Sheen v Hesan; The Estate of Zaheer

HIS HONOUR: At the heart of this case is a dispute about the characterisation, for legal purposes, of the relationship between Mohammad Bashir Zaheer (the deceased), and the Plaintiff, Doe Hwa Sheen, (also known as “Winnie”) immediately before the deceased’s death in July 2020. At least in part, this question gives rise to an ancillary question, whether any such relationship had broken down, and, if so, when.

On 16 July 2020, the deceased was killed having been stabbed by Jawid Jawid, who had been employed by the deceased (or one of his companies). Mr Jawid had, initially, worked as a security guard but, at the time he committed the stabbing, he was employed as an Assistant Building Manager at the apartment complex to which reference will be made. The reasons for judgment surrounding his trial for murder bears the medium neutral citation R v Jawid [2022] NSWSC 788.

In the Statement of Claim filed on 27 July 2021, the Plaintiff sought, by way of principal relief, a declaration that she was the deceased’s “spouse” at the date of his death. She also sought an order that Letters of Administration of the intestate estate of the deceased be granted to her, with consequential relief. Alternatively, she sought a family provision order out of the estate and notional estate of the deceased pursuant to Chapter 3 of the Succession Act 2006 (NSW) (“the Act”).

The only Defendant named in the Statement of Claim is Najia Hesan, the sister of the deceased. In her Defence, she denied the existence of the de facto relationship between the Plaintiff and the deceased and also the Plaintiff’s entitlement to a family provision order. However, the flavour of some of the cross-examination by senior counsel for the Plaintiff, suggested that the Defendant could also be asserting that if the relationship had existed, it had broken down before the deceased’s death.

In her Statement of Cross Claim, filed on 16 August 2021, the Defendant sought an order that Letters of Administration be granted to her, and consequential relief.

In an amended Statement of Claim filed on 18 February 2022, the Plaintiff no longer sought the declaratory relief. She sought an order that the Court appoint Michael O’Neill, solicitor, as an independent administrator of the estate of the deceased, and consequential relief, as well as a family provision order. The Plaintiff, however, did allege, that “at the time of his death, she was living in a de facto relationship with the deceased”.

At the commencement of the hearing, counsel for the Plaintiff sought leave to file and serve a further amended Statement of Claim, a form of which had been provided to counsel for the Defendant. Effectively, the Plaintiff wished to reintroduce the factual allegations, and claims for relief that she had omitted from the amended Statement of Claim.

There being no opposition to the application, the Court granted leave for a further amended Statement of Claim to be filed and served by 10:00 a.m. on Wednesday 23 March 2023. It was necessary to extend the time for filing, and on the third day of the hearing, the Court was provided with a copy of the filed further amended Statement of Claim.

The parties agreed that the Defence filed on 3 March 2022, to the amended Statement of Claim should be treated as the Defence to the further amended Statement of Claim.

In the preparation for the hearing, a vast array of documents (many of which were not referred to at the hearing), formed part of the evidence, as annexures, or as exhibits, to an affidavit. It has been necessary to peruse these documents, as well as the documents tendered at the hearing, although comparatively few of them will be referred to in these reasons.

There were also two short videos which the Court was requested to, and did, view, in Chambers. One was tendered by the Plaintiff and marked Ex. P1, which had been taken by her, on 8 March 2007, inside Unit 126, in which the deceased appears without a shirt on, and the Plaintiff’s voice can be heard in the background. The other was tendered by the Defendant and marked Ex. D2, which had been taken after the death of the deceased, in which the contents of the deceased’s bedroom and wardrobe, in Unit 215, are depicted.

To quell the controversy between them, the matter was listed for hearing, commencing on 21 March 2023 with an estimated duration of five days. It was completed within that time. Mr D Barlin of counsel, instructed by Mr Jong-Suk Lee, appeared for the Plaintiff and Mr L J Ellison SC, with Mr C Alexander of counsel, instructed by Mr Timothy John Mitchell, appeared for the Defendant.

It will aid a navigation of the facts in the proceeding if the Court provides a brief outline of the nature of the bases of the claims made. Whilst it will be necessary to return, in more detail, to the statutory provisions that apply, by way of introduction, I set out some of the provisions of different legislation that are relevant to the determination of the case.

There was no dispute, and I am satisfied bearing in mind the evidence of searches made by the parties, for a Will, that the deceased died intestate.

Section 63 of the Probate and Administration Act 1898 (NSW) relevantly provides that the Court may grant administration of the estate of an intestate person to the spouse of the deceased, or one, or more, of the next of kin. Generally, it is the person with the largest interest in the estate who obtains administration. (It is unnecessary to refer to s 23 of the NSW Trustee and Guardian Act 2009 (NSW) which provides that the NSW Trustee is, on application, entitled as of right, to a grant of administration of the estate of a person who died intestate leaving property in New South Wales, as no such application was made.)

The deceased, at the date of his death, was resident, and died leaving property, in New South Wales. Succession to the deceased's intestate estate is governed by the law of NSW at the date of death.

Chapter 4 of the Act was inserted by the Succession Amendment (Intestacy) Act 2009 (NSW). The long title to that Act stated that it was “to amend the Succession Act 2006 and the Probate and Administration Act 1898, to revise and re-state the rules for distribution on intestacy; and for other purposes”. That Act was assented to on 9 June 2009 and came into operation on 1 March 2010, applying to persons dying intestate on, or after, that date: see Sch 1, Pt 4, cl 13 of the Act. (The amending Act repealed Part 2 Division 2A of the Probate and Administration Act (1898) (NSW), including s 61B relating to de facto spouses.)

Chapter 4 “must be read in the context of the Act as a whole, with an appreciation that the Act governs the making, alteration, revocation, revival and construction of wills (Chapter 2), applications for family provision relief (Chapter 3)”, and to make provision for the distribution of intestate estates: Re Estate Jerrard, deceased (2018) 97 NSWLR 1106 at 1113; [2018] NSWSC 781 at [33] (Lindsay J).

Section 101 of the Act defines “intestate estate”, where the deceased does not leave a Will, as meaning “all property left by the intestate”. In addition, the section states that a person is a brother or sister of the intestate if they have one, or both, parents in common. (There is no longer any distinction between brothers and sisters of the full blood and those of the half blood.)

Section 102 of the Act defines an intestate as “a person who dies and either does not leave a will, or who leaves a will but does not dispose effectively of all, or part of, his, or her, property”.

Section 103 of the Act provides that a reference in Chapter 4 to an entitlement to the whole of the intestate estate is a reference to so much of the estate as remains after payment of all such funeral and administration expenses, debts, and other liabilities, as are properly payable out of the estate.

Section 104 of the Act, relevantly, provides that a spouse of an intestate is a person “(b) who was a party to a domestic partnership with the intestate immediately before the intestate's death”.

Section 105 of the Act provides that a domestic partnership is a relationship between the intestate and another person that is a registered relationship, or interstate registered relationship, within the meaning of the Relationships Register Act 2010 (NSW), or a de facto relationship that (a) has been in existence for a continuous period of 2 years, or (b) has resulted in the birth of a child.

Section 111 of the Act provides that if an intestate leaves a spouse, but no issue, the spouse is entitled to the whole of the intestate estate.

At the commencement of the hearing, the Court confirmed with counsel for both parties that, if the Plaintiff established that she was a party to a domestic partnership with the deceased immediately before his death, she was entitled to the whole of the intestate estate. Relevantly, to succeed to the whole of the intestate estate, she was required to establish that, immediately before the deceased’s death, she was in a de facto relationship that had been in existence for a continuous period of 2 years. (There was no suggestion that the Plaintiff and the deceased had elected to formally register the status of their relationship, or that the alleged de facto relationship had resulted in the birth of a child.)

If the Plaintiff establishes what is required, subject to satisfying the Probate rules of Court, she was also entitled to administration of the deceased’s intestate estate.

The deceased died without issue. In addition, both of his parents predeceased him. Section 129(1) of the Act provides that the brothers and sisters of an intestate are entitled to the whole of the intestate estate if the intestate leaves no spouse, no issue, and no parent surviving him or her. Having established the relevant matters, the eight brothers and sisters, including the Defendant, of the deceased are entitled to share, equally, the whole of the deceased’s estate (subject to a family provision order being made in favour of the Plaintiff). (No brother or sister of the deceased predeceased him.)

Thus, if the Plaintiff did not establish that she was the deceased’s spouse, the Defendant, who has received the consent of all her brothers and sisters (Ex. D1) to obtaining a grant, subject to satisfying the Probate rules of Court, is entitled to administration of the deceased’s intestate estate. They had also consented to the requirement for an administration bond to be dispensed with. In addition, whilst not admitted, I am satisfied that the Defendant is not an undischarged bankrupt and has not assigned, or encumbered, her interest in the deceased’s estate.

During the hearing, there was discussion about the appointment of an independent administrator if the Plaintiff was unsuccessful in the Probate claim, but was successful in the family provision claim, and if she received a lump sum calculated as a percentage of the net distributable estate.

Counsel for the Plaintiff submitted that the appointment of an independent administrator was the Plaintiff’s preferred position if her primary claim was unsuccessful: Tcpt, 27 March 2023, p 313(36-38). Senior counsel for the Defendant submitted that “… the preferred course of the defendant is that she receive (sic) the grant, but if the Court thinks it is appropriate in the circumstances, we have the consent to the appointment of Richard Neal (solicitor) as an independent administrator”: Tcpt, 28 March 2023, p 318(13-16).

I shall allow the parties to discuss this matter, and if possible, agree, before final orders are made.

It is only if the Plaintiff fails to establish that she was a party to a domestic partnership with the deceased immediately before his death that she will proceed with her claim for a family provision order. It was necessary, for the purposes of that claim, for an order to be made for the Defendant to represent the estate of the deceased. This was done, at the commencement of the hearing, without objection by the Plaintiff.

A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, in this case, it is not suggested that the Plaintiff seeks provision for education.

As the Plaintiff’s claim for the family provision order was not made within the time prescribed by the Act, that is within 12 months after the date of the death of the deceased, the Plaintiff also seeks an order that the time for the application being made be extended to the date of the filing of the amended Statement of Claim. At the commencement of the hearing, senior counsel stated that if a family provision order were to be made, the Defendant would consent to an order extending the time for the making of the application: s 58(2) of the Act: Tcpt, 21 March 2023, pp 3(37)-4(34).

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility. There are six categories of persons by, or on whose behalf, an application may be made. The language of the relevant sub-sections is expressive of the person’s status, as well as her, or his, relationship to the deceased. There is no age limit placed on an eligible person making an application.

In this case, the question whether the Plaintiff is an eligible person was contestable. As has been said, “all the criteria for eligibility are binary, in the sense that they admit of only one correct answer” and it “is a conclusion, to which a deal of evidence is apt to contribute, some pointing in different directions, all of which needs to be assessed and evaluated”: Sun v Chapman [2022] NSWCA 132 at [3], [7] and [9] (Leeming JA).

The Plaintiff relies upon s 57(1)(b) of the Act (she is a person with whom the deceased was living in a de facto relationship at the time of his death); upon s 57(1)(e) of the Act (she is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member); and upon s 57(1)(f) of the Act (she is a person with whom the deceased was living in a close personal relationship at the time of the deceased's death), which has now been included in the further amended Statement of Claim to which reference has been made.

In relation to s 57(1)(b) of the Act, the terms “de facto partner” and “de facto relationship” are defined in s 21C of the Interpretation Act 1987 (NSW). That section relevantly provides:

(There is no longer any reference to “husband and wife”, which terminology could lead to an inappropriate search for analogies to the legal relationship of marriage.)

The requirement for the de facto relationship to have been in existence for a period of 2 years does not find expression in s 21C.

The Act contains no reference to the term "breakdown of a de facto relationship". As will be read, that term refers to the "end" of the relationship but does not include an ending by reason of the death of one of the parties.

The relevant head of eligibility provided by s 57(1)(e) of the Act, imposes two requirements. The first is that the Plaintiff was, at any particular time, wholly or partly dependent on the deceased; the second is that she was, at the time when she was dependent upon him, or at any other time, a member of the household of which the deceased was a member.

It will be necessary to return to this head of eligibility later in these reasons.

Section 57(1)(f) of the Act, as earlier stated, includes as a category of eligibility, a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.

Section 3 of the Act defines a “close personal relationship”:

This definition calls for two different links, the first being that the adult persons are "living together" and the second being that "one, or each, of whom provides the other with domestic support and personal care". The existence of a romantic, or sexual, relationship, a practical union of lives and property, and the public aspects, are not necessary in order to establish this head of eligibility.

In the case of a person who is, relevantly, an eligible person by reason only of sub-paragraph (e) or (f) of the definition of "eligible person" in s 57 of the Act, the Court must also be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application: s 59(1)(b) of the Act. The Act does not specify the “factors which warrant the making of the application”.

In requiring a person who falls within, relevantly, s 57(1)(e) and (f) to satisfy the Court that there are such factors, the Act distinguishes between two classes of eligible persons. As was written by McColl JA (with whom Gleeson and Simpson JJA agreed) in Yee v Yee [2017] NSWCA 305 at [111]-[112]:

Senior counsel for the Defendant accepted that, in the event that the Plaintiff was an eligible person under ss 57(1)(e) or (f), there were factors warranting the making of the Plaintiff’s application: Tcpt, 29 March 2023, p 441(2-3).

Assuming that the Court is satisfied that the Plaintiff is an eligible person and, if it is necessary, that there are factors warranting the making of the application, the Court must then be satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life, of the applicant, has not been made by the Will of the deceased: s 59(1)(c) of the Act. It is this mandatory legislative imperative that drives the ultimate result and it is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order: s 59(2) of the Act. Only then may “the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”.

Returning to the fact that, in this case the deceased died intestate, the pre-ordained scheme for distribution of the deceased's estate is not according to the wishes of the deceased as expressed in a Will, but according to the regime established by statute.

I refer to the New South Wales Law Reform Commission, Uniform Succession Laws: Intestacy [2007] NSWLRC 116, at pars 1.23 and 1.25:

In In the Estate of the late Marras [2014] NSWSC 915, at [124]-[125], Bergin CJ wrote:

I dealt with the authorities, and, respectfully, agreed with her Honour’s view, in Sergent v Glass (No 2) (2018) 18 ASTLR 29; [2018] NSWSC 1100, at [80] – [83].

During the hearing, and particularly after the evidence of Mr Swayn, to whom reference will be made, the Court raised with counsel the tentative view that if the Plaintiff’s family provision claim proceeded, and was successful, the Court could make an order that she receive, absolutely, a lump sum, calculated as a percentage of the net proceeds of sale of the estate: Tcpt, 27 March 2023, p 313(4-10); Tcpt, 28 March 2023, p 318(50)-319(7).

In this way, the parties would benefit if the properties were sold for more, and each would be detrimentally affected if the properties were sold for less, than what had been estimated (as set out in Ex. JS1 to which reference will be made). Then, there would also be certainty of price, costs, and expenses, and liabilities such as capital gains tax, upon which calculations could be made.

McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192 at [96], raised the concern that “to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate’s assets, runs the very real risk of under-providing (or over-providing) for [the applicant’s] needs”.

Whilst this, undoubtedly is true, it seems to me that, in some cases, and at certain times, including when the real estate market is volatile, to make a specific lump sum order, will not be the most appropriate way of determining what is “proper” in all the circumstances of the case. The value of the properties is only estimated, and, ultimately, may prove wildly inaccurate. There is also uncertainty in the liabilities of the estate, including the liability for capital gains tax on the sale of the various properties. (Indeed, the very concern raised by McDougall J might very well be avoided.)

I have made orders for provision based on percentages in several cases, including Koellner v Spicer [2019] NSWSC 1571, Rakovich v Marszalek [2020] NSWSC 589, and Mallitt v Gow [2022] NSWSC 1012. Rein J has also made a similar order in Askew v Askew [2015] NSWSC 192.

Section 65(1) of the Act requires a family provision order to specify:

The Court’s order may require the provision to be made in a variety of ways, including a lump sum, periodic payment, or “in any other manner the Court thinks fit”: s 65(2) of the Act. If provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest: s 65(3) of the Act.

Counsel for the Plaintiff submitted that an order for provision by way of percentage of the net value of the estate was the Plaintiff’s preference: Tcpt, 27 March 2023, p 313(36-37); Tcpt, 28 March 2023, p 318(4-5); Tcpt, 29 March 2023, p 445(26-28).

Section 66 of the Act sets out the consequential and ancillary orders that may be made.

Unless the Court orders otherwise, any family provision order made under the Act takes effect, relevantly, as if it were a codicil to the Will: s 72(1)(a) of the Act. As Brereton J wrote in Liprini v Liprini [2008] NSWSC 423 at [14], a family provision order is:

Any family provision order under the Act will take effect, unless the court otherwise orders, in the case of intestacy, as if the provision was made as in a will of the deceased (s 72(1) of the Act). There is no need to “otherwise order” in this case.

Searches carried out by, or on behalf of, the parties, reveal no Will, or informal document explaining his testamentary intentions. On the third day of the hearing, each of the parties sought to file in Court, and read, an affidavit, one from the Plaintiff’s solicitor, affirmed 23 March 2023, and one from the Defendant, sworn 22 March 2023, each setting out more details of searches for a Will that had been carried out.

In addition, the Defendant tendered a copy of email correspondence between her solicitors and the NSW Trustee and Guardian, which revealed that a search of the Index of Wills “resulted in no record of any Will made by [the deceased] or any other documents being found”: Ex. D11.

It follows that the entitlement to the intestate estate of the deceased is determined under the operation of the rules of intestacy set out in Chapter 4 of the Act.

On 21 March 2023, that is on the first day of the hearing, the Plaintiff, by her solicitor, published an online notice of her intention to apply for Letters of Administration on the NSW Online Registry: Ex. P8.

On 21 December 2020, the Defendant had filed her intention to apply for Letters of Administration. It appears that, subsequently, she published an online notice of her intention to apply for Letters of Administration on the NSW Online Registry.

On 26 January 2021, the Plaintiff filed a general caveat. The Supreme Court Rules 1970 (NSW), rule 78.66, relevantly provides that a person who claims to have an interest in an estate may file a caveat in respect of any grant of probate or administration, being made in respect of the estate. The caveat must state fully the nature of the interest claimed by the caveator and an address for service. This type of caveat is described as a general caveat. The caveat lapsed but the matter proceeded on pleadings.

A family provision order may be made in relation to property that is not part of the deceased’s estate, but which is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

There is no property that may be designated as notional estate of the deceased.

The only person who may be an eligible person is the Plaintiff. (Although each of the brothers and sisters of the deceased was identified in the Plaintiff’s notice of eligible persons dated 18 February 2022, none of them asserted that she, or he, was one. In any event, as a beneficiary entitled under the operation of the rules of intestacy, none are required to prove an entitlement to provision, or justify, otherwise, such provision.)

Only some of the brothers or sisters (the Defendant, Naser Zaheer, Mohammad Nazir Zaheer, Fauzia Zaheer Sher and Nasira Zaheer) of the deceased filed any evidence of his, or her, financial and material circumstances. In relation to those who did not, the Court may assume that each of them does not wish his, or her, financial resources, and financial needs, respectively, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145 at [45] (Macready AsJ).

The Court is also entitled to infer that, as a beneficiary, each, respectively, has adequate resources upon which to live and that he, and she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VR 527 at 535-536 (Ormiston J); Sammut v Kleemann [2012] NSWSC 1030 at [135]-[139]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94] (Meagher JA); Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 at [23] (Basten JA). See also Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583 at [113]-[118] and on appeal, Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [17] and [42] (Meagher JA, Gleeson JA agreeing).

Yet, none of the siblings, as a beneficiary under the operation of the rules of intestacy, must prove an entitlement to the provision made for her, or him, or justify, otherwise, such provision. Nor, in relation to the Will, does each have to explain the decision by the deceased to make the provision that she did for her, or him, respectively, in the Will: Sun v Chapman [2022] NSWCA 132 at [169] (White JA). In this regard, his Honour referred to what I had written in Page v Hull-Moody [2020] NSWSC 411 at [171].

The Defendant, if she obtains a grant of administration, does not intend to seek any commission, or percentage, for her pains and trouble as is just and reasonable: s 86 of the Probate and Administration Act 1898 (NSW).

Prior to the hearing, the Defendant had threatened to amend the Cross Claim to seek vacant possession of the unit, registered in the name of the deceased, in which the Plaintiff currently resides. Although it was said that the “outcome must logically follow in the event [the Plaintiff’s] case is dismissed”, no application to amend the Cross Claim was made. She had, however, sought “mesne profits” in respect of, or in the alternative, an occupation fee for, her occupation of the unit from November 2020 onwards. The claim was based upon her occupation, from the date of the deceased’s death, of one of the properties (“Unit 215”) that he owned, which form parts of his estate. There was no evidence given regarding how it would be calculated.

It seemed to be accepted that, in the circumstances, any claim would be difficult to quantify. Very sensibly, the Defendant agreed that the Court, in determining the family provision claim, should consider the benefits that the Plaintiff had received, including her occupation of Unit 215, and any income provided to her from other occupiers, since about November 2020.

