The Estate of Daniele Claudio Legler

1. [1]

   These proceedings concern the estate of the late Daniele Claudio Legler (the Deceased), who died intestate on 22 April 2022 in Lagos, Portugal, aged 72 years old and leaving substantial assets in at least New South Wales (NSW), Portugal, Lichtenstein and Malta.

2. [2]

   By far, the majority of the Deceased’s assets were located overseas. The assets in NSW comprised two bank accounts totalling $59,022.83 and items of personalty in a self-storage unit located at Mullumbimby, NSW (NSW assets). The Deceased left debts of at least $68,369 meaning that, so far as concerns the NSW assets, the estate is ostensibly insolvent.

3. [3]

   The plaintiff, Evgeniya Legler, formerly Evgeniya Vernon (who I refer to in this judgment as Zhenya being the name by which she is generally known) contends that she was the de facto partner in a domestic relationship with the Deceased at the time of his death. By her statement of claim filed 3 February 2023, Evgenia applies for the grant of letters of administration in her name.

4. [4]

   The defendant (Nadja) is the eldest of the Deceased’s five children. By her amended cross-claim, filed pursuant to leave granted on the first day of the hearing, she applies for a grant of letters of administration in her name. In the alternative, she contends that an independent administrator should be appointed.

5. [5]

   Given the common surnames of a number of the relevant actors, I will, where necessary, refer to people by their given names. I intend no disrespect or informality in so doing.

6. [6]

   The proceedings were heard by me between 6 and 10 May 2024. Zhenya was represented by Mr R Wilson SC. Nadja was represented by Mr J J Loofs SC and Mr N Bilinsky. For the reasons set out below I have concluded:

   1. (1)

      The Deceased was domiciled in Portugal at the time of his death.

   2. (2)

      Zhenya was the Deceased’s de facto spouse at the time of his death (within the meaning of the relevant statutory provisions).

   3. (3)

      An independent administrator should be appointed.

   4. (4)

      The parties should be directed to seek to agree orders to give effect to these reasons, including as to costs.

Introduction to the issues

1. [7]

   The two key issues litigated between the parties were whether Zhenya was in a de facto relationship with the Deceased at the time of his death and where was the Deceased domiciled at the time of his death.

2. [8]

   An understanding of how these legal and factual issues fit together needs to begin with an understanding of a few basic facts as to the assets of the Deceased at the date of death and the principles of private international law applicable on intestacy.

3. [9]

   At the time of his death, the Deceased was in Portugal, living at one of the family properties, known as La Punta, near Lagos in Portugal (La Punta), which he had recently purchased. There is an issue as to whether he was domiciled in Portugal (as contended by Nadja) or was domiciled in Australia (as contended by Zhenya).

4. [10]

   The assets of the estate at the time of death, and their location, were, on the evidence before me, as follows:

5. [11]

   It also appears that the estate has an outstanding debt in NSW for school fees in relation to the children of the Deceased’s second marriage, in the sum of $68,369.

6. [12]

   The NSW assets comprise only moveables. It was not in dispute that the succession to moveable property on intestacy is determined by the law of the domicile of the intestate (in contrast to immovables where the lex situs is determinative): see Nygh’s Conflict of Laws in Australia (10th ed 2019, LexisNexis Butterworths Australia) (Nygh’s) at 38.4 and 38.7.

7. [13]

   The NSW assets obviously need to be dealt with, hence the need for the appointment of an administrator of the Deceased’s estate. The parties were agreed that, given the Deceased died with property in NSW, the Court has jurisdiction to grant administration of the Deceased’s estate: see s 40 of the Probate and Administration Act 1898 (NSW) (PAA).

8. [14]

   Zhenya’s contention to be appointed as administrator relies on s 63 PAA and her contention that she was the Deceased’s “spouse” at the date of death. I set out the relevant statutory provisions in this regard below.

9. [15]

   Determining whether or not the Deceased was domiciled in Australia at the time of his death will assist in determining what happens to the Deceased’s assets, including the NSW assets.

10. [16]

    The position in relation to the assets other than the NSW assets is far from straightforward and will potentially be affected by the laws applicable in the jurisdiction where the assets are located and potentially further proceedings in those overseas jurisdictions.

11. [17]

    For the most part, there was no evidence as to the applicable overseas laws, save for those applicable in Portugal. The parties jointly retained an expert in Portuguese Law – Professor Rita Xavier. She relevantly opined that:

General approach to fact finding

1. [18]

   The events the subject of these proceedings covered a number of years, commencing in about 2016 when it would appear that Zhenya met the Deceased. Considerable evidence was given, particularly by Zhenya of conversations and dealings that she contends that she had with the Deceased who obviously is unable to respond to those matters.

2. [19]

   Bearing in mind these characteristics of the evidence in the present case, I approach fact finding informed by the following matters:

3. [20]

   It is also axiomatic that “all evidence is to be weighted according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”: see Blatch v Archer (1774) 1 Cowp 63 at [65]. Allied to this general principle is that a party’s failure to produce documentary evidence to corroborate their account, where they might be expected to be in possession of such documents, may give rise to an inference that such documents as they may be expected to have would not support their account: Jones v Dunkel (1959) 101 CLR 298 at 320; Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 per Handley JA.

4. [21]

   This last observation is particularly apposite in the present case, where it was not in dispute that Zhenya had access to all of the communications she had written with the Deceased but had obviously chosen to put only some of those communications before the Court.

5. [22]

   It must be appreciated, however that a Jones v Dunkel inference can only go so far:

General observations on witness credit

1. [23]

   The principal witness in Zhenya’s case was Zhenya herself. She made two affidavits and was cross-examined over three days. She was subject to a sustained credit attack.

2. [24]

   Zhenya was an unsatisfactory witness in a number of respects. I treat her evidence with extreme caution and, for the most part, only accept it when it is against her interest or is corroborated by objective evidence or unchallenged evidence from others.

3. [25]

   Zhenya repeatedly refused to answer the question that she was asked but instead made long speeches which she believed would assist her case.

4. [26]

   She repeatedly also indicated in answer to questions – often to the effect that there was no objective evidence which she was able to provide in support of evidence she had otherwise given – that there was considerable other evidence in the form of text and WhatsApp messages and other emails, that would be provided at the appropriate time. Save for one email that was produced by Zhenya in response to a call made during cross-examination when she left the witness box to access her phone, in relation to [42] of her first affidavit, and a further text exchange with the Deceased on 31 March and 1 April 2022 no further corroborating material was produced. The tender of a further document in re-examination was not pressed.

5. [27]

   Two examples, of many, stand out as unsatisfactory aspects of Zhenya’s evidence. First, the evidence that she gave in relation to whether or not she wished to have a baby with Sean Dignum (Mr Dignum), who appeared to be her on-and-off boyfriend. On the first day of her cross-examination, Zhenya readily admitted to wanting to have a baby with Mr Dignum. When the topic was returned to on day two of her cross-examination, in the context of her actions after learning of the Deceased’s death, Zhenya steadfastly denied that she had ever wanted to have a baby with Mr Dignum, and even went so far as to suggest that she commenced using contraception to avoid falling pregnant. The contemporaneous documentation, including Zhenya’s own text messages and emails, suggest quite strongly that she wanted to have a baby with Mr Dignum.

6. [28]

   I was puzzled as to why Zhenya changed her evidence is this regard. The change appeared to be motivated by a concern by Zhenya that admitting to wanting to have a baby with Mr Dignum would somehow cut across the evidence that she was giving in relation to her relationship with the Deceased and her desire to have a baby with him.

7. [29]

   Second, and perhaps more importantly given that it went to the heart of the issue of domicile in the case, was the contrast between the instructions originally provided by Zhenya to Portuguese lawyers immediately after the Deceased died to enable them to commence proceedings in Faro, Portugal on her behalf, and the evidence now sought to be given in these proceedings and in subsequent proceedings commenced in Lisbon. I set out the evidence in detail below.

8. [30]

   These two sets of evidence are quite inconsistent with each other in terms of the Deceased’s permanent residence. Zhenya admitted as much in cross-examination. She sought to deflect attention away from the earlier instructions to Portuguese lawyers on the basis that those proceedings have now been withdrawn and some suggestion that Zhenya did not fully understand the nature of the initial proceedings. I do not accept these explanations by Zhenya. The evidence deals with the relatively simple topic of where the Deceased and she were living. One view of the earlier instructions (as opposed to the contentions advanced in these proceedings) is that they were given at a closer point in time to the events in question and thus might be thought to be more accurate.

9. [31]

   It is difficult to avoid the conclusion that Zhenya was simply providing whatever instructions she thought at the time would best assist the legal position she was wishing to contend for at the time. This tells against her general honesty and integrity.

10. [32]

    Irina Bruk is the Honorary Consul-General of the Russian Federation for Queensland and Victoria (Ms Bruk). She gave evidence on two topics. First, a discussion that she had with the Deceased on or about 29 January 2021 about his relationship with Zhenya. Second, her communications with Zhenya relating to the purchase of the engagement ring on 2 April 2022.

11. [33]

    Her credibility was challenged. It was put to Ms Bruk in cross-examination that, in substance, she was saying what she was asked to say by Zhenya, rather than the truth. Ultimately, no submission to this effect was pressed in closing. It was, however, suggested that I should not accept her account of the 29 January 2021 conversation essentially on the grounds that her recollection could not be that good.

12. [34]

    I do not accept this criticism of Ms Bruk. She gave her evidence in an honest and clear way, and I accept it. The evidence of the conversation is, however, of limited assistance on whether the Deceased and Zhenya were contemplating the purchase of real property in Australia. The evidence in relation to the engagement ring is also of limited assistance. Ms Bruk’s evidence does provide some independent evidence on the nature of the relationship between the Deceased and Zhenya.

13. [35]

    Nadja was quite an impressive witness. She gave her evidence in a calm and composed manner. She made concessions where appropriate. In particular, she accepted that, although she was not aware of it at the time, having now reviewed the material in evidence in the case, as well as having regard to the text from Zhenya to Janis dated 2 December 2020, which Janis subsequently showed to her, that the relationship between her father and Zhenya went beyond that of a personal assistant and included the two having a sexual relationship.

14. [36]

    She also agreed that she took the view that what Zhenya was doing in these proceedings was seeking to cheat her and her siblings out of their rightful inheritance, although she appeared to not quite understand the term “cheat out”.

15. [37]

    The only aspect of her evidence that I have difficulty accepting concerns why it was that Zhenya was included in the death notice published in relation to the Deceased. Contrary to Nadja’s evidence that Zhenya was named because she was simply a friend of the Deceased, I think it more likely she was named in recognition of the close personal relationship she had with the Deceased.

16. [38]

    Janis was also quite an impressive witness, who gave his evidence in a calm and composed manner. His credibility was not seriously challenged. I accept his evidence.

17. [39]

    Nico gave evidence by video from La Punta. He gave his evidence in a straight-forward manner. His credit was not seriously challenged. I accept his evidence.

