enforcement of judgments in Greek courts. In particular, in the last few years, he has dealt with numerous cases related to enforcement of Australian court judgments (mostly divorce orders) in Greece. [291] In summary, the position (according to Mr Anastasopoulos) appears to be as follows.

Enforcement requires an application by a Greek lawyer at the first instance to a single-member Court of Athens for a hearing date for the court to recognise that the Australian judgment meets certain standards and enforceability in Greece. [292] The documents to be lodged include: (a) the original Australian judgment with Apostille, translated in Greek; (b) an Australian court certificate that the judgment is final and enforceable under Australian law, with Apostille and (c) a certificate from the Greek court that there is no contrary Greek court judgment on the same issue. [293]

The requirement for apostille certification was not explained but may relate to the Apostille Convention, [294] to which both Australia [295] and Greece are parties. The Convention facilitates the cross-border use of public documents by allowing simplified certification of the authenticity of the signature on a public document. [296]

At the hearing, the Greek court examines whether or not: the Australian judgment is contrary to Greek law; the issuing court has jurisdiction; the defendant was duly summoned and participated in the proceedings; the judgment is final or enforceable under Australian law; and there is no contrary Greek court judgment on the same issue. [297]

The cost for the above process amounts to around €1,700-€2,000 and translations are charged separately with fees being approximately €50 per page. If the party with the benefit of the judgment is a full-time resident of Australia (as Kelly would be, if she obtained a costs order against Angela at final hearing) there is no GST or VAT applicable unless the legal services are related with real estate in Greece. [298]

The above “recognition” phase takes at least 6-8 months. [299]

If the Australian judgment is recognised, the next phase is one of execution. To proceed with that, there must be an application for an execution deed and payment of the relevant stamp fees. The stamp fee amount varies according to “the legal base” of every court judgment but “when it comes to legal expenses ordered by a Court usually no stamp fees apply”. [300]

As soon as the execution deed is issued, the Greek lawyer has to draft a warrant for enforcement which must precisely define the claim and include the amount due as per the Australian judgment. Drafting fees are said to be €120 per hour, and service fees approximately €50 for serving the warrant in the greater city of Athens area. Apparently, there are other minor related costs. [301]

Once served, the judgment debtor has three business days to comply voluntarily with the judgment (presumably by making payment). If not, then after that lapse of time, the judgment creditor has the right to proceed with seizure options. [302]

There are 4 common seizure options explained by Mr Anastasopoulos. I will not recite the detail of those options or the cost breakdowns. However, broadly speaking, the indicative costs are as follows: [303]

In the case of seizure and public auction of real estate, there are seemingly other public fees and legal fund contributions which are said to be usually 3% to 5% of the claim amount. [304]

According to Mr Theodoropoulos, based on the exchange rate as at 9 May 2025 (being €1 equating to $1.75 AUD) the upper range of the estimated costs and disbursements is $29,750 AUD. [305]

Further, there are certain factors that may affect that final cost, including the fact that higher “claim amounts” will result in higher legal fees and contributions; costs may increase if the matter has some complexity (such as there being multiple debtors or mortgage/encumbrances exist); and additional legal costs will apply if the debtor files objections or legal challenges to the process. [306] Mr Theodoropoulos surmises that in circumstances where solicitor/party costs for the whole matter for Kelly might total $250,000 AUD, the levy payable in Greece could be up to $12,500 AUD. [307]

There is no process in the Greek legal system for examination of a debtor by a court other than in connection with an application for bankruptcy filed by a debtor. [308] Initiating bankruptcy proceedings against a debtor in Greece is legally complex and relatively expensive process governed by the Greek Bankruptcy Code. Costs associated with this essentially range between €2,950 and €6,400. [309]

Ms Lowson submits that, strictly in the alternative, if the Court determines that there is an immutable rule that an amount of security in the case of a person resident outside Australia must be limited to the costs of enforcement, Kelly seeks an order for security of costs on the basis of the evidence attached to the affidavit of Mr Theodoropoulos. [310]

Further, Ms Lowson submits that: [311]