The Plaintiff admitted that she had received correspondence from the Defendant objecting to her having moved into Unit 215. To avoid further costs, the Court requested counsel for the Plaintiff to ascertain whether the Plaintiff would vacate possession of that Unit if she did not receive a devise of that Unit by way of family provision order. She agreed to do so, with the result that it will be unnecessary for the Defendant to amend the Cross Claim. The parties then agreed that she should do so within 28 days of the date of the making of orders and notations: Tcpt, 22 March 2023, p 99(11-13). However, in view of the result of the proceedings, I shall allow them the opportunity to reconsider this as there may be a delay in satisfying an order for provision.

Regarding financial benefits, Exhibits P7, D8, and JS2, revealed that following the death of the deceased, the Plaintiff, in 2021, had received $15,000, being compensation payments from Victims Services NSW, and $13,548, being rent from tenants in Unit 215 between February 2021 and December 2022. She also received a Centrelink Jobseeker allowance, being part of the Government’s support services, between December 2020 and May 2022 ($27,668): Tcpt, 29 March 2023, p 425(17-35).

As will be read, the Plaintiff deliberately failed to disclose the rent received from occupiers of the units that she rented. That failure is a relevant matter to be considered in weighing the Plaintiff’s evidence and considering her credit otherwise.

I am satisfied, considering all the evidence, that the Court is able to determine the Plaintiff’s claims, and in particular, whether she has been left without adequate and proper provision. At least in broad outline, the whole picture concerning her financial situation has been disclosed.

In claims such as those made in the proceedings, factual context is necessary. It is convenient, next, to provide some background facts since these provide that context. Many of these facts are taken from the affidavits read in the proceedings and are not in dispute. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.

The deceased’s mother, Najiba Sheerzay, died, in Afghanistan, on a date not disclosed in the evidence. The Defendant gave evidence that a Death Certificate has not been able to be obtained as “the Afghan government did not issue a death certificate for my mother”. She also said that her mother had died when she was an infant and that she had no recollection of her.

The deceased’s father, Mohammad Hussain Zaheer, was born in Afghanistan in January 1928. The Defendant gave oral evidence that her father had remarried, in Afghanistan, that he had left that country in about 1991, travelling to India, had spent some time in Australia, and then went to the United States of America, where he died on 12 May 2020.

There were nine children, including the deceased, being Naser Zaheer, aged 63 years, a brother of the deceased (“Naser”); Shyma Amirzada, aged 63 years, a sister of the deceased (“Shyma”); Mohammad Nassir Zaheer, aged 56 years, another brother of the deceased (“Nassir”); Nahid Zaheer Pardis, aged 56 years, another sister of the deceased (“Nahid”); Mohammad Nazir Zaheer, aged 54 years, brother of the deceased (“Nazir”); Fauzia Sher, aged 50 years, sister of the deceased (“Fauzia”); Nasira Zaheer, aged 38 years, half-sister of the deceased (“Nasira”); the Defendant, aged 47 years, sister of the deceased; and the deceased. All the brothers and sisters survived the deceased.

Only the Defendant and Nasira live in Australia. (Nasira is a child of the deceased’s father and his second wife.)

The deceased was born in Kabul, Afghanistan, in June 1976. He was killed on 16 July 2020, aged 44 years.

The deceased left Afghanistan, and moved to India, with his family as a teenager. Whilst he mentioned his life in Afghanistan to the Plaintiff, occasionally, he did not speak to her very much about his life in India.

The deceased arrived in Australia, from India, in 1999. From about 2001, he worked at an apartment complex in Pyrmont, initially as a security guard and later as the Building Manager. He lived on site, and over the years occupied different units within the apartment complex. At the time of his death, he was occupying Unit 215.

The deceased was also the business partner of the Defendant. He carried on business through his company Complete Property Management Services Pty Limited (CPMS). Relevantly, he was the shareholder, and the Defendant was the director. There were also two other companies through which their business activities were operated, being Complete Building Services Pty Limited (CBS) and Four Star Security Services Pty Limited (FSSS). The Defendant was a property manager and real estate agent who assisted with tenancies and who maintained the trust account.

The Defendant gave evidence that from about 2009 to 2014, the deceased’s father lived with the deceased in a unit: Affidavit, Najia Hesan, 1 October 2021 at par 25. However, in her oral evidence, she said that the period of him living with the deceased was between 2012 and 2014: Tcpt, 23 March 2023, p 207(46). Whichever period is accurate, neither is during the period during which the Plaintiff asserts she was in a de facto relationship with the deceased.

The Plaintiff was born in Gwacheon-Si, South Korea, in July 1980 and will be 43 years old on her next birthday. She arrived in Australia in December 2005 on a working holiday. She decided to remain after she met the deceased. She is now a permanent resident, having been granted permanent residency in 2015.

The Plaintiff gave evidence about having been brought up in a Christian “cult” called the “Temple of the Tabernacle”: Tcpt, 22 March 2023, p 111(13-15). She wrote that members were expected to marry within the church, and that marrying outside was considered “a shameful act”. Though she had left the “cult”, she did not wish to reveal her relationship with the deceased to members of her family who remained within it. Furthermore, her experiences in the Temple of the Tabernacle had caused her to become disillusioned with religion and made her more reluctant to convert to Islam.

She also gave evidence of her father having worked in the Middle East and his attitude towards Muslim people. She said that, as he did not have a “good image [or] good impression” of the Middle East, she did not tell him about her relationship with the deceased: Tcpt, 22 March 2023, p 113(41-45).

The Plaintiff met the deceased in 2006. They met again, and a relationship commenced, in 2007, and continued for over 13.5 years, until July 2020. She said, in cross-examination, that the de facto relationship with the deceased commenced in about 2015, and that prior to that time, they had been “boyfriend and girlfriend”: Tcpt, 21 March 2023, p 89(50)-90(14).

(There is uncontested documentary evidence that reveals that in July 2015, the Plaintiff moved from a property in Maroubra to the apartment complex in Pyrmont: Ex. P1/102-109. She asserted that from July 2015 until December 2015, she lived, with the deceased, in that unit: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 86.) Prior to that time, she lived in Unit 113.

(I remember that, in the context of this case, how the Plaintiff characterised her relationship, and how she perceived that relationship with the deceased, from her own subjective position, whilst a relevant matter, cannot be the determinative factor.)

I shall return, in more detail, to the nature of the relationship between them.

It is next convenient to refer to the property of the deceased, at the time of his death, and at the date of hearing.

On 31 January 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

The parties attempted to comply with the direction made, but it was not until almost the last day of the hearing, that a composite schedule was provided to the Court, which document was tendered and marked Ex. JS1.

The Court might be forgiven for thinking that careful, and considered, advice could not be provided to each of the parties, respectively, or the beneficiaries, if, prior to the commencement of the hearing, if not well before, the legal representatives are not able to agree upon the nature and value of the deceased’s estate, or, at least, identify the value of the assets in dispute between them.

In summary, at the date of his death, the deceased owned eight properties, registered in his own name, which are situated in Sydney. Six of those properties are home units in the complex situated at Bunn Street, Pyrmont, which is a building known as “The Mirage”. The deceased had been the building manager through CBS. Each of those properties is mortgaged to Suncorp Metway. There is also a ninth property registered in the name of CPMS, which is also mortgaged to Suncorp Metway. In addition, there was a car, monies in bank, one share in CPMS, and 2 shares in CBS.

I have taken what follows from the Agreed Schedule, dated 29 March 2023, which was marked, without objection, Ex. JS1. (I have omitted and shall continue to omit any reference to cents. This will explain any apparent arithmetical miscalculation.)

There was a dispute about the value of the estate at the date of death. The Plaintiff asserted that its gross value was $11,810,830, whilst the Defendant asserted that it was $10,610,830. (The difference between the values was because the Plaintiff estimated that the shares the deceased owned in CPMS was $1,836,000, whilst the Defendant estimated the value to be $636,000.) Regarding the liabilities at the date of the deceased’s death, excluding costs, the Plaintiff estimated that amounted to $7,539,830, whilst the Defendant estimated it to be $6,339,830.

The liabilities, other than the costs of the proceedings, if an order is made, at the date of hearing, were agreed to total $4,201,597 (comprising the amount of $4,151,870 owed to Suncorp Metway); an amount said to have been paid by the Defendant as the shortfall to Suncorp Metway, and to be reimbursed to her of $30,000 (which the Plaintiff accepted should be repaid: Tcpt, 21 March 2023, p 11(44)-12(5)); and funeral expenses ($11,000).

Mr Swayn, the deceased’s accountant, to whom reference will be made, provided an estimate of the capital gains tax payable by the estate on the sale of property ($335,983) in a letter dated 28 March 2023 addressed to the Defendant’s solicitors.

The Plaintiff’s solicitor and the Defendant’s solicitor each gave evidence of the costs incurred by the party represented in the proceedings. Neither solicitor differentiated between the costs of the party represented. This was understandable bearing in mind the nature of the proceedings and the relevance of the evidence to both claims.

Only Mr Lee was, briefly, cross-examined.

In relation to the proceeding, the Plaintiff’s costs, calculated on the ordinary basis, were estimated to be $132,000 (inclusive of GST) based on a hearing of 5 days duration. Her costs, calculated on the indemnity basis, were estimated to be $165,000 (inclusive of GST). (The Plaintiff had entered a costs agreement with her solicitor, but it was not a conditional costs agreement.)

The Plaintiff has required the financial assistance of her brother, in Korea, who has paid all her costs and disbursements of the proceedings over a period of 8 or 9 different days, by bank transfer. Although she did not disclose the amount advanced as a loan in any of her affidavits, there was no suggestion that she would not have to repay her brother if she succeeded in the proceedings.

When this was raised, as an issue, by senior counsel, during submissions, I required the Plaintiff to be recalled, and she said (Tcpt, 29 March 2023, p 429(25-50)- 430(1-48)):

The Defendant’s costs, calculated on the indemnity basis, of the Probate proceedings, were estimated to be $350,000. The Defendant stated that on 30 January 2023, she had borrowed approximately $99,734.11 from FSSA to fund the litigation. She will have to repay FSSA in due course.

By the conclusion of the hearing, the parties agreed that whatever the result of the proceedings, the costs of each party, as estimated, should be paid out of the estate of the deceased and that the Court, before costs are referred for assessment, should make a gross sum costs order under s 98(4) of the Civil Procedure Act 2005 (NSW): Tcpt, 29 March 2023, p 412(25-46).

(There is no doubt that the Court may make a gross sum costs order. Such an order may be made when the Court considers that it can be done fairly between the parties and when it has sufficient confidence in arriving at an appropriate amount on the available materials. The specified gross sum can be fixed by a “broad brush” approach: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [22]. Also see Hamod v New South Wales and Anor [2011] NSWCA 375 at [813]-[820]; Wilkie v Brown [2016] NSWCA 128 at [50]-[51]).)

Having reviewed the evidence, I am satisfied that a gross sum costs order should be made. Amongst other things, it will avoid argument about what costs should be paid, and by whom, and the delay, expense and aggravation involved in a protracted assessment of those costs.

Thus, the Plaintiff should receive a gross lump sum costs order of $165,000, and the Defendant should receive a gross sum costs order of $350,000: Tcpt, 28 March 2023, p 319(4-32). Counsel for the Plaintiff agreed: Tcpt, 29 March 2023, p 412(42-46).

On current estimates, the gross value of the estate, available for distribution, excluding the parties’ costs was $4,201,597. Deducting the total costs ($515,000), the amount that is estimated to be available out of which an order for provision may be made will be $3,686,597: Tcpt, 29 March 2023, p 443(30-34). It is a reasonably large estate.

The evidence relied upon consisted of many affidavits, the oral evidence of the witnesses (who I will identify), and, as stated, a vast number of documents which formed exhibits to the affidavits, or that were otherwise tendered at the hearing. It is obviously impracticable to set out the contents of the affidavits, the documents, or the cross-examination in full.

The Plaintiff relied upon her own evidence and the evidence of six witnesses. Although there was an initial suggestion that she needed to give evidence through an interpreter, in fact, the use of an interpreter was only permitted when it was necessary because the Plaintiff requested assistance when she did not understand the question.

(In raising the issue at the commencement of the hearing, the Court did not forget that a person whose first language is not English has a right to an interpreter, which is an important right and is critical to ensuring a fair trial. However, s 30 of the Evidence Act 1995 (NSW) provides that a “witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact”.)

Bearing in mind the form and contents of the Plaintiff’s affidavit, and other evidence in the case to which reference will be made, I was not satisfied that the conditions for entitlement to an interpreter had been met. The Plaintiff, in fact, gave oral evidence that she could speak English, that she could understand English, although she was not really confident. She also gave evidence that she could read documents in English, although her conversations with her solicitor were mainly in the Korean language: Tcpt, 21 March 2023, p 60(4-50). Nothing that I observed, subsequently, caused me to have any concern about the Plaintiff’s ability to understand the questions or to communicate her responses to the Court.)

However, without objection, on occasions, during her cross-examination, it was necessary to allow the use of the interpreter to ensure that she fully understood the question and was able to articulate the response to it.

Joo Hwa Shin is the sister of the Plaintiff. She met the deceased in 2007 as the Plaintiff’s “boyfriend”. On occasions, during her cross-examination, it was necessary to allow the use of the interpreter to ensure that she fully understood the question and was able to articulate the response to it.

Edward Kim is a close friend of the Plaintiff. They met online in late 2004 as language exchange partners, then met in person in January 2005. He met the deceased in April 2007 via the Plaintiff.

Daniela Mallozi was a flatmate of the deceased for a one-month period in 2003 and became close friends with him. She stayed in the deceased’s apartment for two weeks in February 2013. They kept in touch, albeit intermittently. It was clear from her oral evidence that she held a deep, platonic, affection, for him.

Hyesun Baek is a friend of the Plaintiff. They met, in 2010, at a Business College and were classmates. From August to October 2014, Ms Baek and her husband stayed with the Plaintiff and Ms Shin, at a rented unit in Maroubra.

Jong-Suk Lee, of Joun Lawyers, is the Plaintiff’s solicitor. He met the Plaintiff in his professional capacity, in September 2020, when she was intending to file an application for administration of the deceased’s estate.

Jana Dobrichovska was a friend of the deceased, who had been close friends with her ex-partner. She lived in Sydney from October 2014 until June 2016 and met the Plaintiff through the deceased in 2015. Currently, she resides in the Czech Republic. She wrote that she was ‘not that close’ with the Plaintiff. She was not required for cross-examination.

The Defendant relied upon her own evidence and the evidence of eleven witnesses. She is an older sister of the deceased. She considered him to be her very close friend and she gave evidence that they had conversations in relation to personal and business matters. These conversations included discussions as to whether the deceased was in a relationship, and his intentions of marriage. She is the director and secretary of CBS, and CPMS. Additionally, she is the director, secretary, and sole shareholder of FSSA. She operated these businesses together with the deceased as business partners from in or about November 2012 to 16 July 2020.

Li Yang is a close friend of the deceased. She met the deceased in late 2011 when she first moved into the apartment complex. She was cross-examined relatively briefly by counsel for the Plaintiff.

Mohammad Abdelghany was also a close friend of the deceased. He met the deceased in about late 2012, or early 2013, and they formed a business relationship. Later, this became a friendship as well. From 2016 onwards, he would see the deceased almost every week and visited Unit 215 frequently. He was cross-examined by counsel for the Plaintiff.

Lesley Ann Strydom was in a romantic and intimate relationship with the deceased from about 1999 to 2003. After the relationship ended, she remained as friends with the deceased up until his death.

Morsal Zara Taj is a close friend of the deceased, who stayed in the deceased’s apartment from August 2018 to January 2019. She currently lives in Canada. She was cross-examined remotely.

Sain Zaheer is the nephew of the deceased and the Defendant. He was cross-examined quite extensively.

Brian Edwin Swayn is a friend of the deceased and had been his accountant and tax adviser since 2009. He met the deceased in 2002, when he commenced working at the apartment complex and they became friends.

Naser Zaheer and Mohammad Nazir Zaheer are older brothers of the deceased. Fauzia Zaheer Sher is a sister of the deceased. Nasira Zaheer is the half-sister of the deceased. None of them were required for cross-examination.

Francis Caesar Devine, of Bay Legal, is one of the Defendant’s solicitors. He gave evidence only about formal matters and was not required for cross-examination.

The evidence about the nature of their relationship mostly came from the Plaintiff. Other witnesses were only able to give evidence about her, or his, role in the life of the Plaintiff and/or the deceased, her, or his, observations of the relationship between them, and what the deceased had said to him or her.

Some assessment of the reliability of the parties and the witnesses is required. Credit findings assume a greater significance in cases where one party to the asserted relationship is dead: see, for example, Indjic v Stojanovic [2020] NSWSC 470 at [90]-[97].

It is also the case that a de facto relationship means a relationship which exists in fact and that is established by determining what the parties to the alleged relationship are doing. Because the status of the relationship between the Plaintiff and the deceased derives over events spanning many years, its definition will depend on many facts and the perceptions of those involved in the relationship, and the perceptions of individuals who observed them. Such a case is particularly fact sensitive.

The Court is required to determine on the balance of probabilities, taking into account s 140(2) of the Evidence Act 1995 (NSW), which version of events is the more probable. It follows that credit findings may assume significance. The Court is required to determine, on the balance of probabilities, considering s 140(2) of the Evidence Act 1995 (NSW), whether the Plaintiff has proved the different elements of her case.

Additionally, the more reliable evidence is the undisputed objective evidence of the events that occurred; the context and sequence in which they took place; and the inferences, having regard to the probabilities, that follow from those events. Only then is it useful to have regard to the contentious assertions of each of the parties. Their evidence will be more, or less, probative, depending on the extent to which it is consistent with the inferences to be drawn from the objective facts, their sequence and context and the overall probabilities: State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3; Papas v Co [2018] NSWSC 1404 at [56]-[61]; Duong v Duong [2018] NSWSC 1696 at [5] (Pembroke J).

On some aspects, where there is dispute about the facts, a finding of innocent or mistaken belief, or recollection, or one or other party seeing the same thing in entirely different ways is quite possible.

There are some other principles to be remembered.

Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 wrote at [48]:

On the question whether I accept the evidence, I remember that in Thomas v The Times Book Co [1966] 2 All ER 241 at 244; [1966] 1 WLR 911 at 916, Plowman J stated:

(The Defendant in that case was in the position of the Plaintiff in this case, bearing the onus of proof.)

There is also the need for careful scrutiny to which evidence of conversations involving a person subsequently deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544 at 548-549; [1915] HCA 14 (Isaacs J). The deceased is not available, at the hearing, to directly confirm, or deny, the specific statements made by the witnesses.

Also, I remember what Bryson AJ wrote in Zahra v Francica [2009] NSWSC 1206 at [1]:

In assessing the evidence and making findings of fact, I also bear in mind what Hansen J wrote in Richardson v Armistead [2000] VSC 551 at [36]:

Whelan J in Webb v Ryan [2012] VSC 377 at [22], referred to the difficulties in assessing evidence, in such circumstances, stating:

Also see, Ashton v Pratt (No 2) [2012] NSWSC 3 at [18] (Brereton J).

I remember, also, that the process of litigation, itself, subjects the memories of witnesses to powerful biases: Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [19] (Leggatt J).

In Lachaux v Lachaux [2017] 4 WLR 57; [2017] EWHC 385 (Fam) at [36], citing Onassis and Calegoropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, it was noted by Mostyn J that:

I also refer to what McHugh J, as a member of the High Court, wrote in Longman v R (1989) 168 CLR 79 at 107; [1989] HCA 60 at [17]:

Experience dictates that greater weight is usually accorded to contemporaneous documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 at [157] (Kenneth Martin J); Evans v Braddock [2015] NSWSC 249 at [74]. This is not an admonition against placing any reliance at all on the recollections of witnesses. It simply “emphasises the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed”: Kogan v Martin [2019] EWCA Civ 1645 at [88] (Floyd LJ).

Evidence given against interest, or which is inherently probable, is more convincing: Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 at [467] (Kunc J).

I should also refer to an article by the former Chief Judge at Common Law, P McClellan, entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

These observations were described by Leeming JA, in Nominal Defendant v Smith [2015] NSWCA 339 at [82], as uncontroversial and “supported not merely by one’s ordinary experience but also by a body of psychological evidence”.

I have also had regard, amongst other things, to whether the evidence given is inherently plausible or implausible; whether it is evidence that is specific as to time and otherwise consistent; whether, in a material way, it is, or is not, conformable to other evidence in the case including the available contemporaneous documents; and whether it is contradicted by other evidence which is undisputed or indisputable. I have endeavoured to consider the evidence, not only in its context, but in the context of the total evidentiary mosaic. Common sense and ordinary experience in life is also applied.