18. [40]

    Hans Niederman gave evidence by video from London whilst he was travelling. He was an impressive witness. He made concessions where necessary, particularly as to the existence of a sexual relationship between Zhenya and the Deceased.

19. [41]

    Again, his evidence was not seriously challenged, and I accept it.

20. [42]

    Dr Alberto Ferrari gave evidence by video from Italy. He was also an impressive witness whose evidence was not seriously challenged. I accept it.

21. [43]

    Dorina Mugur was the cleaner at La Punta from August 2020. She worked every Friday for approximately 5 hours. She gave evidence by video from Romania. I accept her evidence although it must be appreciated that some of that evidence, particularly as to the number of occasions on which she saw Zhenya at La Punta, is of little assistance given that she was only working one day a week.

22. [44]

    Marie Jose Pena was the property manager for La Punta. She gave evidence by video from La Punta. She gave her evidence in a straight-forward manner providing responsive answers to the questions she was asked. I accept her evidence, although, again, it is not overly significant in the overall determination of the key issues.

23. [45]

    Manuel Marreiros was the gardener at La Punta. He gave evidence by video from La Punta. His evidence was not seriously challenged, and I accept it.

24. [46]

    An issue that emerged when Mr Marreiros was called was that he had been provided with a copy of his affidavit which had been translated into Portuguese, in circumstances where the affidavit he prepared dated 22 June 2023 was written in English and translated verbally to him. I did not understand senior counsel for Zhenya to ultimately contend that this affected the veracity of Mr Marreiros’ evidence.

25. [47]

    Gerald Berger was an asset manager engaged by the Deceased in about August 2020. He gave evidence from Switzerland. His evidence was quite limited and was not challenged. I accept it.

26. [48]

    Mr Dignum was a former partner of Zhenya. The two kept in contact to some extent throughout Zhenya’s relationship with the Deceased and immediately after he died.

27. [49]

    It is clear that the relationship between Zhenya and Mr Dignum was quite tumultuous. Their relationship ended badly and resulted in criminal proceedings being commenced against Mr Dignum. There was in evidence a number of communications between Zhenya and Mr Dignum over the years which included, as Mr Dignum admitted in cross-examination, quite offensive language.

28. [50]

    Mr Dignum admitted in cross-examination that he did not like Zhenya. He also admitted that whilst he had agreed to give evidence at the request of the Legler family, he had travelled from his home in Victoria to Sydney at his own expense and had sat outside Court for most of the period from the start of the hearing until he gave evidence – which was on day 3 of the hearing.

29. [51]

    These matters – principally the admitted acrimony between Mr Dignum and Zhenya – causes me to approach Mr Dignum’s evidence with a degree of caution. For the most part, however, I have only placed reliance on some of the communications between Mr Dignum and Zhenya. These communications, notwithstanding the troubled relationship between the two, are of some assistance in assessing the extent and strength of the relationship between Zhenya and the Deceased, as they are communications from Zhenya which she did not herself disclose.

30. [52]

    Affidavit evidence was read on behalf of Zhenya from two witnesses who were not required for cross-examination.

31. [53]

    First, Yevgeniy Kushkin (Mr Kushkin), a business owner and former Deputy Director of International Relations of Sverdlovsk Film Studios in Ekaterinburg, Russia. He has known Zhenya since November 2003. Relevantly, he gave evidence of several dealings that he had with Zhenya and the Deceased in Portugal in November 2017, in Ekaterinburg in November 2017 and again in October 2018. His evidence was relevant to the nature of the relationship between the Deceased and Zhenya.

32. [54]

    Second, Alvaro Silvera De Menses, an Attorney registered at the Portuguese Bar Association. In or about December 2020, he was retained by the Deceased and Zhenya to provide legal and taxation advice on the potential tax implications in Portugal arising from a “complex investment structure” the Deceased advised he had inherited. He also gave evidence as to the tax status of Zhenya and the Deceased in Portugal.

Two Critical Issues

1. [55]

   As set out above, two of the critical issues in the case are:

   1. (1)

      Where the Deceased was domiciled at his time of death; and

   2. (2)

      Whether Zhenya was the Deceased’s de facto spouse at the time of death.

2. [56]

   Each of these issues raise factual questions to be determined against the background of the relevant law. I first set out the factual chronology. I then consider these two issues.

The factual chronology

1. [57]

   A determination of the key factual issues in the proceedings involves an understanding of the facts as a whole. Accordingly, I set out below the factual chronology.

2. [58]

   It should be observed at the outset that a large part of the documentary material in evidence consisted of records evidencing travel and accommodation charges incurred by the Deceased and Zhenya. Zhenya also put into evidence a spreadsheet which she had prepared which purported to summarise, chronologically, the time that she spent with the Deceased, and where this time was spent. The underlying travel and accommodation records were intended to support this schedule.

3. [59]

   I set out in the chronology below the time periods from the spreadsheet where Zhenya contends she was with the Deceased. A significant factual issue at the hearing was the extent of Zhenya’s relationship with the Deceased and whether she spent as much time with him as she says she did. The documentary records only go so far on this issue, and in particular do not greatly assist in resolving how much time Zhenya spent with the Deceased when he was at La Punta.

4. [60]

   The Deceased was born in Italy on 28 January 1950. His father, Fredy Legler was apparently a pioneer in textiles, particularly in denim and from that accumulated considerable wealth, which was held by a foundation, established under Article 335 of the Swiss Civil Code (Legler Foundation). The Deceased went to boarding school in Switzerland, graduating in 1968.

5. [61]

   In the 1970s, the Deceased went to university in Switzerland before entering the Academy of Dramatic Arts in Zurich and then pursuing a career in acting.

6. [62]

   In about 1991, he married his first wife Rosemarie and the three children of that marriage were born in 1991 (Nadja), 1993 (Janis) and 1995 (Nico) respectively. The marriage ended in divorce in 1998.

7. [63]

   The Deceased met his second wife (Susan/Selila) in about 1998 and they initially lived in Italy. They moved to Australia and in early October 2000, Susan bought a house in Melbourne with assistance from the Deceased.

8. [64]

   In 2001, the Deceased received a right to live and work in Australia under a subclass 461 Visa (as a member of a family unit of Susan, a New Zealand citizen). From then on, the Deceased was issued with subsequent visas every five years. On 4 July 2002, the Deceased married Susan in Melbourne.

9. [65]

   In 2004, Zhenya (then 24 years old) moved to Australia with her husband (Mr Vernon), a British citizen.

10. [66]

    In 2007, the Melbourne house was sold, and the Deceased and Susan moved to New Zealand to live and on 24 April 2008, Aidan and Mattia were born (the Twins).

11. [67]

    In 2010, the Deceased and Susan returned to Australia with their two children, renting in Byron Bay. A property in Queensland was subsequently bought by Susan in late 2013 apparently using, at least in part, funds provided by the Deceased.

12. [68]

    Zhenya became an Australian permanent resident in 2012 and completed a diploma to qualify her as a migration agent. She was divorced from her husband in 2010.

13. [69]

    In about March 2014, Zhenya commenced a relationship with Mr Dignum. She ran her migration business from his apartment.

14. [70]

    The Deceased and Susan separated in about early 2015. Later in 2015 the Deceased’s mother passed away. At the time she had been living at La Punta. Each of Nadja, Janis and Nico gave evidence about La Punta, it being one of the Legler family residences which they had visited for school holidays. In May 2015, Maria Pena was engaged as the Property Manager for La Punta, and in mid-August 2015, met with the Deceased to give him a key for general access to the property.

15. [71]

    La Punta was, by all accounts, a large property adjacent to the ocean. The main dwelling was a two-storey dwelling containing five bedrooms.

16. [72]

    It would appear that it was about this time in 2015, after his separation from Susan and likely also after the death of his mother, that the Deceased left Australia and commenced living at La Punta. The evidence was not entirely clear as to precisely when the Deceased commenced living at La Punta but it is not necessary to make my findings as to precisely when.

17. [73]

    Both Janis and Nadja gave evidence of their father saying at the time that he was done with Australia. He told Janis that he had decided to come and live in Portugal. He told Nico that “[La Punta] is my new home.”

18. [74]

    It would appear that it was shortly after moving to La Punta that the Deceased first considered buying La Punta, as it was in September 2015 that he wrote to Maya Pfrunder, a representative of the company that managed the Legler Foundation which held the shares in the company incorporated in Malta that owned La Punta. A formal intention to buy the shares was conveyed a year later in September 2016 at a Fly Information session in Zurich.

19. [75]

    The Deceased first met Zhenya in about November 2016 when he contacted her for help in obtaining a bridging visa which the Deceased required consequent upon his separation from Susan. In December 2016, the Deceased and Zhenya went to dinner and apparently a mutual attraction developed from this point.

20. [76]

    In connection with his application for a bridging visa, the Deceased stated, inter alia:

21. [77]

    In early 2017, the Deceased was in Australia visiting his twin boys. He returned to Portugal in early July 2017. Zhenya visited her mother in Spain in about June 2017 and they both travelled to Portugal and stayed with the Deceased at La Punta. Zhenya says she stayed for approximately two months from June 2017 to August 2017. Having regard to the Deceased’s email to Zhenya dated 22 June 2017 (extracted below) it was likely that the Deceased returned to Portugal on 3 July 2017 and she stayed with him from then.

22. [78]

    On 22 June 2017, the Deceased sent an email to Dr Ferrari in which he stated in relation to Zhenya:

23. [79]

    The context for this email and introduction of Zhenya to Dr Ferrari was because the Deceased was “changing location” – which I infer was a reference to where he lived. He wrote to Zhenya by email on 22 June 2017 stating:

24. [80]

    Dr Ferrari and Zhenya then exchanged emails where Dr Ferrari asked “in the event” that the Deceased wanted to change his civil and fiscal domicile abroad, whether this would lead to the automatic loss of his visa and how long in a calendar year the Deceased could stay in Australia without a visa. Zhenya responded to the effect that if the Deceased moved his domicile abroad and lived predominantly abroad it would not result in automatic loss of his visa, and to maintain his visa indefinitely, if he continues to have personal ties with Australia (being his two young children), he should not be absent from Australia for a continuous period of five years.

25. [81]

    Tax advice was then obtained by Dr Ferrari from specialist tax advisers in Portugal about the Deceased’s tax position in Portugal if he were domiciled in Portugal.

26. [82]

    On 30 June 2017, the Deceased was granted a substantive 461 visa, with an expiration date of June 2022.

27. [83]

    Zhenya returned to Australia in mid-August 2017 and resumed living with Mr Dignum. The evidence contained text exchanges between Zhenya and Mr Dignum from late October 2017 which suggest they were still in a romantic relationship at this time. Email exchanges suggest that the relationship between the two broke down in late November 2017.

