Le v Angius; Angius v Angius

1. [1]

   These proceedings concern two claims brought under the Succession Act 2006 (NSW) (the Act) for provision from the estate of the late Giovanni (John) Angius (John or the deceased). In proceeding 2022/41064, the plaintiff is Thi Quy Le (Ms Le) and she claims provision on the basis that she was, at the time of the death of the deceased, living with him in a de facto relationship or, alternatively, in a close personal relationship. In proceeding 2023/31399, the plaintiff is Natalie Angius (Natalie), a granddaughter of the deceased and she claims provision on the basis that she was wholly or partly dependent on him. The common defendant to both proceedings is Gianna (Jenny) Angius (Jenny), who is the deceased’s daughter, the administrator of his estate and the sole beneficiary under his last will.

2. [2]

   Although the two claims were brought in separate proceedings, they were heard together with evidence in one to be considered evidence in the other. For convenience and without intending any disrespect, I will refer to the members of the Angius family by their first names as was the course adopted during the hearing.

3. [3]

   The nature of the claims brought by the plaintiffs require analysis of a significant portion of the deceased’s personal life and the broader family dynamics of the Angius family. Unfortunately, this means that private aspects of the lives of the deceased, the plaintiffs, the defendant, and other actors are canvassed in this judgment.

4. [4]

   The structure of these reasons is that I will first outline the nature of the claims brought by each plaintiff, explain certain rulings on evidence made during the hearing, set out by way of background certain uncontroversial facts, and then outline the statutory regime that governs the plaintiffs’ claims. Following this I will deal with the evidence led by each of the plaintiffs and the defendant. I will then turn to determine the issues concerning each plaintiff’s eligibility and the quantum of any order for provision to be made.

The claims

1. [5]

   Neither Ms Le nor Natalie were named in the deceased’s will, which left the entirety of his estate to Jenny. Both make claims for provision pursuant to chapter 3 of the Act.

2. [6]

   Ms Le claims that she is an eligible person under s 57 of the Act as a person living with the deceased in a de facto relationship at the time of the deceased’s death, or alternatively as a person living with the deceased in a close personal relationship. The defendant disputes eligibility on either basis and the amount of provision claimed if Ms Le is eligible.

3. [7]

   Natalie claims that she is an eligible person under s 57 of the Act as she is the deceased’s grandchild and was at one time wholly or partly dependent on him. The defendant disputes eligibility and the amount of provision claimed if Natalie is eligible.

Rulings on supplementary evidence

1. [8]

   Ms Le called evidence from a number of witnesses who deposed that they considered the deceased and Ms Le to be in a de facto relationship. Evidence of this kind is relevant to the public aspects of the relationship between a claimant and the deceased: McCarthy v Tye [2017] NSWCA 284 at [49]. Having ruled as inadmissible statements by a number of witnesses of that kind where the basis of the opinion was unexplained, I indicated to Mr Ellison SC, senior counsel for Ms Le, that I would give him leave to adduce oral evidence from each witness setting out the basis for the opinions subject to proper notice in writing being given to Ms Painter SC, senior counsel for the defendant, as to the nature of that supplementary evidence. Mr Ellison SC indicated that he would provide supplementary statements for the relevant lay witnesses to Ms Painter SC by Sunday, 15 October 2023.

2. [9]

   Nine supplementary statements were provided by that time, prior to the cross-examination of the relevant witnesses, and those supplementary statements were admitted without objection.

3. [10]

   At the end of the sixth day of the hearing (Monday, 16 October 2023), Mr Ellison SC indicated that he was proposing to rely on a further supplementary statement from each of the plaintiff’s two sons who had already provided affidavits, being Ba Duc Hoang (Duc) and Ba Thang John Hoang (Thang). They had each previously prepared an affidavit filed in the proceedings which included a statement ‘I know that my mother was in a de facto relationship with John Angius’, but with no basis given for this statement in the affidavit. Each statement had been objected to and ruled inadmissible by me on the basis that it was unfounded opinion evidence. The proposed supplementary statements were said by Mr Ellison SC to set out the basis of their opinions.

4. [11]

   Ms Painter SC objected to Mr Ellison SC seeking to rely on the proposed supplementary statements as she had not been provided with them (even in draft form) by the end of Sunday 15 October 2023, and I indicated I would uphold her objection, but would read back in the original statements by each son (that ‘I know that my mother was in a de facto relationship with John Angius’) if Ms Painter SC agreed not to press her original objection, which she did agree to. Mr Ellison SC then acknowledged that the leave that he may have had was withdrawn (T397).

5. [12]

   On the seventh day of the hearing (Tuesday 17 October 2023) when Thang was called to give evidence, Mr Ellison SC handed up a two-page statement made by the witness dated 17 October 2023 which was marked for identification but not admitted into evidence. On the next day, when Duc was called to give evidence, Mr Ellison SC handed up a two-page statement by the witness dated 17 October 2023 which was also marked for identification but not admitted into evidence. My reasons for not admitting the two supplementary statements are as follows.

6. [13]

   Ms Le commenced these proceedings by summons on 11 February 2022. At a directions hearing on 25 March 2022, the orders made by Sackar J noted that the plaintiff’s evidence in chief was complete. On 29 April 2022 a direction was made for the plaintiff to have leave to file further evidence by 13 May 2022. On 8 September 2022, the matter was set down for hearing. On 7 September 2023, there was a pre-trial directions hearing before me at which directions were made for Natalie to adduce further evidence of a medical nature. No mention was made in that directions hearing that Ms Le wished to file further evidence in her case. It would have been apparent to Ms Le’s legal representatives at that time that the affidavits of Duc and Thang filed in the proceedings were defective in failing to set out any basis for the opinions stated in them about their mother being in a de facto relationship.

7. [14]

   No attempt was made to cure that obvious defect until the end of the sixth day of the hearing, at a time when Ms Painter SC was fully engaged in cross-examining Ms Le’s remaining witnesses and then moving immediately to cross-examine the witnesses in Natalie’s case. The terms of the leave to rely on additional statements by Thang and Duc previously given by me had not been taken advantage of. There was clear prejudice to Ms Painter SC in expecting her to deal with the new evidence to be relied on in the two statements which were only served on the defendant after the conclusion of the sixth day of the hearing. The only person responsible for the failure to remedy the defect in the evidence for Ms Le on this topic was her legal representatives. Further, the delay in leading evidence of a similar nature from nine other witnesses was part of the reason why the case suffered from a significant overrun in hearing time. In light of these matters, I considered it to be inconsistent with the just, cheap and quick resolution of the proceedings to allow the two further statements to be relied on.

Factual chronology

1. [15]

   John Angius was born on 18 or 19 October 1936 in Italy, and married Laura Angius (Laura) in 1957. They emigrated to Australia in 1958. The couple had two children, Jenny Angius (the defendant) born in 1964 and Robert Angius (Robert) born in 1961. Laura died on 4 January 2012. Robert did not give evidence in these proceedings.

2. [16]

   Jenny has two children, Gabrielle and Sean. Gabrielle gave evidence in these proceedings. Robert has six children: four (including Natalie) with his first wife Silvana Salvatore (Silvana), and two with his partner, Jacqueline Varela (Jacqueline). Both Silvana and Jacqueline gave evidence in these proceedings.

3. [17]

   The family home of John and Laura from the 1990s was a house located at 2 Denning Street, South Coogee (the Coogee property). Laura lived there until her death.

4. [18]

   John operated a smash repair business from commercial premises he owned at 6 Allen Street, Waterloo under the name ‘Waterloo Smash Repairs’.

5. [19]

   Next door to John’s smash repair workshop, but located on the same land, was a mechanical work repair shop operated by Nick Pappas under the name ‘Advance LPG’. Both premises were closed in 2008 when the land at 6 Allen Street, Waterloo was redeveloped and Mr Pappas relocated to Roseberry. Mr Pappas gave evidence in these proceedings.

6. [20]

   As at January 2008, John and Laura were the registered proprietors as joint tenants of 6 Allen Street, Waterloo and John also owned the adjoining property at 2-4 Allen Street, Waterloo. They both entered into a joint venture agreement with a third party in January 2008 to redevelop those parcels of land and the adjoining land at 8 Allen Street, Waterloo owned by a third party for the construction of retail/commercial premises and residential apartments on the land, which was undertaken over the period from that date to August 2010: Angius v Salier [2019] NSWSC 184 at [15]; CB 947.

7. [21]

   Ms Le first met John in around 2000 while taking her car for repairs at his smash repair business and they became friends. Ms Le who is Vietnamese, was born on 3 March 1963 and gives evidence that she and John commenced an intimate relationship in March 2003 (when she was 40 years old and John was 67 years old). Ms Le’s previous marriage was dissolved in October 2001.

8. [22]

   On 3 June 2001, Ms Le entered into a Residential Tenancy Agreement for premises owned by the NSW Government at 75 Philip Street, Waterloo (which will be referred to as the Redfern property). She benefited from a governmental rental subsidiary and paid a rent of $300 per week. She retained this residential tenancy agreement until June 2021.

9. [23]

   In the period from around September 2005 to early 2008, Ms Le managed a pool hall business at premises located at Alfreda Street, Coogee. It appears that the premises were jointly owned by John and Laura.

10. [24]

    In February 2007, an altercation occurred at the pool hall premises which, according to the police report, involved an argument between John and Laura in which Laura alleged that John was having an affair with Ms Le.

11. [25]

    On 30 March 2007, there was another argument between John and Laura regarding Laura’s allegation that John was having an affair with Ms Le. This occurred at the Coogee property and involved Laura suffering injuries as a result of a fall in the kitchen. Laura alleged that John had assaulted her which he denied. An apprehended violence order (AVO) was granted to Laura against John, and the police charged John with assault. It appears from the statement made by a Detective Chief Constable for the purposes of the inquest into Laura’s death that John was found guilty of the assault, but no conviction was recorded.

12. [26]

    On 10 April 2007, Laura saw a family law solicitor, Ms Cathie Blanchfield of Blanchfield Nicholls Partners. Jenny was at the meeting. Laura told Ms Blanchfield of her concerns regarding Ms Le. Ms Blanchfield advised Laura to make a new will to protect her children if she died before John and drafted one for her to sign which she did on 13 April 2007 (although later, on 27 April 2007, she re-signed it following advice from Ms Blanchfield that the first execution was invalid). Under this will, Laura appointed Jenny and Robert as her executors and after payment of just debts, funeral and testamentary expenses, Laura left the residue of her estate to Jenny and Robert as tenants in common in equal shares: Estate of Angius; Angius v Angius [2013] NSWSC 1895 at [83]. Ultimately, Hallen J determined in those proceedings that a later undated document prepared by Laura was her last will.

13. [27]

    On 13 April 2007, there was another incident at the pool hall in which Laura again alleged that John was having an affair with Ms Le. The police report indicates that Ms Le ‘admitted to being involved in a relationship’ with John.

14. [28]

    On 12 May 2007, an incident occurred at John’s smash repair business at 6 Allen Street, Waterloo. According to the police report, while Ms Le was having her car serviced at the premises, Robert approached Ms Le and said ‘Get out of the shop in Coogee. If you don’t get out, I’ll put you in the ground’. As a result of this incident, an AVO was granted to Ms Le against Robert.

15. [29]

    On 7 June 2007, Ms Le was granted an interim AVO against Laura, which became a final order for a period of two years on 19 November 2007.

16. [30]

    On 6 November 2007, Laura’s solicitor, Ms Blanchfield, sent a letter to John’s solicitors which stated relevantly:

17. [31]

    The copy of the letter of 6 November 2007 in evidence indicates that John signed it. It can be inferred from the terms of this letter, the very strained relationship between Laura and John at this time, and the fact that the development of the properties at Allen Street, Waterloo (Waterloo development) commenced in 2008, that Ms Le had ceased to manage the pool hall business in Coogee by early 2008.

18. [32]

    On completion of the Waterloo development in around August 2010, John and Laura became the registered proprietors of a number of the residential units and retail/commercial properties at 8 Allen Street, Waterloo including Shop 3 referred to below: Angius v Salier [2019] NSWSC 184 at [15].

19. [33]

    On 27 February 2011, Jenny and Robert had an argument at John’s office at Shop 4, 8 Allen Street, Waterloo in which (according to the police report) Robert punched Jenny in the mouth, causing a cut to her bottom lip during an argument about the sale of a family property.

20. [34]

    On 10 May 2011, a separation agreement was executed by John and Laura, recording that they had separated on 30 September 2010. On 6 October 2011, John and Laura entered into another separation agreement, which was varied on 15 and 16 November 2011. These agreements set out arrangements for the sale of their respective interests in the properties resulting from the Waterloo development so that they would ultimately each own particular properties solely in their own names.

21. [35]

    On 19 November 2011, Ms Le was granted an AVO against Laura at Waverley Local Court.

22. [36]

    On 3 December 2011, Jenny and Jacqueline had an argument in front of Laura, which (according to the police report) involved a claim by Jenny that Jacqueline was trying to get Laura’s money and Jenny allegedly scratched Jacqueline. An AVO was granted to Jacqueline against Jenny.

23. [37]

    From 2011, Laura and John lived apart: Laura at the Coogee property and John at Unit 23, 8 Allen Street, Waterloo (referred to by the parties as the ‘penthouse apartment’) (Waterloo apartment). John ultimately sold the Waterloo apartment in 2016.

24. [38]

    From around 2007 or, at the latest, the time of the separation, there was a significant rift in the Angius family between those supporting Laura and those supporting John. Jenny and her family were aligned to John’s side in this dispute, and Robert and his family were aligned to Laura.

25. [39]

    On 1 August 2011, John and Laura (as lessors) executed a lease of Shop 3, 8 Allen Street, Waterloo (Shop 3) in favour of Ms Le (as lessee) for a term of five years commencing on 1 August 2011 and terminating on 31 July 2016 at a rent of $26,000 per annum (including GST), subject to adjustment, with an option to renew for a further five year term. The lease was registered. On 26 August 2011 Ms Le registered a business name ‘Waterloo Laundry Mat’ showing the principal place of business as Shop 3R, 8 Allen Street, Waterloo, the address of service of documents in relation to the business name was shown as the Redfern property. Ms Le conducted a laundromat business from Shop 3 throughout the period from 2011 to John’s death. It is not in dispute that Ms Le did not, and was never required to, pay the rent under this lease. It is also not in dispute that John gifted to her the fit out of the premises.

26. [40]

    In September 2011, Laura commenced proceedings against John and Jenny (2011 proceedings) which related to the Coogee property and another property in the same street in which Jenny lived. The 2011 proceedings were resolved by a Deed dated 15 November 2011. Final orders determining the 2011 proceedings were made, by consent, on 18 November 2011: Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 (Estate of Laura Angius) at [56].

27. [41]

    Laura died on 4 January 2012 at the Coogee property. Robert alleged that his father was involved in her death, and wrote to the coroner regarding his suspicions: Estate of Laura Angius at [20]–[22]. There followed protracted litigation regarding Laura’s estate and other family matters between Robert and John: see eg. Estate of Laura Angius; Robert Angius v John Angius [2018] NSWSC 1772.

28. [42]

    On around 31 January 2012 John and Laura, as lender, and Ms Le as borrower entered into the instrument entitled ‘Security interest in goods’ securing a loan of $41,000 made to Ms Le, secured over certain equipment used in the premises.

29. [43]

    On 13 May 2012, John filed a Notice of Death and became the sole proprietor of the Coogee property. Ms Le deposed that from around this time until May 2017, when he was required to vacate the property John lived in the Waterloo apartment and not at the Coogee property. Jenny disputes that John lived solely at the Waterloo apartment in this period and says that he divided his time between the Waterloo apartment and the Coogee property. In the period from May to August 2017 he appears to have lived principally at the Burradoo property referred to below.

30. [44]

    On 14 September 2012, John made a will (see [73] below). Ms Le was not a beneficiary under this will, but Natalie was.

31. [45]

    On 3 December 2012, John purchased 21 Links Road, Burradoo (Burradoo property). He appears to have treated this property as essentially a holiday home. John and Ms Le spent Christmas 2012 at the Burradoo property and were joined there by Jenny and her family.

32. [46]

    On 21 December 2012, John commenced proceedings (2012/396544) in which he sought to set aside the consent orders and the deeds which had resolved the 2011 proceedings (2012 proceedings). There were also contested probate proceedings in relation to Laura’s estate which were heard and determined in December 2013 by Hallen J (see Estate of Laura Angius) and contested proceedings relating to the construction of Laura’s will, determined by Ball J (see Gordon Salier v Robert Angius [2015] NSWSC 853).

33. [47]

    On 1 April 2014, an independent solicitor, Mr Gordon Salier (Mr Salier), was granted letters of administration in relation to Laura’s estate with a copy of the will annexed. The estate was given a value in excess of $23 million.

34. [48]

    On 4 November 2015, Hallen J made orders in the 2012 proceedings which included an order pursuant to s 66G of the Conveyancing Act 1919 (NSW) that Mr Salier and another person be appointed joint trustees to affect the sale of the Coogee property by auction. After contested proceedings by the trustees to obtain possession of the Coogee property, John vacated the property on 1 May 2017, and it was sold by the co-trustees at auction. John was the successful bidder paying $6 million for the property and settlement of the purchase occurred on or around 2 August 2017.

35. [49]

    In an affidavit sworn by him on 26 October 2014 in the 2012 proceedings, John said (emphasis added):

36. [50]

    It is not in dispute that the ‘Matrimonial Home’ is a reference to the Coogee property.

37. [51]

    In 2015, John made a gift to Ms Le of a second hand Toyota Aurion motor vehicle.

38. [52]

    On 11 January 2016, John entered into a new lease of Shop 3 in favour of Ms Le for a term of five years which included an option to renew for two further periods of five years each (with a maximum period of the tenancy under the lease and permitted renewals being 15 years). The rent payable remained unchanged. It is not in dispute that Ms Le did not, and was never required to, pay the rent under this lease.

39. [53]

    In August 2016, John sold the Waterloo apartment and moved back to live permanently at the Coogee property. Ms Le says that she lived there with him from that time, but this is disputed by Jenny.