Mr Wilson SC noted that there are no risks regarding enforcement in this case having regard to the fact that there is an ability to register and enforce a judgment in Greece [314] and Angela has property in Athens (being the Glyfada apartment) which he says (as noted above) reveals equity which would be available through an execution process. [315]

Mr Wilson SC seemingly accepted that the wording of r 42.21(1A)(n) does not necessarily limit security for costs to costs of registration but nonetheless submitted that the appropriate approach was that taken by Lindsay J in Battenberg. [316]

Ms Lowson in her written submissions raised as an issue for consideration of the security application the question of “what assets are held by the plaintiff in Greece”, [317] citing r 42.21(1A)(c) by which the Court may consider “the impecuniosity of the plaintiff”.

Mr Wilson SC submits that Angela is impecunious. [318] In light of her current circumstances, Angela indicates that she does not have sufficient funds to pay security for costs sought by Kelly. [319] Accordingly, Mr Wilson SC contended that an order for security for costs would stifle the proceedings. [320]

Ms Lowson disputed that an order for security for costs would stifle the proceedings. [321] She submitted that Angela’s evidence is such that she “has demonstrated an ability to obtain loans to secure the purchase of the apartment, (on favourable terms)” [322] and still has the capacity to borrow funds.

Part of the purpose of Ms Lowson adducing evidence regarding the Glyfada appraisal (valuing the apartment at €350,000 as opposed to Angela’s estimate of €260,000) was to suggest that Angela has greater capacity to borrow funds than she had asserted. [323] However, that does not necessarily follow. The mere fact that evidence has been adduced that a property has a larger valuation than that contended by another party does not demonstrate the other party is necessarily able to borrow funds on the strength of the additional alleged value of the property. Angela’s evidence is that she is unable to borrow further monies. When she sought a bank loan, the reason she was unable to borrow was not because of an assumed value of the property but rather her inability to demonstrate the capacity to meet repayments as a consequence of her unemployment. [324]

Alternatively, Ms Lowson submitted that Anegla could sell assets to provide security for costs. [325] She emphasised that selling her apartment would generate funds of at least $95,662 on her own evidence or a further $130,000 on the evidence of Mr Konstantinidis. [326]

Ms Lowson also emphasised that Angela “has the ability to work (noting that the plaintiff has provided no evidence of her attempts to secure employment since June 2021)”.

Regarding Kelly’s costs, Ms Lowson submitted that: [327]

Thus, the costs are already at a level where the plaintiff has no disclosed sufficient net assets to provide security for the total, though I am mindful that the notice of motion seeks for Angela to pay security in the sum of $75,000.

I am not satisfied that Angela has the borrowing capacity as asserted by Ms Lowson. Angela states, and I accept, that she is unable to borrow further monies. [328] As detailed above, Angela has already borrowed funds on terms from Mr Koube [329] and has borrowed funds from her mother, with whom she lives with in rented accommodation. [330] Her parents are separated and both retired. [331] There is no indication that she would be able to obtain any further funds from a bank or otherwise.

Whilst it is true that Angela has not gone into chapter and verse regarding attempts to secure employment, her evidence, which for interlocutory purposes I accept above, is that she is unemployed and has so far not been able to secure employment even in Switzerland.

Further, Mr Wilson SC submits that the consequence of a finding that Angela has good or even reasonable prospects of success is that “she may not be burdened with a costs order, in which case that’s a factor militating significantly against security, because there’d be no need for it”. [332] He also submitted that if Angela is unsuccessful in the family provision claim, there is doubt that the Court would order her to pay costs. [333]

I have taken into account that the prospects of success impact the likelihood of an adverse costs order. I have addressed the strength of the proposition that the Court may in any event exercise its discretion not to make an adverse costs order against an unsuccessful claimant in family provision proceedings.

Ms Lowson accepted that whether an order for security for costs is made or not at least in part involves the Court considering the interests of each party, including the rights of a plaintiff to bring a claim and the rights of the defendant not to be burdened by a Pyrrhic victory. [334]

Ms Lowson submits that having regard to the purposes of an order for security, Kelly should be protected from the risk that if Angela’s claim fails and an order for costs is made in favour of Kelly that Kelly is unable to recover those costs. [335]

Mr Wilson SC submits that, in any event, if security were to be ordered, it ought to be limited to the cost of registering a judgment which, based on the evidence of Mr Anastasopoulos, he suggested would be between €1,700-€2,000. [336]

Overall, balancing all the considerations, it seems to me that no order should be made for the provision of security for costs.