28. [84]

    Zhenya contends that it was in October 2017 that she and the Deceased started living together as a couple on a genuine domestic basis. Whether this was so was in dispute. It does not appear to be in dispute that Zhenya travelled to Portugal and stayed at La Punta whilst the Deceased was there. A friend of Zhenya, Mr Kushkin and his daughter stayed at La Punta with them for a couple of days in early November 2017. Mr Kushkin gave unchallenged evidence that Zhenya described the Deceased at this time as her “new partner”, although he did not give any evidence of them acting as a couple at this time.

29. [85]

    Between 7 and 15 November 2017 Zhenya and the Deceased travelled to Russia together where the Deceased taught acting classes in Moscow, St Petersburg and Ekaterinburg. Zhenya contends that the Deceased met her family and that she was introduced as his partner. Nadja, Janis and Nico were there for part of the time in Moscow. The Deceased apparently introduced Zhenya to them as his assistant who was co-ordinating “things for me here as she speaks Russian.” None of Nadja, Janis and Nico observed the Deceased and Zhenya behaving as a couple.

30. [86]

    Mr Kushkin gave evidence of spending some quality time with the Deceased and Zhenya in Russia, including a tour of Ekaterinburg. Again, however, he did not provide any specific evidence as to what he observed.

31. [87]

    The Deceased spent Christmas at the family ski lodge at Klosters with Nadja, Janis and Nico. Zhenya joined them. According to Janis, his father said to him that “Zhenya is travelling through Europe and is staying with us for a few days.” Nico did not observe any signs of affection between the Deceased and Zhenya.

32. [88]

    Zhenya returned to Australia in around early January 2018 and resumed her relationship with Mr Dignum. She gave evidence that her relationship with the Deceased as a couple living together on a genuine domestic basis stopped at this time and did not recommence until September 2018. Zhenya, her mother and Mr Dignum travelled to the Dandenong Ranges in late February 2018. A number of text messages between Zhenya and Mr Dignum were in evidence suggestive of this being a rather tumultuous relationship with Mr Dignum telling Zhenya their relationship was over in late April 2018 when he revoked her access to stay in his apartment.

33. [89]

    In April 2018, Zhenya then travelled to Portugal to be with the Deceased. Whilst she was overseas Zhenya continued to text Mr Dignum seeking to continue a relationship with him. Mr Dignum’s responses suggest that he was no longer interested in having a relationship with Zhenya. These communications suggest that an important matter for Zhenya continued to be to have a baby with Mr Dignum. In one exchange with Mr Dignum Zhenya stated:

34. [90]

    Zhenya continued to send emails to Mr Dignum, suggesting that she wanted a relationship with him. On 24 April 2018, she wrote an email to Mr Dignum in which she said “…and remember I love you very much and you are the only mens I miss…xxxx..”. Later on 30 April 2018, in an email to Mr Dignum, Zhenya wrote “My dear Sean I miss you so much…” and “…it’s nothing here in Europe interests but good food”.

35. [91]

    Zhenya returned to Australia in about June 2018 without the Deceased. There continued to be some communication and interaction between Zhenya and Mr Dignum up until September 2018. The communications again suggest that Zhenya was wanting to pursue a relationship with Mr Dignum.

36. [92]

    In about September 2018, Zhenya went back to Portugal to join the Deceased. It was at this time that she contends that she recommenced her relationship with the Deceased, which continued until his death.

37. [93]

    In October 2018, they travelled to Zurich to meet with Dr Ferrari. Dr Ferrari’s unchallenged evidence is that Zhenya was not introduced by the Deceased as his partner and that he did not observe any signs of affection between them.

38. [94]

    In October 2018, the Deceased and Zhenya returned to Russia for the Deceased to teach an acting masterclass. It was during this time that the Deceased spoke with Mr Kushkin who gave unchallenged evidence that the Deceased said to him:

39. [95]

    In November 2018, both the Deceased and Zhenya returned to Australia for a period of five months and stayed in rented accommodation in Richmond, Melbourne, Victoria. They then travelled to Singapore for a short period where they met up with Nico. There were some discussions about the Deceased’s children obtaining Australian passports. The unchallenged evidence of Nico was that the Deceased and Zhenya stayed in separate rooms and there were no signs of affection between them. Nadja also gave unchallenged evidence that the Deceased and Zhenya had separate rooms and that she did not observe any signs of affection between the two.

40. [96]

    Throughout 2018 there were communications between Pitcher Partners (the Deceased’s Australian tax accountant) and Dr Ferrari in relation to the Deceased’s Australian tax affairs. An issue was whether the Deceased continued to be a resident of Australia for tax purposes. A “no return necessary” form was lodged for the financial year ended 30 June 2017. On or about 13 September 2018, Pitcher Partners asked Dr Ferrari for confirmation on “the exact date [the Deceased] became a non-resident of Australia for tax purposes. Can you please advise me of the date [the Deceased] left Australia permanently.” (emphasis in original)

41. [97]

    On or about 6 December 2018, Dr Ferrari responded:

42. [98]

    On 9 December 2018, Zhenya emailed Mr Dignum saying “I am very badly managing the separation” and “I love you Sean and it has never been different from the day one”.

43. [99]

    From the Deceased’s perspective, it would appear that the relationship between Zhenya and the Deceased changed from a professional one to also include a personal relationship in about late 2018. This emerges from the Deceased’s email to Dr Ferrari, who was then providing legal services to the Deceased but was also an old friend, the two having gone to boarding school together. His email to Dr Ferrari dated 10 December 2018 was as follows (bold emphasis added):

44. [100]

    On 7 December 2018, Dr Ferrari wrote to Zhenya to the following effect:

45. [101]

    Zhenya’s response did not dispute Dr Ferrari’s statements in relation to the Deceased’s domicile, including that he was visiting Australia and had moved his domicile to Portugal.

46. [102]

    The correspondence between Dr Ferrari and Zhenya in relation to the Deceased’s tax affairs continued into 2019. On 30 January 2019, Dr Ferrari stated:

47. [103]

    On 23 January 2019, Zhenya sent an email to the Deceased attaching “a summary of my expenses and earnings from 01 November 2018 till current (2,5-3 months).” Two figures are provided. The first for expenses – “comprised of my personal expenses, some business costs and your borrowings (expenses)”. The second was for “anticipated earnings for the activities to do with family travel arrangements, communication and some Chekhov (1,100 + 500) per month, equalling 4,800 for 3 month”. The email ended “Ask me if something is not clear or if I have been eating out too much of luxuries instead of cooking”. The Deceased’s response was “All good let me know how much I owe you totally”. Nadja put some reliance on this correspondence on the issue of whether a de facto relationship existed, it being contended that the relationship was essentially a professional one for which Zhenya was being paid. I deal with this issue below. Whilst this evidence is undoubtedly relevant, there is more probative evidence as to the true nature of their relationship.

48. [104]

    In January 2019, Zhenya and the Deceased apparently went to Fiji together for 10 days.

49. [105]

    According to Zhenya, she spent considerable time overseas with the Deceased in 2019, including:

50. [106]

    There are many photos in evidence of the Deceased and Zhenya together during 2019 in various locations around the world, including a number of tourist attractions. The photographs are suggestive of a personal, and not merely professional, relationship between the two. They include the Deceased and Zhenya with their arms around each other and dining together (including with friends of the Deceased).

51. [107]

    In June 2019, the Deceased and Zhenya travelled to Bergamo, Italy, to celebrate the birthday of a friend of the Deceased, where Zhenya contends she was introduced as the Deceased’s partner or de facto spouse. Mr Niederman gave evidence in chief to the contrary, that the Deceased did not introduce Zhenya as his girlfriend or partner and that she was there on the trip to help the Deceased “with stuff and this is very useful”. In cross-examination however, Mr Niederman gave evidence that he assumed the Deceased and Zhenya were sharing a room.

52. [108]

    In July 2019, Zhenya spoke to a representative of the Australian Taxation Office, in the presence of the Deceased concerning whether the Deceased had any outstanding Australian tax obligations. She then sent an email to Dr Ferrari summarising the discussion. The email included:

53. [109]

    On 27 October 2019 Zhenya sent an email to the Deceased to the following effect:

54. [110]

    As will appear in the chronology below, some forms were lodged in Victoria seeking to register their relationship, but Nadja challenges whether these forms were lodged with the knowledge/consent of the Deceased.

55. [111]

    Zhenya and the Deceased spent Christmas together at La Punta. There was also in evidence a number of photographs of a birthday party held for the Deceased in January 2020 in Portugal which show Zhenya and the Deceased sitting together with other members of the Deceased’s family. On 5 February 2020, Zhenya became registered as a tax resident of Portugal.

56. [112]

    On 12 February 2020, Zhenya lodged an application to register her relationship with the Deceased in Victoria. On this date, she also sent an email to the Deceased which included:

57. [113]

    On 26 February 2020, the Deceased and Zhenya travelled from Portugal to Zurich to attend the funeral of the Deceased’s father’s de facto partner, Annette Ringier.

58. [114]

    On 12 March 2020, a Relationship Certificate was issued by the Victorian Registry of Births, Deaths and Marriages registering the relationship between Zhenya and the Deceased. As set out above, there was an issue in the case as to whether this certificate, which was issued following an application made by Zhenya, was made with the knowledge/consent of the Deceased.

59. [115]

    On 24 May 2023, the Victorian Registry of Births, Deaths and Marriages wrote to Zhenya informing her that the Relationships Register has been amended cancelling the entry of the domestic relationship between Zhenya and the Deceased. Two reasons were provided for the cancellation. First, the failure to lodge statutory declarations from each of the applicants verifying certain information. Second, because no residential address in Victoria was provided to prove that one of the persons to the relationship lived in Victoria.

60. [116]

    Zhenya was cross-examined about the lodgement and subsequent cancellation. She contended that she lodged the necessary statutory declaration but that the Registry must have lost the documents. The explanation seems inherently unlikely. Further, the reasons given for the cancellation recite the history of the application including that Zhenya physically attended the Registry and lodged certain documents, which did not include the required statutory declarations.

61. [117]

    As set out above, it would appear that there was some email communication between Zhenya and the Deceased in late 2019 about registering their relationship in Victoria so it would appear that the Deceased had some knowledge of the possibility of an application being made. The Deceased did not, however, complete requisite statutory declaration. Nor did Zhenya.

62. [118]

    I do not regard the issue of whether the Deceased was aware of the application of much significance in the overall determination of the issues and therefore do not reach any final conclusion on whether the Deceased was aware. The fact is that neither Zhenya nor the Deceased completed the statutory declaration. Why they did not is largely speculation.

63. [119]

    Apart from a short trip to Australia in February 2020 and a short trip to Zurich in February 2020, Zhenya and the Deceased spent the first 6 months of 2020 in Portugal. The Deceased and Zhenya travelled to Azores in July 2020 and Switzerland in August and September 2020. Janis, Nico and Nadja and her fiancé stayed at La Punta with the Deceased in June 2020.