40. [54]

    Having vacated the Coogee property in May 2017, as noted above, John lived at the Burradoo property during the period from May to August 2017, and then moved back to the Coogee property in August 2017 and remained living there until his death. Ms Le deposed that she lived with John both at the Burradoo property from May to August 2017 and then at the Coogee property until his death, but Jenny disputes this.

41. [55]

    On 31 May 2018, Robert was joined as a defendant to proceedings brought by John in 2016 against Mr Salier and various companies of which John and Laura had been directors which owned a number of income-earning properties. The joinder of Robert was permitted because the orders which were sought by John would directly affect his rights as the principal beneficiary of Laura’s estate. Robert subsequently filed a cross-claim against John which involved an allegation that John caused the defendant companies’ funds in excess of $4 million to be paid into account which he controlled.

42. [56]

    Following the appointment by the Court of a tutor for John, the substantive claims in the proceedings were settled in May 2020, apart from certain issues arising under Robert’s cross-claim which were deferred until the taking of accounts by the receiver of the defendant companies: see Angius v Salier (No 5) [2023] NSWSC 678 at [28]-[34], [76]. Robb J records at [45] that the receiver’s amended report of 22 September 2020 disclosed that the total amount of some $2.89 million had been paid by the company defendants to John.

43. [57]

    There was other litigation between John and Robert after Laura’s death: see Robert Angius v John Angius [2018] NSWSC 1772. There was also a family provision claim brought by Jenny in 2013 against Laura’s estate for which Mr Salier as administrator of Laura’s estate was the defendant which was ultimately resolved by orders made in 2019.

44. [58]

    On 21 April 2021, John made his last will (see [69] below). Neither Ms Le and/or Natalie were a beneficiary under this will.

45. [59]

    On 8 June 2021, Ms Le had a conference with AKN & Associates, the solicitors representing her in these proceedings, seeking advice regarding her ‘situation’ in relation to the deceased. On the same day, Ms Kolena Denis (a witness for Ms Le in these proceedings) signed a statutory declaration at the offices of AKN & Associates supporting Ms Le’s claim that she was in a de facto relationship with John. Shortly after this, Ms Le relinquished her subsidised tenancy of the Redfern property and changed her nominated address for her bank accounts, credit card statements, insurance, driver’s licence and car registration, taxation office and mail from the Redfern property to the Coogee property.

46. [60]

    John spent lengthy periods in hospital in 2021 for issues related to his heart, including in January (admitted on 26 January and stayed seven days), March (admitted on 28 March and stayed nine days), June (admitted on 15 June and stayed two days), July (admitted on 19 July and stayed one month) and September (admitted on 6 September and stayed three days and also on 28 September). The admission on 19 July 2021 was to Royal Prince Alfred Hospital (RPA) for heart surgery.

47. [61]

    On 24 June 2021, John was taken by Jenny for a consultation with Associate Professor Tuly Rosenfeld, a consultant geriatrician and physician following a brain scan which he had organised for John. Professor Rosenfeld saw John on his own, with Jenny remaining in reception throughout the consultation. Relevant parts of the report prepared by Professor Rosenfeld are set out later in these reasons.

48. [62]

    On 6 November 2021, John’s drivers’ licence was suspended.

49. [63]

    On 20 December 2021, John met with a solicitor, Mr Francis Devine, at his home during which he gave instructions for the preparation of an enduring power of attorney and the appointment of an enduring guardianship, but ultimately, they were not signed.

50. [64]

    John spent Christmas Day 2021 at the Coogee property and had Christmas there with Jenny and her partner, Kevin Batten, and her children, Gabrielle and Sean. Ms Le spent the day with her family at the Bankstown property, although she deposed that she returned to the Coogee property in the evening of Christmas Day and had dinner with John there alone with him.

51. [65]

    John tested positive to COVID-19 on 23 January 2022 and died on 31 January 2022, aged 85 years. His funeral was on 5 February 2022. Both plaintiffs attended.

52. [66]

    On 10 February 2022, Jenny arranged for Mr Jason Bates, an asset manager, to go to the Coogee property, to remove Ms Le and her son, Duc, who were staying there.

53. [67]

    On 11 February 2022, six days after the funeral, Ms Le commenced her proceedings by summons, supported by her first affidavit sworn on the same day.

54. [68]

    On 30 January 2023, Natalie commenced her proceedings by summons.

The deceased’s testamentary intentions

1. [69]

   John left a will dated 21 April 2021 naming Jenny as his executor and sole beneficiary. If Jenny did not survive the deceased, he directed that any of her children who attained the age of 25 years should share equally in his estate.

2. [70]

   The 2021 will did not name any other persons, and in particular made no provision for Ms Le (or any other of the deceased’s employees or caregivers), nor did he make any provision for his son Robert, or Robert’s children, including Natalie.

3. [71]

   The 2021 will was made after the conclusion of the Supreme Court proceedings brought by Robert concerning Laura’s estate, as a result of which Robert was the sole beneficiary of her estate, net distributable value of which was estimated by Mr Salier (the Administrator) to be in excess of $13 million but by Robert to be considerably larger: see Gianna (Jenny) Angius v Gordon Albert Salier [2018] NSWSC 995 at [23] and [30].

4. [72]

   Natalie gave evidence that John said to her when she visited him in hospital on 16 June 2021 that he had recently changed his will because he didn’t want her father, Robert, ‘to have any more control over anything’, that this new will had been ‘rushed through’, that it was ‘temporary’ and ‘I need to change it’. There is some further evidence regarding John’s testamentary intentions in the last months of his life referred to later in these reasons.

5. [73]

   The deceased had only one previous will, executed on 14 September 2012. By that will he appointed as executors his daughter Jenny Angius and his granddaughter Gabrielle Angius. In summary, the substance of the will was as follows:

6. [74]

   The 2012 will gave a legacy to Natalie and each of his other grandchildren (except for Robert’s children with Jacqueline) but did not mention Ms Le and made no provision for her.

The deceased’s estate

1. [75]

   Probate was granted on 23 May 2023. The estate consists of real property (some owned as tenant in common), cash at bank, shares, two low value motor vehicles and a small amount estimated in connection with home contents.

2. [76]

   The estate has a gross value of $38,096,481 million and after liabilities is estimated to have a net value of $29,588,261 (Joint Agreed Schedule of Assets and Liabilities). The figure of $29,588,261 does not take into account the costs said to have been incurred (or to be incurred) by the plaintiffs (Ms Le’s costs estimated at $439,120 on a party/party basis and $548,000 on an indemnity basis, and Natalie’s costs estimated at $350,000 on an indemnity basis but no estimate provided of the party/party estimate).

3. [77]

   The defendant was not challenged during cross-examination on any aspect of either the size of the estate or the administration of it. No contrary evidence has been tendered and the Court can proceed on the basis that the estate is as described in the executor’s affidavits.

Statutory regime

1. [78]

   Chapter 3 of the Act governs the making of a ‘family provision order’ being an order made by the Court ‘in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement of life of an eligible person’ (s 3(1)).

2. [79]

   Persons eligible to apply for family provision orders are set out in s 57(1) of the Act, which provides as follows:

3. [80]

   Ms Le relies on s 57(1)(b) and, in the alternative s 57(1)(f). Natalie relies on s 57(1)(e).

4. [81]

   In relation to s 57(1)(b), s 21C of the Interpretation Act 1987 (NSW) is relevant, which provides:

5. [82]

   Applications for family provision orders must be made within 12 months of the date of the death of the deceased: s 58 of the Act. This is not in issue in either proceeding.

6. [83]

   Family provision orders may be made pursuant to s 59, which provides relevantly:

7. [84]

   Therefore, Natalie must demonstrate that there are ‘factors warranting’ her claim for provision in accordance with s 59(1)(b), and Ms Le must only demonstrate that there are ‘factors warranting’ her claim in respect of her alternative claim for eligibility under s 57(1)(f).

8. [85]

   Under s 60(1), the matters to be considered in determining whether there are ‘factors warranting’ the claim and also whether to make an order and the nature of any such order, are set out in s 60(2) which provides:

Principles relevant to each plaintiff’s claim that she is an eligible person

1. [86]

   Ms Le relies on s 57(1)(b) which requires that she was living with the deceased in a de facto relationship at the time of his death. Two persons will be in a de facto relationship at a particular time if they have a relationship as a couple living together, and whether that is so is to be determined having regard to all the circumstances, including the matters listed in s 21C(3) of the Interpretation Act. As noted by Hallen J in Sheen v Hesan; the Estate of Zaheer [2023] NSWSC 468 at [485], there are nine circumstances referred to, which may be grouped in to ‘private’ ((c), (d), (e) and (f)) and ‘public’ ((a), (b), (g), (h) and (i)) factors. None of these factors are exclusive. In Piras v Egan [2008] NSWCA 59, Campbell JA (Giles and Tobias JJA agreeing) said at [146]:

2. [87]

   The ‘circumstances’ to which reference is made in this passage are the same as the circumstances listed in s 21C(3) of the Interpretation Act, set out above.

3. [88]

   The concept of ‘living together’ as a couple, which is the essence of a de facto relationship, does not require that two persons share the same residence exclusively or on a full-time basis. In NSW Trustee and Guardian v McGrath [2013] NSWSC 1894, Young AJ said:

4. [89]

   In Vaughan v Hoskovich [2010] NSWSC 706, White J (as his Honour then was) said at [53]:

5. [90]

   In Smoje v Forrester [2017] NSWCA 308 at [42] Meagher JA (Basten and Macfarlan JJA agreeing) said:

6. [91]

   In Fairbairn v Radecki (2022) 275 CLR 400; [2022] HCA 18 the High Court considered the meaning of ‘living together’ in the context of the expression ‘a relationship as a couple living together on a genuine domestic basis’ in s 4AA(1) of the Family Law Act 1975 (Cth), which is in the same terms as s 21C of the Interpretation Act. The Court said at [33] and [39] (footnotes omitted, emphasis added):

7. [92]

   An important factor in determining the question whether two persons share life as a couple, and hence can be said to live together as a couple, is whether they have a mutual commitment to a shared life. In Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8 at [11], Barrett J said the following regarding the expression ‘living together as a couple’:

8. [93]

   Barrett J’s observation regarding the central concept of a de facto relationship was endorsed by McColl JA (Beazley JA agreeing) in Hayes v Marquis [2008] NSWCA 10 at [83].

9. [94]

   As Barrett J noted in the above passage, the required commitment to a shared life as a couple does not require emotional or romantic love: see also Vaughan at [49] and Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303; [2016] FCAFC 5 at [3].

10. [95]

    Basten JA in Robson v Quijarro [2009] NSWCA 365 (Ipp and McColl JJA agreeing) made the following observations at [59] regarding the relevance of a mutual commitment to a shared life to the existence of a de facto relationship:

11. [96]

    It is necessary to keep in mind that ‘relationship as a couple living together’ is a composite expression or concept which should not be dissected into discrete elements: Hayes v Marquis [2008] NSWCA 10 at [73] per McColl JA (Beazley JA agreeing). What is required is an evaluative assessment of all the relevant circumstances.

12. [97]

    The following observations of Hallen J in Sheen v Hesan [2023] NSWSC 468 at [504] and [514] are apposite:

13. [98]

    Natalie relies on s 57(1)(e) under which, as a grandchild of the deceased, she must establish that she was at a particular time wholly or partly dependant on the deceased.

14. [99]

    It is clear that the word ‘dependent’ in s 57(1)(e)(i) is an ordinary English word and the question of whether a person is wholly or partly dependent on another is a question of fact in light of the whole relationship between them: Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [68].

15. [100]

    In Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Meagher JA (Basten JA agreeing) said at [109]–[110]:

16. [101]

    In Page v Page [2017] NSWCA 141 Sackville JA (Leeming JA agreeing) set out a summary of the relevant principles regarding the construction of s 57(1)(e) at [101] (footnotes omitted):

17. [102]

    In Chisak v Presot [2022] NSWCA 100, White JA (Macfarlan and Gleeson JJA agreeing) said at [47] that the phrase ‘partly dependent’ means at least ‘more than minimally’ and added at [57]:

18. [103]

    Ms Le relies on s 57(1)(f) under her alternative claim. This requires that she was a person with whom the deceased was living in a close personal relationship at the time of his death.

19. [104]

    The expression ‘close personal relationship’ is defined in s 3(3) of the Act to mean ‘a close personal relationship (other than in marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care’. Under s 3(4)(i), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care for fee or reward.

20. [105]

    It will be seen that there are three requirements in order for s 59(1)(f) to be satisfied. First, the two people must be adults who are living together in a close personal relationship (other than marriage or a de facto relationship); second, one or each of them must provide the other with domestic support and personal care; and third, that domestic support and personal care must not be provided for fee or reward. In relation to the first two requirements, Macready M said in Dridi v Fillmore [2001] NSWSC 319 at [102]-[106]:

21. [106]

    In Hayes v Marquis [2008] NSWCA 10, McColl JA (Beazley JA agreeing) said at [84]-[87]:

22. [107]

    The third requirement that the domestic support and personal care must not be provided ‘for fee or reward’ was considered in Saravinovski v Saravinovska [2017] NSWCA 85 in the context of s 5(2)(a) of the Property (Relationships) Act 1984 (NSW). It may be noted that s 5(1)(b) and s 5(2)(a) of that Act are identical (following the amendment made to the Act in 2018) to s 3(3) and s 3(4) of the Act.

23. [108]

    At first instance, Kunc J said of the words ‘for fee or reward’ (see [2016] NSWSC 964 at [375]-[376]):

24. [109]

    Leeming JA (Beazley ACJ agreeing) in the Court of Appeal approved these observations and then added at [36]-[41]:

25. [110]

    It follows from Saravinovski that in order for the exclusion in s 3(4) of the Act to apply the benefit which is said to constitute the relevant ‘fee or reward’ must have a causal nexus with the provision of the domestic support and personal care.

26. [111]

    If s 57(1)(e) (in the case of Natalie) or s 57(1)(f) (in the case of Ms Le) is satisfied, then it becomes necessary to determine if there are factors warranting the making of the application within the meaning of s 59(1)(b). In Re Fulop Deceased (1987) 8 NSWLR 679 at 681, McLelland J (as his Honour then was) said that these ‘factors’ 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 a deceased’.

27. [112]

    In Lodin v Lodin [2017] NSWCA 327, Sackville AJA (Basten and White JJA agreeing) said at [114] (by reference to the examples of a former spouse or grandchild):

28. [113]

    Sackville AJA went on to observe at [126] that ‘care must be taken not to impose rigid constraints on the circumstances that might constitute factors warranting’ the claim of a particular applicant (in that case a former spouse), but ‘[s]omething more is ordinarily needed for the claimant to show that he or she was a natural object of testamentary recognition’. His Honour added at [129] that a ‘significant matter is likely to be the nature of the relationship between the claimant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the claimant’.

29. [114]

    In the case of a grandchild, Hallen AsJ in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113] stated the following ‘general principles’ which his Honour recognised at [117] are merely guidelines, where the statutory provisions are being applied to a claim by a grandchild:

30. [115]

    These observations were approved by the Court of Appeal in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [21] per Basten JA and at [65]-[67] per Barrett JA (Gleeson JA agreeing). Basten JA also noted at [20] that the ‘principles’ are relevant to both the question whether there are factors warranting the application and, if so, what if any provision should be made. See also to the same effect Gleeson JA at [150].

Approach to evidence

1. [116]

   The Court is required to determine on the balance of probabilities whether each plaintiff has proved the different elements of her case. So far as the proof of facts is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found, which does not involve a mere mechanical comparison of probabilities, independent of any belief in reality: Warner v Hung (No 2) (2011) 297 ALR 56; [2011] FCA 1123 at [48].

2. [117]

   Each plaintiff’s claim to eligibility under s 57 of the Act turns on their relationship with the deceased and requires a detailed assessment of facts relevant to that relationship. Each plaintiff gave extensive evidence about that relationship and called witnesses corroborative of their evidence. However, of course, a key person in the assessment of the relevant evidence is the deceased who cannot give evidence.

3. [118]

   In these circumstances, there is a need for caution and careful scrutiny of the evidence of conversations had with and actions of the deceased, bearing in mind the self-interest of each plaintiff and the vagaries of human memory: Plunkett v Bull (1915) 19 CLR 544 at 548, 549; [1915] HCA 14. In Zahra v Francica [2009] NSWSC 1206, Bryson AJ said at [1]:

4. [119]

   In relation to the fallibility of human memory where reliance on conversations is concerned reference may be made to the well-known observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319:

5. [120]

   These matters dictate that greater weight is placed on contemporaneous documents, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]; Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [25]-[29].

6. [121]

   Where the dispute concerns whether a de facto relationship existed with a deceased, it is necessary to bear in mind the following observations of Windeyer J in Quijarro v Robson [2008] NSWSC 818 at [36]:

7. [122]

   While his Honour’s decision was overturned on appeal, this statement was cited with apparent approval by Basten JA: see [2009] NSWCA 365 at [15].

General observations on credit

1. [123]

   Ms Le relied on her own evidence, comprising five affidavits, and the evidence of 11 witnesses. The plaintiff gave her evidence in cross-examination through an interpreter. She was cross examined extensively over five days. I found Ms Le’s evidence unsatisfactory in a number of respects which are referred to below in dealing with it. As a consequence of those matters, and her self-interest in the outcome of the proceedings, I have treated her evidence with great caution.

2. [124]

   Ms Le’s sons, Duc (born 16 December 1991) and Thang (born on 20 December 1988) also gave evidence. I do not accept Duc’s evidence where it conflicts with that of Mr Bates. I accept Thang’s evidence.

3. [125]

   The remaining witnesses called by Ms Le were friends of hers who made observations regarding her relationship with John.

4. [126]

   Jaqueline Varela is the partner of Robert, John’s son, with whom she has been in a relationship since 1997. For reasons I explain when dealing with her evidence, I do not accept it as reliable.

5. [127]

   Lisa Reid was employed by John for a short period in his smash repair business and knew both John and Ms Le and regarded them as friends, from around 2010. Her husband, Matthew Reid, gave evidence that he also knew both John and Ms Le from 2010 until John’s death. They both gave evidence about their observations of interactions between John and Ms Le. For reasons I explain when dealing with their evidence, I do not accept it as reliable.