It is important to repeat that in cases where there is a dispute about whether a de facto relationship exists, that “it is conceivable that two people intimately connected to each other in one way or another, can see the same thing in entirely different ways”: Smyth & Pappas [2011] FamCA 434 at [14] (Cronin J). In this regard, I should refer to a part of what was written by Windeyer J in Quijarro v Robson [2008] NSWSC 818 at [36], which I have found to be particularly apt to the present case:

Whilst an appeal from the decision of Windeyer J was successful (Robson v Quijarro [2009] NSWCA 365, Basten JA (with whom Ipp and McColl JJA agreed), wrote at [7]:

At [15], Basten JA repeated the statement made by Windeyer J, with apparent approval.

One particular aspect of the Plaintiff’s evidence, relating to her failure to fully and adequately disclose the income she had received, during and after the death of the deceased (from renting one, or more units to boarders), and its effect, should be mentioned. A similar issue was considered by the Court of Appeal in Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154, in which Meagher JA, with whom Gleeson and Leeming JJA agreed, wrote at [28]-[29], [65]:

Ultimately, I have endeavoured to reach conclusions on credibility and reliability “on the basis of contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118 at 129; [2003] HCA 22 at [31] (Gleeson CJ, Gummow and Kirby JJ).

A copy of some contemporaneous documents, and other documents that reveal context, were tendered. Many of the documents were in the form of text message communications. Bearing in mind the number, it is not possible to set out all of them.

In relation to some of the text messages, the Court should be a little cautious about placing too much emphasis on them as they may be communications that are spontaneous in nature and written in a highly emotional, and tense, atmosphere. (The Court has not amended the terms of the text but has quoted them as written. The substance of the communication, it seems, was made perfectly clear.)

Relevantly, the Plaintiff seems to have attached many of the text messages passing between her and the deceased, and following his death, her and the Defendant, which messages had been sent at the behest, or with the consent, of the Defendant. There was no suggestion made to her in cross-examination that she had chosen only those that were supportive of her case or that they were incomplete. To the contrary, some of the text messages to which reference will be made, clearly did not assist her.

In addition, there were copy income tax returns of each of the Plaintiff and the deceased in evidence. The Plaintiff’s tax returns were for the financial years ending 2013 to 2018, whilst the deceased’s tax returns, were for the financial years ending 2015 to 2019.

In each of the income tax returns, the boxes requiring a response to “Spouse’s details – married or de facto” and “Spouse’s CRN” ((Centrelink) Customer Reference Number) were left blank: Affidavit, Brian Edwin Swayn, 19 November 2021, Ex. BS-2015, Ex. BS-2016, Ex. BS-2017, Ex. BS-2018, Ex. BS-2019; Ex. D3.

There was no evidence that the Plaintiff had changed her address to either Unit 113, or Unit 215, on any documents, such as the income tax returns, or her driver’s licence, before the deceased’s death, although as stated, she stayed in each unit, with the deceased, and then returned to Unit 215 following his death.

In the Death Certificate of the deceased, the informant in respect of which was the Defendant, and which was dated 23 September 2020, the cause of death was revealed to be “multiple stab wounds”. The “Marital status” was completed as “Never married”.

In some Probate proceedings, problems face the Court because the protagonist, the will-maker, is dead. His, or her personality, state of mind, desires, and prejudices, relationships with family members, are all matters that the Court needs to examine, carefully, to come to a finding about the Probate dispute. With the deceased’s death, most of these matters can only be examined by way of second-hand, and often, partisan, evidence: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 at [51] (Poon J).

The deceased was described as a friendly, generous, man who would often go out of his way to help others. Indeed, Ms Mallozzi, a witness called in the Plaintiff’s case, who had known him from 2003, described him as “quite careful with his words, I think, quite a private man, a beautiful man…. dedicated to a faith … was a very practical man, very honest, loyal and practical … [who did not] just offer information. He was a very respectful private gentle person ... [and] always considerate of how your situation [was] … a generous soul”. She also described him as “a gentleman, kind, courteous, polite and respectful” and “a private man who hardly spoke about his personal affairs unless he was encouraged”: Affidavit, Daniela Mallozzi, 31 January 2022 at pars 11, 38. She considered that he “took his faith very seriously” and said, in cross-examination, that he was "dedicated" to his faith: Tcpt, 22 March 2023, p 177(24-26).

Ms Hwa, the Plaintiff’s sister, described the deceased as “consistent”, “caring” and “hard working”. She agreed that the deceased was a “very kind generous person” who helped others, particularly migrants, to succeed in the community. She also said that he was “not a character who [would] talk about his good kind stuff”.

Mr Kim, a long-time friend of the Plaintiff, who met the deceased through her, described him as “a man of few words. He wasn’t one to commence conversation. As I’ve also stated in my affidavit, we had interactions whereby it was exchanging pleasantries and on other occasions, more social occasions, we had conversations”. He also said that the deceased was “a sophisticated, mature and worldly person, emanating confidence.” In cross-examination, he added “very affable” to his description of the deceased and stated that they had also had conversations of substance on some occasions: Tcpt, 22 March 2023, p 188(1-2, 15-23).

The deceased’s nephew, Mr Zaheer, described the deceased as “kind”, “respectful”, “a devout Muslim” and someone “who wouldn’t have done anything to bring embarrassment onto his family”: Tcpt, 28 March 2023, p 357(48)-358(9). He also wrote that the deceased “lived a very busy lifestyle”. He gave evidence that he had personal, and intimate, discussions with the deceased and was “very open and candid” with him: Affidavit, Sain Zaheer, 23 November 2021 at par 36; Tcpt, 28 March 2023, p 358(15-44).

The deceased also appears to have been a frugal man, who amassed a substantial property portfolio over a relatively short period of time. Indeed, Ms Yang gave evidence which was in the following terms (Tcpt, 23 March 2023, p 229(16-19)):

Mr Swayn described him in this way (Tcpt, 29 March 2023, p 422(24-50)-423(1)):

The Defendant described the deceased as an outgoing and confident person and one who, if he wanted to get something done, he would have gotten it done. She accepted that he respected members of his family and that he would not do anything that would bring shame to the family. He had been brought up by a father who had clear views, including about attending Mosque each Friday, and about not living with anyone out of wedlock.

She also described the deceased as “not a devout Muslim … but as an open minded, balanced, and moderate religious man”. I do not accept her evidence that the deceased was not a devout Muslim as other evidence, including statements made, in a formal setting, by the deceased, to which I shall refer reveal the contrary.

There is one particular piece of documentary evidence, which the Plaintiff found in Unit 215 after the death of the deceased, that I have found extremely useful in providing information about the deceased (and also Ms Strydom). It is a written record of interview undertaken, separately, by each of them, with an officer from the Office of State Revenue in July 2008, concerning an investigation into the deceased’s First Home Owner Grant application for his acquisition of a property in Parramatta.

The deceased’s statement in answers to questions posed was the subject of a signed transcript (Affidavit, Doe Hwa Sheen, 25 January 2023 at Ex. P6 (pp 166, 167, 168, 169, 170, 171) and included:

In my view, what the deceased said in the interview, taken with other evidence that I have read and heard, provides greater insight into his views, and also details of his relationship with his family. It also explains, at least in part, his conduct in keeping his relationship with the Plaintiff a secret and, perhaps, why there are no documents, created, prior to his death, that reveal that he was in a relationship with the Plaintiff; why the deceased did not describe her as his next of kin; and why she is not, otherwise, referred to in documents completed by him: see, for example, in Ex. D12 (Hurstville Highpoint Medical Centre medical form completed by the deceased in 2019); Ex. D13 (incoming, and outgoing, passenger cards completed by the deceased in 2018, 2019 and 2020).

The view stated above, at least so far as the father of the deceased and the Defendant, is concerned, is supported by the description provided by the Defendant (Affidavit, Najia Hesan, 1 October 2021 at par 30):

It also provides some explanation because of Ms Strydom’s evidence, that she did tell the deceased that she was attending Islamic classes and that she had planned to convert to Islam. In such circumstances, that the deceased had not introduced her to his family, is significant.

I do not accept the Defendant’s assertion that her father would not have disapproved of the deceased’s relationship with the Plaintiff if he had been told about it, as the Defendant appeared to accept that the deceased may not have told her about the relationship because she may have revealed it to their father: Tcpt, 23 March 2023, p 210(35-42).

In addition, the Defendant said that had she been told that the deceased was sleeping with a woman to whom he was not married, she would have disapproved: Tcpt, 23 March 2023, p 238(43-44).

In considering all the evidence in this case, I have formed the view that the deceased compartmentalised his life, for a reasonably prolonged period, in this way, keeping his relationship with the Plaintiff a secret from others, and isolating her, from his family and his friends. He deliberately did so, keeping her, and them, separate from one another. He conducted separate groups of relationships, maintaining a barrier between them. He did so, in all probability, because he perceived that to do otherwise would bring disrespect to his family, or bring shame onto them, or to his community, of which he was a leader.

This conclusion explains, at least in part, his failure to discuss the Plaintiff with his family, although, as will be read, the Defendant appears to have had a suspicion that he was in a relationship. It also explains contradictions in the evidence from some of the witnesses.

Whilst all the circumstances must be considered, the most important witness, it seems to me, who could give evidence, in this case, about the existence of the relationship, is the Plaintiff. She gave evidence about the whole of the relationship, including what she and the deceased was each doing and saying.

I shall, under this heading, also discuss the Defendant’s evidence, so far as it relates to this topic. I shall, otherwise, discuss her evidence in relation to the Plaintiff’s claim for a family provision order.

The Plaintiff swore five affidavits in the proceedings: the first, an affidavit relating to domestic partnership sworn 27 July 2021, comprising 17 paragraphs, spanning 4 pages; the second, sworn 24 November 2021, comprising 280 paragraphs, spanning 50 pages; the third, sworn 7 February 2022, comprising 300 paragraphs, spanning 50 pages; the fourth, sworn 25 January 2023, comprising 34 paragraphs, spanning 8 pages; and the fifth, sworn 30 January 2023, comprising 25 paragraphs, spanning 5 pages. Some of the evidence that she gave in the affidavits was repetitive.

The Plaintiff was extensively cross-examined. That cross-examination, which was necessary, and which covered a range of elements of the relationship, in parts, would have been extremely painful for her to endure. She remained calm, and courteous, to senior counsel for the Defendant, and I am satisfied that she did her best to answer the questions asked of her. She made concessions when necessary and answered questions in a clear way. I found her to be somewhat unsophisticated but intelligent.

Before proceeding further, it is important to note one aspect of the Plaintiff’s evidence which I have mentioned. The Plaintiff is currently unemployed. Previously, she was a web novel writer, and had been working for the deceased since 2019. She said, however, this does not provide her with an income any longer: Tcpt, 22 March 2023, p 119(18-22). Whilst that may be true, the receipt of income, from different units that she had rented to boarders, both before, and after, the death of the deceased, is a relevant matter, and it should have been disclosed, in more detail than it was, earlier in her evidence in chief.

Yet, even on the topic of her failure to disclose, completely, to the Court, the income that she had received, she was responsive in cross‑examination, and made admissions against interest where necessary. She did not prevaricate about, or deny, the receipt of income and acknowledged that she had not told the complete truth about that income: Tcpt, 22 March 2023, p 161(3-12).

In the Plaintiff’s affidavits, she endeavoured to detail the conduct of each in relation to the other, the statements made by each of them relating to their relationship, and the conduct that was referable to the future. In broad summary, her evidence demonstrated a continuation of a common residence from about 2015, which, whilst not on a full-time basis, was on a regular part-time basis; a sexual relationship; and a very limited degree of financial inter-dependence. Even though the lives of each were busy they appeared to find time for each other. I found the Plaintiff to be a reliable historian.

She also gave unvarnished evidence of periods of disruption and disaffection, the last of which was shortly before the deceased’s death. She expressed her anger, particularly in relation to the deceased’s conduct, which seemed, to the Plaintiff, to be dismissive of her, whilst there was other conduct demonstrating a real affection between them. In relation to the third aspect, there were many conversations between them regarding plans for the future.

She revealed other aspects of conduct, including her expressed intention to end the relationship on two occasions. As will be read, I have concluded that the first reveals a temporary breakdown of the relationship, whilst the second demonstrated a permanent and future absence of commitment to a shared life. In relation to the second aspect, the evidence revealed statements, some of which were consistent with the end of the relationship.

In some respects, her evidence was corroborated by the statements made by the deceased in 2008. She acknowledged that the de facto relationship commenced in about 2015: Tcpt, 21 March 2023, p 89(50)-90(7). She described how she and the deceased lived their lives together and separately. She did not seek to overstate the nature of the relationship, or the emotions that she experienced, particularly in relation to some of the deceased’s conduct towards her.

Overall, I accept that she was endeavouring to tell the truth. Except as stated above, I found her to be an honest, sincere, straightforward, and reliable witness. I also found her to be a convincing witness. I accept, as accurate, the picture that she painted of her relationship with the deceased. Even though she has a personal interest in the outcome of these proceedings, her evidence more closely accords with the objective chronology of events and the documentary evidence that I have read.

Despite this view, for reasons to which I shall come, I am unable to accept her evidence that the relationship continued until immediately before the deceased's death.

The Plaintiff stated that she and the deceased were in a domestic relationship as de facto spouses, having cohabited for a continuous period of not less than two years prior to the death of the deceased. She stated that a relationship had commenced in January 2007 and had continued until his death 13.5 years later. He was her exclusive partner, and she believed she was also his exclusive partner. She had him listed as her emergency contact and next of kin: Affidavit, Doe Hwa Sheen, 7 February 2022; Ex. P2/343.

Her evidence was that she moved, with a roommate, into Unit 35 of the apartment complex in Pyrmont, where the deceased then worked as the building manager, in January 2007. Subsequently, she and the deceased commenced dating. At this time, the deceased lived in Unit 126 within the apartment complex, where the Plaintiff would sleep over after dates “more often than not”. She annexed various photographs and a video from 2007 depicting her with the deceased in his apartment: Affidavit, Doe Hwa Sheen, 7 February 2022 at P1/55-60.

As they lived on different floors of the apartment complex, the deceased gave the Plaintiff a master swipe key fob that allowed her to access all floors in the building. She recounted an instance where she had met the Defendant at the deceased’s apartment but had told the Defendant that she was there to see a flatmate of the deceased, as she was unsure about whether she should disclose her relationship to the deceased.

In June 2007, the Plaintiff returned to Korea to renew her visa, before coming back to Australia in August 2007. Indeed, the deceased collected her from the airport. It became the practice between them for one to drop off or pick up the other from the airport.

She stated that she had not intended to remain in Australia, but one of the reasons she decided to stay was her continuing relationship with the deceased. She gave evidence that whilst in Korea she told her mother of her relationship with “someone from Afghanistan”, but her mother did not like it and they never spoke about it again. Her mother did not know of the de facto relationship with the deceased: Tcpt, 22 March 2023, p 113(41-50)-114(2-7).

In July 2008, the Plaintiff and the deceased went on a two-week trip to Malaysia and Singapore together, to visit one of the Plaintiff’s high school classmates. The Plaintiff arranged their flights and the itinerary whilst the deceased paid for the flights and most of the meals.

From 2009 to 2011, the Plaintiff was employed at the Manor House Boutique Hotel, Sydney, as a night manager and resided onsite. She stated that the deceased visited her there 2 or 3 times a week as she was provided with a guest room near the front desk reception.

When her sister returned to Australia and moved in with her, the Plaintiff spent nights with the deceased at the deceased’s apartment, or in a vacant room at the hotel.

During this time, the Plaintiff was sending about $2,500 per month to her parents in Korea, to help them pay off their mortgage. She believed that the deceased was under the impression that these financial circumstances was another factor that prevented her from marrying him, but she stated this was “not the primary reason”: Affidavit, Doe Hwa Sheen, 24 November 2021 at pars 39-40.

In February 2010, the deceased resided in Unit 88. The Plaintiff recalled babysitting the Defendant’s twin boys in this unit in mid-2011, as she had spent the night with the deceased: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 43. In July 2010, the Plaintiff’s brother, Doyong Sheen, visited Australia and with the deceased they went, all together, to Glenworth Valley. Photographs confirm this event: P1/64-67.

The Defendant alleged that the deceased’s father lived with the deceased during the period of 2009 to 2014: Affidavit, Najia Hesan, 5 October 2021 at par 24. The Plaintiff denied that the deceased’s father was living with him during the period of 2009 to 2012. She said that the deceased had moved into Unit 88, which was a one-bedroom unit in late December 2009 or early January 2010.

From August 2011 to July 2015, the deceased and the Plaintiff went on several holidays, in Australia, together.

In June 2013, the Plaintiff moved out of the Manor House Hotel and into an apartment in Maroubra with her sister and their parents, who had come to Australia, whilst her father was recovering from cancer treatment. Then, the Plaintiff and the deceased did not see each other as often, as they were both endeavouring to keep their relationship a secret.

Following her parents’ return to Korea in 2014, the deceased insisted on seeing the Plaintiff immediately, and resumed regular visits to the Maroubra unit thereafter: Affidavit, Doe Hwa Sheen, 7 February 2022 at pars 74-75.

For a few months in 2014, the deceased was taking care of his father in Unit 113. The deceased and the Plaintiff used different units within the apartment complex to meet privately.

From 23 July 2015 to 8 December 2015, being the time at which the Plaintiff claims the de facto relationship commenced, the Plaintiff stayed at different times, but not all the time, with the deceased in Unit 113 of the apartment complex. She gave evidence that they slept in the same bed. The deceased had assisted her when she encountered issues with removalists during her move into Unit 113.

The Plaintiff stated that the only visitor she saw at this time was Jawid Jawid, the person who had killed the deceased.

Following this period, the Plaintiff lived with her sister in Unit 89 to take care of her. She claimed that she continued to spend 3-5 days a week with the deceased in Unit 113, keeping toiletries and clothing there. Towards the end of 2016, the Plaintiff primarily lived with the deceased in Unit 113 as she was often arguing with her sister. She claimed that she never saw any of the deceased’s relatives visit and did not witness the Defendant visiting the deceased once a fortnight: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 269.

Following the death of the pastor of the church to which the Plaintiff’s parents belonged in November 2015, the Plaintiff stated that the deceased’s marriage proposals became “incessant”. Though she promised to consider marriage in earnest, the deceased’s desire for her to convert continued to prevent her from accepting his marriage proposal.

The Plaintiff stated that in April 2017, following the deceased moving from Unit 113, where he had lived from late 2013, into Unit 215, which he had recently purchased, she spent 3 to 5 nights a week with him there, despite having her own apartment in the apartment complex. He did not spend nights at her apartment, as she had boarders living there. She explained that they had different social and business commitments, which each pursued on the other nights, but that they frequently dined out and took trips together and exchanged gifts as a reaffirmation of their commitment. She described them as a “well-established couple” who did not have to be in each other’s company all the time.

In 2018, the Plaintiff, with the deceased’s help, rented Unit 82 to use for her writing endeavours. She recalled that the deceased often complained that she did not give him enough attention when she started writing in earnest and would call her to dine with him in Unit 215.

The Plaintiff gave evidence that the deceased paid the maintenance costs of one or more of the Units which she sub-leased. By way of example, she pointed to an SMS message sent on 14 January 2020, when he paid for pest control of Unit 89: Ex. P1/216. She also said that by allowing her to sub-lease the units in which she did not live, she received a financial gain. She stated that he made cash transfers, of various amounts, between 3 April 2019 and 21 September 2019: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 220.

The Plaintiff also kept a cat named “Boja” in the deceased’s apartment. She had “adopted” Boja in October 2016, when she was living in Unit 89, but as she stayed overnight at Unit 113 with the deceased so often, she moved Boja to Unit 113 in about February 2017. Subsequently, Boja moved with the deceased to Unit 215: Affidavit, Doe Hwa Sheen, 24 November 2021 at pars 168-171. The Plaintiff and the deceased both purchased food and items for Boja, but the Plaintiff made the necessary appointments with the vet: (Ex. P2/363-368).

In contrast, the Defendant described the cat, which she believed was named “Bhojo”, as the deceased’s pet. She deposed to a conversation, in late 2017, or early 2018, in which the deceased had told her that he had been looking after the cat on behalf of some friends who had gone overseas, but that the cat seemed to like him and stayed with him after the friends returned: Affidavit, Najia Hesan, 1 October 2021 at pars 37-38. On this topic, I prefer the Plaintiff’s evidence. It was a small, but important, matter that gives colour to her evidence about the relationship.

The pressure to marry increased as they grew older, and the Plaintiff recounted a conversation in 2018 where the deceased expressed concerns that if the Plaintiff decided she wanted to have children, she might no longer be biologically capable. She indicated to him that she would think about it more seriously upon turning 40.

The Plaintiff also recalled a conversation around this time where the deceased told her she would not have to convert if they married after she turned 40, but that she would have to wear a hijab during public functions and family events. She agreed to this. She considered marriage without conversion an “impossibility”, as she did not believe the deceased would be happy if that were to occur.

In the circumstances, the Plaintiff and the deceased did not have the care and support of children.

Though they only formally lived together, at various times, in the same residence from about 2015, the Plaintiff stated that she had shared the same residence with the deceased throughout their relationship, spending three to five nights a week with the deceased. (She gave evidence that she had lived with him for five months between July and December 2015: Tcpt, 21 March 2023, p 92(40-50)-93(1-6)).