64. [120]

    During this period, the Deceased and Janis had a conversation in which the Deceased indicated a desire to travel to Australia to see the Twins. In another conversation, the Deceased said:

65. [121]

    Janis also gave evidence that between June 2020 and when he died, the Deceased and he had a conversation where Janis asked his father about his relationship with Zhenya. The conversation was to the following effect:

66. [122]

    On 11 August 2020, Zhenya sent an email to Mr Dignum which stated, inter alia:

67. [123]

    On 20 August 2020, the Deceased met with Dr Ferrari in Switzerland. Dr Ferrari gave evidence that a conversation occurred to the following effect:

68. [124]

    Dr Ferrari went on to explain in his affidavit that he was trying to hint to the Deceased that his ongoing association with Zhenya was potentially fraught with complication for the Deceased and that he should be careful before becoming ensnared by her.

69. [125]

    Zhenya continued to email Mr Dignum in early October 2020.

70. [126]

    Zhenya and the Deceased apparently spent the period from September to 18 December 2020 together in Portugal and then spent the period of 20 December to 31 December 2020 in Dubai en route to Australia.

71. [127]

    On 2 November 2020, Zhenya was granted a Residence Card in Portugal. During the process, she declared the Deceased as her de facto partner. Zhenya gave evidence in chief that her and the Deceased attended the local parish in Lagos together and registered as a de facto couple on or about 6 November 2020. On 17 November 2020, Zhenya sent two email messages to the Deceased as follows:

72. [128]

    On 2 December 2020 Zhenya sent two messages to Janis as follows:

73. [129]

    The next day she sent a further message as follows:

74. [130]

    These two communications, coupled with the emails from Zhenya to the Deceased on 17 November 2020, suggest there were some troubles in their relationship at this time, although it would appear that those troubles were short lived as they subsequently spent Christmas in Dubai, en route to Australia.

75. [131]

    Zhenya and the Deceased arrived in Brisbane on 31 December 2020 and then spent two weeks in quarantine together in the Rydges Southbank Hotel. In total, they then spent approximately eight months in Australia at various resorts and other places.

76. [132]

    There was considerable dispute at the hearing as to the primary purpose as to why the Deceased returned to Australia in early 2021. Nadja contended that the primary purpose of the Deceased returning to Australia was to see his twin children. Zhenya sought to characterise the trip more of a returning home to Australia for the two of them where the two of them looked at real estate to buy in Australia as a new residence.

77. [133]

    There is considerable evidence that the reason that the Deceased gave to others, including his gardener at La Punta and each of Nadja, Nico and Janis, was to see the Twins in Australia. There are also contemporaneous communications with his ex-wife in evidence to this effect. It was also not in dispute that this was the first thing that he did after being released from quarantine – he travelled to Melbourne to visit the Twins. The evidence in support of Zhenya’s contention is much more limited. The trip was primarily to see the Twins.

78. [134]

    After visiting the Twins, the Deceased returned to Queensland on 19 January 2021, where he stayed at various resorts with Zhenya.

79. [135]

    On 29 January 2021, the Deceased and Zhenya went out to dinner in Brisbane to celebrate the Deceased’s birthday. They were joined by Ms Bruk.

80. [136]

    Ms Bruk gave evidence that during the evening she had a conversation with the Deceased (at a time when Zhenya had left to go to the bathroom) to the following effect:

81. [137]

    It was put to Ms Bruk that this conversation did not occur. The suggestion that was made to Ms Bruk was that there was no way that she could recall such a lengthy discussion without notes etc. It was also suggested that Ms Bruk was simply giving false evidence to support Zhenya in these proceedings.

82. [138]

    As I understood the closing submissions advanced by senior counsel for Nadja, the suggestion that was put to Ms Bruk in cross-examination that she was giving false evidence to support Zhenya, was not pressed. Rather it was contended either that the conversation did not occur and Ms Bruk has a faulty recollection or that if it did occur there were obviously other conversations between the Deceased and Zhenya where it was agreed they would not buy a house or at least where the Deceased indicated that he did not wish to buy a house in Australia.

83. [139]

    I am satisfied that a conversation occurred broadly along the lines deposed to by Ms Bruk.

84. [140]

    Whilst the conversation obviously gives some insight into the relationship between the Deceased and Zhenya at this time, it needs to be appreciated that it is only of one conversation that must be weighed in light of all the other relevant evidence. It is of limited significance on the question of whether the Deceased and Zhenya were ever serious about buying property in Australia at this time.

85. [141]

    Some insight into whether the Deceased intended to relocate back to Australia is given by the Deceased’s email response to a notice he received to vacate La Punta. On 10 February 2021, he sent an email which included the following (emphasis added):

86. [142]

    Zhenya contends that on or about 5 February 2021, she and the Deceased had a discussion about having children together. According to Zhenya, the conversation was to the following effect:

87. [143]

    Zhenya says that it was after this discussion on 5 February 2021 that she emailed the Deceased asking him what times would suit to go to a doctor’s appointment to discuss their options to have children together. The email put into evidence does not, however, have any text and only the Deceased’s response has been included.

88. [144]

    In February 2021, it appears that Zhenya and the Deceased were renting an Airbnb in Kew in Victoria while the Deceased visited his Twins. They then travelled to Tasmania and Sydney, returning to Melbourne on about 15 March 2021. Zhenya contends that during this period she and the Deceased were looking for properties to buy in Australia.

89. [145]

    In support of this last contention, Zhenya put into evidence several email inquiries that she made to real estate agents in relation to properties. The evidence was heavily criticised by senior counsel for Nadja, including on the basis that the stated reason for being interested was said to be “investment”, that there was no evidence that any properties were ever inspected, let alone offers made and no evidence that the Deceased was even aware that the inquiries were being made.

90. [146]

    The evidence was ultimately put forward in support of the contention that the Deceased still regarded Australia as home. I deal with this ultimate question below. For present purposes, I need only observe that the evidence did not go too far – it went no higher than evidencing a handful of general inquiries being made.

91. [147]

    When the Deceased arrived back in Melbourne on or about 15 March 2021, a dispute arose with his second wife about access to the Twins. The Deceased was told he would need to communicate with his ex-wife through lawyers about access.

92. [148]

    On 18 March 2021, the Deceased had sperm collected at Melbourne IVF and signed a consent for freezing and storage of sperm. The consent form included a section headed “Instructions in the Event of My Death” in which the Deceased consented to “my sperm being used by my partner Evgeniya Vernon…in attempting to achieve a pregnancy.” There was no further evidence about attempts being made to use this sperm to have children.

93. [149]

    On 19 March 2021, the Deceased attended the Italian Consulate in Melbourne and executed a document in Italian entitled “Withdrawal of Complaint”, by which he purported to withdraw a complaint that he had made to police in Venice regarding an assault on or about 7 September 2019. According to Zhenya the Deceased had reached a settlement with the perpetrator pursuant to which the Deceased received a sum of money, a condition of which was that he withdrew the criminal complaint. The significance of the form for present purposes is that the form stated that the Deceased was “resident in Portugal but domiciled at 6 Flinders Lane, Melbourne VIC 3000 Australia”.

94. [150]

    Zhenya contended that the completion of the document with this content – particularly the Deceased being domiciled at 6 Flinders Lane in Melbourne – provided support for the contention that the Deceased was domiciled in Australia, with the term “domiciled” being used on the form in its technical legal sense. Counsel for Nadja relied heavily on the fact that the address used – 6 Flinders Lane – was not in fact a real address but rather was close to the proper address of the post office box used by Zhenya and the Deceased to receive mail – PO Box 6, Flinders Lane. Counsel for Nadja speculated that the Deceased may have deliberately used a fake address out of concern for his safety given that the assault several years earlier had in fact left him with a broken nose.

95. [151]

    The document does not in my view assume much significance in the overall domicile assessment. It is reading too much into the document to attribute to the Deceased a legal understanding of domicile and thus an admission that Australia was his domicile. Further, the suggestion that an incorrect address was used out of fear for safety is nothing more than speculation.

96. [152]

    The more reliable material on the question of domicile is the Deceased’s actions and conduct rather than statements made on one particular day in circumstances that are largely unexplained.

97. [153]

    In late March 2021, the Deceased continued to exchange emails with his second wife in relation to access to the Twins. On 28 March 2021 he sent an email to his second wife as follows (emphasis added):

98. [154]

    During this period Zhenya continued to send emails to Mr Dignum. On 25 March 2021, she sent an email with subject “Missing this spot” with a map of Torquay Front Beach. On 1 April 2021, she texted Mr Dignum, among other things, that she missed him.

99. [155]

    Travel documents and photographs were in evidence suggesting that during the second half of March the Deceased and Zhenya visited the Mornington Peninsula and then the Great Ocean Road.

100. [156]

     On 29 March 2021, a trip on the Indian Pacific train was booked to travel to Perth between 1 and 3 April 2021. They then went to Cable Beach, Darwin and Alice Springs, returning to Melbourne on 19 April 2021. Again, a series of photographs were in evidence depicting the two, quite clearly, as a couple.

101. [157]

     They remained in Melbourne until 30 April 2021, when they flew to Brisbane. Thereafter, they stayed in hotels on the Gold Coast, Brisbane and Noosa.

102. [158]

     Between 9 and 11 May 2021 Zhenya and Mr Dignum exchanged emails. An email from Zhenya to Mr Dignum sent 11 May 2021 at 5.20 pm was as follows (emphasis added):

103. [159]

     On 1 June 2021, the Deceased flew to Melbourne and had to stay in Melbourne due to COVID lockdown. Zhenya stayed in Brisbane.

104. [160]

     On 6 June 2021, Zhenya sent an email to Mr Dignum with a subject “One of my favourite…sorry to bother – I loved those times…” which included a photo of Zhenya with Mr Dignum with a waterfall in the background. They continued to exchange emails on 7, 8 and 11 June 2021.

105. [161]

     On 14 June 2021, Zhenya sent the Deceased two emails in relation to how pregnancy is affected by age. The second email ended:

106. [162]

     The Deceased responded:

107. [163]

     It would appear that Zhenya was having a hip arthroscopy on 15 June 2021.

108. [164]

     The Deceased travelled to Brisbane on 25 June 2021 and stayed with Zhenya in Brisbane and Noosa until 29 June 2021, when they both flew to Melbourne.

109. [165]

     In July 2021, the Deceased and Zhenya lodged a 2020 joint personal income tax return in Portugal. They were staying in Melbourne at the time as the Deceased was having eye surgery.

110. [166]

     Zhenya and Mr Dignum continued to exchange emails in early July 2021.

111. [167]

     On 16 July 2021, Zhenya and the Deceased flew from Adelaide to Cairns, having driven from Victoria to Adelaide to escape the Victorian lockdown. They stayed in Port Douglas until 9 August 2021, when they flew to Darwin, staying until 17 August 2021. They then spent the last two weeks of August in Metung, Victoria.