6. [128]

   Alvin Johnson gave evidence that he had known John since around 1966 and worked for John in his smash repair business. After he retired, he assisted John with gardening and handyman services at the Coogee property, the Burradoo property and other investment properties owned by John. For reasons I explain when dealing with his evidence, I do not accept it as reliable. His wife, Lesley Johnson also gave evidence. She gave every appearance of trying to answer the questions she was asked honestly and to the best of her recollection.

7. [129]

   Kolena Denis is a retired nurse and welfare worker who has been a close friend of Ms Le since around 1991. For reasons I explain when dealing with her evidence, I do not accept it as reliable. Her partner, Neil Johnston, also gave evidence and he gave every appearance of trying to answer the questions he was asked honestly and to the best of his recollection.

8. [130]

   Evelyn Moses was Ms Le’s hairdresser who met both John and Ms Le in about 2006 and deposed that she regularly cut the hair of both John and Ms Le. For reasons I explain when dealing with her evidence, I do not accept it as reliable.

9. [131]

   Austin Smith lived in an apartment at 8 Allen Street, Waterloo and met John in about 2012 while John was living in the Waterloo apartment. He saw John intermittently at the building during the period 2012-2016 and also on occasions after John returned to live at the Coogee property in 2017. He last saw him in 2019. He gave every appearance of trying to answer the questions he was asked honestly and to the best of his recollection, but the limited nature of his interaction with John makes his evidence of little assistance.

10. [132]

    Natalie gave evidence by four affidavits and was cross-examined. She relied on her own evidence and the evidence of four lay witnesses, each of whom was cross-examined except for her solicitor. Natalie was cross examined at length and impressed me as an honest witness who gave every appearance of trying to answer the questions she was asked honestly and to the best of her recollection. While I have treated her evidence with caution in so far as it relates to her relationship with John, I generally accept it.

11. [133]

    Silvana Salvatore is Natalie’s mother, who was married to Robert from 1985 to 1999. She impressed me as an honest witness and while I have treated her evidence with caution given her relationship with Natalie, I generally accept it.

12. [134]

    Domenic Dodaro is a retired security guard who is a friend of Natalie, having known her since 2007. He impressed me as an honest witness, and I accept his evidence.

13. [135]

    Francis Devine is a solicitor who met Natalie and her grandfather, John, on 20 December 2021 at the Coogee property for the purpose of taking instructions for the preparation of an enduring power of attorney and an appointment of an enduring guardian for John. His evidence was not challenged, and I accept it.

14. [136]

    Natalie relied on the evidence of Dr Judith Spies (a neurologist) and Professor Cherry Koh (a colorectal and general surgeon) who are Natalie’s treating doctors, who provided short reports summarising Natalie’s diagnosis and care. Each was cross-examined. There was no suggestion to them that their evidence ought to not be accepted. In addition, Natalie relied on a report of Mr Christian Byrnes an occupational therapist addressing Natalie’s needs, who was not cross-examined.

15. [137]

    Jenny relied on her own affidavit evidence and the evidence of a number of witnesses.

16. [138]

    In relation to Ms Le’s claim, Jenny relied on the evidence of her daughter, Gabrielle, Jason Bates (an asset manager she retained on behalf of the deceased’s estate), Nick Pappas (a friend of John) and Kevin Batten (her partner). I refer to my approach to the evidence of Jenny and Gabrielle at [269] below. Mr Bates, Mr Pappas and Mr Batten each gave the appearance of trying to answer the questions they were asked honestly and to the best of their recollection, and I generally accept their evidence.

17. [139]

    In relation to Natalie’s case, Jenny also relied on the evidence of Gabrielle who was cross-examined, and two experts, who were not cross-examined: Dr Stuart Pincott (a colorectal and general surgeon) and also Ms Sanja Zeman (an occupational therapist) who responded to Mr Byrnes’ report. It is not in dispute that Mr Byrnes and Ms Zeman are in substantial agreement. Also, I do not understand there to be any serious dispute regarding the diagnosis and prognosis of Natalie’s medical conditions recorded in the evidence of her treating specialists, Dr Spies and Professor Koh.

The evidence of witnesses called by Ms Le

1. [140]

   In this section I will address the evidence relating to Ms Le’s eligibility given by her and the other witnesses called by her.

2. [141]

   Ms Le gave evidence that she first met John in around 2000 when taking her car to John’s smash repair business for repairs and commenced an intimate relationship with him when he took her out to dinner and drinks on 15 March 2003, shortly after her 40th birthday. At that time John was living at the Coogee property and she was living at the Redfern property.

3. [142]

   Ms Le deposed that from 15 March 2003 to 2011 John visited her at the Redfern property and stayed overnight there two or three times per week and for the rest of the time he lived at the Coogee property. She did not know in the early stages of their friendship that John was married.

4. [143]

   Ms Le deposed that in around 2011, after the Waterloo development was completed, John said to her words to the effect: ‘I am going to give you a shop so that you can run your own business. I will help you with the money to set up’. John did not make an outright gift of a shop to Ms Le to run her business, but he did arrange for a lease of Shop 3 to be granted to Ms Le in August 2011 and it is not in dispute that Ms Le was not required to pay the rent provided for under the lease. It is also not in dispute that John funded the cost of the fit-out of Shop 3.

5. [144]

   Ms Le deposed that John explained why he did not give Shop 3 to her outright, which was that Laura wanted to give Shop 3 to Robert, whereas John did not, and said to Ms Le that: ‘we need to do a lease on the shop so that my wife can’t give it to [Robert]. That shop is for you. I will give it to you later, after my wife and I divide the shops and apartments, but for now that’s what we have to do.’

6. [145]

   Ms Le signed the lease and also paid a security bond. It may be noted that after Laura’s death in 2012, John granted a new lease of Shop 3 to Ms Le, rather than gifting it to her. This is addressed below.

7. [146]

   Ms Le deposed that from 2011 until he sold the Waterloo apartment in August 2016, John slept either at the Waterloo apartment or at the Redfern property. She deposed that John said to her that he did not want to sleep at the Coogee property because ‘things with him and his wife had become very hostile and she had made threats to hurt him in his sleep’. She deposed that she would cook breakfast and lunch for him, clean the apartment and do all his laundry, and that they would always eat out for dinner as that was John’s preference. Jenny disputes this evidence and says that John spent time at both the Waterloo apartment and the Coogee property during this period, including while Laura was alive.

8. [147]

   Ms Le deposed that in around December 2011, when her daughter became pregnant with her first child, Ms Le moved to live solely at the Waterloo apartment, so that her daughter could live at the Redfern property. I note that John’s affidavit referred to at [49] above stated that in October 2014 he ‘lived by myself’ (at the Coogee property) which appears to contradict her evidence. Ms Le sought to deal with this apparent inconsistency by unsatisfactory evidence about what John meant when he said he ‘lived by myself’. She said in her affidavit of 3 June 2022 that on the day Laura’s dead body was discovered at the Coogee property she picked John up from the Maroubra police station and ‘drove him from the police station to our home in the [Waterloo apartment]’, and when they got ‘home’ they had a conversation in which John said to her:

9. [148]

   Ms Le deposed that John had a heart attack in 2006, and that while he was hospitalised at RPA she visited him every day for a week, looking after him and bringing him food. It appears that Ms Le is mistaken as to the time of these events, as Jenny says the heart attack was in 2007 and that is confirmed by John’s medical history as recorded in Professor Rosenfeld’s letter dated 24 June 2021. However, Jenny does not dispute that Ms Le may have visited John at the hospital during his recovery.

10. [149]

    Ms Le deposed that John had a hip replacement in 2007 at Randwick Hospital and later moved to a hospital in Bondi for rehabilitation and that she visited him every night from 6:00pm to 8:00pm at both hospitals. Again, it appears that Ms Le is incorrect as to the date of the hip replacement surgery. Professor Rosenfeld’s letter dated 24 June 2021 states that it took place in 2009, and that is Jenny’s recollection. Jenny does not dispute that Ms Le may have visited John at the two hospitals while he was recovering from the surgery, but says that she visited John with her partner Kevin nearly every day and often in the evening and never saw Ms Le.

11. [150]

    Jenny deposed that John had another heart attack in 2016 and that during his hospitalisation at RPA, she visited him two to three times per day, helping to clean, shower and dress him and also brought him breakfast, lunch and dinner as he did not like the hospital food.

12. [151]

    Ms Le deposed that when John was required to vacate the Coogee property in May 2017, they moved to the Burradoo property and then moved back to the Coogee property when he bought it back in August 2017. She deposed that she thereafter lived with John at the Coogee property. She deposed that in the period they were living at the Burradoo property they would often go to her Redfern property for two to three days per week because John found the Burradoo property to be too cold for him. Again, Jenny disputes this evidence.

13. [152]

    Ms Le deposed that John spent a week in hospital in May 2018 and then two months at Camperdown Hospital from November 2018 to January 2019 due to serious illness, including heart failure. She said that in both periods she visited John two to three times per day until he was discharged, helping to clean, shower and dress him and bring him breakfast, lunch and dinner. She deposed that she spent Christmas Day 2018 with him in hospital.

14. [153]

    Ms Le deposed that John’s health was very poor in this period from 2016 until his death and he was regularly in and out of hospital. She deposed that during all these hospital admissions, she was the primary caregiver for him.

15. [154]

    Ms Le deposed that while she was living with John, he took care of all their finances, and she took care of all their domestic matters. He gave her money weekly for all their expenses such as medicine, clothing, groceries and homewares.

16. [155]

    Ms Le deposed that in about 2015, John gave her his used Toyota Aurion (which she still drives) and that she then gave her Toyota Corolla to Natalie. Natalie denies that.

17. [156]

    It is not in dispute that John employed a cleaner when he moved back to the Coogee property, Yuhua Yan (known as Ms Linda Yan). Ms Le deposed that the reference in Professor Rosenfeld’s letter of 24 June 2021 to two women who assisted John with cleaning and housework was to Linda and ‘a Thai lady who came to work at [the Coogee property] in 2021’. She said in her affidavit that John told her: ‘You are too busy with the laundromat and then you have to look after me after work. I will hire another lady to help Linda with cleaning the house. That is not work for you. You spend time with me.’

18. [157]

    Jenny and Gabrielle dispute that John engaged a second person to assist with cleaning and housework (the ‘Thai lady’ that Ms Le refers to) and say they never observed such a person at the Coogee property. Jenny lived in the same street and was a regular visitor to the Coogee property; it is inconceivable that she would not have been aware that her father had employed another cleaner. Ms Linda Tan did not give evidence.

19. [158]

    I do not accept Ms Le’s evidence regarding the ‘Thai lady’. No witness corroborates Ms Le’s evidence that such a person existed. That the reference in the statement to Professor Rosenfeld regarding the two ladies who assist John with cleaning and house care is a reference to Linda Tan and Ms Le is supported by statements to Francis Devine that Ms Le was employed to look after the house as a carer (see [335] below).

20. [159]

    Ms Le accepted that John referred to her as ‘the Chinesa’ or ‘Chineso’. It is clear he did so both in speaking to her and in the presence of others. This is confirmed by several witnesses. I consider this to be a derogatory term, noting that Ms Le is Vietnamese and not Chinese as he was clearly aware.

21. [160]

    In relation to the relationship between Ms Le and John, there are a number of photographs in evidence which show John and Ms Le being affectionate to each other (including kissing) or being happy in each other’s company. Those showing him displaying affection to her were taken in the period 2003 to 2011. There are no photographs in evidence of Ms Le and John together at either the Waterloo apartment or the Coogee apartment.

22. [161]

    Ms Le deposed that she became pregnant from John in 2006 and then again in 2007, but on each occasion lost the baby after four to six weeks. She deposed that their sexual relationship continued until the end of John’s life.

23. [162]

    Ms Le deposed that Jenny and her partner, Mr Batten, spent Christmas 2012 with John and Ms Le at the Burradoo property. This is not in dispute. Ms Le deposed that she thought that her relationship with Jenny and her family improved from this time and the evidence does show that from 2013 she and John went to dinner with Jenny and her family at the South Sydney Juniors Club in Kingsford or the Sydney Portugal Community Club in Marrickville, including to celebrate John’s birthdays. There are photographs in evidence showing Ms Le with Jenny and her family at restaurants during the period from 2018 to 2020.

24. [163]

    Ms Le also deposed that Jenny and her family stayed with John and Ms Le at the Burradoo property for two weeks over Christmas 2019 and went to restaurants together during that time. There is a photograph in evidence showing them all having a meal at the Mittagong Club on 25 December 2019. Ms Le also deposed that Jenny and her family went to dinner with John and Ms Le at the Coogee property on 19 October 2021 and that Ms Le cooked for everyone. This was not disputed.

25. [164]

    On Christmas Day 2021, Ms Le had lunch with her family at the Bankstown property, and John had lunch at the Coogee property with Jenny and her family. She deposed that she prepared the ingredients for the meal which was cooked by Gabrielle. Ms Le deposed that she came home later that evening and had dinner with John, after Jenny and her family had left.

26. [165]

    Ms Le also deposed that John often attended special occasions for Ms Le and her family (without Jenny or her family being present). There is a photograph showing John attending a dinner for Ms Le’s birthday with members of her family in March 2017.

27. [166]

    Ms Le deposed that while John was alive, Gabrielle visited him more than Jenny, and that Jenny visited him irregularly for only about one hour each time, whereas Gabrielle visited regularly after work. Jenny and Gabrielle dispute this. I do not accept Ms Le’s evidence on this and accept the evidence of Jenny and Gabrielle that they frequently and regularly visited John, noting that Jenny lived on the same street.

28. [167]

    Ms Le deposed that from around 2006 to 2018, John regularly took her on trips to country New South Wales and Victoria, which were either holidays or business trips (as John had an interest in pubs in Windsor and Albury). She deposed that the holidays were taken during the Easter and Christmas period and she would sleep with John either in his motorhome/campervan or in a motel on these trips.

29. [168]

    Ms Le deposed that she and John started sleeping in the same bed from the time they first started going out in 2003 and that she shared a bedroom with John from 2011 when she moved into the penthouse apartment. She deposed that she continued to sleep in the bed with him when they stayed at Burradoo in 2017 and from August 2017 when John moved back into the Coogee property, until his death.

30. [169]

    Ms Le deposed that John told her when she entered into the Variation of Lease in 2016 that the reason a new lease was necessary was to protect her from Robert. She stated in her affidavit that John said to her at the time the Variation of Lease was entered into in 2016: ‘Robert could kick you out of the shop if something happened to me. It is better if you just sign these lease documents so that no one can take the shop from you. You don’t actually need to pay any rent, it is free, it is your shop, but this is just to protect you’. She said that she signed the lease document when John told her to because she trusted him.

31. [170]

    Ms Le deposed that the reason she kept the Redfern property until 2021, was so that she could support her daughter who became pregnant for the first time in December 2011 and, as a single mother with twins, had nowhere else to live. She also deposed that her daughter lived at the Redfern property from 2011 to 2016, when she obtained her own subsidised accommodation, and that she only stayed with her daughter for short periods to help her. There is no evidence from Ms Le’s daughter to corroborate this evidence. Nor does Ms Le explain why she continued to keep the Redfern property after 2016, which is the time that her daughter moved out.

32. [171]

    Ms Le deposed that she and Gabrielle went to the hospital on 31 January 2022, when they were informed of John’s death. Ms Le returned to the Coogee property and remained there until Jenny required her to leave. This was on the basis that she had no entitlement to be at the Coogee property as it was owned by John.

33. [172]

    John’s funeral took place on 5 February 2022. Ms Le attended the funeral, although she deposed that she felt offended and hurt that Jenny did not allow her sit in the front few rows which were reserved for family members, and she regarded herself as part of the family.

34. [173]

    Ms Le was never given a set of keys to the Coogee property. She deposed that John gave as the reason for that ‘I’m always at home to let you in’. She deposed that she obtained the keys from John’s belonging when she took them home from the hospital on 31 January 2022.

35. [174]

    On 6 February 2022, Gabrielle went to the Coogee property and requested Ms Le to give the keys to the Coogee property to her because the executor (Jenny) required vacant possession of the property, and she had no right to remain there. Ms Le responded that she planned to stay at the property. Ms Le recorded part of the conversation during this visit, and Gabrielle is recorded as having said the following:

36. [175]

    Ms Le was cross-examined regarding prior engagement of her solicitors in or around May 2021 regarding John’s estate. Ms Le’s response was that she wanted to understand Australian law regarding her situation if John was to pass away (T72). Ms Le’s solicitors obtained a statutory declaration from Ms Le’s friend Kolena Denis regarding her relationship with John on 8 June 2021, and other people in July 2021. Ms Le accepted that she had given instructions for this to occur (T74). She did so because she wanted that evidence available before John died (T73).

37. [176]

    A significant portion of the cross-examination of Ms Le focused on documents that recorded her address as the Redfern property and not the Coogee property, as she contended.

38. [177]

    Ms Le’s tenancy of the Redfern property from 2001 to 2021 required her to lodge annual applications with the relevant government department which she signed. Ms Le accepted that she had not been honest on those forms in stating the occupants of the house (T80). Ms Le’s evidence was that whilst she kept the tenancy for the Redfern property, she did not reside there from December 2011 onwards, but did occasionally spend nights at the property (T81–82).

39. [178]

    Ms Le’s evidence regarding her occupation of the Redfern property was unsatisfactory. As noted at [22] above, she had a subsidised tenancy of that property from 2001 to June 2021. She relinquished that tenancy on 21 June 2021 in circumstances where she had completed her annual renewal application only one month earlier, on 25 May 2021 (Ex 19). She gave as her forwarding address Shop 3, and not the Coogee property. She then proceeded to change her mailing address for various third parties to the Coogee property (see [59] above). This all occurred shortly after she received advice from her solicitors, AKN & Associates, regarding a potential claim that she was in a de facto relationship with John.

40. [179]

    The evidence establishes that throughout the period from 2001 to June 2021, Ms Le consistently adopted her address as being the Redfern property. She accepted in cross-examination that she knew that it was a condition of her tenancy of that property that she occupy it, and that there were penalties for giving false information (T79, 83-84). Nevertheless, she made annual declarations that she did occupy it when she renewed the tenancy annually.

41. [180]

    Particularly telling is the fact that her daughter moved out of the Redfern property in 2016, when she obtained her own subsidised accommodation. Ms Le’s renewal applications from this time state that she was the sole tenant and that the household consisted only of herself. Importantly, there was no need for her to keep the Redfern property from 2016 if she really did live with John at one of his residences.