The deceased would often message her “inviting” her to come over, but the Plaintiff claimed this was his method of telling her that he had finished preparing dinner. In cross-examination, she gave the following evidence (Tcpt, 22 March 2023, p 120(1-5)):

The Plaintiff gave evidence of their daily lives together. For example, the deceased did most of the cleaning, household chores, and cooking, whilst the Plaintiff would usually prepare dessert and did the ironing.

They would go for drives on the weekend. She observed that the deceased would take his prayer mat in the car and stop driving during trips to pray. They also went on holidays together, including a car trip to Brisbane in May 2016 with the deceased’s friend, Hashem Hassanzadeh, and his then-girlfriend, Ms Dobrichovska, who swore an affidavit as a witness for the Plaintiff. Exhibited were photographs depicting trips and events which they had attended together: Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P2/328-342.

The Plaintiff stated that she had “always listed [the deceased] as [her] emergency contact/next of kin”: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 203. Exhibit P2/343, which is a copy of a letter from Pyrmont Doctors, the Plaintiff's treating doctors, dated 10 September 2021, stated:

The Plaintiff stated that she was, at least partially, dependent on the deceased. She asserted that whilst he was alive, she only received income derived directly, or indirectly, through him. He had, periodically, provided her with cash for groceries and for her personal needs, and provided her with an irregular income stream by employing her in his strata management company. With his assistance, she had also obtained income from subleasing units at Pyrmont.

For many years during the relationship, the Plaintiff had been sub-leasing Unit 144, making a profit of about $600 per week. She stated this was only possible because the deceased was the building manager. At the time of his death, she was subleasing Unit 144, Unit 89, and one spare room in Unit 82. The deceased paid for maintenance on all these units. The leases on Units 144 and 89 expired in August 2020, and the lease on Unit 82 expired in January 2021.

With the deceased’s urging, she had resigned from her job at the Manor Hotel, where she had earned $1,420 per fortnight, as he told her the responsibilities, working with him, would be lighter, and, therefore, that she would have time to work on her writing.

The deceased would usually tell her the day before or the morning on the day he wanted her to work. She did not sign a contract and did not believe she was paid superannuation. As she was initially paid wages by direct transfer, she believed that she was an official employee, but was unsure of the exact identity of her employer: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 209.

Further, the Plaintiff assisted the deceased in advertising for flatmates to board in his own units. She stated that the deceased preferred female flatmates. From February 2019, the Plaintiff also worked for the deceased at the apartment complex, which she claimed resulted in the “financial boundaries between [them becoming] more blurred”. They endeavoured to maintain a separation of their work, and personal, lives. Bearing in mind the description of the deceased stated earlier, it was understandable if, in the course of their work life, both sought to present an appearance of distance from the other which did not entirely reflect their domestic relationship.

From March 2019 onwards, the deceased began paying the Plaintiff in cash, which she stated was for the purposes of covering living expenses for both. The deceased also often asked her to make business purchases with her personal money, and no repayment was expected: Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P2/356-357; Ex. P3/9, 191-192, 195, 245.

The Plaintiff and the deceased maintained separate bank accounts. It was not suggested that there was a financial, or property, inter-relationship. Indeed, there is no evidence of any intermixing of money or assets. The properties that he had purchased were all registered in his sole name, and she was not a director, or a shareholder, in any of the companies. There is no evidence of joint bank accounts.

There was no dispute that a sexual relationship existed between the Plaintiff and the deceased: Tcpt, 28 March 2023, pp 377(2-11), 393(29-31), 397(21-23).

She described the sexual aspects of their relationship which are not necessary to repeat. Exhibited were Viber messages of a sexual nature exchanged between them, which are also unnecessary to detail: Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P3. The Plaintiff acknowledged that they slept apart during Ramadan. The Plaintiff was certain that the deceased loved her and that he was faithful to her.

The Plaintiff gave evidence of them being uncertain over the prospects of marriage. Neither wished to have children outside of wedlock, though she stated that they had vowed to “live [their] lives out as lovers” if they did not get married: Affidavit, Doe Hwa Sheen, 27 July 2021 at pars 11, 159. However, she acknowledged that the deceased's viewpoint could be summarised as:

Another matter of concern to them related to her chronic back pain, said to have been caused by a congenital birth defect of her hips, which led to rapid degeneration of her spinal discs. She exhibited a letter from her treating chiropractor as evidence of this condition: Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P1/311-312. As a result, she feared pregnancy and childbirth.

Yet, the deceased told her that if she did not wish to have a child because of her health, they could adopt. She was not open to doing this and they had discussed having her eggs frozen. The Plaintiff said that she did not press the topic as she believed the deceased would not accept this option for religious reasons.

Thus, during the period of their relationship, they were not involved in raising a family, and neither had a child from any prior relationship.

There are photographs of the deceased and the Plaintiff together and separately, and countless text messages passing between them (Ex. P1). The nature and character of the communication, not only its volume, between the parties indicates a close relationship between them, although many of the messages are work-related. More was established than that they were two people in a casual, and sporadic, romantic relationship, friendship, and employer/employee, relationship.

I am satisfied that during the time that they knew each other, they interacted with one another frequently in a variety of settings, including employment, sexual, social, financial, and domestic, ones. In my view, there was genuine affection between the Plaintiff and the deceased and each did things to assist the other.

There is no evidence that either sought, or found, emotional succour and sexual gratification, elsewhere. Whilst there is evidence from several witnesses, particularly the Defendant, of the encouragement given to the deceased to meet, and commence a relationship with, different women, there is very little evidence of him taking up the opportunity, in any meaningful way, to do so. I shall return to the evidence on this topic later in these reasons.

Yet, as will be read, there was very much left said, and unsaid, particularly between the deceased and members of his family, and his friends. In addition, there were some ambiguities and contradictions in the relationship revealed, particularly in the failure by each of them to disclose the relationship to close friends or family members. The Plaintiff explained, and I accept, that their relationship was kept secret for cultural and religious reasons.

The Plaintiff acknowledged that during the relationship, she had not used the term de facto relationship, as she was not aware of the term, to describe her relationship with the deceased, and that neither she nor the deceased had referred to the other as husband or wife respectively (except on one occasion when the deceased did so as a joke: Tcpt, 21 March 2023, p 90(45-50)-91(1-13)).

The Plaintiff stated that the deceased insisted on keeping their relationship a secret from his family, as he was a devout Muslim, and she was not. She qualified this description, stating that his approach to religion was “devout… but sometimes [he] made compromises for social activities and lifestyle.”

Due to his prominent presence and reputation within the Afghani community, she was unable to attend social functions with him. The deceased participated in many Afghani community activities and hosted an Afghani radio show from 2013-2016.

Another reason they did not publicly disclose their relationship was because the deceased was the building manager at the apartment complex where the Plaintiff was sub-leasing units, and she was concerned that the deceased would face consequences for allowing her to earn a profit. She stated that only some acquaintances and friends knew of their relationship.

However, she recalled an occasion, in 2016, where she met Mr Zaheer, who was, then, living in the second bedroom of Unit 113 during his university vacation. She had been secretly visiting the deceased’s apartment at night, to avoid discovery by Mr Zaheer. On this night, she had entered the deceased’s bedroom and encountered him sitting on the deceased’s bed. The deceased reassured her that Mr Zaheer would not speak to his family about their relationship.

There was no dispute by Mr Zaheer about this event. He gave evidence that the first time he had spoken to the Plaintiff was when he was waiting for the deceased, while sitting on the bed in the deceased’s bedroom. He also stated that in the following days, the deceased had questioned him whether he had seen the Plaintiff come over: Affidavit, Sain Zaheer, 23 November 2021 at par 28.

The Plaintiff suspected that the Defendant knew something of her long-term relationship with the deceased: Affidavit, Doe Hwa Sheen, 25 November 2021 at par 128. There is some support for her suspicion. I shall return to some text messages when I deal with the topic of the events following the death of the deceased.

I have already stated, the somewhat different reasons, the Plaintiff did not wish to tell her parents about the deceased. I accept her evidence.

Other than the cat, Boja, the deceased and the Plaintiff shared a red Peugeot car, which was registered in the Plaintiff’s name. The deceased was an insured driver on the insurance documents for this car: Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P2/382-391.

There was evidence that each in her, or his, own way, the Plaintiff, and the deceased, at least until early July 2020, exhibited a degree of mutual commitment to a shared life.

The following conversation, was said to have occurred in 2018 (Affidavit, Doe Hwa Sheen, 7 February 2022 at par 107):

(The significance of the Plaintiff’s 40th birthday may be gleaned from this conversation and the failure of the deceased to remember this significant event explains what subsequently occurred.)

In cross-examination, the Plaintiff gave the following evidence about the relationship (Tcpt, 22 March 2023, p 106(16-35)):

She also described the relationship as “not like the simple relationship. It's very complicated. It's, it's a mixed, many things”: Tcpt, 22 March 2023, p 112(47-48). She also described it as unorthodox.

She acknowledged also that the “problems” that existed between them (religion, marriage, and children) persisted throughout the relationship and led to differences of opinion between them which were not resolved by compromise. However, she maintained that it was a de facto relationship. She pointed to the fact that on several occasions, the deceased had said to her:

The Plaintiff also said (Tcpt, 22 March 2023, p 111(38-43)):

There were text messages on 8 November 2019 from the Plaintiff to the deceased telling him that her father was in a critical condition and that she might have to go back to Korea for 3 weeks. The deceased’s response was “Hope he gets better do not worry about work you can go anytime Good night x”: Ex. P3/170. Subsequent messages show them corresponding about the father’s state of health and includes a message from the deceased writing “Please let me know if you need anything”: Ex. P3/172.

The Plaintiff gave evidence that after her father died in about mid-November 2019, and whilst she was in Korea, she had asked the deceased to collect shells from Maroubra Beach to send to her. It appears that despite Maroubra Beach being a place that held painful memories for the deceased (because a member of his family had drowned there), he still collected the shells and sent them to the Plaintiff by express post, which she received on 3 December 2019: Ex. P3/185.

Additionally, he provided her with emotional support, by sending text messages, such as the following (Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P3/171-172):

Similarly, when his father died in 2020, in the United States, and the deceased could not attend the funeral, because of Covid restrictions, the Plaintiff consoled him as he showed her photographs of the funeral.

She also gave evidence that when they were not together, she would pursue her freelance writing and he would be able “to devote his time in prayer and … pursue his busy social and business commitments”. There was evidence that the deceased gave considerable encouragement and support to the Plaintiff’s pursuit of a career in writing: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 104. He said to the Plaintiff that the workload at Balmain would be easier to manage compared to the Hotel at Darlinghurst, and therefore she would have more free time to write: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 212.

There was evidence that, on occasions, the deceased assisted the Plaintiff when she was sick on some occasions: Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P1/185-188. The following conversation is said to have occurred on 25 September 2019 (Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P1/143-144):

She also gave evidence that, at other times, when she had been unable to get out of bed, due to her chronic disc pain, the deceased would carry her on his back to the car, and to the chiropractor: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 167. However, she also acknowledged that in January 2020, he was inconsiderate and callous to her back pain: Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P3/227-230.

There was also evidence that the deceased lent his support to the Plaintiff’s extended family, namely going to her sister’s café almost every day to purchase banana bread and coffee. In addition, he purchased the signage for the café without seeking recompense: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 224.

Additionally, the deceased assisted Ms Shin with getting her security bond back after she sold the café and assigned the lease, and helped organise the café’s plumbing: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 225; Ex. P3/77-79, 95-96.

On 25 September 2020, the Plaintiff made a statement to NSW Police, describing her and the deceased to be in a “romantic relationship as boyfriend and girlfriend”: Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P1/290. She asserted that at the time of the deceased’s death, they had been together in a relationship for thirteen years and six months: Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P1/291.

I turn next to the Defendant’s evidence on the topic of the relationship.

The Defendant swore six affidavits in the proceedings: the first, filed on 16 August 2021, spanning 8 pages, comprising 42 paragraphs, with ten annexures; the second, filed on 5 October 2021, spanning 37 pages, comprising 155 paragraphs, with one annexure; the third, filed on 23 November 2021, spanning 7 pages, comprising 26 paragraphs; the fourth, filed on 29 May 2022, spanning 4 pages, comprising 17 paragraphs; the fifth, filed on 30 January 2023, spanning 3 pages, comprising 14 paragraphs; and the sixth, filed on 23 March 2023, spanning 4 pages, comprising 13 paragraphs, with three annexures.

During the time she worked with the deceased, the Defendant was aware that the Plaintiff was the only female employee. She recalled the deceased stating to her that “one of the employees at Balmain is leaving on short notice.” However, she stated that he did not specify the employee’s name or give any indications that he was in any personal relationship with this employee. The Defendant believed that the deceased was referring to the Plaintiff as the employee.

The Defendant recalled meeting the Plaintiff for the first time, briefly in about June 2020. She only knew her then as the “Balmain assistant building manager”. In cross-examination, the Defendant said that she had known of the Plaintiff as the assistant building manager in around 2018 or 2019: Tcpt, 23 March 2023, p 234(43-45). In this meeting, she also learned that the deceased had asked the Plaintiff if she had wanted to work as an assistant building manager.

The Defendant recounted that the deceased had informed her that the Balmain assistant building manager would be dropping off a vacuum to her office in Hurstville. Otherwise, the Defendant denied having any knowledge of the Plaintiff being in any other form of relationship with the deceased.

From 2014 to 2020, the Defendant visited the deceased at his apartment approximately once a fortnight. She said that during these visits, she had never observed anything that would indicate someone was living with the deceased on a permanent basis. She also noticed that the deceased’s apartment was devoid of furniture, ingredients, and cutlery.

The Defendant gave evidence that during the entirety of the time that the deceased lived in Unit 215, she had never seen anything in his bedroom that would suggest that a woman lived with him. Nor had she observed “any shoes, clothing, jewellery or other belongings that might be owned by a female”. She said that the deceased’s apartment was always very sparsely furnished. (I shall return to some evidence which would suggest that, following the death of the deceased, some of the Plaintiff’s items were in Unit 215.)

The Defendant stated that the deceased had never mentioned he was in a relationship with the Plaintiff. Indeed, she stated that he had never said anything to her that would suggest he was living with any woman.

The Defendant gave evidence that she was aware that the deceased was in a serious and romantic relationship with Ms Strydom between about 2000 to 2004. She recalled that there were discussions between herself, the deceased and their father, Mohammad Hussain Zaheer, of the deceased’s intention to marry Ms Strydom. The Defendant states that the deceased had told her several times of his intention to marry Ms Strydom. As will be read, this evidence seems inconsistent with what is recorded in the statements made by the deceased, to which I have referred, and the statement of Ms Strydom to which I shall refer.

The Defendant is also aware that Ms Strydom remained in contact with the deceased after their relationship ended in or about 2004.

The Defendant recalled that there were seven women (Azita, Meria, Hassina, Herat, Sunya, Mursal, and Wafa) who the Defendant had talked about as being interested in, even suggesting that he might consider proposing marriage. However, no marriage proposals eventuated. Indeed, the Defendant stated that despite all the attempts made to introduce the deceased to other women, she was unaware of any woman with whom he had a romantic relationship, other than Ms Strydom: Tcpt, 23 March 2023, p 248(33-49). As earlier stated, none of them was called as a witness by the Defendant.

The Defendant recounted that in early 2020, she had observed an email from a dating site called ‘Muslims for Marriage’, on the deceased’s mobile phone. However, no copy of the email was produced.

I accept that the Defendant was not told, expressly, by the deceased that he was in a relationship with the Plaintiff. I also accept that she and the deceased discussed meeting other women, particularly Muslim women. I shall return to aspects of the evidence that suggest she might have suspected that the deceased may have been in a relationship with someone, even if, before his death, she did not know that the relationship was with the Plaintiff.

I shall next deal with the witnesses called by the parties. First, I shall deal with the Plaintiff’s witnesses. I note that the evidence of the supporting witnesses is limited.

One of the few other people who was able to give evidence about the relationship between the Plaintiff and the deceased, was her sister, Joo Hwa Shin. She affirmed two affidavits in the proceedings: the first, on 25 October 2021, comprising 50 paragraphs, spanning 6 pages; and the second, on 6 February 2022, comprising 56 paragraphs, spanning 10 pages. She was cross-examined.

Having read her evidence and seen her cross-examined, I am satisfied that she, also was endeavouring to portray an undiluted picture of the relationship between the Plaintiff and the deceased. I accept her evidence.

When she first met the deceased in April 2007, she did not approve of the relationship between him and the Plaintiff. She noted that he was frequently absent from her life for weeks, and that the Plaintiff often went to meet him on very short notice. She disliked his busy schedule. However, she said that the Plaintiff assured her that he “treated her like a queen”.

When Ms Shin returned to Korea in 2007, the Plaintiff reassured her that the deceased would take care of everything. This included arranging all documents and organising a removalist for Ms Shin’s belongings.

Over the years, when she lived with the Plaintiff, she had observed that the number of nights on which the Plaintiff did not return home increased, and that the Plaintiff and the deceased were “sharing their lives and space in his apartment”, as distinct from making time to see each other.

During cross-examination, she was asked about the statement made in her affidavit, that “I saw as the years went by, the number of nights my sister did not come home, become more regular”. She confirmed that “home” referred to the hotel where the Plaintiff was working as a night manager, as Ms Shin was cohabiting with the Plaintiff there at the time: Tcpt, 22 March 2023, pp 169(45)-170(6).

She described the deceased as “part of [the Plaintiff’s] life in every way”. Her opinion of the deceased gradually changed for the better, although she noted that he was still very busy and would forget the Plaintiff’s birthday. She acknowledged that she thought the deceased was taking the Plaintiff for granted.

She and her partner would socialise “a lot” with the deceased and the Plaintiff, “going to restaurants, driving and that sort of thing”: Tcpt, 22 March 2023, p 173(1-9).

She confirmed that she did not go to Unit 215 until a few months after the death of the deceased. She attended with the Plaintiff, the Defendant and Nasira: Tcpt, 22 March 2023, p 171(22-30).

Ms Shin gave evidence that the deceased would help her as well as the Plaintiff. On several occasions, he assisted her with car troubles such as lost car keys and a flat battery. He would drive her to, and from, the airport, as she regularly travelled between Korea and Australia.

Furthermore, in 2018, the deceased provided significant support for her café business. He helped her with renovation, including paying for new signage, which she recalled involved quotes for thousands of dollars. He ordered coffee, banana bread, and salad from the café about once a week. On three occasions, he organised and paid for plumbing. When she sold the business, he assisted her in recouping her deposit: Affidavit, Joo Hwa Shin, 6 February 2022 at pars 13-22.

She felt at ease returning to Korea and leaving the Plaintiff in Australia, as she believed that the deceased took good care of the Plaintiff. Similarly, she also believed that the Plaintiff was loving, caring, and supportive towards the deceased, and that the Plaintiff had remained by his side through his life.

On some occasions, the deceased, the Plaintiff, Ms Shin, and Ms Shin’s partner had meals together. The deceased was observed to be caring towards the Plaintiff’s family and friends who were visiting from Korea. She also noted that the Plaintiff would occasionally bring her food from the deceased.

She indicated that she was aware of the relationship issues that the deceased and the Plaintiff faced, regarding religion, marriage, and having children, but she did not bring up the subject with the deceased. She thought of the deceased as “the big problem solver” and the Plaintiff as “[doing] the trifles” in their relationship.

Ms Shin knew that the deceased gave the Plaintiff a red Peugeot, though both he and she used the car, and also that he had allowed her free use of his company car, a Honda CRV. Cross-examination clarified the source of her knowledge being that the deceased had told her he paid for the Peugeot for the Plaintiff. The Peugeot was registered in the Plaintiff’s name.

Ms Shin was in Korea when she received the news of the deceased’s death in a telephone call from the Plaintiff on 16 July 2020. She described the Plaintiff as “screaming”, “raving”, and “unable to calm down”. However, due to COVID-19 travel restrictions, she could not fly back to Australia until 16 August 2020. Upon meeting her sister again, she described her as “very gaunt”.

In cross-examination, Ms Shin acknowledged that her partner had occasionally expressed concerns about the religious issues in the relationship between the deceased and the Plaintiff. She stated that, as an Indonesian, he understood Muslims to “have a strong faith that they need to marry Muslims.” However, she did not agree that he meant the relationship could not be long term, only that he was “concerned because of this religious issue”: Tcpt, 22 March 2023, p 171(4-16).

She also stated that she did not visit Unit 215 until several months after the deceased’s death and conceded that she “[didn't] know what was going on”: Tcpt, 22 March 2023, p 170(22-33). She moved into Unit 215 in January or February 2021 and has remained living there with the Plaintiff and two other friends. (None currently pay any board, or occupation fee, to the Plaintiff, and are there, principally, to look after her. In the past, however, Ms Shin had paid “management costs” of “a few thousand dollars” to assist the Plaintiff with strata levies on Unit 215: Tcpt, 22 March 2023, p 172(20-40).)

Ms Mallozzi affirmed one affidavit on 31 January 2022, comprising 46 paragraphs, spanning 6 pages.

I am satisfied that she also was endeavouring to give the Court her best recollection of the events and that I should accept her evidence.