112. [168]

     On 30 August 2021, the Deceased executed a Power of Attorney in favour of Zhenya in relation to a pension he received from the Swiss Government.

113. [169]

     On that same day Zhenya responded to an email which Mr Dignum had sent to her on 11 June 2021. The responsive email, like other communications between the two around this time, are not suggestive of an ongoing relationship at the time. Rather, they appear to be reflecting on their past relationship.

114. [170]

     On 1 September 2021, the Deceased signed a “Declaration concerning Payment” which nominated that the Deceased’s pension be paid into the joint bank account. The Deceased noted Zhenya as “partner” on this form.

115. [171]

     On 3 September 2021, the Deceased and Zhenya flew from Melbourne to Lisbon, via Dubai, arriving on 6 September 2021, and thereafter went to La Punta. On his return, the Deceased sent a WhatsApp message to Nadja, containing a picture of the ocean at La Punta and which stated:

116. [172]

     Nadja saw her father for the first time after his return in November. When they met, the Deceased said to Nadja:

117. [173]

     According to Zhenya, she travelled to Spain with the Deceased in late September 2021 for a couple of weeks. Between 4 and 8 October 2021, the Deceased and Zhenya stayed in Sevilla, Spain. She then travelled in Europe in late October and early November whilst Janis and Nadja stayed with their father at La Punta. Otherwise, on Zhenya’s evidence she stayed at La Punta with the Deceased. The two then spent Christmas together in the Canary Islands.

118. [174]

     On 20 January 2022, the Deceased finally bought La Punta. A Share Sale and Purchase Agreement was executed on that day. The shares were transferred on 27 January 2022.

119. [175]

     It was at or about this time that Nadja contends that there was an argument between the Deceased and Zhenya as a result of which she left La Punta, never to return. Zhenya denies that there was any argument. It does not appear to be in dispute that Zhenya left La Punta in or about the third week of January and went to Russia, although on her account she returned briefly to La Punta at the end of February into March. She then travelled to Australia to arrange medical treatment for her mother on 14 March 2022. Nico denied that Zhenya was at La Punta in March 2022. His recollection was that he only saw her once in January 2022.

120. [176]

     The relevant evidence consists of certain observations by people at La Punta and an analysis of the communications in evidence between Zhenya and the Deceased, as well as Zhenya and Mr Dignum.

121. [177]

     Hans Niederman, a close friend of the Deceased, visited the Deceased at La Punta in January 2022. Relevantly, he first gave evidence of a conversation with the Deceased about having bought La Punta. The conversation was to the following effect:

122. [178]

     Second, he gave the following evidence about Zhenya at La Punta in January 2022:

123. [179]

     Dorina Mugur was the house cleaner at La Punta from August 2020. Ms Mugur worked every Friday for about five hours. She gave evidence that between September 2021 to the date of the Deceased’s death she saw Zhenya at La Punta on two or three occasions, but she was only there for a short period and never stayed for one month.

124. [180]

     The last time Ms Mugur saw Zhenya was sometime in or around January 2022 when she saw that she had packed the majority of clothes that she had at La Punta then she left the house. She also recalled that she (Zhenya) slammed the door when she left, although in cross-examination, Ms Mugur said that she could not see the door at the time that Zhenya left and as such the door could have been blown shut by the wind.

125. [181]

     Ms Mugur also gave evidence that sometime after Zhenya left, the Deceased said to her as he was about to leave the house to organise some shopping:

126. [182]

     The Deceased’s last birthday was on 28 January 2022. He was at La Punta, but Zhenya was not with him.

127. [183]

     In March 2022, Zhenya returned to Australia apparently to assist her mother with hip surgery. I am not satisfied on the evidence that Zhenya returned to La Punta in the first half of March 2022 as she claimed.

128. [184]

     On 21 March 2022, Zhenya sent a series of text messages to Mr Dignum as follows (emphasis added):

129. [185]

     Zhenya was cross-examined to suggest that her reference to “previous relationship” was a reference to her relationship with the Deceased and that the relationship was now over – it was “the previous relationship”. Zhenya denied this and suggested that her reference to “the previous relationship” was a reference to her relationship with Mr Dignum. I do not accept this evidence. There is no reason for Zhenya to refer, in an email to Mr Dignum, to her relationship with him as “the previous relationship”. This does not necessarily mean, however, that I would regard this email as some sort of admission by Zhenya that the relationship with the Deceased had come to an end. This is one communication between persons who had an, at times, tumultuous relationship. The evidence would also suggest that Zhenya would routinely email or contact Mr Dignam during the period that she was with the Deceased and say things to seek to invoke a response from Mr Dignam as to whether he was interested in resuming a relationship with her. This communication must be assessed along with the other evidence.

130. [186]

     On 29 March 2022, emails were exchanged between Zhenya and the Deceased. Zhenya was originally cross-examined on the basis that the email she provided into evidence was an amended version of the actual email chain, although this allegation was withdrawn when Zhenya was recalled for further cross-examination.

131. [187]

     Counsel for Nadja then contended that the email produced by Zhenya to her lawyers was incomplete in that it omitted the following exchanges:

132. [188]

     It appears that Zhenya travelled to Melbourne and had dinner with Mr Dignum on 29 March 2022. This emerges from the texts exchanged between the two as follows:

133. [189]

     Zhenya contended that the reason that she had dinner with Mr Dignum on 29 March 2022 was to discuss her mother and her medical files. Zhenya did not give any detail as to what was discussed in this regard and there is nothing in the contemporaneous messages or emails to indicate that this was the subject of discussion. Zhenya’s last email, extracted immediately above, appears to the contrary.

134. [190]

     Mr Dignum’s evidence was to the effect that he resumed contact with Zhenya because he was texting himself to see if there was a basis for renewing their relationship but that this stopped suddenly when he refused to allow Zhenya’s mother to return to his farm and live there. This evidence appears more likely having regard to the communications above.

135. [191]

     On or about 2 April 2022, Zhenya purchased a diamond ring from the Bvlgari store in Melbourne. It cost $11,600 and it appears that Zhenya paid for it using her own credit card. Zhenya was then reimbursed for the cost, apparently out of the Deceased’s Westpac account to which Zhenya had access. There was a dispute as to whether Zhenya transferred the money (as Nadja contended) or whether the Deceased did this (as Zhenya contended).

136. [192]

     Zhenya’s evidence in chief was that on 2 April 2022, the Deceased ordered her an engagement ring with commemorative engraving. She also gave evidence of a conversation on 29 March 2022 over FaceTime where marriage and changing her last name was discussed and a discussion on 2 April 2022 where the Deceased told her to go to the Bvlgari store to “choose a ring to match your Bulgari bracelet I gave your last Christmas” and “I would like it to be your engagement ring”.

137. [193]

     In her version of the 2 April 2022 conversation, Zhenya said the Deceased said to her “[y]ou sent me an email looking for an Easter gift”. In cross-examination when it was pointed out that Zhenya had not produced any such email, Zhenya indicated that she had it on her phone. In answer to a call made by senior counsel for Nadja, Zhenya left the witness box and accessed her phone. The relevant content of the email was read onto the transcript as being an email from Zhenya to the Deceased dated 31 March 2022 which stated “I am eyeing a small Easter gift for myself. Mmm”.

138. [194]

     Zhenya also consulted with Ms Bruk in relation to the ring on 2 April 2022. She sent Ms Bruk photos of three variations of a ring and Ms Bruk “advised Zhenya that the one with diamonds would be suitable as both an engagement and wedding ring”.

139. [195]

     Zhenya was extensively cross-examined about the ring purchase and in particular whether it was ever contended by the Deceased to be an engagement ring or was simply purchased by Zhenya without the Deceased’s knowledge.

140. [196]

     Ms Bruk was also cross-examined, particularly in relation to the contention, as she understood it, that it was intended to be an engagement ring. Had it been an engagement ring she would likely have congratulated Zhenya on her engagement which Ms Bruk admitted she did not do.

141. [197]

     There are a number of troubling aspects about this evidence from Zhenya. Importantly, there is nothing in the way of any communication between Zhenya and the Deceased after the purchase of the ring, or indeed whilst Zhenya was at the store purchasing the ring. If it truly was intended to be an engagement ring, and indeed was purchased immediately after a telephone conversation with the Deceased, there would ordinarily be expected to be some form of communication, including photos, between Zhenya and the Deceased. There was nothing. Zhenya’s evidence in chief that the Deceased ordered her an engagement ring with commemorative engraving on it also could not be correct. Zhenya went to the store herself, chose the ring and paid for it, as she said in cross-examination.

142. [198]

     Whilst I am somewhat troubled by Ms Bruk’s evidence in not even congratulating Zhenya, and the reason she gave for not doing so, the more troubling aspect is the lack of any contemporaneous objective communications between the Deceased and Zhenya. I am not satisfied, on the evidence, that the Deceased had any knowledge of the ring.

143. [199]

     There were then a series of emails exchanged between Zhenya and Mr Dignum on 3 April 2022. The subject is “Most important”. At 11.21.46 AM Zhenya wrote (emphasis added):

144. [200]

     At 12.15pm Zhenya wrote (emphasis):

145. [201]

     At 12.25 pm on 3 April 2022, Zhenya emailed Mr Dignum saying (emphasis added):

146. [202]

     It was not disputed that “nussil” was a name Zhenya and Mr Dignum used for the Deceased.

147. [203]

     On 5 April 2022, the Deceased forwarded Zhenya an email with the subject “Biographie Fredy Legler” asking her views as to how to respond.

148. [204]

     On 10 April 2022, Zhenya sent an email to the Deceased for the Deceased to forward to Gerald Berger to transfer $30,000 AUD to the Westpac Australian account. The Deceased forwarded the request to Mr Berger to action it.

149. [205]

     Zhenya also produced several text/WhatsApp communications with the Deceased in the period 10 April 2022 to 21 April 2022. It is obvious from what has been included in Zhenya’s evidence that this is not a complete set of communications between the two. The exchanges on 21 April 2022 include:

150. [206]

     Zhenya deposed to having a discussion with the Deceased on 22 April 2022 at 3.00am AEST where the Deceased apparently complained to her that Janis had arrived at La Punta with two friends from Miami and they were partying all night such that the Deceased was staying in his bedroom.

151. [207]

     The Deceased died of a heart attack on 22 April 2022. Zhenya was informed by Janis in the afternoon of 22 April 2022 AEST.

152. [208]

     On 23 April 2022, Janis sent a message to Zhenya as follows:

153. [209]

     Zhenya admitted to withdrawing $35,000 from the Westpac account on 23 April 2022 (after she was informed of the Deceased’s death) and another $22,300.92 also on 26 April 2022, leaving a closing balance of nil.

154. [210]

     On the same day she also withdrew €25,000 from the Joint Account, followed by €11,000 on 26 April 2022, €1,440 on 26 April 2022, €25,000 on 27 April 2022 and €5,000 on 28 April 2022.