42. [181]

    She said in cross-examination that her reason for relinquishing the tenancy of the Redfern property on 21 June 2021 was that her solicitor (AKN & Associates) advised that it was ‘wrong’ to retain it (T113-115). There is some ambiguity in this answer. I am satisfied that the true position is that she gave up the tenancy in order to improve her case for a claim that she was in a de facto relationship with John, and that in the period before June 2021 she maintained the tenancy of the Redfern property because she did live there.

43. [182]

    Ms Le deposed that John made significant financial contributions for her benefit during their relationship. In addition to waiving the rent payable by her under the lease of Shop 3, her affidavit evidence summarises the other benefits she received as follows:

44. [183]

    Ms Reid made a short affidavit and a supplementary statement during the course of the hearing. She was employed by John when he operated what she referred to in her affidavit as his ‘mechanic workshop’ at Allen Street, Waterloo for around a year to 18 months. She agreed in cross-examination that John operated a smash repair business rather than a mechanic workshop (as it was Nick Pappas who operated a mechanical workshop next door). Her role was to provide quotes for cars to be repaired and work with the assessor who would come to the premises to approve the quote, and then order the parts required to repair the vehicle. It was a full-time job.

45. [184]

    Her affidavit evidence contained a number of basic errors. First, she agreed in cross-examination that John operated a smash repair business, rather than a mechanical workshop. Second, she deposed that she started working for John in 2010 and confirmed the date in her cross-examination, but this is incorrect because the evidence indicates that John’s smash repair business closed in 2008, when the Waterloo development started. The date of closure was corroborated by Nick Pappas who operated the mechanical repair workshop next door, and his evidence was that both John’s business and his own business closed in 2008 (and his business then relocated to Rosebery). Third, Ms Reid deposed that she and her husband had visited John and Ms Le at the Burradoo property in late 2021, which was her only visit to the Burradoo property and was shortly before she signed her first affidavit on 10 February 2022.

46. [185]

    In cross-examination she said that this visit was in the period from October to December 2021. However, while she could recall that Jenny and her partner, Mr Batten, were also there, she could not recall when in the period October to December 2021 the visit occurred. Her husband, Michael Reid, said that the visit could have been in 2020. Both Jenny and Mr Batten gave evidence that the visit took place in 2020.

47. [186]

    Fourth, Ms Reid said in her affidavit that: ‘Whenever I would meet John, Le would be with him’. However, she said in cross-examination that on most of the occasions that she visited John at the Coogee property they occurred around lunchtime and Ms Le was not there because she was working at the laundromat (T338).

48. [187]

    Fifth, Ms Reid deposed in her statement that she saw Ms Le’s clothes and toiletries at both the Coogee property and the Burradoo property. However, she gave evidence in cross-examination that she did not go into any of the bedrooms or use the toilets on the bedroom level of either the Burradoo property or the Coogee property, or see any toiletries at the Burradoo property.

49. [188]

    As a result of these inconsistencies in her evidence, and her unresponsive answers in cross-examination, I do not regard her evidence as reliable. In so far as the general statements she made in her affidavits and statement that she understood that John and Ms Le were a couple, having a domestic relationship and that she thought that they were married, they are too general and insufficiently supported by observations of the nature of the relationship to be reliable.

50. [189]

    Mr Reid made a short affidavit and a supplementary statement during the course of the hearing. He said in cross-examination that he had spoken to his wife, Lisa, about his affidavit and statement ‘to try to recall the dates’.

51. [190]

    Mr Reid deposed that he had been at the Coogee property around a half a dozen times and once to the Burradoo property (together with his wife, Lisa), which he said was in 2020 or 2021. He said that the first visit he made to the Coogee property was with Lisa at lunchtime and Ms Le was not present. He also said that on each subsequent visit to the Coogee property, Ms Le was not present because she was working (T353). This is in contrast with what he said in his statement that ‘When we went to Denning Street, Le was at home at times and we would have lunch with her and John’.

52. [191]

    His evidence was that on the first visit to the Coogee property, John showed him and Lisa the rooftop, but they did not spend any time on the bedroom level. His evidence was that he did not, on any of the subsequent visits, go to the bedroom level. This is difficult to reconcile with what he said in his supplementary statement that he saw Ms Le’s clothes and toiletries at both houses.

53. [192]

    Mr Reid deposed that although John did not show affection in public, he recalled a conversation at the Burradoo property when John said he loved Ms Le, and that he saw John blow kisses to Ms Le and that they referred to each other as ‘honey’. He also regarded them as being in a loving domestic relationship and ‘thought they were married’.

54. [193]

    Again, Mr Reid’s evidence is very general in nature and non-specific regarding his observations of the relationship between John and Ms Le, particularly as to when the observations occurred. I give his statement, that they were in a domestic relationship or like a normal married couple, no weight.

55. [194]

    Mr Johnson knew the deceased from the mid to late 1960s and worked for him for more than 10 years as a mechanic at his smash repair business at Allen Street, Waterloo. He gave evidence by two affidavits dated 16 February and 2 June 2022, and a supplementary statement made during the hearing.

56. [195]

    Mr Johnson deposed that after he ceased working for John, he assisted him with handyman and gardening tasks at the Coogee property and the Burradoo property. He deposed that he first met Ms Le in about 2000, at a time when John told him ‘I got two Chinesa. Which one I choose? Which one do you like?’ to which Mr Johnson replied, ‘Le is the best one for you’.

57. [196]

    He deposed that the conversation took place at the Coogee property. He deposed that he met both Ms Le and the other girlfriend and that after John ceased his relationship with the other girlfriend and commenced his relationship with Ms Le alone, John would often tell him ‘I take Le to the club and out for dinner and we play the poker machines’.

58. [197]

    Mr Johnson deposed that John had accompanied him on three holidays to the United States. While he could not be precise about the years in which these trips occurred, he recalled that one was before Laura’s death in 2012. He deposed that his wife, Lesley, attended two of the trips and that Ms Le did not attend any of them. This evidence was corroborated by Lesley, who also could not recall the years in which the trips occurred. Mr Johnson said that the trips came about because he was a member of a Navy organisation. However, no explanation was provided for why this precluded Ms Le from going on the trips with John had he so wished, given that Alvin’s wife accompanied him on two of them.

59. [198]

    Mr Johnson deposed that he saw Ms Le assisting in the garden at the Coogee property, doing ‘the washing and general housework as any wife would do’. He deposed that she was always part of their social interaction and would sit with John at the table and have lunch with them and chat. He also deposed that he saw Ms Le from time to time affectionately giving John a peck on the cheek and calling him ‘honey’. However, he accepted in cross-examination that he never heard John call her ‘honey’.

60. [199]

    Mr Johnson accepted in cross-examination that the deceased was not a physically affectionate person and did not initiate affectionate gestures, the most Mr Johnson saw the deceased initiate was a pat on the back (T357), and accepted in cross-examination that he never saw John initiate a hug with Ms Le.

61. [200]

    He deposed that Laura knew about Ms Le because he had heard Laura say to John: ‘You got rid of the other one, now this one?’

62. [201]

    Mr Johnson deposed that when John was in hospital on one occasion (although he did not indicate which one this was) John told him in a telephone call that Ms Le was his ‘partner’ and that later when he visited John in hospital John said to him: ‘I told the hospital I have a partner, and my partner is Le. Le always look after me, she will look after me when I am home. She is my wife. Luckily, she fights for me so that the hospital will let me go home with her. Lucky Le wants to take me home.’ I do not accept this evidence, given the following exchange in cross-examination by Ms Painter SC (T370-371):

63. [202]

    Mr Johnson was vague about the dates when he visited the Coogee property after Laura’s death in 2012. When asked to focus on the years 2019, 2020 and 2021 he could only recall having visited the Coogee property a few times (he accepted it was probably between two and five times) and had no clear recollection of Ms Le being present on those visits (T362-363). On those visits he did not go upstairs and visit the bedrooms or bathrooms of the Coogee property.

64. [203]

    Mr Johnson was cross-examined on a conversation he had with Mr Bates recorded in a file note which Mr Bates made on 15 February 2022. The file note recorded that Mr Johnson said that Ms Le cooked and cleaned, undertook ‘personal duties’ and was like a ‘carer’ and that John was not happy as she would ‘come and go a lot’. Mr Johnson accepted that he had a conversation with Mr Bates on that day, and that in the course of which he said that Ms Le had undertook ‘personal duties’ for John, but denied these other statements attributed to him. I am satisfied that the statements recorded in the file note were made by Mr Johnson in the conversation.

65. [204]

    Lesley Johnson is the wife of Alvin. She gave evidence by an affidavit dated 2 June 2022 and a supplementary statement made during the hearing.

66. [205]

    She deposed that when she met Ms Le over 15 years before her affidavit was prepared, John had said to her: ‘This is the Chinesa’.

67. [206]

    She deposed that based on her observations and interactions with John and Ms Le, she had ‘no doubt’ that they were a couple living together in a de facto relationship. She deposed to observations of the following matters about their relationship in support of this opinion. First, she deposed that Ms Le did everything for John: cooked, cleaned for him, drove him everywhere and they went together to the club and to dinners regularly. She deposed that on one occasion when she, her mother and her husband, Alvin, visited the Burradoo property in about 2013, she saw Ms Le in the main bedroom making the bed and tidying the room (T391). She also said in cross-examination that while she was shown through the house with her mother, on this occasion in 2013, she did not look in the cupboards or drawers in the bedrooms or bathrooms.

68. [207]

    She observed that Ms Le called John ‘honey’ often and that after Laura passed away, John and Ms Le ‘appeared to me like a happy old couple’. However, she accepted that John was not a physically affectionate person and that she did not hear him call Ms Le ‘honey’ and although she saw the deceased kiss Ms Le on the cheek, she did not see him ever kiss her ‘like a lover’ (T387-388). She accepted in cross-examination that she and her husband never stayed overnight at the Burradoo property. She observed that they were happy in each other’s presence, often smiling and joking.

69. [208]

    She deposed that she went on two trips to the United States with her husband, Alvin, and John to the United States, one to Hawaii and one to the mainland. The one to Hawaii was after and the mainland was before Laura’s death. She confirmed that Ms Le did not go on either trip.

70. [209]

    Austin Smith was a neighbour of John when he lived in the Waterloo apartment. He made one affidavit dated 13 February 2022 and a supplementary statement prepared during the hearing.

71. [210]

    He deposed that he regularly had coffee with John on a fortnightly basis over the period from 2012 until he sold the Waterloo apartment in 2016 and moved to the Coogee property. He also deposed that he had dinner with John on one occasion at the Sydney Portugal Community Club in about 2015 or 2016. He also deposed that he visited John at the Coogee property on one occasion, but it was only a brief visit. He bought a coffee for John with him, and they walked around the front and the side of the property but, did not go inside. His evidence in cross-examination was that his conversations with John at 8 Allen Street, Waterloo were superficial, colloquial chats at the same time each was getting coffee (T377). Given the superficial nature of his relationship with John and Ms Le and his observations of that relationship, his evidence is of limited assistance.

72. [211]

    Kolena Denis made an affidavit dated 16 February 2022 and a supplementary statement prepared during the course of the hearing.

73. [212]

    She deposed that she was a close friend of Ms Le having known her since 1991. She also said that she knew John for around 19 years having first met him when he was her ‘mechanic’, although she accepted in cross-examination that he was a smash repairer and not a mechanic.

74. [213]

    In her affidavit, she deposed that John said to her regarding Shop 3 at 8 Allen Street, Waterloo: ‘This shop belongs to Le and she can keep it. I will give it to her’. She also deposed that Ms Le and John resided in the Waterloo apartment from 2011 until it was sold in 2016 and that on the many occasions that she visited the apartment, she could see Ms Le and John’s personal belongings including clothing and her makeup in the same bedroom. In her supplementary statement she said that she visited the apartment at least once every two weeks and observed that Ms Le’s clothes were around the apartment.

75. [214]

    She deposed that around Christmas 2015 she and her partner, Neil Johnston, went on holiday with John and Ms Le for one week. It started with a visit to the Burradoo property and then they travelled in separate vehicles (as John and Ms Le were in a motor home and she and Neil in their own car) to Albury and Gundagai. She also deposed that at Albury, Neil and she rented a room at a motel and John and Ms Le rented a separate room for themselves at the motel. In cross-examination, she contradicted this evidence and said that in Albury John and Ms Le stayed in the motor home and not in the motel. She seemed to prefer to say it was the motor home because ‘the motor home got only one bed’ (T445.45). In contrast, Mr Johnston was clear that John stayed in a motel room in Albury and not in the motor home.

76. [215]

    She deposed that she visited John and Ms Le at the Coogee property from the time they moved there in 2016 until around November 2021 ‘many times, approximately three times a week’ and that she saw that they shared the master bedroom together, and saw their clothing and jewellery in the walk-in wardrobe of his room and their personal care items in the ensuite to the room. In her subsequent statement she said that these visits were at least once every two weeks. She also deposed in her affidavit that she stayed at the Coogee property overnight on two occasions and saw that John and Ms Le would return to their master bedroom and sleep together. However, in cross-examination she accepted that the statement was untrue (T454).

77. [216]

    She deposed that John and Ms Le were very affectionate when they were together, even in public and they would walk together, hold hands, kiss, refer to each other as ‘honey’ and say to each other ‘I love you’. She also deposed that John said to her ‘on many occasions’ words to the effect of ‘When I die, I will leave Le a very rich woman’. In her supplementary statement, she stated that when John and Ms Le moved to the Coogee property in 2016 she visited at least once every two weeks, and on these visits she went to the main bedroom and saw Ms Le’s clothes and other personal effects there and also saw the wardrobe where clothes of both John and Ms Le’s were hanging. However, in cross-examination she accepted that on these visits she did not open the closets or cupboards or drawers in the various bedrooms or bathrooms (T455). In light of this, I cannot accept her evidence about what she saw in the main bedroom as reliable.

78. [217]

    In her supplementary statement she recalled a conversation with John during a visit to the Coogee property, in which he said: ‘I will leave Le the laundry shop, the childcare in Botany Road, and this house. She will have Coogee house and the laundromat is for her for life. It can bring her income.’ In cross-examination she was asked about this evidence and where it occurred, she said the following:

79. [218]

    I find this evidence implausible, and indicative of the tendency of Ms Denis throughout her cross-examination to tailor her answers to put Ms Le’s case in the best light possible.

80. [219]

    Ms Denis accepted in cross-examination that she considered that it was very unfair and very wrong that Ms Le was left out of John’s will and that was part of her motivation in giving evidence and that part of her motivation for giving evidence was to right what she regarded as an unfair wrong (T420).

81. [220]

    Ms Denis said in cross-examination that her affidavit was prepared on 16 February 2022, the same day that she signed it and that she had been to see Ms Le’s solicitor before then but could not recall the date or why she did so. She ultimately accepted in cross-examination that she swore a statutory declaration on 8 June 2021 at the offices of Ms Le’s solicitors which contained statements substantively the same as those in her affidavit of 16 February 2022. She ultimately accepted that she went to see the solicitor on that occasion because ‘I want to help my friend Le’ and ‘I want to make sure John and Le in a relationship de facto for long time’ (T424).

82. [221]

    Ms Denis accepted in cross-examination that she knew in 2011 that Ms Le only had a lease of Shop 3 however, she also said that John said to her in 2011 that the shop belonged to Ms Le, that ‘John give it to her for her life’ and John told her this (T429, 432). In the course of cross-examination about the lease, the following exchange occurred:

83. [222]

    This evidence and the lengthy exchange which preceded it was characterised by Ms Denis’ failure to provide responsive answers to the questions she was asked and her desire to support Ms Le’s case that she and John were in a de facto relationship.

84. [223]

    Ms Denis accepted in cross-examination that she was in the habit of taking photographs when she was with friends, having fun (T438). However, the only two photographs in evidence taken by her with Ms Le and John were two photographs taken in around 2014 at the Burradoo property. It is surprising given her evidence regarding a number of occasions that she spent with Ms Le and John socialising at the Waterloo apartment, the Coogee property and on holiday that no further photographs are in evidence.

85. [224]

    Neil Johnston is the partner of Kolena Denis. He made an affidavit on 16 February 2022 and a supplementary statement prepared during the course of the hearing.

86. [225]

    He deposed that he first met John in about 2013 and that he had seen John and Ms Le together when they regularly had dinner at a restaurant in Marrickville and at South Sydney Juniors. He deposed that he had seen them many times on those occasions holding hands, embracing each other, kissing each other and generally being affectionate to each other. He also deposed to visiting John and Ms Le at the Burradoo property in 2015 and going on a trip with them to Gundagai and Albury for around seven days accompanied by his wife, Ms Denis. He also deposed to having visited them at the Waterloo apartment and at the Coogee property.

87. [226]

    He deposed that he visited John at the Coogee property about four months before he died and saw Ms Le there caring for him and attending to his needs. He deposed that on at least two occasions when he and Ms Denis had dinner with John and Ms Le at the Portugal restaurant in Marrickville, Jenny attended along with her partner and son. He observed on these occasions John and Ms Le held each others’ hands, hugged and kissed. Jenny did not dispute that these dinners occurred, but deposed that she did not see her father acting in a loving and affectionate way with Ms Le.

88. [227]

    In his supplementary statement, Mr Johnston deposed that John took him on a tour of the Burradoo property when he and Ms Denis visited it in 2015, and that John showed him a bedroom and said, ‘Le and I sleep here’ and later that evening he saw Ms Le and John go into that bedroom and did not come out until the morning. It was clear from his evidence in cross-examination that he did not have actual knowledge of the sleeping arrangements at the Burradoo property.

89. [228]

    He also deposed to a conversation with John after they were walking to a restaurant in around 2020 saying to him: ‘I don’t know what I would do without Le’. He deposed that he recalled John and Ms Le referring to one another as ‘honey’. However, I note that no other witness (apart from his partner, Kolena) observed John calling Ms Le ‘honey’ and based on all the evidence it seems unlikely that he would have done so other than on an isolated occasion.

90. [229]

    He said in cross examination that he visited John at his Coogee home two or three times and never stayed there overnight. He sat in the open plan living area and did not open the cupboards and drawers for the bedrooms and the bathroom.