Ms Mallozzi had met the deceased in March 2003, when she moved from the United Kingdom to Sydney and had stayed at the apartment complex for a month. She and the deceased became occasional flatmates and close friends. She witnessed him praying at least three times and noted that he left company to pray on multiple occasions.

By occupation, Ms Mallozzi is a muscle corrective specialist and life coach. From 2015 to 2020, she assisted the deceased with a back injury several times a year.

Ms Mallozzi denied living with the deceased in 2011 or 2012, as she was not in Australia at the time. She also denied having a romantic relationship with him, as the Defendant had asserted.

Whilst there may have been some confusion about the dates, cross-examination confirmed that in 2013, Ms Mallozzi stayed in the deceased’s apartment for two weeks, although she did not recall the unit number: Tcpt, 22 March 2023, p 182(1-13). The deceased had invited her to stay for four to six weeks, but she found accommodation elsewhere: Tcpt, 22 March 2023, p 182(31-49). In 2015, there were discussions about Ms Mallozzi staying with him again, but this did not eventuate. She remembered it had two bedrooms, with the other shared by a Columbian couple. She did not see any elderly gentleman in the unit while she was there.

The deceased messaged Ms Mallozzi every year to wish her a happy birthday and, if she told him she was coming to Australia, he would invite her to stay at his apartment if she needed accommodation. She stated that this invitation extended to her friends from the UK as well. On 17 June 2015, he had emailed her one such offer, but she did not take him up on it: Ex. D10.

When Ms Mallozzi had asked the deceased if he was in a relationship with anyone, he told her that he was not officially, but that he spent his time with the Plaintiff. However, she stated that in about 2015 or 2016, in response to her question, he told her that he was living with the Plaintiff, who he described to her as “a lovely kind girl” Tcpt. 22 March 2023, pp 177(45)-178(2). Shortly before his death, the deceased and Ms Mallozzi had discussed her being introduced to the Plaintiff, but that had not occurred before he was killed.

In cross-examination, she stated that the deceased had referred to the Plaintiff in conversation several times, since 2015, and that he “spoke extremely highly of her”. Further, she recalled that they had discussed the religious differences that caused the deceased and the Plaintiff to be unable to marry, but she believed that the deceased did not have any relationships with other women, from 2003 until his death. She said that he often helped people in need, including herself, but not in a romantic way.

She also said that the deceased had told her that “because of the religious differences, whatever they were, marriage was not on the horizon”.

Mr Kim affirmed one affidavit in the proceedings on 12 January 2022, comprising 51 paragraphs, spanning 10 pages. He was briefly cross-examined.

I am satisfied that he also was endeavouring to give the Court her best recollection of the events and that I should accept her evidence.

As an Australian-born Korean, he sought to improve his Korean skills by finding a language exchange partner, and, in late 2004, had met the Plaintiff, online, for this purpose. They met in person in January 2005 shortly after the Plaintiff arrived in Sydney. Over the next five years, they became close friends, and the Plaintiff introduced him to her friends and family in Sydney.

In 2007, the Plaintiff told Mr Kim that she was seeing someone named “Bashir”. Mr Kim met the deceased several months later.

In September 2009, Mr Kim began working for a friend as a company director and asset caretaker at The Manor House Boutique Hotel. He offered the Plaintiff employment, which offer she accepted, and for four years thereafter, until November 2013, she lived onsite as a night manager. In 2010, the Plaintiff became a duty manager. In 2011, Mr Kim arranged for the Plaintiff to be sponsored under the 457 skilled visa scheme, following which she became a General Manager, until December 2018.

Mr Kim observed that the deceased visited the hotel at least once a month on the Plaintiff’s rostered days off work. The deceased often picked her up and dropped her off between 2009 and 2013, as during this time, Ms Shin lived with the Plaintiff onsite and could act as night manager in her place, allowing the Plaintiff to stay out overnight. The Plaintiff typically returned to the hotel between 8:30 to 10:30 a.m., confirming in conversation with Mr Kim that she had been with the deceased.

Mr Kim also witnessed the deceased visiting the Plaintiff late at night at the hotel. He recalled an occasion when he knocked on the Plaintiff’s door and found the deceased lying in bed behind her.

Mr Kim also spent time with them while eating at the hotel atrium, and saw the deceased attend the Plaintiff’s birthday celebrations at the hotel.

Mr Kim gave evidence that he and the Plaintiff discussed inter-racial and cross-cultural relationships in Australian society on many occasions. He was aware of the religious and cultural difficulties between the deceased and the Plaintiff, such as the fact that she was unable to meet the deceased’s family or attend Afghani community events, as their relationship was a secret. He stated that it was “obvious” that the Plaintiff felt “a little sad” that she was excluded from these parts of the deceased’s life, but that she accepted it: Affidavit, Edward Kim, 12 January 2022 at par 24. In cross-examination, he denied that cultural differences caused significant friction in the relationship, conceding only that there were “some cultural barriers”: Tcpt, 22 March 2023, p 189(17-24).

In 2012, Mr Kim asked after the Plaintiff’s long-term plans for her relationship with the deceased, as he was concerned about the sustainability of a secret relationship. She stated that there was “no reason to end a relationship where the important elements are great” and said that the circumstances were not a “deal breaker”. She told him that she understood that it was necessary for the deceased to be conservative and maintain his reputation within the Afghani society, as he had relatives connected to the royal family of Afghanistan. She indicated to Mr Kim that she was happy in her relationship and willing to accept compromises.

When the Plaintiff’s parents visited from Korea in 2014, Mr Kim did not see the deceased and the Plaintiff have contact with each other. The Plaintiff had asked Mr Kim to ensure her parents did not find out she had a boyfriend, due to religious and cultural problems arising from her parents’ Christianity and her father’s negative experiences working in the Middle East. She told Mr Kim that only a few people knew of their relationship.

Mr Kim invited the deceased to his wedding on 29 March 2015, as the Plaintiff’s partner of 8 years. Both attended the wedding: Ex. P2/328. (They also attended the wedding of someone called Hyori together at Jervis Bay on 23 April 2016: Ex. P2/329-332.)

In 2015, the Plaintiff’s possessions were held hostage by scam removalists during her move out of her Maroubra residence. Mr Kim recalled that the deceased “financially resolved” the problem.

Mr Kim did not visit Unit 215 whilst the deceased was alive.

On 16 July 2020, Mr Kim assisted the Plaintiff in a police interview regarding the circumstances of the deceased’s death. He described her state as “very distressed” and wanted to ensure that she understood the information given by police. As Mr Kim had needed to prove his own de facto relationship for migration purposes in 2014, he was aware of the importance of police recognition that the Plaintiff was the deceased’s “senior next of kin”.

In cross-examination, he agreed that, in a WhatsApp message sent soon after the deceased's death, he had described the deceased as “the long term boyfriend of [the Plaintiff]”: Tcpt, 22 March 2023, p 189(11-15). He also accepted that he had said that “in relaying this tragic news to a very close person to me, and who knows Winnie, I may have described that their relationship had some cultural barriers”: Tcpt, 22 March 2023, p 189(22-24).

On 21 July 2020, Mr Kim drove the Plaintiff to Lidcombe Coroner’s Court to view the deceased’s body. They were met by the Defendant, her husband, and one of the deceased’s friends.

On 23 July 2020, Mr Kim attended the deceased’s funeral at Auburn Mosque. He stated that over 200 people were present, but only a small number were inside the mosque itself, and that he and the Plaintiff were the only two people of Asian descent at the funeral. He noted that the women were sectioned off into a separate area, so the Plaintiff was far away from the main outdoor area, along with other female Muslim attendees. He observed that the Plaintiff wore a head covering.

Ms Baek affirmed one affidavit in the proceedings on 12 January 2022, comprising 31 paragraphs, spanning 7 pages. She was cross-examined remotely.

I am satisfied that she also was endeavouring to give the Court her best recollection of the events and that I should accept her evidence.

In 2010, she met, and befriended, the Plaintiff at the Bridge Business College in Sydney. She learned that the Plaintiff was dating the deceased, and she subsequently met the deceased in 2010 at the apartment complex. She lived in Sydney until about 2012, went to Queensland; returned to Sydney in 2014, returning to Queensland in 2019, where she currently resides. For a period of a few months in 2014, she and her husband lived with the Plaintiff and Ms Shin at the property in Maroubra.

She recalled a conversation with the Plaintiff in which she asked why the Plaintiff, and the deceased would not marry. The Plaintiff explained that it would be difficult for the deceased to marry a non-Muslim woman, as his family was very conservative.

The Plaintiff attended Ms Baek’s wedding in Korea in 2011.

Ms Baek gave evidence of a conversation in 2012, though she could not recall the location, where the deceased called the Plaintiff “Fatima”. She asked the Plaintiff in Korean what this meant, and the deceased said that the Plaintiff had converted, so he had given her an Islamic name, and that they could now marry. The Plaintiff clarified that the deceased was “just kidding around” and would sometimes playfully call her “Fatima”: Affidavit, Hyesun Baek, 12 January 2022 at par 24. During cross-examination on this point, Ms Baek indicated that she did not know the word, or name, “Fatima” and had written it in her affidavit as she heard it. After the Plaintiff said, and Ms Baek understood, that the deceased was joking, she stated that they moved on from the topic.

In 2014, Ms Baek and her husband lived with the Plaintiff and Ms Shin for about three months in a unit in Maroubra. During this time, she witnessed the deceased visiting the unit at least once a week. The Plaintiff would cook Korean dishes for him, and she would also “sleep out” at least once or twice a week. In cross-examination, Ms Baek confirmed that the Plaintiff cooked food for everyone, including herself, Ms Shin, Ms Baek, Ms Baek’s husband, and the deceased. Annexed to the affidavit were photographs of the deceased, the Plaintiff, Ms Shin, and Ms Baek’s husband together on Ms Shin’s birthday in October 2014: Affidavit, Hyesun Baek, 12 January 2022 at HSB-03.

Whilst they were living together in Maroubra, Ms Baek stated that she conversed with the Plaintiff about family and children. She was aware of the Plaintiff’s hip and hernia problems, and her resulting uncertainty over her ability to have a child. Ms Baek believed that the Plaintiff’s fear of pregnancy was a factor contributing to her reluctance to marry the deceased, though Ms Baek considered the primary issue to be religion.

Ms Baek and the Plaintiff spoke again about children when Ms Baek became pregnant in July 2016. The Plaintiff confirmed that there were still no plans for marriage between her and the deceased, and that she was worried about having children due to her back issues. Ms Baek told her to think about her age as it might soon be too late for the Plaintiff to have children if she changed her mind. They discussed the subject of freezing embryos, and Ms Baek encouraged the Plaintiff to explore this avenue as “security for later”, as she knew that the deceased wished to have children.

Ms Dobrichovska affirmed one affidavit in the proceedings on 5 February 2022, comprising 21 paragraphs, spanning 2 pages. She was not cross-examined.

She lived in Sydney from October 2014 to June 2016. She stated that she had been introduced to the deceased by Hashem Hassanzadeh, who had been her partner from 2014 to 2018. At this time, Ms Dobrichovska had come to Australia for a gap year between her bachelor’s and master’s degrees and had stayed longer after meeting Hashem. She was introduced to the Plaintiff by the deceased in 2015.

Through Hashem, Ms Dobrichovska learned that the deceased was a building manager for the apartment complex in Pyrmont. She and Hashem were living in another apartment complex in Pyrmont. On several occasions, the deceased visited Ms Dobrichovska and Hashem for dinner, and the Plaintiff accompanied him ‘at least once or twice’: Affidavit, Jana Dobrichovska, 5 January 2022 at par 11.

Ms Dobrichovska recounted a holiday to the Gold Coast in May 2016, where all four of them travelled to Brisbane by car. On the way there, they stopped at a McDonald’s, and she witnessed the deceased praying in the middle of the car park.

She stated that she was not that close with the Plaintiff and the deceased, so she was unaware of the reason why the Plaintiff and the deceased were not officially partners. She described their relationship as “weird” and noted discussing it with Hashem on a few occasions, but she did not dwell on it, saying that “every couple [has] their own particular circumstances”.

Ms Dobrichovska also recalled an instance, though she could not remember the date, on which she and Hashem were having dinner with the deceased and the Plaintiff in the deceased’s apartment. While there, she saw the deceased’s nephew, Mr Zaheer. She was unable to recall any other details of the encounter.

I next turn to the Defendant’s witnesses.

Li Yang filed one affidavit on 23 November 2021 in the proceedings, spanning 6 pages, comprising 24 paragraphs. She was briefly cross-examined.

She met the deceased in about late 2011 when she first moved into the apartment complex. From 2011 to 2016, she considered the deceased as a “genuinely friendly building manager”. By late 2017, she saw the deceased as a genuine friend: Affidavit, Li Yang, 23 November 2021 at pars 10-12. The closeness of their relationship was evident through the deceased’s offer to accommodate Ms Yang and her family in his apartment in early August 2019 when her apartment was undergoing renovations: Affidavit, Li Yang, 23 November 2021 at pars 18-19.

Ms Yang said that she was unaware that the Plaintiff was in a de facto relationship with the deceased prior to his death. The deceased had never mentioned the Plaintiff to her, and the first time she had met the Plaintiff was after the deceased’s death.

She had several discussions with the deceased, and even with the Defendant, which all appeared to suggest that the deceased was not in any form of personal relationship with any woman. However, these discussions did reveal his desire to find a girlfriend: Affidavit, Li Yang, 23 November 2021 at pars 13-17. One such conversation was follows:

Ms Yang was unaware whether the Plaintiff helped the deceased purchase food and groceries. However, she said that, on occasions, she herself assisted the deceased with buying his lunch: Affidavit, Li Yang, 23 November 2021 at pars 20-21.

She said, in cross-examination, that she did not believe the deceased would only marry a Muslim woman: Tcpt, 23 March 2023, p 229(21-23). Her evidence was a little difficult to accept as in her affidavit, at paragraph 14, she had given evidence of a conversation with the deceased where she stated, ‘I don’t know any Muslim girl at your similar age and still hasn’t married yet’, in response to the deceased’s request for her to introduce him to a girl. This conversation seems to suggest that she did in fact believe the deceased could only marry a Muslim woman.)

Ms Yang did not give evidence of having seen the deceased with any woman.

Mohammad Abdelghany filed one affidavit on 23 November 2021 in the proceedings, spanning 10 pages, comprising 42 paragraphs. I am satisfied that he endeavoured to truthfully tell what he knew about the deceased and the Plaintiff. He volunteered in cross-examination (Tcpt, 27 March 2023, p 303(24-26)):

As stated earlier, Mr Abdelghany was initially only a business acquaintance of the deceased, but by about 2016, they had become close friends: Tcpt, 27 March 2023, p 291(5-11).

On many occasions, from 2017 until the deceased’s death, they had coffee together. After 2018, he visited the deceased in Unit 215 frequently, on some of which he did so unannounced. Before 2018, he had not seen Unit 215.

During the times he visited Unit 215, he had never met, or seen, anyone else in Unit 215, apart from the deceased; nor had he observed any personal belongings, such as lady’s shoes, anywhere in the apartment. He said that the deceased had never said anything to him which would suggest that someone else lived with him.

Mr Abdelghany gave evidence that the deceased was not married or in any form of long-term relationship at the time of his death. He said, in cross-examination, that the only woman about whom the deceased had a serious conversation with him was Ms Strydom. He said that the deceased mentioned the name “Wafa” (from the Mosque) once. The deceased did not speak of any other women: Tcpt, 27 March 2023, p 298(14-50). He did not suggest that he had ever seen the deceased with any woman with whom he appeared to be in a romantic relationship.

Mr Abdelghany first met the Plaintiff in about March or April 2020 when he went to the apartment complex to repair the exhaust system. He gave evidence that he had met her about four times there. He said that the deceased had never said, or done, anything to indicate that he was in any form of personal relationship with the Plaintiff and had only spoken about her in the context of discussions pertaining to the complex.

Mr Abdelghany visited the Plaintiff at the apartment complex on a date shortly after 16 July 2020. He observed that she was packing up her belongings. She said that she was the deceased’s “girlfriend” and that she “already gave (sic) the keys back to the committee”.

It was he who contacted the Plaintiff after the deceased’s death at the request of the Defendant, to see if she needed help with managing the building. At the Plaintiff’s request, he took the Plaintiff to, and from, the deceased’s funeral both at the gravesite, and later to the Mosque. He observed the Plaintiff to be very upset.

Some text messages passing between the Plaintiff and Mr Abdelghany were tendered as Ex. P12. On 17 July 2020, the day after the deceased’s death, the Plaintiff told him that she wanted to “[come] to see her”. Mr Abdelghany clarified in cross-examination that this likely referred to the Defendant: Tcpt, 27 March 2023, p 300(15-16). On 16 September 2021, the Plaintiff and Mr Abdelghany had a friendly exchange in which the Plaintiff asked after him and his wife.

Ms Strydom filed one affidavit on 24 November 2021 in the proceedings, spanning 7 pages, comprising 43 paragraphs, with one annexure.

Some of her evidence, given at the hearing, when compared with her statements made in the interview in 2008, to which reference has been made, cause me to doubt some of her evidence given in support of the Defendant’s case. In this regard, she was an inconsistent historian.

From about 1999 to 2003, she was in a “romantic and intimate relationship”, albeit it was said to be non-sexual, with the deceased. She said that they had discussed the prospect of marriage with the deceased in early 2000. There was some confusion about when her relationship with the deceased ended. I accept that whenever it was, they remained friends thereafter, and that they would be in contact, either through telephone calls or having dinner together, occasionally, up until his death: Affidavit, Lesley Ann Strydom, 24 November 2021 at par 9.

I have earlier referred to the deceased’s statements, made in 2008, that were the subject of a signed transcript. I should also refer to Ms Strydom’s evidence, which was also the subject of a transcript signed by her (Affidavit, Doe Hwa Sheen, 25 January 2023 at Ex. P6/120:

Despite what was written and signed, in 2008, as true, Ms Strydom maintained that the deceased had introduced her to his father, but not as his partner, only briefly, on one occasion, and had simply “forgotten that I had met his father on one occasion briefly” when she spoke to the officer of State Revenue in 2008: Tcpt, 28 March 2023, p 333(28).

Her written signed statement (Ex. P6/130) also included:

In the deceased’s signed transcript of 2008, he gave his perspective on why his relationship with Ms Strydom had ended (Affidavit, Doe Hwa Sheen, 25 January 2023 at Ex. P6/171-172:

In cross-examination, Ms Strydom accepted that she had pushed the deceased to meet his family but denied that not being able to do so was one of the reasons the relationship had ended. She acknowledged that the deceased might have viewed it this way, but she maintained that neither the lack of introduction to the deceased’s family, nor his religion, had caused her to pursue another relationship: Tcpt, 28 March 2023, pp 332(35)-333(13).

Her evidence, in these proceedings, that religion was never brought up, and that it was never a factor that caused them to not marry is hard to accept. In cross-examination, she gave evidence that the deceased was a devout, practising Muslim whose religious beliefs prevented them living together. She also said that she believed ‘religion was a factor’ when she was with the deceased at the time. She accepted that they did not live together “due to religious reasons”: Tcpt, 28 March 2023, p 330(7-17), 338(42-44).

Indeed, I do not accept Ms Strydom’s evidence on the topic of religion and on the topic of meeting the deceased’s father. She seems to have misremembered what had occurred so many years after the event. Her attempt to explain what she had told the Office of State Revenue and the evidence in this case was “It was my recollection at the time”: Tcpt, 28 March 2023, p 330(41) does not persuade me that I should accept her evidence in these proceedings on the topics.

Ms Strydom recounted that in or about 2015 and 2016, she had discussions, between ten and fifteen times, with the deceased about moving to Canada together. She also recalls that they discussed the prospect of marriage in those discussions. Somewhat surprisingly, perhaps, none of these discussions form part of any text messages between them that were tendered. In fact, any plan to move to Canada never eventuated.

Ms Strydom maintained that the deceased continued to raise the prospect of marriage, several times, over the years prior to his death. The last occasion was in or about May 2020. Despite believing these proposals to be serious, she declined all of them. Additionally, she stated that, in late 2019 or early 2020, she declined the deceased’s invitation for her to move into his apartment.

Ms Strydom gave evidence that she did not recall hearing anything about the Plaintiff prior to the deceased’s death.

In 2020, she recalls communicating with the deceased about once or twice per week. The communications became more frequent in the few months immediately before his death. Annexed were several photos of the text messages between her and the deceased. I have read those text messages and have formed the view that the relationship was not quite as close as Ms Strydom described.

Ms Taj filed one affidavit on 7 February 2023 in the proceedings, spanning 7 pages, comprising 37 paragraphs, with two annexures. She was cross-examined remotely.

I am satisfied that she gave her best recollection the subject of the evidence and did so to assist the Court.

She met the deceased in early 2018. At that time, from May to around late August, Ms Taj was renting an apartment, number 218, in the apartment complex.