155. [211]

     Zhenya travelled to Portugal, arriving on 24 April 2022, but Nico prevented her from entering La Punta.

156. [212]

     On Monday 25 April 2022, Zhenya texted Mr Dignum as part of a response to a text sent by Mr Dignum on or about 23 April 2022. She stated (emphasis added):

157. [213]

     Shortly after the Deceased’s death, Hans Niederman travelled to Portugal and met with Zhenya. Before travelling to Portugal he sent her a message as follows:

158. [214]

     On or about 12 May 2022, a death notice was published in a German newspaper by Nadja, Janis and Nico about the Deceased’s death. The notice included a reference to “Zhenya”. A funeral was held on 11 May 2022. Zhenya was invited to the funeral.

159. [215]

     Nadja contended that the reference to Zhenya in the death notice was not in recognition of a close personal relationship between the Deceased and Zhenya but rather was included because they wanted to thank friends and Zhenya was a person who had helped the Deceased considerably over the years. I do not accept this evidence. It is more likely that she was named in recognition of a close personal relationship, and I so find.

160. [216]

     On 17 May 2022, Zhenya initiated court proceedings in the Faro Judicial Court seeking to reside at La Punta. Zhenya met with solicitors for an hour or so to provide information for use in the proceedings. The document filed on behalf of Zhenya with the Faro Judicial Court stated, inter alia (bold emphasis added):

161. [217]

     These proceedings were discontinued in December 2023.

162. [218]

     On 10 August 2022, Zhenya changed her last name from “Vernon” to “Legler” to “honour Dany’s memory”.

163. [219]

     The present proceedings were commenced by Zhenya on 14 October 2022.

164. [220]

     On 21 October 2022, a Certificate of Inheritance was issued in Portugal naming Nadja as the administrator of the Deceased’s estate and naming his five children as the Deceased’s only legitimate heirs.

Evidence rejected in reply submissions

1. [221]

   Counsel for Zhenya sought to tender in reply submissions, certain messages exchanged between the Deceased and Zhenya in January and February 2021. Counsel for Nadja objected to the tender and after hearing argument I ruled that the messages should not be admitted into evidence. These are my reasons for rejecting the tender.

2. [222]

   The messages contained communications between the Deceased and Zhenya concerning the purchase of real estate in Australia. The messages were sought to be tendered by counsel for Zhenya to rebut a submission made on behalf of Nadja that there was no evidence of any communications between the Deceased and Zhenya about the two seeking to purchase real estate in Australia when they were here for about eight months in 2021. Zhenya contended as part of her case that the Deceased continued to be domiciled in Australia or manifested an intention in 2021 to again live permanently in Australia and that she and the Deceased looked at buying property when they were here in 2021. In her evidence filed before the hearing Zhenya relied on communications that she had with real estate agents making inquiries about certain properties. She did not seek to rely on any contemporaneous messages with the Deceased to suggest that he was involved in/had any knowledge of the inquiries being made by Zhenya.

3. [223]

   Zhenya was cross-examined on the topic including in relation to the lack of any contemporaneous communications to suggest that the Deceased had any knowledge of or involvement in the inquiries. The submission was then made that Zhenya’s contentions in this regard fall over because the lack of any evidence of any plan between the Deceased and Zhenya to buy a property in Australia.

4. [224]

   For completeness, I should also point out that during re-examination of Zhenya, certain documents were sought to be tendered including communications between the Deceased and Zhenya. Counsel for Nadja objected to this course in circumstances where it was not in dispute that Zhenya had access to all of the Deceased’s emails and messages (and Nadja did not) and had obviously deliberately chosen what material she wished to rely on in support of her contentions in the case. Senior counsel for Nadja had made forensic decisions based on what material had been put forward by Zhenya, including in not seeking disclosure from Zhenya and in cross-examining her at the hearing. It was contended that it would work a manifest unfairness on Nadja if Zhenya was permitted to selectively tender further communications in re-examination.

5. [225]

   I expressed a preliminary view that if further documents were sought to be tendered in re-examination, I would consider ordering that all of the devices containing the communications be made available for inspection by Nadja’s legal representatives. Senior counsel for Zhenya then indicated that the tender of any further documents in re-examination was no longer pressed. I was subsequently informed that this was a forensic decision taken by senior counsel for Zhenya.

6. [226]

   When senior counsel for Zhenya sought to tender the communications in reply submissions, he indicated that he had instructions to make available Zhenya’s mobile phone containing the messages for inspection by Nadja’s legal representatives.

7. [227]

   I declined to permit the tender in reply closing submissions because to permit the tender without permitting inspection of the mobile phone had the real potential to prolong the hearing and cause prejudice to Nadja.

8. [228]

   In circumstances where Zhenya had access to all of her communications with the Deceased, and Nadja did not, it was obviously within Zhenya’s control as to what material she wished to rely on to prove her case. Forensic decisions were then made on Nadja’s side as to how to conduct her case in response. Zhenya should not be given an opportunity, after the close of evidence, to seek to plug perceived holes in the proof of her case, particularly where forensic decisions had been made.

Time spent in Australia by the Deceased

1. [229]

   The Deceased’s movement history into and out of Australia was in evidence. This revealed that during the period 1998 up to and including 2021, the Deceased spent the following number of days in Australia:

Where was the Deceased Domiciled at his time of Death?

1. [230]

   At every moment of their life, a person has one and only one domicile. That domicile may change during the person’s life.

2. [231]

   The present case is concerned with domicile of choice – which occurs where a person of independent capacity acquires a new place of residence as a result of a voluntary election to do so.

3. [232]

   The starting point is s 9 of the Domicile Act 1979 (NSW) (Domicile Act), which provides that:

4. [233]

   Nygh’s states at [13.19] by reference to the common law, but in the context that the equivalent section of the Domicile Act 1982 (Cth) and thus the NSW provision only clarifies but does not alter the common law:

5. [234]

   The necessary intention is a subjective intention. As Robb J observed in O’Donnell v O’Donnell [2022] NSWSC 1742 at [145]:

6. [235]

   In Application of Perpetual Trustee Company Ltd; Re Estate of Late Dempsey [2016] NSWSC 159, Slattery J stated at [171]-[180]:

7. [236]

   The relevant “intention is to be judged of upon all available testimony” and conduct is the most important because it is most reliable: see Fremlin v Fremlin (1913) 16 CLR 212 at 234 per Isaacs J.

8. [237]

   “Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence a particular place with an intention” to make his or her home indefinitely in that country: see Re Cartier [1952] SASR 280 per Ligertwood J at 290, quoting Lord Westbury in Udny v. Udny (1869) LR 1 Sc. & Div. 441, modified having regard to s 9 Domicile Act.

9. [238]

   The relevant facts against which the assessment is to be made are set out in the factual chronology above.

10. [239]

    In my view, the inescapable inference from the facts detailed above is that, at the time of his death, the Deceased was domiciled in Portugal. He was living there with the intention of making it his home indefinitely. I reject Zhenya’s contention that he still called Australia home. No matter how far or wide he roamed, he called Portugal home.

11. [240]

    The relevant starting point is 2015, when, after the end of his second marriage and the death of his mother, the Deceased moved to La Punta. He stated his intention to the Legler Foundation that owned La Punta that he intended to buy the property. He stated this intention repeatedly in the subsequent six or so years until the purchase was finally completed in early 2022.

12. [241]

    The purchase of the property in early 2022, against the background of the longstanding intention to buy it, coupled with the absence of any other real property elsewhere in the world, particularly Australia, is powerful conduct of an intention to call Portugal home indefinitely.

13. [242]

    At the time that he left Australia in 2015, there was no suggestion that he was departing temporarily. Rather, he made statements to the contrary – namely after the breakdown of his second marriage he was done with Australia, save for a desire to return to Australia periodically to see the Twins.

14. [243]

    There is then considerable evidence that the Deceased was quite settled at La Punta and regarded it as his home. He made statements to this effect to each of his adult children, Dr Ferrari and Hans Niederman.

15. [244]

    The contemporaneous correspondence between Dr Ferrari, Zhenya and Pitcher Partners summarised above was clear, that the Deceased had permanently left Australia. Documents were filed with the Australian Taxation Office accordingly. Whilst Dr Ferrari accepted in cross-examination that the correspondence that he was involved in was consistent with the Deceased’s taxation purposes, there was no suggestion that Dr Ferrari was proposing a factual position he knew was not correct. To the contrary, he stated that what he wrote was in accordance with his instructions as to the underlying facts.

16. [245]

    As a corollary of leaving Australia, the Deceased became a tax resident of Portugal, consistent with him being a resident there.

17. [246]

    The statements made to the Faro Judicial Court in May 2022 – shortly after the Deceased’s death – on behalf of, and undoubtedly based on instructions by, Zhenya, are wholly consistent with the Deceased having left Australia for Portugal and having resided there for a number of years. The contents of the filing, unclouded as they are from the contrary contentions now advanced by Zhenya – provide quite powerful confirmation of what otherwise emerges from the other material.

18. [247]

    I do not accept the contention advanced by Zhenya that the Deceased had always intended to return to Australia permanently and that attempts were made by the Deceased and her whilst they were in Australia in 2021 to purchase real property. Whilst there is some evidence of inquiries being made of real estate agents in relation to a small number of properties, these inquiries do not go anywhere suggesting that whatever plan there may have been, it was not too serious. The conversation between Ms Bruk and the Deceased in late January 2021 is to the same effect and does not demonstrate the necessary intention to return to Australia. It is only one conversation. It did not lead anywhere. It is quite inconsistent with the other evidence.

19. [248]

    There is considerable evidence that the purpose of the Deceased travelling to Australia in 2021 was to spend time with his Twins. This is what he told his ex-wife in March 2021.

20. [249]

    The fact that 200 plus days were spent in Australia in 2021 is not suggestive of an intention to live there indefinitely. The time period was impacted, at least in part, by COVID restrictions including the need to quarantine, and disputes with the Deceased’s second wife about access to the Twins.

21. [250]

    I also do not regard the fact that the Deceased may have been in a relationship with Zhenya, who is an Australian citizen, as overly significant in whether the Deceased continued to call Australia home. Although an Australian citizen since 2015, Zhenya does not appear to have strong ties to Australia requiring her to reside in Australia, such that if the two were to continue in some sort of relationship, it would be in Australia. Zhenya had no substantial assets in Australia and indeed her case was that she was wholly dependent financially on the Deceased.

22. [251]

    The objective evidence suggests that Zhenya was happy to reside with the Deceased wherever he was and to otherwise travel with him. She became a tax resident of Portugal. Put another way, there is nothing in the objective material to suggest that there was any need, or even desire, for Zhenya to return Australia for an indefinite period. There was no suggestion that her trip to Australia in March 2022 for medical treatment for her mother was part of any long-term plan for her mother to migrate to Australia, which might have required Zhenya to remain in Australia. The instructions that Zhenya provided to the Portuguese lawyers leading to the commencement of proceedings in the Faro Judicial Court were to the effect that Zhenya packed her bags and moved to Portugal to live with the Deceased.