91. [230]

    Given the generalised nature of Mr Johnston’s evidence of his recollections of Ms Le’s relationship with John, in my view it is of limited assistance. However, I accept his evidence that John said to him in 2020 words to the effect of ‘I don’t know what I would do without Le’.

92. [231]

    Evelyn Moses made an affidavit dated 14 February 2022 and a supplementary statement prepared during the course of the hearing.

93. [232]

    Ms Moses is a hairdresser and deposed that Ms Le and John were her customers at her hair salon in Redfern from around 2012. She deposed that she closed her salon in March 2020 shortly after the onset of the COVID-19 pandemic and after that time went to the Coogee property to cut John’s hair and dye and/or cut Ms Le’s hair. She deposed that she always went there with her sister, Evangeline Neave, as she cannot drive a car and relied on Evangeline to drive her.

94. [233]

    She deposed in her affidavit that John told her while she was cutting his hair that he ‘loves Le and relies on her to do everything for him’.

95. [234]

    In her supplementary statement, she deposed to a number of other conversations with John, including that he showed her around the Coogee property on the first occasion that she visited it and in the course of doing so showed her a bedroom and said, ‘this is me and Le’s bedroom’. She also deposed in a supplementary statement to a number of other conversations which were said to have occurred during the time that John was her customer, including statements apparently made by John to her a couple of years before COVID-19 which surprisingly were omitted from her affidavit of 14 February 2022.

96. [235]

    In cross-examination, Ms Moses accepted that when she prepared her affidavit, she understood that it was important to be careful and accurate and to be complete in describing the events she talked about in the affidavit (T477) and Ms Moses affirmed that she only visited the Coogee property after the COVID-19 restrictions started in 2020 and that she went to the Coogee property every six weeks. She was then asked to estimate how many times she went to the Coogee property to cut John’s hair and the following exchange occurred:

97. [236]

    In light of Ms Moses’ inability to even estimate how many times she went to the Coogee property after the first visit, and the fact that she introduced in her supplementary statement a number of what are clearly highly pertinent conversations with John which did not appear in her affidavit made some 19 months earlier, I am not satisfied that her supplementary statement is reliable in setting out conversations with the deceased which are uncorroborated. However, I accept the evidence in her affidavit of 14 February 2022, which was not challenged, that he told her, at some unidentified time, that he loved Ms Le.

98. [237]

    Jacqueline Varela is the partner of Robert with whom she has been in a relationship since 1997 and they have two children. She made one affidavit dated 14 March 2022 and a supplementary statement during the course of the hearing. In her affidavit she purported to having visited the Coogee property on one occasion ‘in or around early 2021’ to discuss a possible settlement for the case involving John and Robert. She then corrected this in her oral evidence as a visit on 1 September 2019, which was based on a handwritten letter which she said John had given her at the meeting. This was not disclosed in her affidavit. In her supplementary statement, she said that she went to the Coogee property on two occasions after Laura’s death, being 1 September 2019 and an additional occasion sometime before the COVID-19 restrictions commenced in 2020 but she could not recall the date. In the supplementary statement she said that when she went to the Coogee property on 1 September 2019, John took her around the house to look at new furniture he had bought and said, ‘This is Le and my bedroom’ and that she could see female items on the dressing table such as perfume and hair brushes. In her statement she said that on the occasion of the other visit, she said that John invited her to join him and Ms Le for dinner and stated that after Ms Le arrived home she asked John ‘Do only you and Le live here?’ and he responded ‘Yes, only Le and I live here’. She also said in the supplementary statement that she saw John and Ms Le kissing and John touching Ms Le’s shoulder affectionately. She also, in her statement, recalled an instance when she saw John and Ms Le holding hands and walking which she thought was before 2012 in the Waterloo apartments.

99. [238]

    There are a number of difficulties with Ms Varela’s evidence. First, she was reluctant to accept in cross-examination that the relationship between the deceased and Robert, and between Robert and his sister Jenny was characterised by hatred, but she did ultimately agree that there was a harsh disagreement between Robert and John during the litigation between them and that there were arguments between them (T496 and 498). Second, she accepted in cross-examination that she had made allegations to the police in 2012 to the effect that either or both of John and Jenny were responsible for the death of Laura and that she had accused both of them of killing Laura. She also accepted that she had told the police in 2012 that John asked her to help him kill Laura and she said no, and that she told the police that she resented John and Jenny for what they did and the way they treated her and for all the problems that arose in the family. As noted earlier, she obtained an AVO against Jenny after a fight between them in December 2011. Jacqueline also said in cross-examination that she no longer had resentment against John or Jenny having forgiven them a long time ago (T512). I find this last piece of evidence to be implausible and do not regard her evidence as being that of a disinterested witness.

100. [239]

     Third, Ms Varela was cross-examined regarding her attendances at the offices of Ms Le’s solicitors, AKN & Associates, prior to making her first affidavit on 14 March 2022. Her initial evidence was that she only went to the office of AKN & Associates on one occasion. However, it became apparent when she was cross-examined on an itemised fee note provided by AKN & Associates to Ms Le (Ex 25) that she had several conferences with them, including conferences concerning the contents and amendments to a draft affidavit to be provided by Robert (1, 4, 8, 10, 14, 17 and 18 March 2022). When challenged with this record she accepted that the AKN & Associates’ record was correct and that her initial answer had been given because she could not remember the number of visits. Again, I find this evidence implausible and particularly concerning that she had had a discussion with AKN & Associates regarding the contents of an affidavit to be provided by her partner, Robert. I note that no solicitor from AKN & Associates was called to give evidence about the matters discussed at these meetings between the firm and Ms Varela.

101. [240]

     Ms Varela had a clear motive to give evidence that could harm Jenny, and I do not regard it as being reliable.

102. [241]

     Duc is a son of Ms Le, born on 16 December 1991. He gave evidence in three affidavits dated 11 February, 17 February and 2 June 2022 and was cross-examined.

103. [242]

     His first two affidavits address the events which occurred at the Coogee property on 10 February 2022 (which was 10 days after John’s death). Duc deposed that he was staying at the property because his mother was distraught and he wanted to support her and stay with her at the Coogee property. It is not in dispute that at around 2:00pm on 10 February 2022, Mr Bates, together with others, including a locksmith went to the Coogee property. Duc deposed that Mr Bates introduced himself to Duc as the ‘asset manager’ and told Duc that he was authorised to take control of the property and that he and his mother must leave immediately. Their accounts of what happened after that are broadly consistent, although there are differences in their recollections of what occurred. For present purposes, I do not regard these differences as material, except for their disagreement as to one conversation.

104. [243]

     Duc and Mr Bates gave conflicting accounts of the conversation which they had at the Coogee property on 10 February 2022 about why Duc was at the property.

105. [244]

     Mr Bates in his affidavit of 16 February 2022 deposed that the conversation was as follows:

106. [245]

     Duc denies that he said that Ms Le was John’s carer and deposed in his affidavit of 17 February 2022 that the conversation was to the following effect:

107. [246]

     I prefer Mr Bates’ evidence about this conversation because he has no interest in the outcome of these proceedings in contrast to Duc who does, and the description of Ms Le as John’s ‘carer’ is consistent with their relationship at the end of his life when he was clearly very ill and being cared for by Ms Le.

108. [247]

     In his affidavit of 2 June 2022, Duc deposed that he and his siblings knew John well and spent time with him on many occasions, including almost every Mother’s Day, Ms Le’s birthday, and sometimes their own birthdays. He put into evidence a photograph of an evening spent at a restaurant to celebrate his mother’s birthday in 2016. He also deposed that his mother and John were in a relationship since the time that he lived at the Redfern property up until 2011 and he recalled a time when he saw John and her sleeping in bed together at that property. He also deposed that he frequently saw her and John in the morning when he woke up and they were in the living area together. He also deposed that he recalled a conversation with his mother in 2011, when she said to him, ‘John asked me to live with him in Waterloo, so Thuy can have my room’. He explained that this was a reference to his sister, Thuy, taking the master bedroom which had previously been his mother’s room. The other two bedrooms in the house were occupied by him and his brother. I treat Duc’s evidence on these matters with caution given my conclusion in the previous paragraph and his interest in the proceedings in giving evidence in support of his mother’s claim to be in a de facto relationship with John.

109. [248]

     Thang is one of Ms Le’s sons. He made an affidavit dated 17 February 2022.

110. [249]

     Thang’s evidence was directed to his purchase of the Condell Park property in August 2012. He deposed that he purchased it for $540,000, funded by a borrowing from the ANZ Bank, secured by a mortgage over the property, of $432,000, a contribution from his sister, Thi Kim Lan Hoang, of $68,000 and the balance from his savings. He deposed that since the purchase of the property he made mortgage repayments. He deposed that apart from a contribution from his sister of $68,000 he had been solely responsible for the mortgage payments.

111. [250]

     He accepted in cross-examination that as far as he was aware, the contribution of $60,000 came from the sale of a laundromat business in Glebe run by his sister (T487). It was put to him that his mother, Ms Le, owned that business and the contribution of $68,000 came from her, which he denied. It was also put to him in cross-examination that in the period from January 2019 to January 2020, Ms Le transferred from her accounts towards the mortgage the sum of $31,000 and also made further payments in respect of house repairs, insurance, council rates and water rates. Thang did not accept that this was correct.

112. [251]

     In my view, while the bank records in evidence indicate that Ms Le may well have made payments to assist her son to service the loan and to pay various expenses referred to in the previous paragraph, the state of the evidence is insufficient to establish that she has a beneficial interest in the Condell Park property by virtue of those payments. It was not put to her in cross-examination that the $68,000 contribution came from the sale of her business, rather than her daughter’s and the evidence does not allow any findings to be made as to the source of the $68,000 payment.

113. [252]

     Thang did not give any evidence in his affidavit of the living arrangements at either the Waterloo apartment or the Coogee property during the lifetime of the deceased.

Recordings of conversations

1. [253]

   Ms Le relied on recordings of conversations between her and the deceased in 2019 and also in 2021, in the last few months of his life (Ex 21). She explained that she made the recordings to show that she was in a de facto relationship with John (T260).

2. [254]

   The recordings in 2019 comprised a short recording made on 12 June 2019 at 2:09am in which John says to Ms Le: ‘You sleep on this side next to me. Switch the lights off’. I accept that this is evidence that they were sleeping together at that time, but do not regard the recording as having any other relevance. A second recording is a relatively long recording of a conversation between Ms Le and the deceased on 27 June 2019, starting at 10:43am. I will set out below the parts relied on by Ms Le in support of a submission that John acknowledges his long de facto relationship with Ms Le and her right to be financially taken care of.

3. [255]

   During a discussion at the beginning about what John might give her in his will, the following exchange occurs (emphasis added):

4. [256]

   The deceased appears to be indicating the possibility of making a gift to Ms Le in his will of Shop 3, the Burradoo property, a unit in the Waterloo development to live in and ‘probably some money’, although he qualifies all of this by the question ‘do you deserve it?’. Ms Le then asks ‘why don’t you give me the house’ (by which she means the Coogee property) and do so now. This then leads to the following discussion (emphasis added):

5. [257]

   The words attributed to the deceased in square brackets are the defendant’s transcription of the recording with which I agree.

6. [258]

   In this passage John expresses concern about the stamp duty of around $300,000 which would be payable if he was to make an immediate gift to Ms Le of the Coogee property, and also of the risk that, as the property would be transferred into her name during his lifetime, she could ‘kick him out’. That suggests a significant lack of trust in their relationship. He also expresses concern about the potential for litigation between Ms Le and his children (Jenny and Robert) if he were to leave her ‘half [his] properties’ in his will.

7. [259]

   Following this, John says that he needs to ‘leave something to them’ (by which he means his children), and then the following exchange occurs (emphasis added):

8. [260]

   The reference to ‘Links Road’ is to the Burradoo property. There follows further discussion in which Ms Le asks or demands (‘you give me…’) particular properties, and the deceased then says:

9. [261]

   At this point the recording becomes difficult to follow. The impression left by the recording as a whole is that, as the defendant submits, the deceased was subjected to a sustained barrage of demands from Ms Le leading to his apt observation that she is ‘greedy’. While it involves some recognition that he should leave her something in his will, which never eventuated, the precise extent of that recognition is left unclear by the concluding comment in the preceding paragraph, read with the earlier qualification ‘do you deserve it?’.

10. [262]

    I accept that the recording is some evidence that the deceased had a testamentary intention to benefit Ms Le in his will, but the precise way is left unclear. I do not accept however that it contains any acknowledgement of a de facto relationship.

11. [263]

    To the contrary, the deceased explains in the conversation that if he were to put the Coogee property into her name, he would be at risk of being ‘kicked out’ of his home. Further, he asks during the conversation ‘Do you deserve it?’. Both of these statements suggest a lack of the mutual commitment to life as a couple inherent in a de facto relationship, and suggest a lack of trust (of Ms Le), and that what he is contemplating is a gift as a reward for things done for him rather than as a recognition of his relationship with her as (de facto) husband and wife. It is also consistent with the impression which I gained from all the evidence that the deceased viewed all the members of his family, and also Ms Le as having ulterior motives (being that they wanted his money).

12. [264]

    There are also recordings of conversations between Ms Le and the deceased on 16, 19 and 23 September 2021. I have listened to each of them again and find the interactions between Ms Le and the deceased incoherent, reflecting the very serious deterioration in his health at that time. It is evident that he had difficulty in breathing (assisted by a machine to deliver oxygen to his lungs, which had been installed by 3 September 2021) and was taking morphine. I do not regard anything said in those recordings as reliable as to his testamentary intentions or his relationship with Ms Le.

13. [265]

    The general nature of these conversations in September 2021 is illustrated by a recording of a conversation on 19 September 2021 which starts at 5:12pm, with the following exchange:

14. [266]

    There seems to be a recognition here that Ms Le should receive the shop (ie. Shop 3) but beyond this, the recording is inconclusive.

15. [267]

    Ms Le also relies on a recording of a conversation with Gabrielle on 6 February 2022 at the Coogee property, referred to at [174] above. I do not accept the submission for Ms Le that this recording is evidence that Jenny and Gabrielle were fully aware of John’s de facto relationship with Ms Le. At most, it records an acknowledgement by Gabrielle that Ms Le looked after John ‘very well and … probably did extend his life’. I am satisfied on all the evidence that Ms Le did look after John at least in the last six months of his life when he clearly was incapable of looking after himself but that, without more, does not establish a de facto relationship between them.

The evidence of witnesses called by Jenny

1. [268]

   Jenny led evidence to refute both Ms Le’s and Natalie’s claim to be an eligible person under the Act. It is appropriate to consider that evidence together, given that this is how the Court received it during the trial.

2. [269]

   Jenny and Gabrielle each made several affidavits in which they responded to the evidence given by Ms Le and Natalie regarding their relationship with John, and the evidence of other witnesses. I have referred to the evidence of Jenny and Gabrielle where necessary in dealing with the evidence to which they respond. I have treated their evidence with caution given their interest in the outcome of the proceedings, but I accept that they each had a close and loving relationship with John throughout the period that Ms Le and John knew each other and both of them had regular contact with John, particularly Jenny who lived in the same street as the Coogee property.

3. [270]

   Mr Batten gave evidence by an affidavit made 27 April 2022 and a further affidavit made on 26 October 2023, which supplemented parts of his first affidavit which were not admitted. He has been the partner of Jenny since 2003 and they have one child together, Sean, born in 2004. Kevin worked at Qantas for a number of years as a shift worker and retired in 2014.

4. [271]

   Kevin deposed that he visited John’s Waterloo apartment with Jenny roughly once a month while John was living there and when John moved back to the Coogee house in 2017, he would visit him at least weekly as he was retired and lived only a few houses away in the same street with Jenny. He deposed that he often assisted John with repairs and maintenance around the house and was very familiar with it. He deposed that he only observed John’s belongings at the Waterloo apartment and also at the Coogee property from 2017.

5. [272]

   Kevin deposed that as John became more ill, he observed Ms Le take on more of a carer role along with her cleaning duties. He deposed that John would often say to him words to the effect ‘I pay Ms Le to cook and clean’ and ‘I give her free rent on the shop to help me around the house’.

6. [273]

   Kevin deposed that he had never seen John and Ms Le act affectionately towards one another and gave a number of examples where he observed John make disparaging comments to Ms Le and/or ordered her around. He deposed to one conversation during 2021 when the deceased said to Kevin that he wanted to sell the house in Coogee and move to Bowral and when Kevin asked him who was going to help him, he responded ‘I’ll find someone. I don’t want Le coming, she gives me the shits.’

7. [274]

   He deposed to having visited the Burradoo house on many occasions, and that Ms Le would also attend as she would drive them there and back, cook lunches while they were there and do all the cleaning and provide additional care to John, such as ensuring his medicine was administered. He deposed that John often told Kevin that ‘I pay her extra money to come to Bowral’. While at the Burradoo property he again assisted John with repairs and maintenance on the property.

8. [275]

   Kevin deposed to visiting the Coogee property in early 2021 to fix a downlight in the house and that while he was there, he heard John say to Ms Le words to the effect ‘You’re not my wife. You don’t tell me what to do. I don’t want another wife.’

9. [276]

   Kevin said in cross-examination that his understanding was that John and Ms Le did not sleep together at the Burradoo property. He explained this understanding as based upon John having said to him, on a few occasions, that ‘We never slept together’.

10. [277]

    Kevin deposed that he had never seen John and Ms Le act affectionately towards each other.

11. [278]

    Nick Pappas made an affidavit on 27 April 2022. He deposed that he first met John in 1994 and ran his mechanical work repair shop, under the name ‘Advance LPG’ next to John’s smash repair workshop, for about 15 years until the Waterloo site was redeveloped. After that time, he opened a workshop at 110 Dunning Avenue, Rosebery which is a property which John had a 50% interest in.

12. [279]

    Mr Pappas deposed that after Laura died in 2012, John told him that he was not charging Ms Le rent on the lease of the Waterloo laundromat, ‘because she can look after me as my wife has passed away’. He deposed that John said to him on numerous occasions, words to the effect ‘Le is only a carer, she just looks after me’. Mr Pappas deposed that the first time he met Ms Le was in approximately 2005 when she was running the Coogee Pool Hall. In cross-examination, he was uncertain as to the date when he first met her (T979-980). He said in cross-examination that he was told around the time that Laura died in 2012, by Robert that John was having an affair with Ms Le and that when he told John to ‘watch out for Le’ John responded ‘Yes, but I need someone to look after me’.