From August 2018 to the middle of January 2019, Ms Taj and Nahid stayed at the deceased’s apartment: Affidavit, Morsal Zara Taj, 7 February 2023 at pars 5-6; Tcpt, 28 March 2023, p 348(33-40). The evidence appears to suggest that she shared a close friendship with the deceased. Annexed were various photographs and videos depicting Ms Taj and Nahid with the deceased in his apartment. Also annexed were copies of text conversations she had with the deceased.

Ms Taj contended that during the entirety of her stay at the deceased’s apartment, she only saw “an Asian guy living in the second bedroom and then he moved out”: Tcpt, 28 March 2023, p 352(28-35). She claimed that she did not see anyone else living in the deceased’s apartment: Affidavit, Morsal Zara Taj, 7 February 2023 at pars 8-11.

During this time, Ms Taj also met the Defendant. Both Ms Taj and Nahid were invited to attend her wedding in November 2018: Affidavit, Morsal Zara Taj, 7 February 2023 at par 13.

Ms Taj asserted that, during the entire time she knew the deceased, she has never seen any sign of a female friend nor even any indication of a female. For her, “Bashir was as bachelor as they come. He never spoke of the Plaintiff or any woman with whom he was involved or had a relationship”: Affidavit, Morsal Zara Taj, 7 February 2023 at par 18.

She described one instance when the deceased went out, she and Nahid went into his bedroom out of curiosity. She recalls that she did not see any “sign of anything but the room of a single man”, especially considering how there was only “one single toothbrush, one single razor, one towel, one old scruffy loafer and a shampoo bottle.” Ms Taj also did not see any female items in the deceased’s wardrobe: Affidavit, Morsal Zara Taj, 7 February 2023 at par 20.

She said that she had never met, or even seen, the Plaintiff in the whole time she knew the deceased. Nor had she seen any evidence indicating that the Plaintiff was a partner, or in any form of personal relationship, with the deceased. Moreover, she alleged that the deceased had never spoken to her of the Plaintiff: Tcpt, 28 March 2023, p 355(1-8).

It appears that Ms Taj lost contact with the deceased in around April 2020. She said that she had found out about his death in around May 2021.

Mr Zaheer filed two affidavits in the proceedings, the first, on 23 November 2021, spanning 10 pages, comprising 51 paragraphs, and the second, on 31 March 2022, spanning 4 pages, comprising 15 paragraphs. He is 27 years of age. He accepted that his first affidavit required correction, after he had read the Plaintiff’s affidavit.

In cross examination, he also misremembered some other dates, but was not prepared to admit his error, despite being shown documents which suggested he was wrong (Ex. P9). He simply said that he “[did not] recall”: Tcpt, 28 March 2023, pp 371(17)-372(31).

He had stayed with the deceased, in Unit 113, for a total period of around 18 weeks. He stayed with the deceased for two weeks in late July and early August 2015, 14 weeks from about mid November 2015 to late February 2016 and two weeks in July 2016.

Mr Zaheer gave evidence that he shared a close friendship with the deceased. He said that he would often spend time and chat with the deceased on his bedroom balcony five nights per week. He considered these discussions to be very personal and intimate. In answer to a question from the Bench, he explained that “intimate” meant “intimate in a, in a way of, like, family, family matters, not sexual matters” or matters to do with relationships: Tcpt, 28 March 2023, p 373(32-37).

Despite the assertion, he said in cross-examination that he had seen the Plaintiff only the one time at the unit and that “I don't know about any of his other businesses. If he went out or this and that, I have no idea about that, but that one time, I've seen them inside the place, that's it”: Tcpt, 28 March 2023, p 364(16-18).

Additionally, he would often explore the local area in Pyrmont together with the deceased. The deceased would introduce him to his friends and business colleagues: Affidavit, Sain Zaheer, 23 November 2021 at pars 35-39.

He worked for the deceased at the apartment complex as an Assistant Building Manager from about November 2015 to February 2016. As stated, he accepted that he had met the Plaintiff. He said that the deceased had only mentioned her twice. He recounted that after seeing the Plaintiff, he remembered that he had seen her in and around the building where he and the deceased lived. However, he said that he had never spoken to the Plaintiff.

He recalled that when he met the Plaintiff, he was in the deceased’s bedroom waiting for the deceased. In his affidavit, he said that the Plaintiff had entered the bedroom, followed by the deceased. In cross-examination, he said that they entered together, which he maintained was more accurate. The deceased then asked him to leave his room. He gave evidence that all he asked was “How are you doing?” and, thereafter, did not ask any questions of the deceased about it “as it was none of my business”: Tcpt, 28 March 2023, p 374(32)-375(4).

Mr Zaheer said that a day or two after his encounter with the Plaintiff, the deceased asked him whether he had seen her come over, and whether this was the first time he had seen her. In the same conversation, Mr Zaheer said that the deceased had stated words to the following effect, “…she’s just a friend. Nothing serious, so there is no need to be too serious about it”: Affidavit, Sain Zaheer, 23 November 2021 at par 28.

Mr Zaheer was unaware whether the Plaintiff had come to Unit 113 at night, secretly, but thought that he would have seen her if she had.

Mr Zaheer stated in his affidavit that he was unaware that the Plaintiff and the deceased were in any form of relationship. He believed that there were no indications that they were in a relationship, except for the time when he saw the Plaintiff in the deceased’s room. Despite this, he had said that they may have been “friends with benefits”, which he said he understood meant “two, two persons helping each other out”. He could not recall whether that term included the friends having sexual relations or providing financial benefits one to the other: Tcpt, 28 March 2023, p 365(41)-366(19); 375(36)-376(14). I do not accept his evidence on this topic as the meaning of that term, as I understand it, is “a friend with whom one has an occasional and casual sexual relationship”: Oxford English Dictionary, online ed, April 2023.

Evidence was given that Mr Zaheer had dinner with the deceased, the Plaintiff and persons who were described as “the Hashem couple”, but he denied that he had done so: Tcpt, 28 March 2023, p 367(11-13). On this matter, the Plaintiff stated that she had been introduced by the deceased to Mr Zaheer as “a friend” at a dinner with Hashem and Ms Dobrichovska in Unit 113, sometime in 2016: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 267. Ms Dobrichovska, who was not cross-examined, also gave uncontested evidence, referred to earlier, on meeting Mr Zaheer at dinner with Hashem, the Plaintiff, and the deceased.

I prefer the Plaintiff’s evidence, and Ms Dobrichovska’s unchallenged evidence, in this regard.

Mr Swayn filed one affidavit on 23 November 2021 in the proceedings, spanning 4 pages, comprising 21 paragraphs. He is an accredited Chartered Tax Adviser.

He had known the deceased since about 2002 when he commenced working at the apartment complex. Their initial friendship developed into a commercial relationship and since 2009, he has been the deceased’s accountant and tax adviser. In this role, he maintained the employment records of companies owned and operated by the deceased.

The Defendant was also his client. She had been a client, then went away to another accountant, and then came back to him as a client, and had now been his client for about four or five years.

Mr Swayn stated that he has never observed the deceased say, or do, anything that would suggest he was in a de facto, or close personal, relationship with the Plaintiff, or with anyone else. He stated that the deceased was not in a de facto relationship for taxation purposes.

Since about July 2009, when the Plaintiff became an employee of CBS, a company owned and operated by the deceased, he became aware of the Plaintiff’s existence.

Importantly, in relation to the liability for capital gains tax, he said in answer to questions from the Bench (Tcpt, 29 March 2023, p 420(39-50)):

Francis Caesar Devine filed one affidavit on 31 March 2022 in the proceedings, spanning 8 pages, comprising 51 paragraphs, with one annexure.

He is a solicitor, of Bay Legal, who acts for the Defendant.

Mr Devine outlined his understanding of the general procedural history and all correspondence between Bay Legal and Joun Lawyers: Affidavit, Francis Caesar Devine, 31 March 2022 at pars 6-26. He was not cross-examined.

The siblings who gave evidence about his, or her, financial and material circumstances will be dealt with later in discussing facts relating to the family provision claim.

Again, the evidence on this topic must come, principally from the Plaintiff, who apart from the deceased, was the principal player in the relationship. However, I shall refer to other evidence that speaks to the topic that comes from other witnesses, in discussing the evidence of the other witnesses.

The Plaintiff acknowledged that there were some breaks in the continuity of the relationship prior. She recounted a break-up in 2011 over their religious differences that lasted for three days. The deceased had asked her to convert to Islam so that they could get married, but she had refused, due to her negative personal experiences with religion. She gave evidence of having been raised in a church, which she described as “a cult”. Following three days of separation, they resumed dating each other: Affidavit, Doe Hwa Sheen, 7 February 2022 at pars 48-54.

Another separation occurred in November 2012, when the Plaintiff became upset with the deceased for reasons she could no longer recall and told the deceased she did not wish to see him again. However, after she returned to Australia following a trip to Korea to visit her parents and attend her brother’s wedding, the deceased picked her up from the airport and they recommenced their relationship.

On 9 January 2020, the Plaintiff became upset with the deceased and told him, via text messages that she had decided “to go somewhere far away from you” and that she had advertised to “sell” her apartment, by which she meant cancelling the lease. She stated that she did not actually do this but had spoken words she did not mean out of anger.

On 25 January 2020, the Plaintiff, again, became upset with the deceased, who was then in the USA visiting his family. Apparently, he had forgotten their anniversary.

Despite collecting him from the airport upon his return, in a conversation sent over the messaging platform Viber shortly thereafter, on 30 January 2020, the Plaintiff expressed her anger and sadness to the deceased, over the forgotten anniversary. She also complained to him that he had not taken care of her when she had been ill (Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P3/226-248). The relevant Viber messages passing between them on 30 January 2020 should be referred to verbatim:

The Plaintiff was still angry with the deceased on 31 January 2020, after the deceased had asked her to come and stay with him in his apartment (Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P1/234-238).

In cross-examination, when asked about the January events, the Plaintiff agreed that she had broken up with the deceased, following his failure to remember their anniversary: Tcpt, 22 March 2023, pp 125-126.

The Plaintiff stated that the deceased knew the reason as to why she wanted to break up but insisted that he did not do anything to fix the situation. Her evidence was (Tcpt, 22 March 2023, p 126(7-21)):

However, by February 2020, the Plaintiff and the deceased had resumed their relationship. Exhibited at Ex. P1/288 to the Plaintiff’s affidavit of 7 February 2022 were photographs of the Plaintiff and the deceased at a restaurant for a belated anniversary celebration. On 15 February 2020, the deceased sent her a Happy Valentine’s Day message: Ex. P3/270. On 28 February 2020, there is a text message about having Korean food for dinner: Ex. P3/288.)

The Plaintiff described this as the typical pattern of arguments between them, in that she would become frustrated with the deceased and threaten to leave him, but he would persistently ask her to return to him for intimacy until she relented: Affidavit, Doe Hwa Sheen, 7 February 2022 at pars 117-118.

She maintained also that the talk of breaking up, on each occasion, had been initiated by her and that the deceased had never agreed: Tcpt, 22 March 2023, pp 109(48-50)-110(1-7).

On 2 July 2020, the Plaintiff had her 40th birthday. As stated earlier, this was a significant birthday, as she and the deceased had discussed giving more serious consideration to marriage and children at that time. The deceased had also indicated that he had a “big plan” for this birthday: Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P1/273. However, the deceased forgot this date, and the Plaintiff was “very, very upset” and “seriously contemplated breaking up” with him.

The relevant Viber messages passing between them following her birthday should be referred to verbatim:

Notably, the Plaintiff’s messages about breaking up seem to display a tonal shift towards formality when compared with her, seemingly more spontaneous, earlier messages sent to the deceased in January 2020. Her July messages feature a marked increase in punctuation use, particularly full stops, and the use of complete sentences. When one compares the messages, it appears that the later messages seem to have been written less impetuously, and more carefully, demonstrating that they were more considered.

She removed most of her clothes from Unit 215 and left the unit: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 273. She also returned her keys to the deceased, leaving them at reception, saying “I won’t be needing these anymore” and “I don’t want to see you”: Affidavit, Doe Hwa Sheen, 7 February 2022 at par 297. She accepted, in cross-examination, that she had not returned to the Unit during the weeks before the deceased died: Tcpt, 22 March 2023, p 163(13-15).

The deceased did not terminate the Plaintiff’s employment and she continued working in the apartment complex until after his death. She told him that she was prepared to leave but that it might be difficult to find alternative employment.

There was evidence from Mr Abdelghany that he told the Defendant that the Plaintiff had dropped all the keys off and said that she was leaving the apartment complex and did not want to work there anymore: Affidavit, Najia Hesan, 5 October 2021 at par 120.

During this time, the deceased apologised, repeatedly to her, claiming that he had mixed up the months. The Plaintiff noted that he had told her, on past occasions, that birthdays and anniversaries were not important in his culture, but that he would try to remember as he knew they were important to the Plaintiff.

On 5 July 2020, the Plaintiff asked the deceased to fix her car, as the battery was flat. She left the car key on the wheel as she did not wish to see him. The deceased continued to insist on seeing her, but the Plaintiff refused.

On 8 July 2020, the deceased left food outside the Plaintiff’s unit. She told him not to do this, but again, he left food for her on 12 July 2020.

On 14 July 2020, the Plaintiff saw the deceased when he approached her at the apartment complex office. He, again, apologised to her, but she told him she did not wish to talk about the issue. When he asked her if she would be ready to talk “next time”, she responded with “maybe next time”, and cut him short, as she was still angry. This was the last time she saw him before he was killed. It cannot be suggested, merely by reference to the oral statement, that the relationship between them resumed or recommenced. Whether it may have, is mere speculation.

The Plaintiff was cross-examined about the events in July 2020. Her evidence was: (Tcpt, 22 March 2023, p 136(12-29), p 139(23-49)):

Further, she agreed that she had told the deceased that she intended to move out and was in the process of looking for someone to take over her lease, so she could leave before the expiry of the contract in November: Tcpt, 22 March 2023, pp 138(42)-139(4).

She sought to provide an explanation for the messages in which she had told the deceased she did not see a future for them (Tcpt, 22 March 2023, p 141(6-24)):

However, when it was put to her that the relationship was over, she rejected the proposition: Tcpt, 22 March 2023, p 136(44-49). She agreed that she was “very, very angry” and “really serious”, but maintained that she had a “bad habit” of threatening to break up with the deceased: Tcpt, 22 March 2023, pp 150(40)-151(5).

It is also necessary to refer to Whatsapp messages from the deceased, particularly to Ms Strydom, in July 2020, which were included in Ex. D14, which were described by senior counsel for the Defendant as “an opportunity to see what the deceased was doing in that two week window”: Tcpt, 29 March 2023, pp 472(24)-473(30).

On 1 July, the deceased invited Ms Strydom to dinner. On 4 July, following the Plaintiff’s birthday, he texted her, “Good morning, Beautiful. What tine [sic] you coming for dinner?” On 5 July, he texted her, “My pleasure [I] was thinking of taking you for walk one evening”. The text conversations from this time revealed conversation about cats, cooking meals together, and several invitations from the deceased to Ms Strydom for dinner.

By the conclusion of her oral evidence, the Defendant accepted that the deceased and the Plaintiff had been in a long-term relationship with each other, although she did not acknowledge that the Plaintiff had lived with him, or that she was his de facto wife at the time of his death: Tcpt, 23 March 2023, pp 280(45)-281(8).

Counsel for the Defendant accepted that apart from Ms Strydom, there was no other woman with whom the deceased was “seen” to be in a relationship by the Defendant, or by any other witness who gave evidence in the proceedings: Tcpt, 29 March 2023, p 458(13-19). Indeed, there was no evidence, called by the Defendant, of him having been seen with another woman at all.

There are some documents, to which I shall refer, that suggest that the Defendant knew, or at least suspected, shortly after the death of the deceased, that the relationship that existed between the Plaintiff and the deceased was far closer than the Defendant was prepared to acknowledge.

In addition, there were events, following the death of the deceased, which cause me to doubt whether the Defendant did not, at least suspect if not know, of the existence of such a relationship between the deceased and the Plaintiff.

It is next necessary to turn to events after the killing of the deceased.

The Defendant asserted that the first time she had heard about the Plaintiff’s assertion that she was the de facto spouse of the deceased was in the middle of her conversation on about 17 July 2020 with her close family friends, Khalid Jadran and Sadaf Jadran, as well as her daughter, Sahbah Hesan, none of whom gave evidence. (It follows that the Court does not know how each of these persons, including the Defendant’s daughter, came to know of the Plaintiff’s assertion.)

Following this conversation, the Plaintiff was contacted and asked if she would like to meet the Defendant and her family, stating that she wished they “didn’t have to find out about [the Plaintiff] like this.” She said that the Plaintiff declined the offer as she was not ready to meet. However, the Plaintiff agreed to allow the Defendant to organise the deceased’s burial in line with Islamic customs: Affidavit, Najia Hesan, 10 October 2021 at par 118.

The Defendant’s evidence was that, on about 20 July 2020, she was informed, by Mr Abdelghany, that the Plaintiff had called herself the deceased’s “girlfriend”.

The Plaintiff gave evidence that on 20 July 2020, the Defendant had invited her to the Defendant’s home.

The Plaintiff recalled that the Defendant said to her:

On 22 July 2020, the Defendant met again with the Plaintiff and was told by her of the relationship, for 13 years, with the deceased. The Defendant learned that the Plaintiff had lived at the apartment complex but had recently returned the key to the “owner’s corporation”. She also ascertained that the Plaintiff did not want to work for the deceased anymore.

There is evidence from other persons relevant to the events that occurred relatively soon after the death of the deceased. I shall refer to the evidence later.

The Defendant also gave evidence of events at the mosque during the deceased’s funeral. She noted that the Plaintiff had introduced herself to family, friends, and the Mullah as “Bashir’s girlfriend”. She also introduced herself as “Bashir’s girlfriend” on the livestream of the prayers to the Defendant’s family overseas. There is no evidence of any objection, or complaint, about the Plaintiff’s statements. Perhaps, this is unsurprising, bearing in mind the circumstances, but nor were these statements challenged immediately thereafter.

The Defendant acknowledged a conversation with the Plaintiff on 22 June 2020:

The Defendant stated that she also found out that the Plaintiff had seen her and her family in the deceased’s apartment once before, but immediately thereafter “left the apartment before [she] could see [her].”

She recalled the Plaintiff telling her that the last time she spoke with the deceased was about 3 or 4 days before his death. The conversation with the Plaintiff she said was in the following terms:

On 25 September 2020, the Plaintiff gave a police statement about her relationship with the deceased, following his death. In it, she stated that few people knew of their relationship. She stated that then, she did not know the legal definition of “de facto partnership”.

In October 2020, the Plaintiff accompanied the Defendant and Nasira to organise the deceased’s belongings. The Plaintiff stated that she identified, to them, her women’s pyjamas, sleep socks, and pills in his bedroom. Some of her toiletries were also present in the bathroom. Exhibited were photographs of these items, taken on 2 October 2020 and 1 December 2020: Affidavit, Doe Hwa Sheen, 7 February 2022 at Ex. P2/421-423.

I have referred to a video recording that she had taken of the deceased’s bedroom and ensuite on 2 October 2020. It corroborated the description of Unit 215 being sparsely furnished. In cross-examination, the Defendant said that during this time, she saw “only one big purple colour fabric” which belonged to the Plaintiff: Tcpt, 23 March 2023, p 282(7-11). On this topic, I accept the Plaintiff’s evidence that there were some of her personal items in Unit 215 when they inspected it.

The Defendant recalled that at the deceased’s funeral, the Plaintiff introduced herself as his “girlfriend”.

In cross-examination, the Defendant stated that only people close to the deceased would have viewed his body. Otherwise, she would have objected. Considering that the Plaintiff viewed the body, and the Defendant did not object to this, it appears that, at the very least, the Defendant considered that the Plaintiff shared a close relationship with the deceased: Tcpt, 23 March 2023, pp 251(41-50)-252(1-7), 252(28-32).

On 18 November 2020, the Defendant received a letter from the Plaintiff’s solicitors, which revealed that the Plaintiff was the deceased’s de facto partner. The Defendant alleged that no evidence was provided in support of such assertion.

On 14 December 2020, the Defendant’s solicitors responded to the Plaintiff’s solicitors, stating that the Defendant did not accept the Plaintiff had a lawful basis to enter and occupy the deceased’s apartment:

With the above in mind, I next turn to some text messages that were sent on behalf of the Defendant and responded to by the Plaintiff. In cross-examination, the Defendant stated that she authorised Sadaf to send these messages: Tcpt, 23 March 2023, pp 255(4-12), 256(6-20), 257(1-3).

In a conversation over the messaging platform, Viber, the Defendant, on 17 July 2020, asked the Plaintiff to take part in the deceased’s funeral. The messages also reveal that both of them attempted to console the other following the deceased’s death. The Plaintiff gave the following evidence of the conversation in her affidavit of 24 November 2021 at Ex. P5/509-510:

On 21 July 2020, Mr Kim drove the Plaintiff to the Lidcombe Coroner’s Court to identify the deceased’s body. She met the Defendant and her husband there. The Defendant asked the Plaintiff for her details as the deceased’s next of kin: Affidavit, Doe Hwa Sheen, 24 November 2021 at Ex. P5/515-517:

On the same day, the Defendant also asked the Plaintiff for permission to take the deceased’s body from the Coroner for the funeral. This suggests the Plaintiff’s authority to do so as the deceased’s “de facto” partner.