23. [252]

    The statement made by the Deceased as part of his 2016 visa application does not take the matter too far. The question of domicile is to be assessed as at April 2022. The Deceased’s conduct in the ensuing six or so years quite clearly points to the intention to make his home in Portugal.

24. [253]

    Having regard to all of the circumstances, I am comfortably satisfied that the Deceased was domiciled in Portugal at the time of death.

Was Zhenya the “spouse” of the Deceased at the time of death?

1. [254]

   I now address the issue of whether Zhenya was the Deceased’s spouse at the time of his death in April 2022.

2. [255]

   Zhenya’s claim to a grant of administration is premised on her establishing that she was the Deceased’s spouse at the time of his death: s 63 PAA.

3. [256]

   A reference to “spouse” in s 63 PAA is defined in s 32G(2) (subject to a contrary intention) to be a reference to a person who, at the time of the death of the intestate, was the de facto spouse of the intestate. Section 32G(1) PAA defines “de facto spouse”, in relation to a person dying wholly or partially intestate, as “someone who was a partner in a de facto relationship with the person”.

4. [257]

   The law in relation to whether one person is considered the “spouse” of another was considered by Bell P in Estate of the Late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324 at [12]-[44]. The below analysis borrows heavily from what the learned President (as the Chief Justice then was) there set out.

5. [258]

   Section 104 of the Succession Act 2006 (NSW) (Succession Act) defines a spouse of an intestate as a person:

6. [259]

   A domestic partnership is relevantly defined in s 105 of the Succession Act as a “de facto relationship” that:

7. [260]

   Relevantly for present purposes, a “de facto relationship” is defined in s 21C(2) of the Interpretation Act 1987 (NSW) (Interpretation Act) and provides that a person will be in a de facto relationship with another person if:

8. [261]

   Section 21C(2) of the Interpretation Act also provides that a “de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.”

9. [262]

   Section 21C(3) of the Interpretation Act provides:

10. [263]

    This sub-section provides that no particular finding in relation to any of these matters is necessary in determining whether two persons have a relationship as a couple.

11. [264]

    In Piras v Egan [2008] NSWCA 59, Campbell JA, with whom Giles and Tobias JJA agreed, said at [146] that:

12. [265]

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

13. [266]

    It follows that, in order to determine whether or not one person was a spouse of another, it is necessary to determine whether the first person was party to a domestic partnership with the second immediately before their death, and this in turn requires the first person to establish that they were in a de facto relationship with the second for a continuous period of at least two years prior to that time. This in turn depends upon the first person establishing that they and the second person had a “relationship as a couple living together” in the relevant period.

14. [267]

    It is convenient to consider the relevant case law in relation to the components of this expression, although it must be noted that the evaluative question of whether two persons are in a "relationship as a couple living together" should not be dissected into discrete elements, each of which must be satisfied, but instead is to be approached as a comprehensive notion or concept: Hayes v Marquis [2008] NSWCA 10 at [73] (Hayes); Bar-Mordecai v Hillston [2004] NSWCA 65 at [86] and [125] (Bar-Mordecai).

15. [268]

    It is necessary that two persons "live together" in order for them to be regarded as being in a de facto relationship. The case law establishes, however, that the two persons need not live together full time in order to be considered to be "living together".

16. [269]

    Weston v Public Trustee (1986) 4 NSWLR 407 (Weston) was one of the first cases to be decided following the amendment to s 6 of the Family Provision Act 1982 (NSW) which expanded the number of people who could make an application for provision to include "a person who, where the deceased was a man, was a woman, who, at the time of his death, was living with the deceased as his wife on a bona fide domestic basis". In that case, Young J (as he then was) considered the components of this description and, in particular, with regard to the word "living", said as follows (at 408-409):

17. [270]

    In reaching his conclusion, Young J (at 410-411) said as follows:

18. [271]

    Some 27 years after his decision in Weston, Young AJ (as his Honour had then become) returned to the question in NSW Trustee and Guardian v McGrath [2013] NSWSC 1894 (McGrath). He observed at [13] that "[t]he cases show that there have been many situations other than the situation where a man and a woman share the one residence and live as if they were man and wife for the whole week where a de facto relationship has been held to be made out." Citing the decision of Murphy J in the Family Court of Australia in Jonah v White (2011) 258 FLR 236; [2011] FamCA 221 (Jonah), Young AJ said at [18]−[19], that:

19. [272]

    Murphy J had said at [66] of Jonah that "[t]he issue ... is the nature of the union rather than how it manifests itself in quantities of joint time."

20. [273]

    In Ward v Anderson (Supreme Court (NSW), Waddell CJ in Eq, 6 June 1989, unrep) (Ward) the plaintiff was held to be in a de facto relationship with the deceased, notwithstanding that they maintained separate residences for much of their relationship. Shortly after the plaintiff and deceased had formed a sexual relationship, they went on an overseas holiday together. Following their trip, the plaintiff lived part of the time with the deceased at his home and part of the time at her house. The properties were about a thirty-five minutes’ drive apart.

21. [274]

    Waddell CJ in Eq described the plaintiff's life as having become "centred in the [deceased's] house". The plaintiff stayed at the deceased's home three or four nights a week, and occasionally six nights a week, depending upon how frequently she was rostered on for work at the hospital. The plaintiff had moved most of her clothes and various household appliances to the deceased's home. The plaintiff's own house was used "mainly in association with her employment", particularly when she was on call, it being conveniently located near her work. Occasionally, the deceased would stay with the plaintiff at the plaintiff's house, where he kept some of his clothes. While the pair kept their financial affairs separate, they each paid for household and other expenses as convenient.

22. [275]

    The plaintiff and the deceased were known to be "living in a husband and wife relationship". She was accepted by the deceased's friends and acquaintances, and both his and her own children, as the deceased's wife. Indeed, the plaintiff was on occasion referred to by the deceased's surname. The deceased had also purchased and given to the plaintiff an engagement ring. Certain of the deceased's children had attended an engagement party for the pair.

23. [276]

    Waddell CJ in Eq observed "[w]ere it not for the circumstances that the plaintiff kept and used her house … there could be no dispute that the plaintiff was living with the deceased as his wife on a bona fide domestic basis". His Honour held that he was, however, satisfied in any event that the plaintiff and deceased were living together on a bona fide domestic basis.

24. [277]

    Similarly, in Forsyth v Sinclair [2010] VSCA 147 (Forsyth), Neave JA accepted the primary judge's analysis and found that the respondent was in a relationship with the deceased, notwithstanding that they had kept separate dwellings.

25. [278]

    The primary judge in that case had found that the plaintiff and deceased had lived on terms of "deep and intimate affection": Sinclair v Forsyth [2008] VSC 250 at [41] (Sinclair). The primary judge considered at [41] that "their love for each other", which he considered to be "the shaping force in their lives", was of "crucial significance" in the circumstances of the case.

26. [279]

    While neither the plaintiff nor the deceased were dependent on the other, the two combined aspects of their households. The deceased swapped, during the course of his relationship with the plaintiff, his single bed for a large double bed. The plaintiff's belongings were kept in the deceased's home. The plaintiff spent several nights each week at the deceased's home. On other occasions, she would spend nights at her own home, as often with him as without him. The primary judge found that the "[t]he retention of separate residences [was] explicable in part by [the plaintiff's] domestic arrangements with her husband and children, and in part on the basis that each retained a house that was closer to the relevant place of work than the house of the other": Sinclair at [26].

27. [280]

    The deceased had also concealed most of his relationship with the plaintiff from his brother and sister-in-law. The primary judge described this as "puzzl[ing]" and noted that he was "aware of nothing in his relationship with them which would account for this diffidence": Sinclair at [15]. He concluded that this too was explicable, however, the "most likely answer" being that "[the deceased] believed they did not particularly like [the plaintiff], nor she them": Sinclair at [15].

28. [281]

    Neave JA on appeal held that "[i]f no-one had been aware of the relationship, [the plaintiff's] evidence would not have been credible, but this was not the case": Forsyth at [49]. There was considerable evidence from witnesses other than the plaintiff regarding her "long standing, close and intimate relationship" with the deceased: Forsyth at [37]. The pair had an exclusive sexual relationship and were regarded as a couple by their friends and the plaintiff's family. They attended social functions and visited and stayed with friends together as a couple. The two expressed their love and affection for one another to a number of witnesses. They received letters and Christmas cards as a couple over a number of years and had told some of their friends of their intention to marry.

29. [282]

    In Hayes, McColl JA, with whom Beazley JA agreed on this point, stated (at [75]) that "the concept of 'living together' will always be something different from living together as a couple, one of the critical requirements for a de facto relationship". Her Honour said at [78] that the concept of "living together" does not require that the parties be sharing a common residence full time. Her Honour also noted at [78], however, that "a de facto relationship [within the meaning of s 4 of the Property (Relationships) Act] is one which might ordinarily be expected to emphasise common residence" but that "the significance of a common residence, in determining whether a de facto relationship exists, turns on its nature and extent".

30. [283]

    White J (as his Honour then was) in Vaughan v Hoskovich [2010] NSWSC 706 (Vaughan), also in the context of s 4 of the Property (Relationships) Act, noted at [52]-[53] that:

31. [284]

    In Amprimo v Wynn (2015) 15 ASTLR 41; [2015] NSWCA 286 at [77], Meagher JA observed:

32. [285]

    In Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477, Lindsay J observed at [32]-[33]:

33. [286]

    Later, at [36], Lindsay J noted that a determination about the existence and subsistence of a de facto relationship requires an empirical investigation of facts and cited the observations of Hallen AsJ (as his Honour then was) in Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137 at [82] as follows:

34. [287]

    In the present case, of course, the concept of "living together" is to be understood in the context of the extended phrase "living together as a couple". The expression "as a couple" adds an important element to the notion of simply "living together".

35. [288]

    Certain cases emphasise an element of love or intimacy in relationships of "couples" properly so called. In Ye v Fung [2006] NSWSC 243 (Ye v Fung), Gzell J held at [71], that a de facto relationship within the meaning of s 4(1) of the Property (Relationships) Act, which relevantly uses the same terminology as s 21C(2) of the Interpretation Act set out in [14] above, was "limited to relationships between non-married adults in heterosexual or homosexual romantic relationships” and that “to live together as a couple requires a romantic relationship between the persons constituting the couple."

36. [289]

    Barrett J in Petersen v Gregory [2007] NSWSC 8 (Petersen) considered at [11] that a diminution of the initial "romantic characteristic[s] to which Gzell J referred [in Ye v Fung]" will not of itself mark the end of two persons living together as a couple. Similarly, White J in Vaughan, again in the context of s 4 of the Property (Relationships) Act, held at [49], that "[f]or two people to live together as a couple means that they live together and that, at least initially, they be united by love or be living together in a romantic relationship". White J continued at [49], "[a]t least if the partners remained living together, the fading of love or romance need not spell the end of a de facto relationship."