13. [280]

    Mr Bates is an asset manager who is engaged by Jenny to review the assets of the estate and take steps to secure those assets for the benefit of the estate. His evidence was that he worked in asset management and portfolio management for a number of companies, including CBRE and Jones Lang LaSalle and has a diploma in property management. He said in cross-examination that he provided asset management services to Ms Angius on the basis of an hourly rate.

14. [281]

    It is not in dispute that Mr Bates attended the Coogee property on 10 February 2022 at around 2:00pm and had a conversation with Duc in which he asked Duc to hand over the keys to the property and asked him to leave and take with him any items on the premises that belonged to him.

15. [282]

    He deposed that he asked Duc whether he knew the owner of the premises and what his relationship, if any, was to that person and that Duc replied ‘I knew John and my mother was his carer’.

16. [283]

    Mr Bates also deposed to a conversation that he had with Mr Alvin Johnson on 15 February 2022 which came about because Jenny asked him to liaise with persons who may have worked on the Coogee property to ascertain the level of maintenance required. He recorded in a file note the following regarding the conversation with Mr Johnson:

17. [284]

    In his affidavit of 27 April 2022 (made 10 weeks after the file note) he deposed that Mr Johnson told him that ‘He believed Ms Le and Giovanni Angius were once in an intimate relationship for a short period of time a few years ago’ and said words to the effect ‘I never saw evidence of this but had suspicions’, and when he asked Mr Johnson to elaborate on this he said ‘She cooks and cleans for him so they are in a relationship’.

18. [285]

    Mr Bates was cross-examined at length on the file note and his affidavit evidence of the conversation, I am satisfied that none of the cross-examination calls into doubt that it is an accurate record of what Mr Johnson said to Mr Bates. First, Mr Bates has no interest in the outcome of these proceedings. Second, Mr Johnson was very vague in his cross-examination about a number of matters which he ought to have recalled, including the years in which he went on three trips to the United States with the deceased and how many occasions he visited the Coogee property in the last three years of John’s life. As indicated above, I am not satisfied that Mr Johnson’s recollection of the conversation is accurate. Third, while Mr Ellison SC sought to call into question why it was that Mr Bates would be ‘fishing’ for information about Ms Le, there is an explanation for it in that he was engaged to find out from Mr Johnson who assisted with the maintenance of the Coogee property and it is not surprising that Mr Johnson would raise her name in that context.

Medical records

1. [286]

   Ms Le relied on hospital records regarding John’s admission to hospital over the period from May 2018 to June 2021 (Ex H). Those records describe Ms Le variously as John’s ‘partner’, ‘wife’ or ‘friend’. In my view, these records are not evidence of John’s perception of his relationship with Ms Le as they are explicable as being a description which she provided to hospital staff.

2. [287]

   Of more significance, in my view, are two other records of what he told his treating doctors. The first is a record on his admission to Prince of Wales Hospital on 28 September 2021 (Ex 29), which states that he told Dr Prendergast in the context of a discussion of his home set-up: ‘states Lee is not his partner. Also states is not his carer. Does help with his medications’.

3. [288]

   The second is a report made by Professor Rosenfeld, a consultant geriatrician and physician of a consultation with John on 24 June 2021, contained in a letter to John’s GP shortly afterwards. This letter states under the heading ‘BACKGROUND’ (emphasis added):

4. [289]

   The letter states under the heading ‘FUNCTION’ (emphasis added):

5. [290]

   The letter states under the heading ‘EXAMINATION’:

6. [291]

   The letter states under the heading ‘SUMMARY – RECOMMENDATIONS’ (emphasis added):

7. [292]

   The letter is significant in at least three respects. First, while Professor Rosenfeld refers to the brain scan as indicating some cognitive impairment, there is nothing in the letter to suggest that John lacked mental capacity at this time (nor has this been suggested by any party). Second, John said to Professor Rosenfeld that ‘he lived alone’ at the Coogee property. Third, he said to Professor Rosenfeld that he had help from ‘two ladies who assist him with cleaning and house care’. There was a dispute between Ms Le and Jenny as to whether Ms Le was one of the two ladies being referred to. For the reasons given earlier, I do not accept Ms Le’s evidence that there was another ‘Thai lady’ who, along with Linda, provided ‘cleaning and home care’ and I am satisfied that John was referring to Linda and Ms Le.

The evidence of witnesses called by Natalie

1. [293]

   Natalie gave affidavit evidence and relied on the affidavits of three lay witnesses: Silvana Salvatore, her mother, Domenic Dodaro, a friend, and Francis Devine, a solicitor. Each was cross-examined. Some of this evidence is also relevant to Ms Le’s matter, noting that evidence in each matter is evidence in both. Natalie also relied on the evidence of three experts referred to earlier.

2. [294]

   It is not in dispute that Natalie suffers from multiple sclerosis, having been diagnosed with this condition in 2014. She also has experienced the following symptoms caused by her multiple sclerosis: foot drop, trigeminal neuralgia and greater auricular neuralgia, optic neuritis in the left eye, severe vertigo and balance issues, bladder issues causing incontinence, difficulty swallowing food, sensation of pins and needles throughout the left side of her body and fatigue. She also suffers from a number of other serious medical conditions including pericarditis and post-inflammatory syndrome having been diagnosed after receiving her COVID-19 vaccine in 2021; various respiratory conditions including asthma (diagnosed in around 2010); sleep apnoea (diagnosed in around 2021) and lung nodules (diagnosed in 2021); carpal tunnel syndrome (diagnosed in 2019); acute complicated appendicitis with perforation and peritonitis and visceral hyperalgesia and motility disorders (diagnosed in 2022), and Hashimoto’s disease (diagnosed in January 2023). She put into evidence extensive medical records regarding the diagnosis and treatment of these conditions.

3. [295]

   Natalie deposed that the first time that she could recall meeting John, her paternal grandfather, was in 2006 or 2007 when she was 16 years old. Her parents, Silvana and Robert, had divorced in 1997 when she was around seven years old. She deposed that shortly after first seeing John, he gave her a cheque payable to her for $2,000 and not long after that a further cheque for $5,000 saying ‘Go and buy yourself a car to learn on’. She deposed that from this time she visited him on average weekly either at the smash repair workshop or at the pool hall in Coogee. She deposed that after John moved into the Waterloo apartment, she visited him there on average weekly, and later, after Laura died in 2012, she visited John at the Coogee property, again on average weekly. She deposed that in the last five to six years before John’s death, as her health deteriorated and she was away from work more often, the frequency of her contact with John increased and from 2019 she visited him two to three times per week until his death, except during the COVID-19 lockdown periods.

4. [296]

   She deposed that on occasions John would take her to dinner at a few places he frequently visited including the Portuguese Club at Marrickville, South Juniors and Da Mario, and sometimes Jenny, her cousin Gabrielle and Ms Le were also present (although not necessarily together).

5. [297]

   Natalie deposed to having a number of conversations with John in the period 2007 to 2011 in which he said to her that he had paid the child support payments which Robert was required to make following the divorce of her parents. The making of these child support payments is a matter dealt with in Silvana’s evidence.

6. [298]

   Natalie deposed that John provided her with regular financial support when she was an adult including giving her cash when she was not eligible for Centrelink payments; when she was stood down without pay as a customer service agent with IHG Hotels; supplementing her income during 2014 and 2015 when she was relying upon Centrelink payments of around $500 per fortnight; providing cash to her in an average range of $300 to $400 per week after 2019 when she was on workers compensation payments following her diagnosis with carpal tunnel syndrome leading to her leaving her job with Service NSW.

7. [299]

   Natalie’s evidence was that all these payments were in cash. I accept her evidence that frequent and regular cash payments were made to her by John. It is corroborated by the evidence of Mr Dodaro, which was unchallenged that first, he saw John give cash to Natalie at South Sydney Junior’s on more than five occasions’ and second that John said to Mr Dodaro in 2016: ‘I have grandchildren. I have to look after all my grandkids. My son is no good towards his kids. So I have to look after them’. Mr Dodaro’s evidence of this conversation with John is also consistent with evidence Natalie gave as to the statements to her by John as to why he was making cash payments to her.

8. [300]

   Natalie deposed that from around 2017 until John’s death, she helped him with tasks including shopping, light cooking (although most of the cooking was done either by his cleaner Linda or Ms Le, if she and John were not eating out), paperwork for his court matters, emails to his accountant, and the payment of his various bills, as John was not ‘computer literate’.

9. [301]

   She deposed that she spent more time with John from 2019, when she ceased working and was placed on Workers Compensation as he did not like to be left alone.

10. [302]

    Natalie deposed to having visited John in hospital on 16 June 2021 and having a conversation with him to the following effect:

11. [303]

    Natalie deposed that the topic of a new will came up again when she was with John at the Coogee property in or around September or October 2021 during the course of which the following was said:

12. [304]

    Natalie deposed that John referred to this topic again in subsequent conversations. It appears that the closest John came to acting on the statements that he made was the discussion he had with Francis Devine in the meeting at the Coogee property on 20 December 2021, referred to below. She deposed that the meeting came about because John asked her to arrange a meeting with a solicitor because he wanted to ‘make new papers, guardianship and attorney and will’. Natalie deposed that during one of her visits to see John at the Coogee property in early January 2022, he asked her whether Mr Devine had ‘finished the papers’ and that she followed this up with Bay Legal in early January. However, for the reasons she gave in her affidavit evidence, she was unable to arrange for Mr Devine to meet with John before he tested positive for the COVID-19 virus, and consequently the matter was not taken any further.

13. [305]

    Natalie gave evidence in her affidavits about the relationship John had with Ms Le. She said in her affidavit of 21 April 2023:

14. [306]

    In her cross-examination by Ms Painter SC, Natalie gave the following evidence on the topic of John’s reference to her as a ‘carer’:

15. [307]

    In re-examination by Mr Ellison SC on behalf of Ms Le, Natalie gave the following evidence about what she meant by that last answer:

16. [308]

    Later in her cross-examination by Ms Painter SC, Natalie gave the following evidence about the help John received from Linda and Ms Le at the Coogee property:

17. [309]

    Natalie also said in cross-examination that she did not see John initiate a hug with Ms Le or ever hear him call Ms Le ‘honey’ and that in conversations with John, he referred to Ms Le as either Le or ‘the Chinese lady’ (T622).

18. [310]

    Silvana Salvatore, Natalie’s mother, made two affidavits, on 20 April and 8 June 2023. She gave evidence regarding certain payments she received from John after her divorce from Robert in 1999. She and Robert have four children together: Stephanie born in 1985, Melissa born in 1987, Natalie born in 1990 and Lisa born in 1991. She separated from Robert in 1997 and at the time of the divorce in 1999 her four children were aged between six and 12.

19. [311]

    She deposed that Robert had a volatile temper (a matter confirmed by Jenny’s evidence and that an AVO was issued in favour of Silvana against Robert in around 1997, and which he breached on 18 December 1997 leading to the imposition of a fine). Silvana also deposed that when her children were young, she experienced periods of mental illness requiring hospitalisation on three occasions for two to two and a half months on each occasion, but that her mental health improved markedly after her separation from Robert in 1997. She had one further period of hospitalisation for mental illness in 2008 for around two months, but she deposed that her mental health has improved significantly. I accept her evidence and am satisfied that her periods of mental illness do not affect the veracity of her evidence in these proceedings.

20. [312]

    Silvana deposed that the divorce settlement was negotiated by her father, Elio (who died in 2019) and John and involved a payment to her of $206,000 as a property settlement and $25,000 for the benefit of her children, which she accepted as the best outcome she could achieve in the circumstances. This evidence is corroborated by a letter dated 28 May 1998 from Silvana’s solicitor to her.

21. [313]

    Silvana deposed that John made both payments which is corroborated by her unchallenged evidence of a conversation between her father and John at the time of the settlement negotiations.

22. [314]

    Silvana deposed that she opened an account with St George bank in the name of ‘Mrs Silvana Angius T-F Stephanie, Melissa, Natalia, Jacqueline’ and that John made deposits to this account over the period from 6 July 1998 to 4 March 1999 when it was closed with a closing balance of $10,005.79. She also deposed that John suggested to her that she open the account for costs associated with the children. The passbook for the account is in evidence. There is no direct evidence that John made all the payments, but I accept Silvana’s evidence that he either made deposits or was the source of the amounts used to make them. This derives support from her evidence of her conversation between her father and John referred to in the previous paragraph, which indicated that John was taking responsibility for the welfare of Silvana’s four children. It is also supported by the fact that no other person has been identified who is likely to have made the payments, certainly not Robert in light of the evidence about his attitude to his parental responsibility to his children at that time: see the statement made by Silvana to police in relation to her AVO application against Robert dated 2 September 1997.

23. [315]

    Silvana deposed that all withdrawals made from the account, including the final one, were used to meet expenses for her four children. I accept that evidence.

24. [316]

    The evidence establishes that Robert had an obligation to make child support payments of around $250.00 per month for each of their children who were living with Silvana until they turned 18, which in Natalie’s case was in June 2008. Silvana deposed that these payments were made wholly or substantially by John.

25. [317]

    It is not clear from the evidence whether all the payments were made by John, but I am satisfied based on the evidence, including a conversation which Silvana deposed she had with John in June 2002, that John paid an amount of $3,673.86 in respect of child support payments which Robert was required to, but did not, make to Silvana in the period up to June 2002. Her evidence is corroborated by: (a) a letter dated 30 March 2003, which she sent to the Child Support Agency referring to Robert’s failure to make any child support payments in the period from December 2001 to June 2002, and stating that on 13 June 2002 John made a payment of $3,673.86 which was the amount owing by Robert on that date; (b) there are multiple references in the evidence to Robert’s unwillingness to support his first family, including the evidence of Jenny that Robert did call Silvana and her children ‘bastards and scum’ as recorded in a police report dated 25 November 2001 in evidence (T920.4); (c) evidence given by Jenny that John said to her that he was financially supporting Robert (T919-920); (d) evidence given by Natalie that John said to her that he had paid the child support obligations of Robert.

26. [318]

    Silvana deposed that after the amount $3,673.86 was paid, all the child support payments required to be made were made. She believes that John made the payments, but does not clearly establish that he did so. It is possible that he did, but ultimately it is not necessary to determine that question for the purposes of these proceedings.

27. [319]

    Silvana also deposed that after the child support payments ceased in 2009, when Jacqueline turned 18, John continued to support her and her daughters by giving her cheques and cash three to four times a year (outside Christmas and Easter) in amounts from $2,000-$5,000 as well as cash in smaller amounts. She deposed that John said to her on more than one occasion that these payments were ‘for the kids’. I accept this evidence. While she was challenged in cross-examination for having no records to substantiate her evidence that John made the payments, I accept her explanation that ‘it never occurred to me to keep records’. There was no suggestion that any bank account statements were available, but had not been produced, for the relevant periods when these payments were made.

28. [320]

    While paragraph 29 of Silvana’s affidavit of 20 April 2023 contains an apparent inconsistency in stating in the same paragraph that John gave her a cheque for $3,673.86 and that he paid that amount to her bank account, I am satisfied that this is an honest mistake by Silvana and I accept her evidence that John paid the amount by one or other of those methods.

29. [321]

    Mr Dodaro is a friend of Natalie. He made an affidavit on 5 September 2023 and was cross-examined.

30. [322]

    Mr Dodaro deposed that he met Natalie in around 2007 when he was working as a security guard at Westfield Bondi Junction and she at Woolworths. He is around 24 years older than Natalie and deposed that they have been friends since that time, but have never been in any form of romantic relationship. He sees their relationship as in the nature of a father/daughter relationship. He deposed that when she was diagnosed with multiple sclerosis, he started to help her more, including driving her to her doctors’ appointments of which there were many.

31. [323]

    He deposed to having met John at the Coogee Pool Hall, and also at the South Sydney Juniors Club several times per week in the period 2010 to 2016 when he played the poker machines there. He deposed that sometimes Natalie was there with him or with John and that he saw on more than five occasions John hand to Natalie cash notes and on at least three or four occasions, Natalie said to him that John had given her sums in the order of $200 or $300. This evidence was unchallenged.

32. [324]

    Mr Dodaro also deposed to a conversation with John at South Sydney Juniors in around 2016, in which John said to him ‘I have a family. I have grandchildren. I have to look after all my grandkids. My son is no good towards his kids. So I have to look after them.’ This evidence was also unchallenged.

33. [325]

    Mr Dodaro gave evidence regarding his gambling activities, including what he referred to as ‘link chasing’. He explained how this involved him using Natalie’s bank account debit card to access funds for use in the gambling activity on the poker machines at South Sydney Juniors and other clubs that he and Natalie frequented. This resulted in a large number of regular debits and credits to her account. He also deposed that Natalie would, as part of the link chasing activity, sometimes sit on poker machines for him. He also deposed that he gave her small amounts of money from time to time out of his winnings to assist her with her expenses.

34. [326]

    In the course of his examination by Ms Painter SC, Mr Dodaro was asked whether he ever met Ms Le and he gave the following evidence (T728):

35. [327]

    Mr Dodaro’s evidence served to explain the large number of deposits and withdrawals to and from Natalie’s bank accounts over the relevant period. Mr Dodaro presented as a witness who was responsive to the questions he was asked and was seeking to provide honest answers. I accept his evidence.

36. [328]

    On 20 December 2021, John had a meeting with Francis Devine, a solicitor, at the Coogee property. The meeting was organised by Natalie at John’s request. Natalie and Ms Le were both present at the Coogee property when the meeting began, but did not participate in the meeting. The meeting went for about two hours.

37. [329]

    At the time of the meeting, Mr Devine was employed by Bay Legal, but he left that firm in August 2022 and is now employed by a different firm in Gosford. He deposed that John instructed him to prepare enduring power of attorney and enduring guardianship documents (appointing Natalie and Ms Le in the relevant roles), but these were only to go into effect when he lost capacity. After the meeting, he prepared draft documents but due to the time of year he did not send them to John and ultimately they were not executed due to John’s death.