On the contested matters, I note the following:

Even if I am incorrect in respect of the above determination and it be found that some form of security ought to be provided by Angela, I consider that an amount of security ought to be no more than €1,700-€2,000. That is because I am not satisfied that Anglela has the resources to provide a meaningful amount of security beyond registration costs and I consider that an order for a greater amount would stifle the proceedings.

Lastly, in light of my determination, it is not necessary for me to deal with Mr Wilson SC’s submission that Kelly has delayed (unacceptably) in bringing the application for security. Whilst I note that the application for security was not filed until approximately 9 months after the commencement of the proceedings, I would not be inclined to rely upon that matter to refuse the application per se.

The non-inspection application is framed in terms of a direction that the plaintiff is not permitted to inspect documents produced by CE and CES. However, the specific opposition to inspection focuses upon access to bank statements of those companies. [337]

Ms Lowson submitted that the companies (CE and CES) are owned by a family trust and used to operate the day-to-day transactions of the business. [338] She contended that Mr Wilson SC had accepted that there are sufficient funds in the estate to meet her family provision claim, were it to succeed [339] and that the material from the bank statements can only be relevant to the question of notional estate. [340]

While she acknowledged the Court expects to be properly informed of the extent of the estate and notional estate, she submitted this does not require Angela to have access to the day-to-day dealings of the deceased’s companies, that level of detail being “simply irrelevant” to the proceedings. Further, she contended that allowing access will necessarily increase the costs to both parties. [341]

Ms Lowson, whilst not resiling from Kelly’s obligation to properly identify the extent of notional estate, contended that access to bank records was a “step too far and unnecessary for the purposes that your Honour has described”. [342] I had in conventional terms extracted from the decision in Grundy that the extent of the deceased’s wealth, property controlled by the deceased and property susceptible to being designated as notional estate nonetheless was a matter that informed the consideration of the overall context of the plaintiff’s application.

Mr Wilson SC submitted [343] that the opposition to access to the bank accounts appears to be based on a misconceived view as to the purpose and extent of the concession before Kunc J. [344] Mr Wilson SC also made reference to the decision of White J in Farr (see above) to support his contention that access should be given to the documents. [345]

Property may be designated as notional estate under s 80 if it is property that is held by, or on trust for, a person by whom property became held as the result of a relevant property transaction, whether or not the property was the subject of the relevant property transaction: s 80(3)(a) Succession Act. [346]

At least for the above reasons, there is some relevance in being aware of the extent of property that is currently held by an entity who holds property as a result of a relevant property transaction.

Mr Wilson SC contended that there is reason to think that there is material in the bank statements that has not accurately been reflected in balance sheets of the companies. [347] In a context in which he states that Kelly has asserted that the trading trust has a nominal value but financial accounts of the entity suggest otherwise and he wishes to test the accounts by reference to bank statements, [348] it seems to me that there is sufficient apparent relevance [349] for him to be permitted to explore that issue.

To be clear, the documents sought by Angela’s side under subpoena have already been produced. Ms Lowson’s objection essentially is that if inspection is permitted, it will necessarily engage both sides in further work. [350] That may be true. However, it does not seem to me to be a sufficient answer to preclude inspection.

Lastly, Ms Lowson submitted that, if I were to permit inspection, there should be a restriction of access to the bank statements to the legal representatives in the proceedings. Mr Wilson SC did not oppose that [351] and accordingly I will order that access be so limited.

In light of my above-mentioned findings, I dismiss both the security application and the non-inspection application. The subpoenaed material may be inspected, though there should be a restriction of access to the bank statements to the legal representatives in the proceedings.

Prima facie, costs follow the event.

However, Ms Lowson indicated that Kelly seeks to be heard in relation to the payment of costs of the applications. [352] Thus, I will give her that opportunity, if she wishes to be heard that a costs order other than I have provisionally indicated should be made.