In the Plaintiff’s affidavit of 24 November 2021 at Ex. P5/518, the following conversation is referred to:

On 22 July 2020, the Defendant, again, asked the Plaintiff to enquire as to whether the Coroner would release the deceased’s body. The Defendant also attached a document that was sent to the funeral home.

In relation to the messages that the Defendant, herself, had not written, she confirmed that she had approved them being sent: Tcpt, 23 March 2023, p 255(4-12). She said also that she could not communicate because she was grieving: Tcpt, 23 March 2023, p 256(9-20).

I have found some of the events that occurred after the death of the deceased difficult to comprehend in the context of the Defendant’s assertion of her lack of any knowledge of the relationship of the Plaintiff and the deceased. When she appears to have so readily accepted the relationship, it is hard to accept that she did not have some knowledge of the existence of a relationship, even if she did not know of the events in early July 2020.

I reject the submission that she simply accepted statements communicated to her that the Police had told a family friend, Sadaf, who was not called as a witness, that “there's a person named Doe Hwa Sheen who claims that she was Bashir's partner”. It is even more difficult to accept because the Defendant’s response was said to have been “How is this possible?”: Affidavit, Najia Hesan, 1 October 2021 at par 117.

There is no definition of “de facto relationship” in the Act. However, in s 3 of the Act, "domestic relationship" is defined as having the same meaning as it has in the Property (Relationships) Act 1984 (NSW).

However, the expression “de facto relationship” is now common parlance in Australia. Yet, the Court should “bear in mind that the myriad circumstances of modern life and the vagaries of human nature necessarily have the potential to throw up diverse relationships, which fall outside the norm of everyday life and so defy easy characterisation”: Kendell & Vilmos [2022] FedCFamC2F 1484 at [37] (Judge Brown).

There is no precise test, identified in the Act, for determining whether such a relationship exists. However, the “Note” to s 57(1) provides that "De facto relationship" is defined in s 21C of the Interpretation Act to which reference has previously been made.

The existence of such a relationship is determined considering "all the circumstances" of the relationship, which include any, or all, of the circumstances listed in the section. The court is entitled to attach such weight to any circumstance, as may seem appropriate. In one case, some of the factors listed may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. In every case, the unique features of the particular relationship should be considered holistically.

In s 21C of the Interpretation Act, there are nine circumstances referred to, which may be grouped into “private” ((c), (d), (e) and (f)), and “public” ((a), (b), (g), (h) and (i)), headings. They are no more than reminders, or indicators, of matters that are to be taken into account in deciding the question whether the parties lived in a de facto relationship As was written in Piras v Egan [2008] NSWCA 59, by Campbell JA, with whom Giles and Tobias JJA agreed, at [146]:

(The circumstances in s 4(2) of the Property (Relationships) Act 1984 (NSW) to which reference was made are the same as those circumstances in s 21C(3) of the Interpretation Act, set out above.)

None of the criteria listed in s 21C(3) are of decisive significance. The criteria are in inclusive, rather than exclusive, terms, and are not exhaustive. They all, however, suggest a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close the involvement in each other’s emotional lives, a conclusion that people are a couple living together involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element: Dion v Rieser [2010] NSWSC 50 at [14] (Bryson AJ).

The last paragraph of the section makes it clear that the criteria are not to be weighed against each other and are not given individual weightings of importance. Ultimately, they may be used to assist in determining whether the parties were in “a relationship as a couple”. However, they should not overshadow that central concept.

As Lindsay J wrote in Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477 at [35]:

The criteria do not state what has been described as the “essence” of a de facto relationship, which is to be found in the phrase “as a couple”. The word “couple” is not defined in the Act.

The 6th Edition of the Shorter Oxford Dictionary (2007) defines “couple” as a union of two. The word “couple” comes from the Latin word “copula” which is a bond, tie, or other connecting item.

One might argue that the inclusion of the term “living together” would require physical cohabitation. However, the sub-section makes it clear that a common residence is not the only circumstance of the relationship that the Court must consider, and is not, necessarily, an essential element to be proved. To recognise that feature, acknowledges that, sometimes, a couple may choose to conduct a shared life without sharing “a common residence on a full-time basis”: Vaughan v Hoskovich [2010] NSWSC 706 at [51] (White J).

As was stated by the Court of Appeal in Smoje v Forrester [2017] NSWCA 308 at [42], the state of “living together”:

The High Court in Fairbairn v Radecki (2022) 96 ALJR 529; [2022] HCA 18, discussed the concept of a de facto relationship including the term “living together” (albeit in s 4AA(1) of the Family Law Act 1976 (Cth)). At [33], reference was made to SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1; [2015] FCAFC 69 and to Crabtree v Crabtree (1963) 5 FLR 307, in each of which cases it was noted that “cohabitation of a residence or residences is not a necessary feature of ‘living together’. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world”.

The High Court explained at [33], [35] and [39]:

The test whether the notion or concept of living together as a couple is satisfied is an objective one. It involves assessing the nature and extent of the claimed common residence as well as other aspects of the relationship. What is important is the nature of the union (as a couple) rather than how it manifests itself in quantities of joint time: Jonah & White (2011) 258 FLR 236; (2011) 45 Fam LR 460 at [66] (Murphy J).

This is not to say that two persons cannot live separately and apart even when they both reside in the one home. In Smoje v Forrester at [42], when construing state legislation, the NSW Court of Appeal held that:

Thus, the concept of “living together” must also be read in the context of the concept of “as a couple”. It seems to me, then, that the notion includes the following elements that require evaluation:

Whilst each element suggested above does not import any concept of proportion of time, each should exist over a long enough period, to amount to “living together”. But cohabitation of a residence or residences is not a necessary feature of "living together". That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship: Fairburn v Radecki at [33].

If two people do not “live together as a couple”, they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various criteria listed. As Barrett J wrote in Petersen v Gregory; Estate Glenn Alfred Petersen [2007] NSWSC 8 at [11], when considering the phrase living “as a couple”:

Ultimately, the court must consider the nature of their union and whether there was a merger of two individual lives into life as a couple. The search is for such a relationship, as it existed immediately before the death, and which had manifested such characteristics for at least two years prior thereto.

Once the physical, or factual, aspects, of the relationship have been examined, whether a mental ingredient also existed may be considered. That ingredient involves some commitment, by each of the parties, to their relationship. It need not necessarily be a commitment intended to last forever, or indefinitely. Nor need it be a commitment to a long-term relationship. But it should, at least, be a mutual commitment for the foreseeable future.

It follows that the determination of the existence of a de facto relationship is essentially impressionistic. Such a relationship only exists because of the factual circumstances of the parties, unlike marriage, where there is a legal status immediately created at the time of the public ceremony and registration. A value judgment is required to be formed. Accordingly, the Court is often required to assess multiple pieces of circumstantial evidence. If there are sufficient pieces of evidence, when viewed, with care and sensitivity, cumulatively, and with common sense and proper reasoning, which satisfy the finder of fact that the relationship is a de facto relationship, then the statutory test is met: Scragg v Scott (2006) 25 FRNZ 942; [2006] NZFLR 1076 at [64].

Common sense dictates that a relationship may change, or develop, over time. Thus, its legal character at one point may not represent its character at another. Furthermore, in assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another.

The significance of qualifications of these kinds appear from passages in the leading judgment of Basten JA in Robson v Quijarro and from passages which his Honour cited from Bar-Mordecai v Hillston [2004] NSWCA 65 at [120]-[124].

Other cases make it clear that the term “de facto relationship” constitutes a single composite expression of a comprehensive notion or concept. It must be approached by considering the expression as a whole and not in several parts: Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 at 685 (Kearney J); Light v Anderson [1992] NSWCA 136 at 4 (Handley JA, Kirby P and Priestley JA agreeing); Bar-Mordecai v Hillston at [86], [125]; Hayes v Marquis [2008] NSWCA 10 at [73]-[74] (McColl JA, Beazley JA and Einstein J agreeing). It is the composite picture that must be looked at and individual factors should not be isolated and attributed relative degrees of importance.

Ultimately, the conclusion as to the existence, or otherwise, of such a relationship will turn on an evaluative assessment of matters of objective fact. In Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep), the Full Court (Malcolm CJ, Rowland and Ipp JJ) quoted, with approval, the following passage from the judgment of Fitzgerald J in Lynam v Director General of Social Security (1983) 52 ALR 128 at 131:

Although the cases referred to in the last paragraph were decided many years ago (as evidenced by the reference to “the opposite sex” in the passage quoted), the general principle stated applies equally now as it did then.

In reaching the conclusion about the existence of the relationship, the Court must also be aware of the concept of the diversity of relationships that exist between couples within our society and must not be lulled into social stereotyping. Thus, although said in another context, I agree with Bender FM in Dakin v Sansbury [2010] FMCAfam 628 at [13], that:

The concept of a de facto relationship was discussed by Gzell J in Ye v Fung [2006] NSWSC 243 at [64]-[65] of the judgment:

However, as was pointed out by Allsop CJ, in Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303 at 304-305; [2016] FCAFC 5 at [3]:

Thackray J (Kent and Watts JJ agreeing) wrote in Na v Tiu (No 2) [2017] FamCAFC 269 at [43]-[44]:

Bell P confirmed in Estate of the Late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324 that a de facto relationship is not required to be perfect, writing at [43]:

It can be seen, from what has been set out above, that the concept of a de facto relationship is complex. It should not be construed on “narrow, formal, pedantic, or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex”: Dow v Hoskins [2003] VSC 206 at [32]. Yet, it should be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another’s house; and also, from the relationship of two people, who share a house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship. But it is not to be judged only against the static model of persons living together full-time, sharing fully domestic, financial, and other responsibilities.

A de facto relationship, unlike a marriage, can commence and end without any legal pre-requisite or formality. Furthermore, unlike a marriage, which commences, and ends on a defined day, when a de facto relationship commences, and whether, or when, it ends, can be the subject of some dispute and uncertainty. Importantly, also, unlike a marriage which continues to exist until the dissolution by the Court, there is no presumption, or inference, of continuance of a de facto relationship. Often, it is impossible to conclude that the relationship began, or ended, on a specific day. (In stating the last matter, of course, I omit the circumstance of the death of one of the parties.)

The dispute and uncertainty exist because a de facto relationship tends to develop over time. Similarly, it tends to break down over time as well. Nevertheless, in this case, the Court must determine when the de facto relationship commenced and whether it had ended at the time of the deceased’s death. The end of the relationship is often not clear or finite.

In this case, it is the Plaintiff who must establish, on the balance of probabilities, that a de facto relationship existed and that it continued until the time of death of the deceased.

In Howland v Ellis [2001] NSWCA 456 at [20], Stein JA wrote (Meagher JA and Ipp AJA agreeing):

Dutney J, in S v B (No 2) [2005] 1 Qd R 537; (2004) 32 Fam LR 429; [2004] QCA 449 at [33], wrote:

(I take the reference to the “robustness of marriage” to mean no more than acceptance of the fact that a marriage persists until a court grants a divorce order, whereas a de facto relationship comes to an end as a result of the conduct of the parties or one of them.)

At [48], his Honour added:

It is important to note that Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740; [1989] NSWCA 100 added a reference to, “in that sense keeps apart”.

There can be little doubt that a de facto relationship, like a marriage, may include periods of separation. In Britt v Office of State Coroner [2022] WASCA 75, Mitchell JA said at [75] that “bumps in the road” would not necessarily bring a de facto relationship to an end:

But the de facto relationship ends only when one, or both, of the parties form the intention to sever, or not to resume, the relationship, there is communication of that intention to the other party, which communication should be unambiguous and unconditional. and when she, he, or they, act upon the determination to separate: Prior v Brown [2011] NSWSC 1006 at 194. (An appeal was dismissed in Prior v Brown [2013] NSWCA 4.)

There can be uncertainty about the future, but the de facto relationship persists even though they do not do all the things together that they had previously done. Keeping apart must have a finality about it and that is best evidenced where the de facto relationship has none of its previous characteristics. The ending of the relationship must have a permanence about it rather than a temporary suspension: Smyth & Pappas at [11] (Cronin J). Indeed, a de facto relationship may continue notwithstanding that the parties may have separated temporarily while they attempt to work through some difficulties encountered in their relationship. An interruption which, in a reasonably long relationship, may be no more than a hiccup, does not, necessarily, bring the relationship to an end. Whether it has ended is a conclusion reached having regard to all the circumstances.

In Fairburn v Radecki, the High Court dealt with the question whether the de facto relationship had broken down and if so by what date. In the context of a human relationship, "breakdown" refers to the "end" or "breakup" of what had been an enduring emotional bond. It was made clear that a de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer "have a relationship as a couple living together on a genuine domestic basis".

Yet, a conclusion that the relationship has ended is not precluded by the presence of an ongoing relationship, or even cohabitation, of some sort. However, as was written in Sun v Chapman (No 2) [2021] NSWSC 1231 at [12], by Emmett AJA, it might be regarded as “unusual that the de facto relationship that appears to have existed came to an end without separation”.

Ultimately, whilst “a de facto relationship is inherently terminable at any time [it] continues to exist only insofar as the indicia which give the relationship its … character continue to exist”: H v P [2011] WASCA 78 at [56] (Murphy JA, Pullin and Buss JJA agreeing).

A similar view was expressed in Clarence & Crisp (2016) FLC ¶93–728; [2016] FamCAFC 157 at [52], in which the Full Court of the Family Court (Thackray, Ainslie-Wallace and Aldridge JJ) noted at [52]:

However, in Sun v Chapman [2022] NSWCA 132, White JA wrote, at [65]:

Brereton JA wrote, at [190]-[191]:

As people enter, and decide to remain, in a marriage with a variety of purposes and motives, hopes and anticipations, so, also, can persons who enter, and then, remain, in a de facto relationship. The ultimate test is whether, at the time of the deceased’s death, it can be said that the parties had a mutual commitment to a shared life. This may involve a consideration altered by any subsequent change in the emotional topography or other dynamic between the persons concerned.

It is the party who asserts that the de facto relationship continued who must prove the existence of its defining characteristics, rather than the other party being required to prove the negative: S v B [2005] 1 Qd R 537; [2004] QCA 449 at [2], [5] and [49]-[50]; H v P at [58].

Senior counsel argued against the Plaintiff and the deceased having lived together. He noted that nobody, other than Mr Zaheer, had observed the Plaintiff at the deceased’s residence, even though Ms Taj and Naheed Ghulami (who was not called), had stayed in his unit at times in 2018 and 2019: Tcpt, 29 March 2023, p 466(25-43). He also submitted that, though it was not disputed that the Plaintiff moved into the apartment complex in July 2015, she had access to multiple units there, and the removalist documents (Ex. P1/102-109) and bank statements did not specifically state that she moved into Unit 113: Tcpt, 29 March 2023, p 467(49)-468(21).

Senior counsel submitted that “if there had been a de facto relationship, you might have expected some degree of loyalty and support to be demonstrated by the Plaintiff to the deceased and his company following the deceased's death. But the rather offhanded manner in which she brought an end to that relationship in the context of [the apartment complex] might just indicate it wasn’t as close as might be expected of two spouses”: Tcpt, 29 March 2023, p 449(9-14).

I do not accept the Defendant’s submission as there may have been many reasons for not wishing to continue working at the apartment complex following the death of the deceased.

Having considered all the evidence, and without repeating the facts that I have found and stated above and remembering that the Court must consider the unique circumstances of the particular relationship holistically, I am satisfied that the deceased and the Plaintiff were in a de facto relationship between about July 2015 and, as will be explained, and early July 2020. Their relationship, otherwise, commenced in 2007. It was a domestic partnership of about 5 years and an overall relationship of about 13 years.

As stated, the Defendant submitted that whatever the relationship between the deceased and the Plaintiff was, it ceased in early July 2020.

Clearly, at different times prior to July 2020, the Plaintiff and the deceased were arguing and, in relation to the argument in January 2020, the Plaintiff made threats about the relationship having come to an end. Looking at the composite picture, however, whilst there may have been a somewhat strained relationship between them, as evidenced by the messages from the Plaintiff to the deceased, at that time, they resolved, at least temporarily, their difficulties, and then did not “keep apart”. She did not act on the threats that she had made.

However, things changed, significantly, in early July 2020. In considering the indicia of the relationship prior to early July 2020, and then to have regard to the period thereafter, shortly before the death of the deceased, I am satisfied that there were material differences. Then, it was not a case of the deceased and the Plaintiff “working out issues”. Rather, the Plaintiff acted contrary to the basis upon which the domestic relationship was established, with the result that the mutual commitment to a shared life had ceased.

In this regard, the Plaintiff’s despair in her belief that things were not going to change was evident. She had given up on the deceased addressing the issues that had plagued the relationship. Importantly, then, she formed the intention to sever the relationship with the deceased; she communicated that intention to him in an unambiguous, and unconditional, manner; and she acted upon her determination to end the relationship by removing her belongings from Unit 215, returning the keys to the reception desk, and rejecting the deceased’s entreaties, thereafter, to reconsider these steps. In so doing, the relationship, at that time, ceased to exist. There was then a permanent rupture of the relationship. It was not merely a “bump in the road”, but rather appeared to be “the end of one road and the beginning of another”: Britt v Office of State Coroner at [75].

What might have happened if the deceased had not been killed is mere speculation.

Having considered all the evidence, I am satisfied that the Plaintiff was not the spouse of the deceased, as she was not in a domestic partnership with him immediately before his death. It follows that she is not entitled to a grant of administration of the intestate estate of the deceased.

In view of the conclusion to which I have come regarding the claim for a family provision order, I am of the view that an independent administrator should be appointed to administer the estate of the deceased. However, I shall allow the parties an opportunity to consider this, following these reasons being published.

It is next convenient to deal with the financial and material circumstances of the Plaintiff and of the beneficiaries under the operation of the rules of intestacy who have gave evidence about her, and his, financial and material circumstances and claim upon the bounty of the deceased.

The Plaintiff has Diplomas in Hospitality, Business and HR Management. She had studied at Le Cordon Bleu and MEGT. I have earlier referred to her working as the night manager, then as the duty manager, at the Manor House Boutique Hotel, and then as the Assistant Building Manager at the apartment complex.

In her updating affidavit of 30 January 2023, the Plaintiff gave evidence of her financial and material circumstances. She stated that she was unemployed and had been getting Jobseeker payments since November 2020, receiving approximately $677 per fortnight from Centrelink.

Her assets and liabilities were said to be:

Her fortnightly expenses were said to be:

She indicated that she met the shortfall of $1,613 between her expenses and her income from her savings, which were now depleted, and with further assistance from Ms Shin and other family members in Korea.

Currently, the Plaintiff is cohabiting with Ms Shin, who is also unemployed and receiving $677 per fortnight in Jobseeker payments. They continue to reside in Unit 215. As stated, she does not pay rent, but pays other outgoing expenses: Affidavit, Doe Hwa Sheen, 30 January 2023 at par 19, Annexure DHS-02.

The Plaintiff noted that her chronic back pain has significantly improved with acupuncture and therapy, and that she took herbal medicine. She stated that her panic disorder, diagnosed on 25 January 2023 by her treating doctor, had become more severe since her trip to Korea in September 2022 to see her family: Affidavit, Doe Hwa Sheen, 30 January 2023 at par 11; Annexure DHS-01. She no longer takes medication for depression, but still suffers from sleep paralysis and restless leg syndrome. She did not provide any other evidence of these conditions.

Due to the then COVID-19 restrictions, the Plaintiff had experienced difficulty finding work in hotel management. She stated that her chronic spinal disc condition prevents her from undertaking work that requires physical exertion.

(The Defendant submitted that the Court should be sceptical that any of these medical conditions would lead to an inability to work, or even a diminution of earning capacity, and that there was really no reason why the Plaintiff could not work: Tcpt, 29 March 2023, p 447(1-21)).

The Plaintiff stated that her financial needs were that she required funds to provide her with accommodation, to cover her reasonable shortfall in living expenses, to purchase a motor vehicle, and for contingencies and superannuation. It was submitted, at Tcpt, 29 March 2023, p 444(1-7), that:

Counsel for the Plaintiff submitted that, on a percentage basis, if not successful in the primary application, the Plaintiff should receive a lump sum that equated to between 30 to 35% of the net distributable estate: Tcpt, 29 March 2023, p 443(21-23).

The Defendant, in her affidavits of 16 August 2021, 5 October 2021, 29 May 2022 and 30 January 2023, gave evidence of her financial and material circumstances. She works as a building and property manager. Her annual salary before tax is approximately $85,000. She also receives child support payments and Centrelink Family Benefits, receiving respectively $53 and $470 per fortnight.

The Defendant gave evidence that she is provided with accommodation at Unit 33 by CPMS at a market rental rate of $600 per week. She does not own any real property or have any investments. She drives a company car which is owned and paid for by CPMS.

The Defendant has three dependent children, and a partly dependent daughter: Affidavit, Najia Hesan, 29 May 2022 at pars 14-15. On 30 January 2023, she stated that her monthly expenses are approximately $3,700.