38. [330]

    Based on Mr Devine’s file note and his evidence in cross-examination, I make the following findings regarding this meeting:

    1. (1)

       Though Natalie organised the meeting, John was Mr Devine’s client, and neither Natalie nor Ms Le were present during the meeting.

    2. (2)

       The purpose of the meeting was for John to give instructions for the appointment of Natalie and Ms Le as attorneys and guardians, and not the making of a new will. Importantly, their appointment was to be on the basis that their decisions in both capacities would need to be joint. It is likely given that Mr Devines’ file note records ‘Does not want to go to nursing home’ that the genesis of the meeting was John’s desire to prevent that occurring.

    3. (3)

       John had no difficulty in identifying his assets and the names of his children and grandchildren.

    4. (4)

       Mr Devine asked a number of questions directed to determining if John had mental capacity to execute the power of attorney and guardianship documents and satisfied himself that he did. His file note records that his reason for that conclusion was that John was aware of his assets, potential beneficiaries, possible claims, the effect of enduring guardian and the separate effect of enduring power of attorney and ‘appears to have no abnormality of the mind or defect of reasoning’.

    5. (5)

       Mr Devine asked what was the nature of John’s relationship with Ms Le (in the context of his proposed appointment of her as a joint attorney and enduring guardian with Natalie) and John said ‘employed to look after [the] house as a carer’.

    6. (6)

       Under the heading ‘Client concerns’ the file note records the following:

39. [331]

    The reference to a ‘potential intestacy’ in the first dot point suggests that at the time of this meeting, John had forgotten that he had previously made a will in April 2021 or simply preferred not to mention it. Mr Devine’s recollection of the meeting is that John did not mention that he had made a will in April of that year but could not recall whether John said that he did not have a will. The reference to ‘Robert’s mistress’ appears to be to Jacqueline.

40. [332]

    This file note is significant in the present case because John refers to Ms Le as someone ‘employed’ to look after the Coogee property ‘as a carer’, and because he recognises a testamentary intention to benefit Natalie (and his other grandchildren).

Determination of Ms Le’s Eligibility

1. [333]

   Ms Le submitted that the contemporaneous evidence supported her position that she was in a de facto relationship with John at the date of his death. That relationship had begun in 2003 and continued to his death. The existence of that relationship is supported by reciprocal AVOs and interactions with the police in 2007 for Laura and John, each of which record the reasons for the domestic violence incidents to be that John was having an affair. Similarly, the AVO taken out against Robert in 2014 for Ms Le’s protection recorded John as her boyfriend. Laura’s statement made in relation to the AVO applications in November 2011 (Ex N) records her view that John and Ms Le were in a relationship and having an affair.

2. [334]

   Ms Le’s affidavit evidence of the affection that John had for Ms Le is supported by documentary evidence including photos of the pair of them throughout the period kissing and hugging. The video evidence admitted as Ex B also shows Ms Le and John, closer to the date of his death, sleeping in the same bed.

3. [335]

   That is inconsistent with the defendant’s view that the plaintiff was John’s carer. Ms Le’s interaction with Gabrielle on 6 February 2022, recorded on that date, shows that Gabrielle was aware of Ms Le’s status as John’s partner. At no point in that recording does Gabrielle take issue with Ms Le’s assertion that she is John’s partner and respond to the effect that Ms Le is merely a carer.

4. [336]

   Ms Le never contends that she did have the keys to the Coogee property, and instead was entirely reliant on John to access the property. That was a product of John’s well-documented controlling nature.

5. [337]

   Jenny claims that Ms Le is not an eligible person. She contends that John and Ms Le never lived together, so that Ms Le does not satisfy either s 57(1)(b) or 57(1)(f). Further John and Ms Le were not in a ‘close personal relationship’ for the purposes of s 57(1)(f) and even if they were, there are no factors warranting the making of the application. John and Ms Le were not in a ‘relationship as a couple’ at the date of his death such that Ms Le cannot be described as John’s de facto partner.

6. [338]

   As noted above, the determination of whether Ms Le and the deceased were living in a de facto relationship at the time of his death requires a multi-factorial assessment by reference to all the evidence. The starting point is to consider the circumstances listed in s 21C(3) of the Interpretation Act.

7. [339]

   The ‘relationship’ referred to in this factor is not the de facto relationship, but rather a looser notion under which the Court takes into account the duration of what is asserted to be the relationship though also taking into account how the other factors listed in s 21C(3) might have changed during the course of that asserted duration of relationship: Sulliman v Sulliman [2002] NSWSC 169 at [194].

8. [340]

   It is clear that there was a continuing relationship between Ms Le and John from around 2003 until his death. Having regard to the evidence of the AVO taken out against Laura and Natalie’s evidence of what she observed in the pool hall, I accept Ms Le’s evidence that the relationship was from the beginning a sexual one. It is likely that in the early years (up to 2009) that the relationship involved John staying overnight at the Redfern property on occasions, but the evidence does not establish how frequently that occurred. It is not clear on the evidence to what extent the relationship involved Ms Le staying with John at the Waterloo apartment in the period from 2009 to 2016. No objective evidence is put forward by Ms Le dealing with this period. While there are some photographs of her having dinner with John and friends at restaurants in that period, there are no photographs showing them together at the Waterloo apartment.

9. [341]

   It is likely that the relationship involved John and Ms Le staying together at the Burradoo property from the period of its purchase in 2012 to 2017 (when he moved back into the Coogee property) but again the objective evidence does not establish the periods of time or the frequency of those visits to the Burradoo property.

10. [342]

    Ms Le’s evidence is that she lived with John at the Coogee property throughout the period from August 2017 to John’s death. The evidence of Jenny and Kevin Batten, who lived on the same street is to the contrary. No objective evidence is put forward by Ms Le to corroborate her evidence that she lived at the Coogee property in this period (or indeed in any other period) and it is contradicted by the evidence that she maintained her residence at the Redfern property until she surrendered her lease in (2021) and did not have keys to the Coogee property.

11. [343]

    The objective evidence establishes that during the period from 2003 until June 2021 Ms Le’s residence was at the Redfern property. As noted earlier, she renewed her lease of that property on 25 May 2021 but then relinquished it on 21 June 2021 after she received advice from her solicitors regarding a potential claim against John. It may be inferred that she relinquished the lease and changed her address in order to assist with any potential claim against John.

12. [344]

    I accept that from June 2021 until John’s death she was living at the Coogee property, but at this stage she was performing caring and nursing services to him.

13. [345]

    As indicated above, I am satisfied that the relationship began as a sexual relationship and I accept Ms Le’s evidence on which she was not cross-examined, that this continued throughout their relationship.

14. [346]

    There is no evidence of any financial dependence or interdependence between Ms Le and John. They had no joint bank accounts and did not co-own any properties. John was clearly not financially dependent on Ms Le. Ms Le had a degree of financial dependence on John in that he waived the rent on the lease of Shop 3 and made regular cash payments to her.

15. [347]

    John did not own or acquire any property with Ms Le. Ms Le did use property owned by John (Shop 3) under a lease of that property. It is significant that John granted this lease to Ms Le in 2013 after Laura’s death at a time when there was no apparent reason why the formality of a lease was necessary.

16. [348]

    In my view there is a dearth of evidence that John was committed to a shared life with Ms Le. There is evidence that he went to dinner with her at restaurants, and attended the South Sydney Leagues Club with her for dinner and to play poker machines, and travel with her to Burradoo and on one holiday in country New South Wales. However, against this is the objective evidence of a rejection by John of a concept that Ms Le was any more than his carer. He stated in an affidavit in October 2014 and to Professor Rosenfeld in June 2021 that he lived alone at the Coogee property. He repeatedly refers to Ms Le as his carer and not his partner, to several people, including Natalie and Mr Pappas. He consistently referred to her throughout his life in a disparaging way as the ‘Chinesa’ or ‘Chinese lady’. While he instructed Francis Devine to make Ms Le one of his guardian and attorney, this was on the basis that she would act jointly with Natalie. Further, the decision of John to require Ms Le to enter into a new lease of Shop 3 in 2013 is difficult to reconcile with the notion that he had a commitment to a shared life with her at that time or subsequently. Had there been such a commitment he would either have transferred Shop 3 to her or simply allowed her to occupy it rent free without a lease.

17. [349]

    John and Ms Le had no children together. There is a dearth of evidence that he had any relationship with Ms Le’s children. Indeed the conversation at [262] above suggests that he did not.

18. [350]

    There is evidence that Ms Le performed household duties, including cooking, washing and cleaning as well as driving him to restaurants and to the Burradoo property. There is also evidence that she was paid for doing so.

19. [351]

    There is conflicting evidence about this. The evidence of John’s relatives, being Jenny, her partner Kevin and Gabrielle did not consider the relationship to be that of a couple living together. John’s friend, Nick Pappas, gave evidence that John said to him that he needed someone to look after him and that Ms Le performed that role. Then there are a number of witnesses called by Ms Le who deposed that they regarded Ms Le and John to be in a de facto relationship. I have explained when dealing with that evidence why I consider most of it to be unreliable. In so far as there is some evidence of a perception by Ms Le’s friends that she and John were a couple, I consider that it is likely to have been influenced by the perspective of each witness: see the observations of Windeyer J set out at [121] above.

20. [352]

    Taking into account all the evidence regarding the above matters and the circumstances of the relationship, I am not satisfied that John and Ms Le were living together as a couple at the time of John’s death nor am I satisfied that they ever lived together as a couple. In particular, I am not satisfied that John ever had a commitment to a shared life with Ms Le, and hence the required mutual commitment to a shared life was lacking.

21. [353]

    In my opinion, while Ms Le was not living with the deceased in a de facto relationship, she was living with him in a close personal relationship at the time of his death. Having surrendered her lease of the Redfern property in June 2021, she was living with John at the Coogee property from at least that time until his death. The audio recordings in Ex 21 corroborate Ms Le’s evidence that she provided to him domestic support and personal care in this period, nor is that seriously in dispute.

22. [354]

    I am satisfied that she did not provide this domestic support and personal care to John for fee or reward. While she received various financial benefits from John during their relationship (in particular, cash payments from him and the waiver of the rent on Shop 3) I do not accept that these benefits were provided as the quid pro quo for the domestic support and personal care she provided to him. Their relationship was more complicated and nuanced than merely one involving domestic support and personal care, and considering the history of the relationship (including the romantic aspects of it) the financial benefits she received cannot properly be seen as received in return for the support/care Ms Le undoubtedly provided to him. As the statement John made to Dr Predergast at Prince of Wales Hospital in September 2021 indicates, he recognised that while she was not his partner, she was also not merely his carer.

23. [355]

    The next question is whether there are factors, in addition to the facts which make Ms Le an eligible person under s 57(1)(f), which give her the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased. In my opinion, when all the circumstances are taken into account, Ms Le satisfies this requirement, in particular due to the following matters:

Determination of Natalie’s eligibility

1. [356]

   Natalie’s eligibility to make a claim turns on whether she was wholly or partly dependent on the deceased and, if so, whether there are factors warranting her application. Jenny contends that she was not dependent on the deceased and there are no factors warranting her application.

2. [357]

   In relation to dependency, I am satisfied on the evidence that Natalie was partly dependent on the deceased both in her childhood and as an adult. In relation to her childhood, I have accepted the evidence of Silvana that the deceased provided financial support to her and her children (including Natalie) of three kinds: by making a payment to her of a property settlement on behalf of Robert; by making at least some of the child support payments which Robert was required to make; and third, by making regular payments, including amounts between $2,000-$5,000 for the benefit of the kids. This evidence is corroborated by a statement in John’s affidavit of 26 October 2014 set out at [47] above. I am also satisfied that he gave significant financial assistance to Natalie, particularly after her diagnosis with multiple sclerosis in 2014.

3. [358]

   It was contested by Jenny that Natalie had not proved the making of the cash payments or that John had the financial resources to make significant cash payments of the kind alleged. As to the first point, I am satisfied that the evidence of the payments being made is corroborated both by the deceased’s affidavit of 26 October 2014 and the evidence of Mr Dodaro (in the case of the cash payments by John to Natalie).

4. [359]

   I am also satisfied that John had the financial resources to make the payments to Silvana and Natalie. It is clear that John received significant amounts from the various companies which he controlled over the period up to 2017 when a receiver was appointed to those companies.

5. [360]

   Natalie gave evidence in her affidavit of 21 April 2023 of attending the Commonwealth Bank with John in 2019 or 2020 and seeing a statement showing he had a deposit of $3 million with the Commonwealth Bank, no doubt as a result of the very significant payments received by him from those companies. Further, the fact that he received significant payments from the companies he controlled is confirmed by the orders made by Kunc J on 12 February 2021, recorded in Angius v Salier (No 5) [2023] NSWSC 678 at [5].

6. [361]

   Turning now to the question of whether there are factors warranting Natalie’s application, it is necessary to have regard to the ‘guidelines’ in Bowditch, set out earlier. As to (a), while the responsibility to make provision for a grandchild normally rests with the parent (or parents), in the present case Robert did not accept that responsibility following his divorce from Silvana. The deceased took on that responsibility in place of Robert. This is confirmed by the deceased’s affidavit to which I have already referred. To the extent that Robert did provide support for Natalie (and her sisters) during her childhood, it was limited to the relatively modest child support payments (some of which he may have made) and did not extend beyond that which is consistent with his attitude towards Silvana and their children (including Natalie) as ‘bastards’ and ‘scum’.

7. [362]

   As to (b), while Natalie resided with her mother rather than the deceased, the deceased did assume a role of providing financial support to Silvana to assist her with the financial burden of bringing up her four children (and his grandchildren). This financial support extended beyond the typical support which a grandparent may be expected to provide to a grandchild. This financial support continued and increased after Natalie was diagnosed with multiple sclerosis in 2014 and I infer that this was because the deceased recognised the seriousness of her illness and considered it was necessary (given the lack of support from Robert) that he should assist her financially.

8. [363]

   As to (c), Natalie provided companionship and assistance to John in the various ways referred to at [300]-[301] above. In relation to (d) and (e), while the generosity of a grandparent to a grandchild is not, of itself, sufficient to convert the grandparent relationship into one of testamentary obligation to a grandchild, there is direct evidence here that the deceased did regard his grandchildren, including Natalie, as a natural object of his testamentary intentions. This is confirmed both by his 2012 will which included his grandchildren as beneficiaries (including Natalie), the deceased’s explanation for how he came to make his 2021 will and his statement to Francis Devine in December 2021 that on making a new will his grandchildren would benefit.

9. [364]

   In relation to (f) concerning the inheritance or financial support which Natalie might fairly expect from her parents, it is clear from the evidence that Silvana does not have the financial capacity to provide significant financial support to Natalie. In so far as Robert is concerned, I accept the submission made for Natalie that, given the history of Natalie’s relationship with him, there is no basis to consider that Robert will support Natalie.

10. [365]

    Bearing in mind these matters, and all the circumstances of the case, I am satisfied that Natalie has established that there are factors warranting the making of her application.

Provision to be made

1. [366]

   Section 60(2) of the Act sets out matters to which the Court may have regard for the purposes of determining the questions posed by both s 59(1)(c) (whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made in the will) and s 59(2) (if so, what order for such provision ought to be made). This requires an evaluative judgment, taking into account the matters set out in s 60(2).

2. [367]

   In Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [112]-[115], Payne JA (Macfarlan JA and Sackville AJA agreeing) said:

3. [368]

   In relation to the evaluation of what is ‘proper’ by reference to ‘perceived community standards of what is right and appropriate’ (or ‘moral duty’ which was the preferred way of expressing the same concept in in Steinmetz v Shannon [2019] NSWCA 114 at [44] and [109]), these are to be ascertained according to the circumstances of the particular case, including the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: Chapple v Wilcox at [64]. Importantly, as White JA said in Steinmetz v Shannon at [59], ‘the court does not ask whether the will was fair and does not have the power to adjust entitlements under the will according to what it considers to be fair’.

4. [369]

   In Lalic v Lalic [2022] NSWSC 31 at [48]-[54], Henry J summarised the authorities on the correct approach to the evaluative task required when determining whether the provision in a will is adequate and, if not, whether a family provision order should be made, as follows:

5. [370]

   Meek J in Tarbes v Taleb [2023] NSWSC 565 at [195]-[222] set out a comprehensive summary of the relevant principles to apply in undertaking that evaluative task to which I have also had regard.

6. [371]

   John’s estate is on any view a large estate, with a net value of approximately $29.5 million. The significance of the size of the estate, in the present context, is that any order for provision which is made is unlikely to impose any financial hardship, or have a material adverse effect, on the position of Jenny (the sole beneficiary) or other claimant, and this may be said to remove a limiting factor often present in family provision cases where eligibility is made out.

7. [372]

   In Tarbes v Taleb [2023] NSWSC 565 at [226]-[233], Meek J dealt with the significance of the size of the estate as follows:

8. [373]

   I will now deal with the questions of whether adequate provision is made for the proper maintenance, education or advancement in life of each plaintiff and, if not, the nature of the order which the Court should make under s 59(2) of the Act. These questions are to be determined as at the time the Court is considering the application pursuant to s 60(1)(b). I will have regard to the matters set out in s 60(2) in dealing with both questions.

9. [374]

   Ms Le was in a close personal relationship with the deceased for around 19 years. She lived with him at the Coogee property in the last six months of his life and stayed with him at his various residences (the Waterloo apartment, the Burradoo property and the Coogee property) at various times during the 19 year period.

10. [375]

    For the reasons given earlier, I consider that the deceased had a moral obligation to provide for Ms Le, which he recognised during his lifetime by allowing her to use Shop 3 rent free for over 10 years.

11. [376]

    It may be accepted that the deceased recognised that Jenny was a natural testamentary object, reflecting the loving relationship she and her family (particularly her daughter, Gabrielle) had with the deceased.

12. [377]

    It is also relevant that I recognise that Natalie is another person who has made an application for a family provision order to whom the deceased had a moral obligation. The evidence is that her siblings also made claims for a family provision order each of which has been settled.

13. [378]

    The deceased’s estate is on any view a very large estate. The relevance of the size of the estate in the present case is that the Court is able to make an order to meet each plaintiff’s needs without any significant adverse effect on Jenny’s entitlement under the will.