The Defendant was married on 11 November 2018: Affidavit, Najia Hesan, 5 October 2021 at par 19. I know nothing about her husband’s financial and material circumstances.

The Defendant is the director and secretary of CBS and CPMS. Additionally, she is the director, secretary, and sole shareholder of FSSS: Affidavit, Najia Hesan, 16 August 2021 at pars 36-39.

The Defendant was not cross-examined on her financial and material circumstances.

In his affidavit of 29 May 2022, Naser Zaheer, who currently lives in Quebec, Canada, gave evidence of his financial and material circumstances. He was employed part-time as a grocery store manager at the date of filing his affidavit but has now since retired. His annual salary after tax is approximately $14,700. His wife works part-time as a sales assistant, and her annual salary after tax is approximately $28,000: Affidavit, Naser Zaheer, 29 May 2022 at pars 3-5.

With his wife, Naser owns a building, comprising three apartments (the triplex) which he values at approximately $611,500. There is a mortgage over the triplex, with the remaining principal being around $268,000 and his monthly repayments being around $1,560: Affidavit, Naser Zaheer, 29 May 2022 at pars 6-8. He gave evidence that two of the apartments in the triplex are usually rented. After the completion of renovations in around July 2022, he expects a combined rental income of approximately $2,450 per month.

He owns a few other assets, namely $5,487 invested in company shares and a 2012 Volkswagen Passat valued at $8,900. Neither he nor his wife owns any other investments or property that are worth more than $1,100.

Naser stated that his monthly expenses were around $2,640 and, upon retirement, he would likely become financially dependent on his wife and rely on the rental income obtained from the two apartments in the triplex: Affidavit, Naseer Zaheer, 29 May 2022 at pars 16-17.

Naser was not cross-examined.

In his affidavit of 30 May 2022, Mohammad Nazir Zaheer, who lives in Quebec, Canada, gave evidence of his financial and material circumstances. He is employed full-time as a taxi driver. His annual salary after tax is approximately $25,130. His wife works as a bank teller, and her annual salary after tax is approximately $35,700.

Along with his wife, he owns a house that is valued at approximately $1,000,500. There is a mortgage over the house, with the remaining principal being around $380,000 and his monthly repayments being around $2,200.

Nazir owns a few other assets, namely $2,200 in available funds and a 2013 Hyundai Sonata valued at approximately $3,350. Neither he, nor his wife, owns any other property that is worth more than $1,100.

Nazir and his wife are financially co-dependent. He has twin children and an older son. His twin children, who are 14 years old, are dependent upon him and his wife.

He contends that his monthly expenses are around $4,800 and intends to rely upon the government pension after retirement.

Nazir was not cross-examined.

In her affidavit of 3 June 2022, Fauzia Zaheer Sher, who resides in Quebec, Canada, gave evidence of her financial and material circumstances. She is employed full-time as a cashier. Her annual salary after tax is approximately $34,100, and her husband’s annual salary, after tax, is approximately $15,400. In 2021, her and her husband’s joint annual income was about $49,500 after tax.

Along with her husband, she owns an apartment that is valued at approximately $203,500. There is a mortgage over the apartment, with the remaining principal being around $152,000 and her monthly repayments being around $1,100. Fauzia owns a car valued at approximately $4,400. Neither she, nor her husband, owns any other asset that is worth more than $1,100.

She contends that her monthly expenses are around $3,300. Both she and her husband require ongoing medical treatment. One of her daughters, Maria Sher, also requires ongoing medical treatment: Affidavit, Fauzia Zaheer Sher, 3 June 2022 at pars 13-16.

Fauzia and her husband are financially co-dependent. They have two children, both of whom are 16 years old, and dependent upon them.

Fauzia was not cross-examined.

In her affidavit of 3 June 2022, Nasira Zaheer gave evidence of her financial and material circumstances. She stated that she was unemployed and had been receiving Centrelink payments of approximately $1,526 per fortnight. Her husband is also unemployed and receives $881 per fortnight from Centrelink.

Along with her husband, Nasira owns a property that is valued at approximately $550,000. There is a mortgage over the house, with the remaining principal being $260,062 and her monthly repayments being $1,249.

Neither Nasira, nor her husband, owns any other real properties, investments or assets that are worth more than $1,000. They have four dependents, three of whom are daughters aged 6, 4 and 1, and her mother, who is currently 65 years of age. Nasira’s mother has dementia of the Alzheimer’s type.

Nasira states that her monthly expenses are approximately $4,600.

Other than the Defendant, none of the deceased’s siblings gave any evidence about the nature of his, or her, relationship, respectively, with the deceased. As stated earlier, the Defendant was business partners with the deceased. Outside of the business partnership, the Defendant maintained a close relationship with the deceased. She claimed that she saw the deceased every day from about November 2012 to 2014 and visited him regularly when he resided at Unit 215 from 2017 up till his death: Affidavit, Najia Hesan, 5 October 2021 at pars 29, 36.

The Defendant disputed all bases of eligibility relied upon by the Plaintiff.

It is unnecessary to repeat what has been written above in regard to this ground of eligibility. Whilst s 57(1)(b) of the Act does not contain the requirement of the relationship having been in existence for a continuous period of 2 years, the applicant must still be a person with whom the deceased was living in a de facto relationship at the time of the deceased's death.

As previously stated, I am not satisfied that the Plaintiff is a person with whom the deceased was living in a de facto relationship at the time of his death. It follows that the Plaintiff is not an eligible person within the meaning of that term in s 57(1)(b) of the Act.

As stated, the Plaintiff also relies upon s 57(1)(e) of the Act. To qualify as an eligible person under this sub-section, she must establish, first, that she was a member of the household of which the deceased was a member. The authorities are clear that one can be a member of two households: Wolff v Deavin [2012] NSWSC 1315 at [16] - [17] (Macready AsJ); Purnell v Tindale [2020] NSWSC 746 at [214] (Henry J).

The Act does not specify a particular length of time during which the applicant must have been a member of the household of which the deceased was a member. However, for some period, the Plaintiff and the deceased must have been members of the same household.

Membership of the same household is a necessary, but not a sufficient, condition of eligibility under s 57(1)(e) of the Act. The Plaintiff must also establish whole, or partial, dependency upon the deceased. She cannot succeed except by virtue of a combination of status (membership of a household of which the deceased was a member) and actual dependency (whole or partial). Yet, membership of the household and whole or part dependency need not have occurred concurrently.

It is necessary to consider the meaning of the words "member of a household". I do so, remembering that the words must be given their normal meaning in the context in which they appear. There is no definition of the phrase in the Act.

In considering the phrase, it is important to remember that the word "household" may be contrasted with the word "house" (which is not used). The word "house" denotes something physical, whereas the word "household" has an abstract meaning.

I dealt with the authorities on the meaning of the term in Russell v NSW Trustee and Guardian [2013] NSWSC 370 at [35]-[51]. I shall not repeat what I wrote in that case. In summary, it is the characteristics and dimension of the relationship that make it a household.

In summary, what must be established is that there is, in fact, a household and that the Plaintiff has some intimate connection with the householder or another member of the household even though the plaintiff does not fall into the category of a spouse or child. There should be an intimate connection with the household, with the bond between its members being quasi-familial or that of friendship rather than that of landlord and boarder or master and servant: Markulin v Drew (NSWSC, 12 August 1992, unrep). As was written in Spata v Tumino [2017] NSWSC 111 at [48]:

The Act does not specify a particular length of time during which the Plaintiff was a member of the same household as the deceased and the period during which he and the deceased shared the same household does not necessarily have to coincide with the period during which she, or he, says she, or he, was wholly or partly dependent on the deceased.

The Act contains no definition of the words “dependent on”. In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance, and support.

In Amaca Pty Ltd v Novek [2009] NSWCA 50 at [45], Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under s 15B of the Civil Liability Act 2002 (NSW)):

In Tobin v Ezekiel (2012) 83 NSWLR 757 at 786; [2012] NSWCA 285 at [109], Meagher JA wrote that dependency “in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters”, and at [110], that it “may exist, irrespective of whether the dependent person is financially or physically able to support himself or herself”.

In Page v Page [2017] NSWCA 141, Basten JA wrote, at [8]:

This conclusion, that the statutory context requires a more limited construction of the term dependency, being limited to a relationship which of itself gives rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance, education, or advancement in life of the dependent, is a narrower test.

What has been described as “the more traditional test” was explained by Sackville AJA (with whom Leeming JA agreed), who noted, in summary, at [101]:

As was repeated in Spata v Tumino, at [68]:

In Chisak v Presot [2022] NSWCA 100, White JA (with whom Macfarlan and Gleeson JJA agreed), confirmed, at [47], that “the phrase “partly dependent” means at least “more than minimally” and perhaps “significantly”, although not “substantially”.” He added, at [57]:

Returning to Spata v Tumino, Payne JA noted at [72], “[a] finding of being ‘wholly or partly dependent’ does not itself give rise to a statutory obligation to make provision from the deceased person’s estate for the proper maintenance, education or advancement in life of the dependent; it is merely the first step”. Sackville AJA, at [139], also affirmed that:

In Ballam v Ferro [2022] NSWSC 1200, I wrote, at [378]:

I am satisfied that the Plaintiff was a member of the household of which the deceased was a member and was, partly dependent upon the deceased in the period between about 2015 and early July 2020. In this regard, senior counsel for the Defendant seemed to accept that if the Court concluded that the Plaintiff and the deceased had been in a domestic relationship with the deceased, she would have established this head of eligibility: Tcpt, 19 March 2023, p 479(41-43).

It is unnecessary to deal with this head of eligibility, but in case I am in error, I shall say something about it.

In Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324, Bell P (as the Chief Justice then was) wrote at [238]:

In Dridi v Fillmore [2001] NSWSC 319 at [102]-[104], Macready M considered the elements that need to be present in order for two people to be considered to be in a close personal relationship:

In Sharpless v McKibbin [2007] NSWSC 1498; (2008) DFC 95-414, Brereton J stated at [71]:

In Hayes v Marquis [2008] NSWCA 10, McColl JA noted at [75]-[76], [87]:

Einstein J disagreed with the view of McColl JA, commenting at [167] – [168]:

Beazley JA wrote, at [1], that she “[agreed] substantially with the reasons of McColl JA.”

I am not satisfied that the Plaintiff has established this ground of eligibility as she was not living with the deceased “at the time of the deceased person's death”. Had she continued to do so, I would have found this ground of eligibility established.

It is unnecessary to do more than express what was written earlier about the meaning of factors warranting the making of the application. There was no controversy that if the Plaintiff established that she is an eligible person, there are factors warranting the making of her application: Tcpt, 29 March 2023, p 441(1-2).

I have earlier noted that the parties to the proceedings consent to the application being made out of time in the event that a family provision order is to be made.

As earlier stated, to justify an order for provision under the Act, the Court, relevantly, must be satisfied that the deceased has not made “adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made …”: s 59(1)(c) of the Act. If that is established, the Court is empowered to order such provision out of the estate as the Court “thinks ought to be made” for the identified purposes: s 59(2) of the Act.

The majority (Mason CJ, Deane and McHugh JJ) in Singer v Berghouse (1994) 181 CLR 201 at 210; [1994] HCA 40, referred to these as “twin tasks” and stated that they involved similar considerations, because in each, the Court must assess what is the “proper” level of maintenance and advancement in life and what is “adequate” provision.

The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse at 210; White v Barron (1980) 144 CLR 431 at 434–435 (Barwick CJ, albeit in dissent in the result), 443 (Mason J); [1980] HCA 14.

“Provision” is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34]; (2009) 2 ASTLR 89 at 97 (Basten JA, Allsop P and Ipp JA agreeing), that the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person’s lifetime”.

As has been observed, the words “adequate” and “proper” are relative. Regard may be had, among other things, to the matters set forth in s 60(2) of the Act, including the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the circumstances and needs of other applicants, beneficiaries, and potential beneficiaries.

Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act, and the operation of the rules of intestacy applies unless a specific application is made, and acceded, to by the Court.

Relevantly, other than by reference to the provision made for the applicant, in this case, under the operation of the rules of intestacy, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education, and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant under the operation of the rules of intestacy, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant.

The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described by Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision – A Gloss or Critical Understanding?” (1999) 5(1) Australian Journal of Legal History 5, 10, as reached upon “a purely economic and objective basis”, whereas “proper” prescribes the standard of the maintenance, education, and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which seems to invite more subjective criteria.

In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ (McTiernan J agreeing), at 19, pointed out that the words “adequate” and “proper” are always relative and that what the testator regarded as “superior claims or preferable dispositions” is a relevant consideration:

In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing) wrote, at 502:

In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114], Callinan and Heydon JJ wrote:

The word “maintenance” and the phrase “advancement in life” are not defined in the Act.

In Vigolo v Bostin, Callinan and Heydon JJ, at [115], commented:

In Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176, Brereton J (Basten JA and Handley AJA agreeing), wrote, at [18]:

In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82, Dixon CJ and Williams J wrote, at 575:

In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P (Hodgson JA agreeing) wrote:

White J (as his Honour then was), in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, wrote, at [123]:

Whether the disposition of the deceased’s estate is not such as to make adequate provision for the proper maintenance, education, or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, that is made by the operation of the intestacy rules for the applicant on the one hand, and the applicant’s “needs” that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P, Hope JA agreeing). This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for him or her, out of the estate, should be the dominant consideration. The existence, or absence, of “needs” which an applicant cannot meet from her, or his, own resources, will always be highly relevant, and quite often decisive: Singer v Berghouse at 227 (Gaudron J, albeit in dissent in the result); Bkassini v Sarkis [2017] NSWSC 1487 at [296] – [297] (Robb J).

As was written in Devereaux-Warnes v Hall (No 3), by Buss JA, at [81]–[84]:

However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d) of the Act. If the Court does so, as will also be read, one of the purposes for which that is done is for determining “the nature of any [family provision] order”: s 60(1)(b) of the Act.

No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that “… the need a claimant must demonstrate is a need for ‘proper’ maintenance, education and advancement in life”, but that does not mean that “… adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others …”. Respectfully, I agree.

Of course, “need” is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between the words was stated by Lord Neuberger (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]:

In Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 at [41], David J added:

However, no narrow view of what is encompassed by the concept of “need” is to be adopted. In Gorton v Parks (1989) 17 NSWLR 1 at 8, Bryson J (as his Honour then was) commented that “[i]t does not seem possible to give a complete or exhaustive statement of the concept”.

Yet, as Basten JA wrote in Chan v Chan, at [22]:

Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122] that the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. Adequacy is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.

Sackville AJA (Macfarlan and Ward JJA agreeing) pointed out in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297, at [84], that:

If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.

Section 60 of the Act provides:

It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [37], as a “multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the Court considers relevant”, for the purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order.

In Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7], Basten JA wrote:

The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to consider any of the matters enumerated. None of the matters listed are necessarily of decisive significance and none differentiate in their application between classes of eligible persons. Similarly, there is no distinction based on gender. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based. Ultimately, it is for the Court to determine what weight should be given to any relevant factors.

Furthermore, the section also does not say how the matters listed are to be used to determine the matters identified in s 60(1) of the Act. Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on “the discretionary question”, namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance.

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the current Act. Other judges, and I, have repeated them in many cases under the Act.

The Court’s discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).

Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve “an overall fair” division of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.

As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]:

In Stott v Cook (1960) 33 ALJR 447 at 453–454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a will according to the Court’s own notions of fairness. His Honour added:

Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased’s wishes:

Of course, in considering the question, the nature and content of what adequate provision for the proper maintenance, education, and advancement in life of an applicant is, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propogation of the Faith v Scales at 19 (Dixon CJ); Walker v Walker [1996] NSWSC 188 at 30–31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]–[274] (Ward J).

In all cases under the Act, what is adequate and proper provision is necessarily fact specific.

The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the rules of intestacy in accordance with its own ideas of justice and fairness. Nor is the role of the Court “to address wounded feelings or salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).

In Foley v Ellis, at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse:

As long ago as 1980, in White v Barron, at 440, Stephen J wrote:

As I have stated in many cases, I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.

The formulation of principles to guide the exercise of the discretion, hopefully, avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power.

Yet, it is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar, at [131]:

The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA at [18]-[20], by Barrett JA at [66]-[67]; in Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195 at [84]-[85]; in Yee v Yee [2017] NSWCA 305 at [172]; and by White JA in Steinmetz v Shannon [2019] NSWCA 114 at [37]. They must be remembered.

What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters referred to earlier, so far as they are relevant to the circumstances set out below.

Having found that the Plaintiff is an eligible person, that having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application, and that the parties consent to the time for making her application being extended to the date of the filing the Statement of Claim, it is necessary, finally, to determine whether, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made by the operation of the intestacy rules in relation to the estate of the deceased.

I have already referred to the submission made on behalf of the Plaintiff as to the nature of the provision that was sought. I do not accept, in the circumstances of this case, that the deceased had an obligation to make such provision for the Plaintiff. Whilst the relationship, overall, existed for about 13 years, the domestic relationship existed for about 5 years.

Nor do I accept the submission made by the Defendant that considering the benefits the Plaintiff has received since the death of the deceased, there should not be any additional provision made for the Plaintiff.

When it was suggested during submissions, that in the alternative, the Court would be assisted by submissions on what would be adequate and proper in all the circumstances, senior counsel for the Defendant said (Tcpt, 29 March 2023, p 482(18-25)):

Whilst I am of the view that instructing senior counsel to indicate the nature of the instructions reflects favourably upon the character of the Defendant, the calculation is mathematically incorrect bearing in mind the value of the net distributable estate ($3,686,597). The percentage (11.1 per cent) equates to $409,621.

In reaching my conclusion about the quantum of the provision that ought to be made for the Plaintiff, I have considered all the evidence and the submissions. I have also remembered that the Court should place itself in the position of the deceased and consider what he ought to have done in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application and treats the deceased as a wise and just, rather than as a fond and foolish, testator: Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 478-479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 20 (Dixon CJ). The Court also makes allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order.

The net estate of the deceased is also reasonably large and is sufficient to make some provision for all the persons to whom the deceased owed a testamentary obligation, although not all those persons have advanced a financial claim upon the bounty of the deceased.

I also remember that the relationship ended a very short time prior to the death of the deceased, and that prior to the ending, it had existed for about 5 years, although a form of relationship that was not a de facto relationship existed for about 8 years before that. I have also remembered the provision made by the deceased for her during his lifetime and what she has received, including accommodation in Unit 215, since his death.

I have earlier referred to the Plaintiff’s financial and material circumstances which demonstrates that she does not have much by way of property. She also currently is unemployed and whilst she has an earning capacity, even if employed, her income would not be large. Yet, it is to be remembered that she is single with no dependents.

Judged by quantum and looked at through the prism of her own financial resources and needs, adequate provision for the proper maintenance or advancement in life has not been made under the operation of the rules of intestacy. As stated above, the test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case.

As the Plaintiff has established the jurisdictional threshold, the next question is what provision ought to be made for her out of the estate of the deceased. I am satisfied that her claim for provision from the estate of the deceased ought to be by way of what might be termed a lump sum for exigencies of life and to provide a modest sum to assist her with security of accommodation.

This is a more difficult question, and it involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, with whom Tadgell and Charles JJA agreed). It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”.

However, as earlier stated, similar considerations as are set out above often arise. The assessment of her needs is not a mechanical process.

My evaluative judgment should be, and has been, “guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought [to] be made”; and is to be undertaken assuming full knowledge and appreciation of all the relevant circumstances of the case: Andrew v Andrew at [16] (Allsop P). I have remembered that the Plaintiff does have a lack of any substantial reserves to meet some demands, particularly of ill health, and some financial security to protect against the ordinary vicissitudes of life.

I am of the opinion that the provision made for the Plaintiff should equate to 15 per cent of the net distributable estate. On the estimates provided above, the lump sum that equates to 15 per cent of the net distributable estate will be about $553,000. As agreed, she should also receive the gross sum for costs ($165,000). That will leave 85 per cent of the net distributable estate to be divided equally between the deceased’s 8 brothers and sisters. This should not impact, significantly, on the share to which each of his siblings is entitled on intestacy as instead of each receiving a lump sum that equates to 12.5 per cent, each will receive about 10.62 per cent, thereof.

I shall allow the parties an opportunity to consider these reasons and decide how they wish to proceed. Obviously, if the estate has to be collected, the debts and testamentary expenses determined, and then paid, and then the provision made for the Plaintiff distributed thereafter, an independent administrator (Mr Neal) should be appointed. If, on the other hand, the parties can agree upon the lump sum that is to be paid to the Plaintiff bearing in mind the conclusions to which I have come, and when it might be paid, other orders might be appropriate.

In accordance with s 65(3) of the Act, since provision is to be made by payment of a lump sum, the orders should specify whether interest is payable on the whole or any part of the amount payable, and, if so, the period during which interest is payable and the rate of the interest. The parties should consider this aspect also.

I direct the parties, within 14 days of these reasons being delivered, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons. This period should allow the parties to agree on orders to give effect to these reasons.