14. [379]

    Ms Le is currently 61 years of age and operates her laundromat business from Shop 3. Her earning capacity is limited to the income she can earn from the laundromat business.

15. [380]

    Ms Le currently rents an apartment in Marrickville at a rent of $500 per week. Her current household expenses are approximately $275 per week. She owns the laundromat business conducted from Shop 3, from which she earns approximately $220 per week. She currently receives $500 per week as an interim family provision order from the deceased’s estate.

16. [381]

    Ms Le’s assets are not significant. She has a personal account with the Commonwealth Bank with a balance of approximately $1,360 and a business account with the Commonwealth Bank with a balance of approximately $1,550. She has no cash savings. She owns a Toyota Aurion motor vehicle, which is about 12 years old, with a current market value of around $9,100. She has liabilities to family members of approximately $7,500.

17. [382]

    Ms Le’s claimed needs, for which she seeks provision are as follows:

18. [383]

    In relation s 60(2)(e), Ms Le is not cohabiting with another person.

19. [384]

    Ms Le currently suffers from the following medical conditions for which she takes prescription medicine: diabetes, high blood pressure, osteoarthritis, asthma, gout, high cholesterol, depression, and bilateral cataract extraction.

20. [385]

    Ms Le made no financial contribution to the deceased’s estate. She provided assistance to the deceased, including cooking, cleaning, driving, buying medicines and groceries, taking him to medical appointments and visiting him in hospital. In the last six months of his life, she lived at the Coogee property providing care for him during his period of significant ill health.

21. [386]

    Ms Le is not a beneficiary under the will. She received various financial benefits from the deceased during his life, set out at [182] above. These were significant, but I do not regard them as a quid pro quo for ‘services’ she provided to him.

22. [387]

    The file note prepared by Francis Devine indicates that the deceased’s last will did not represent his final testamentary intentions and why he wished to change his last will is explained by Natalie’s evidence of her conversation with him in June 2021.

23. [388]

    Ms Le relies on recordings of conversations with the deceased in 2019 and 2021 referred to above. There is an indication in one of the conversations in June 2019 of an intention that she receive from his estate Shop 3, the Burradoo property and one unit, and possibly some money. I have indicated above why I treat those recordings with some reservation. I consider a more reliable statement of his testamentary intention to be the conversation he had with Natalie in September or October 2021 when he said that in the new will he was considering, Ms Le should receive Shop 3 and ‘a few hundred thousand dollars to say thank you’.

24. [389]

    Ms Le was being maintained in the sense of being financially supported, by the deceased before his death.

25. [390]

    There is no one on whom Ms Le can rely for financial support.

26. [391]

    It is clear from the evidence that Ms Le did care for the deceased, particularly in the last six months of his life when he was suffering severe ill health. However, there are aspects of her conduct, before and after the death of the deceased which are unsatisfactory. First, she took advice regarding the potential to make a claim against the deceased in June 2021 and took steps to improve her case for a claim against him, including giving up the subsidised rental accommodation at the Redfern property and changing her address to the Coogee property. She was not entirely frank in her evidence as to this matter, as noted earlier.

27. [392]

    Second, the recordings she made of conversations with the deceased in 2019 and 2021 are disturbing because of the way in which she harangues the deceased in circumstances where he is clearly seriously unwell.

28. [393]

    Third, she taped a conversation with Gabrielle on 6 February 2022, knowing full well that Gabrielle objected to her doing so, and then sought to benefit from the recording by relying on it in these proceedings. For the reasons I have explained above, the recording does not support her claim to have been in a de facto relationship with the deceased and does no more than confirm, what is apparent from the other evidence, that she cared for the deceased during the period of serious ill health at the end of his life.

29. [394]

    It is not clear whether Ms Le criticises the conduct of either Jenny or Gabrielle before or after the deceased’s death. In so far as there is veiled criticism of Jenny’s conduct in arranging for Ms Le to be removed from the Coogee property on 10 February 2022, I do not accept that criticism is valid. Ms Le had already indicated to Gabrielle on 6 February 2022 that she had no intention of leaving the property, but in fact she had no entitlement to be there following John’s death.

Conclusion regarding Ms Le’s claim for provision

1. [395]

   It is difficult to assess what is the adequate provision for the proper maintenance, education or advancement in life of Ms Le in all the circumstances of the present case. There is evidence of what she considers to be her needs, but the evaluative judgment required is not determined by the plaintiff’s needs, and also takes into account all the relevant circumstances including the matters set out in s 60(2) which have been discussed above and the other matters referred to in the authorities cited earlier in the discussion of the relevant principles to be applied. Two important matters to consider are the totality of her relationship with the deceased, and also the Court’s assessment of what is considered to be right and proper according to contemporary accepted community standards or, put another way, what is considered to be the moral duty of the deceased. In relation to both matters the picture left by the totality of the evidence is complex.

2. [396]

   On the one hand, Ms Le was clearly a divisive figure in the Angius family dynamic. Her affair with John caused or contributed to the acrimonious split in the family in around 2007, with a significant toll on all concerned, not least on Laura who was an entirely innocent party. John’s affair with Ms Le appears to have caused Laura considerable distress in the final years of her life. Further, there are a number of aspects of Ms Le’s conduct which I regard as unsatisfactory, to which I have referred above.

3. [397]

   On the other hand, I am satisfied on all the evidence that John had a romantic (and sexual) relationship with Ms Le at least in the period from around 2003 to 2007. A relationship (which may not have been romantic or sexual) continued after that time until his death, although its precise character after 2007 is difficult to fathom. In particular, it is difficult to know why he refused to recognise her as his partner after Laura’s death when there was no apparent impediment to him doing so if she truly was. He was clearly equivocal about their relationship and was disrespectful to her and dismissive of her in various ways (eg. by calling her, and/or describing her to various people, as ‘Chinesa’ or the ‘Chinese lady’ or as his carer). But he was also reliant on her for care and support, particularly in the last six months of his life when he was very ill. John had many opportunities to spurn her evident affection for him after Laura’s death but, for whatever reason, chose not to do so. Similarly, she was free to leave at any time and while she says she stayed because she loved him, there were clear financial benefits to her in not doing so, including that he did not charge her the rent payable under the lease of Shop 3 (see [182] above).

4. [398]

   I have attempted to understand the nature of John’s relationship with Ms Le, but have struggled to do so because of the conflicts in the evidence of the witnesses who knew them both. Bearing in mind that without the benefit of evidence from John, it is not possible to fathom the unfathomable, I have paid particular regard to what John said about his testamentary intention regarding Ms Le, and consider the most reliable evidence of this to be what he said to Natalie in September or October 2021 that when he made a new will he would give Ms Le Shop 3 and a few hundred thousand dollars cash to say thank you.

5. [399]

   In all the circumstances, particularly the matters referred to in the consideration of the s 60(2) factors set out above, I am satisfied that the deceased made inadequate provision for Ms Le’s proper maintenance and advancement in life. I have taken into account the unsatisfactory aspects of her conduct referred to at [391]-[393] above in reaching that conclusion.

6. [400]

   Taking into account all of these matters, I consider that a wise and just testator standing in the shoes of the deceased would consider it appropriate to give Ms Le Shop 3 and a sum of $250,000.

7. [401]

   Natalie shared a close and loving relationship with the deceased, particularly towards the end of his life, which involved frequent visits (particularly after her diagnosis with multiple sclerosis in 2014), meals together, financial support, care and assistance.

8. [402]

   For the reasons given earlier, I am satisfied that the deceased had a moral obligation or responsibility for Natalie in the particular circumstances of this case. I have dealt with the position in relation to the other persons referred to in s 60(2)(b) in the context of Ms Le’s claim.

9. [403]

   I have dealt with this matter in the context Ms Le’s claim.

10. [404]

    Natalie is currently 34 years of age and single. She is no longer employed. She lives in a property owned by her mother, Silvana, and does not cohabit with another person.

11. [405]

    Natalie’s income at the time of the hearing was $4,069 per month (after tax) in the form of workers compensation benefits relating to a repetitive strain injury. This benefit expired in April 2024. That income was sufficient to meet Natalie’s living expenses, but only because Natalie was limiting her consultations with specialists regarding her various medical conditions, and is no longer available to her.

12. [406]

    Natalie’s assets are minimal comprising a 2006 Lexus GS 300 motor vehicle, with 235,000 km on its odometer, which is expensive to run and maintain in her current financial circumstances, bank accounts with relatively small balances and two superannuation accounts with a balance of $40,223. She has a HECS debt of $22,330. In light of her medical issues, I accept that her asset position is unlikely to improve significantly. I refer to the potential for assistance from her parents, Silvana and Robert below.

13. [407]

    Natalie’s own assessment of her future needs are set out in one of her affidavits and revised in her closing submissions as follows: (a) a new motor vehicle at a cost of $50,000 (and a modified motor vehicle in the future with a cost of $100,000); a CPAP machine at a cost of $2,500, together with CPAP expendables of $500 per annum; (b) stem cell therapy at a cost of between $100,000 to $300,000; a two bedroom apartment, single level and NDIS compliant at a cost in the range of $850,000 to $900,000 which will need to be modified at a cost of approximately $71,752.

14. [408]

    In addition, she seeks a sum based on recommendations of the occupational therapist, Mr Byrnes, on whose report she relied, and Dr Spies to account for her likely future needs comprising the following:

15. [409]

    These estimates are consistent with the report prepared by the Menzies Institute for Medical Research, ‘Health Economic Impact of Multiple Sclerosis in Australia in 2021’ (published in February 2023) which estimates that the average direct and indirect costs for a person living in Australia with multiple sclerosis is in the order of $37,439 per annum.

16. [410]

    Natalie does not contend that John’s estate should meet all the needs described above. Rather, it is submitted that applying a broad brush the Court should, standing in the deceased’s shoes, make a provision to significantly improve her life beyond mere survival which could be achieved by $950,000 for a suitably modified apartment, $100,000 for a suitably modified car and a sum sufficient to provide a buffer and income in relation to future medical and care needs.

17. [411]

    Natalie is currently in poor health, principally arising from her multiple sclerosis diagnosis in 2014. As she said in her evidence: ‘MS has changed my life completely and left me physically and emotionally distraught and alone’. As indicated earlier, Natalie’s evidence contains a large number of documents relating to her various conditions, and there is no suggestion that any of that material is in dispute.

18. [412]

    Each of Dr Judith Spies (a neurologist) and Professor Cherry Koh (a colorectal and general surgeon) who are Natalie’s treating doctors, provided short reports summarising Natalie’s diagnosis and care. Each was cross-examined. There was no suggestion to them that their evidence ought to not be accepted.

19. [413]

    Dr Spies is a neurologist who has been treating Natalie since her multiple sclerosis diagnosis in 2014. Her summary (in a report dated 14 August 2023) states that: (a) Natalie has had aggressive multiple sclerosis from the outset, with multiple predictors of long term disability; (b) Natalie has subsequently developed several other medical issues, including pericarditis after the Pfizer Covid vaccine, with ongoing chest pain, severe gastrointestinal dysmotility after a ruptured appendix and Hashimoto’s thyroiditis; (c) Natalie has aggressive multiple sclerosis that requires close monitoring of both the disease and potential side effects of her immunotherapies, and regular engagement with pain management services; (d) most patients with the sort of multiple sclerosis Natalie has (high lesion burden especially with brainstem and spinal cord lesions) will eventually enter a secondary progressive phase of the disease where disability progresses in the absence of further relapse. The time at which this occurs is impossible to predict in an individual, but multiple population studies indicate a median of approximately 20 years since first symptoms. Natalie is already 10 years post first symptoms; (e) many costs associated with multiple sclerosis are not covered by Medicare, most importantly physiotherapy; (f) stem cell therapy is available overseas at a cost of $100,000-$300,000, but is not available in Australia outside of clinical trials.

20. [414]

    An earlier report by Dr Spies dated 16 June 2022 stated that Natalie is at a high risk of significant disability, and a higher risk of ending up in a wheelchair, being disabled and needing care, but her life expectancy is normal.

21. [415]

    Dr Spies did not depart from that evidence in cross-examination. She confirmed that ‘there is no doubt about the diagnosis or the aggressive nature of it’ (T807.9); so far as prognosis is concerned she accepted it varies from individual to individual but said there are well-established predictive factors (T807.20-25); and agreed Natalie’s condition is currently stable but with residual deficits (T808.4) and continued ‘MS doesn't go away, it sort of stays there and you get accrual of things with new lesions’ (T808.11).

22. [416]

    After the conclusion of the hearing, Natalie was given leave to reopen her case to tender (without objection by the defendant) a report of Dr Daniel Guilfoyle (in consultation with Dr Spies) following a further MRI scan which indicates that her multiple sclerosis is no longer stable and recommends ‘instituting further highly effective multiple sclerosis disease modifying therapy to try to regain control of her aggressive relapsing condition (particularly in light of her extensive burden of old disease)’. The report (Ex HH) sets out a revised treatment plan going forward with Natalie’s agreement.

23. [417]

    Associate Professor Koh’s report dated 18 September 2023 describes Natalie’s onset of symptoms of gastrointestinal motility disorder as ‘atypical and the management of this has been challenging’. Although her view is that ‘it is difficult to be prescriptive about what Natalie will require’ she will need long term support and may require surgery. Her condition is presently stable, but fluctuating (T830.4-50).

24. [418]

    Natalie has experienced the following symptoms caused by her multiple sclerosis: foot drop, trigeminal neuralgia and greater auricular neuralgia, optic neuritis in the left eye, severe vertigo and balance issues, bladder, issues causing incontinence, difficulties swallowing food, sensation of pins and needles throughout the left side of her body and fatigue. She has also suffered through pericarditis and post-inflammatory syndrome, having been diagnosed after receiving her COVID-19 vaccines in 2021, a variety of respiratory conditions (including sleep apnoea), carpal tunnel syndrome requiring surgery and gastrointestinal disorders.

25. [419]

    Natalie’s age of 34 is significant because one aspect of her medical issues is that multiple sclerosis causes significant disability without significantly compromising life expectancy.

26. [420]

    Natalie provided John with assistance over the last four or five years of his life in the following ways in the form of shopping, some light cooking, assistance with paperwork for court matters and emails to his accountant, phone enquiries by contacting the administrator and liquidator of his companies, and paying bills using his credit card, including making Natalie the contact person for his insurances.

27. [421]

    The closeness of the relationship towards the end of John’s life is also supported by the deceased’s intention in December 2021 to appoint Natalie as one of his (joint) attorneys and guardians.

28. [422]

    John made provision for Natalie in his lifetime as described earlier. John made no provision for Natalie in the 2021 will.

29. [423]

    That John regarded Natalie as a proper beneficiary of his estate is demonstrated by the specific bequest to Natalie of $200,000 in cl 8.2 of his 2012 will. This predates Natalie’s multiple sclerosis diagnosis in 2014.

30. [424]

    In addition, Natalie gives evidence (which I accept) that John made regular statements to Natalie about his intentions, including:

31. [425]

    John’s intention to provide for all his grandchildren including Natalie is confirmed by his statements to his solicitor Francis Devine in the meeting on 20 December 2021 referred to earlier.

32. [426]

    I have already dealt with the extent to which Natalie was partly dependent on the deceased.

33. [427]

    The only persons who might potentially support Natalie in the future are her parents, Silvana and Robert.

34. [428]

    Silvana owns her house (which is unencumbered), she owns a half interest in the house next door (where Natalie presently lives in the unit upstairs with the ground floor rented out at $550 per week) and a property at Toukley (subject to a mortgage of $310,000) which is rented out at $350 per week. She has a modest income as a bank teller and no other significant assets. She has three other daughters and health challenges of her own.

35. [429]

    Robert is clearly very wealthy, being the sole beneficiary of Laura’s estate. The only evidence suggesting that Robert might be willing to assist Natalie is an email he sent her on 5 October 2016 (Ex 15), asking whether she needed assistance. Natalie’s evidence was that she did not respond to this email because she is ‘terrified of my father. He destroyed my whole family. You don’t understand. He destroyed everyone. He’s dangerous. He’s never helped. I don’t want to know’ (T704). I accept Natalie’s evidence as it is consistent with the other evidence referred to above regarding Robert’s relationship with Silvana and Natalie. I do not accept that there can be a realistic expectation that Robert will assist Natalie financially.

36. [430]

    I have dealt with Natalie’s relationship with the deceased and there is nothing in the evidence which in my view casts any doubt or justifies any criticism of her character or conduct.

37. [431]

    The parties did not identify any other relevant conduct.

38. [432]

    The parties did not identify any other matter considered relevant.

Conclusion regarding Natalie’s claim for provision

1. [433]

   In my view, in all the circumstances, particularly the matters under s 60(2) addressed above, the deceased made inadequate provision for Natalie in the 2021 will. The appropriate order for provision to be made out of John’s estate for Natalie is to be inferred from her needs which are considerable. The claim for provision which Natalie makes, set out at [410], reflects the appropriate approach for estimating the amount for her proper maintenance, education or advancement in life. In my view, a sum sufficient to provide a suitable buffer and income in relation to her future medical and care needs is $1,500,000. That amount, conservatively invested, will generate sufficient income to meet her needs and provide the appropriate buffer sought. Accordingly, in my opinion an order for provision should be made from the deceased’s estate by a lump sum in the amount of $2,550,000.

Conclusion and orders

1. [434]

   For the above reasons, I have concluded that Ms Le and Natalie are eligible persons and that the absence of any provision in their favour by the deceased in his 2021 will was inadequate for their proper maintenance, education and advancement in life. I have concluded that in all the circumstances, the appropriate provision which should be made in their favour is:

   1. (1)

      In the case of Ms Le, the transfer to her of Shop 3 and provision in the sum of $250,000;

   2. (2)

      In the case of Natalie, provision in the sum of $2,550,000.

2. [435]

   I will make orders for provision to each of Ms Le and Natalie in the terms set out in the previous paragraph.

3. [436]

   I note that Ms Le has been benefitting from an interim provision order made by Parker J on 18 February 2022 in the amount of $500 per week which should now be terminated. As to costs, the usual orders in light of the conclusion I have reached regarding each plaintiff’s claim is that the costs of the plaintiffs and the defendant of these proceedings should be paid out of the estate.

4. [437]

   I direct the parties to bring in short minutes of orders to give effect to these reasons.