37. [290]

    It has also been noted by Barrett J in Petersen and the Court of Appeal in Bar-Mordecai that de facto relationships (like marriages) need not be perfect. Unloving acts or acts that are in some sense in conflict with the alleged relationship, such as infidelity, do not undermine or compromise the de facto status of a relationship which would otherwise properly be characterised as such: Petersen at [11]; Bar-Mordecai at [125]; see also, Robson v Quijarro [2009] NSWCA 365 at [15] and [47].

38. [291]

    Where, as here, it is contended that if there was a de facto relationship between Zhenya and the Deceased, that relationship had ended by the time of his death, it is clear that more than a mere physical separation is required for a de facto relationship to come to an end. The physical separation of the parties must be accompanied by an intention on the part of either partner to permanently end the relationship: see Howland v Ellis [2001] NSWCA 456 at [20] per Stein JA (Meagher JA and Ipp AJA agreeing). Further, as Hallen J observed in Pollock v NSW Trustee and Guardian [2022] NSWSC 923 at [442], “[k]eeping apart must have a finality about it and that is best evidenced where the de facto relationship has none of its previous characteristics,” and whether a relationship has ended “is a conclusion reached having regard to all the circumstances.”

39. [292]

    The question is obviously a multifactorial one that must have regard to all of the circumstances.

40. [293]

    Having regard to the way the case was conducted, it is convenient to first consider the position up to January 2022, being the time when Nadja contended that there was a breakdown in whatever relationship previously existed, and then to consider whether there was any change in the relationship between then and the date of death.

41. [294]

    Accepting that the relevant inquiry is a multi-faceted one where no particular requirement is determinative, it is convenient to begin with a consideration of each of the matters listed in s 21C(3) of the Interpretation Act. In considering each of these matters and the overall conclusion that I make from the multifaceted inquiry, I have principally sought to rely on the objective material. This is for the obvious reason that it provides the most reliable guide but also because I have found Zhenya to be an unsatisfactory witness.

42. [295]

    Zhenya contends that the relationship first began in about October 2017 when they began living together in a genuine domestic basis until January 2018, recommencing in September 2018 and continuing until the Deceased’s death.

43. [296]

    Given that the relationship – to the extent there was one – in the initial period – was short lived, it can be ignored for present purposes. The relevant period to consider is September 2018 onwards.

44. [297]

    The evidence given by each of Nadja, Janis and Nico as to their understanding of the relationship can largely be put to one side. Each gave evidence that from their perspective the relationship was largely a professional one. From what they observed, and also what their father told them, one can well understand why they held the views they did. There is some evidence that at least Janis knew or suspected otherwise. He received the message from Zhenya in December 2020 to the effect that her relationship with the Deceased was over. He also asked his father about the nature of his relationship with Zhenya, as did Nadja. The views of Nadja, Janis and Nico do not really matter. The true picture of the relationship emerged from other material.

45. [298]

    Having regard to the Deceased’s email to Dr Ferrari dated 10 December 2018, it is reasonable to conclude that the relationship between the Deceased and Zhenya had, in recent times (proximate to December 2018), developed from a professional one to a personal one, including a sexual relationship.

46. [299]

    Apart from what appears to have been a short break in about November or early December 2020 – as evidenced by the emails from Zhenya to the Deceased on 17 November 2020 with the subject line “fucking off” and the texts from Zhenya to Janis dated 2 December 2020 where Zhenya says she has “finished the relationships with” the Deceased – the relationship continued until at least January 2022. It therefore satisfied the minimum required period.

47. [300]

    It would appear that Zhenya continued to perform various professional work for the Deceased and his family, but the personal relationship appears to have clearly manifested itself in various ways, including travelling extensively in Australia and internationally as a couple.

48. [301]

    On the chronology presented by Zhenya, she and the Deceased spent most of the relevant period travelling around Australia or residing in Melbourne to see the Twins, travelling internationally or living at La Punta. This is corroborated by the objective and other material.

49. [302]

    The numerous photographs that were in evidence of these travels, particularly of the Deceased and Zhenya together as a couple, demonstrate quite clearly the personal nature of the relationship. The anecdotal evidence of Hans Niederman, together with the fact that Dr Ferrari felt the need from what he observed, to warn the Deceased about being ensnared by Zhenya, reinforce the conclusion that the relationship was a deeply personal one. The many photographs are quite inconsistent with the relationship being a professional one – they are from many holiday destinations and include Zhenya and the Deceased with their arms around each other and embracing.

50. [303]

    The documentary evidence largely proves the domestic and international travel, supplemented by the photographs depicting them as a couple. The picture that is painted by this material is of a couple leading a somewhat lavish life together. This appears to have been largely at the Deceased’s expense.

51. [304]

    It is a little more difficult to reach a firm conclusion as to the extent to which Zhenya lived with the Deceased at La Punta. According to Zhenya’s evidence, and in particular the chronological schedule that she prepared, she spent considerable periods residing (continuously, I presume) with the Deceased at La Punta.

52. [305]

    Against this is the evidence of Dorina Mugur and Manuel Marreiros, who both gave evidence that Zhenya was an infrequent visitor to La Punta and did not stay for a period of months at a time. Evidence was also given that Zhenya would come and go from La Punta, driving a car with Spanish number plates.

53. [306]

    No objective material was put forward by Zhenya to support her contention as to the period of time she spent at La Punta with the Deceased. As set out at the commencement of these reasons, Zhenya was an unsatisfactory witness whose evidence I do not rely on unless corroborated or against her interest.

54. [307]

    There is, however, some considerable evidence to corroborate Zhenya’s ties to Portugal, including becoming a tax resident of Portugal, filing a joint tax return with the Deceased in Portugal and the Deceased and Zhenya’s registration as a de facto couple in Portugal. There is also the fact that Zhenya did not appear to have any other residence anywhere in the world, including Australia.

55. [308]

    It is not necessary to reach a conclusion as to the precise period of time that Zhenya spent living with the Deceased at La Punta prior to January 2022. I am satisfied that considerable periods were spent residing together. It seems relatively clear that the Deceased and Zhenya behaved somewhat less like a couple in certain circumstances, particularly when around the Deceased’s children, and indeed that Zhenya would leave La Punta when the Deceased’s children were there. The strong evidence of their behaviour as a couple when they were travelling or not at La Punta strongly supports a conclusion that they lived as a couple at La Punta for considerable periods.

56. [309]

    The chronology above evidences that the Deceased and Zhenya spent considerable periods holidaying together both in Australia and internationally staying in hotels and Airbnbs. The extent to which they stayed together at La Punta – the Deceased’s residence – is a little more difficult and is dealt with above. For the reasons there set out I am satisfied that Zhenya spent considerable periods living with the Deceased at La Punta. There is also no evidence that Zhenya had any other residence whilst she was with the Deceased.

57. [310]

    In effect, they lived together for most of the time, either at La Punta when in Portugal or in temporary accommodation when travelling or visiting the Twins in Australia.

58. [311]

    Notwithstanding the evidence given by Nadja, Janis and Nico that from their perspective there was no sexual relationship, it was not seriously in dispute that the relationship was a sexual one. It began at least shortly prior to December 2018 (if not before) and continued to January 2022.

59. [312]

    The evidence demonstrated that the Deceased and Zhenya had a joint account in Portugal. Zhenya had a credit card issued to her which was linked to the Deceased’s Swiss bank account. Zhenya also had access to an Australian bank account that the Deceased maintained with Westpac. Their life together appears to have been largely funded from these sources.

60. [313]

    Zhenya contended that from the time she and the Deceased commenced living together she “became completely dependent on the Deceased for [her] financial support”. It is difficult to reach a concluded view on this contention. This is because Zhenya did not put into evidence any material as to her own financial position during the period of her relationship with the Deceased.

61. [314]

    There was some evidence that she had her own credit card and Zhenya also contended that she would use her personal funds because she also contended that when this occurred the Deceased would reimburse her the amount paid. As the relationship progressed this was more likely Zhenya reimbursing herself as she had access to the accounts.

62. [315]

    What appears to be clear is that the funds of the Deceased were used to pay for their lifestyle, including extensive travel.

63. [316]

    There was considerable financial dependence of Zhenya on the Deceased.

64. [317]

    Zhenya and the Deceased did not own any real property together. I have rejected the contention by Zhenya that the Deceased and she intended to buy a home in Australia.

65. [318]

    At this stage, I am dealing with the issue in the period up to January 2022. This necessarily therefore ignores what occurred after January 2022 including the factual issue of the alleged purchase of the engagement ring on or about 2 April 2022. I will address this issue when I consider the post January 2022 period and the contention that the relationship broke down.

66. [319]

    In the period prior to January 2022, I have described the general nature of the relationship under (a) above. To a considerable extent there appears to have been a commitment by each to a shared life. They travelled extensively together and Zhenya appears – even allowing for the uncertainty about the actual amount of time she spent at La Punta – to have spent considerable time at La Punta where the Deceased was residing. Zhenya had become a tax resident of Portugal and the two had registered as a de facto couple in Portugal. For all intents and purposes, they were a couple.

67. [320]

    One concern that I have in relation to the degree of mutual commitment in relation to a shared life relates to the issue of Zhenya’s desire to have a child and her associated continued communication with Mr Dignum during the period she was in a relationship with the Deceased.

68. [321]

    The objective material demonstrates that Zhenya had a very strong desire to have a child with whoever was willing to be the father. She clearly wanted to have a child with the Deceased. The evidence suggests that the Deceased may have not been wholly committed to such a life with Zhenya. This evidence includes statements made by the Deceased to friends and family as well as statements made by Zhenya herself in communications from time to time. On the other hand, it appears that the Deceased had his sperm frozen and consented to it being released to Zhenya in the event of his death. The email exchange on 14 June 2021suggests the Deceased was still open to discussion about the topic.

69. [322]

    Zhenya’s continued communications from time to time with Mr Dignum, notwithstanding the volatility in their relationship, suggests that Zhenya herself may have been concerned about the Deceased’s commitment. My assessment of these communications is that Zhenya would routinely communicate with Mr Dignam with a view to seeing if he was willing to resume a relationship with her or at least to continue dialogue with him in case she needed herself to seek to resume a relationship with him.

70. [323]

    I do not regard these communications as necessarily telling against Zhenya being in a de facto relationship with the Deceased or that relationship coming to an end if the Deceased was not willing to have children with Zhenya. I have the sense that she wanted to keep the possibility of resuming a relationship with Mr Dignum open if she needed it.

71. [324]

    Absent this issue, the evidence demonstrates a strong commitment to a shared life. Even having regard to it, I am satisfied there was a shared commitment. Whilst wanting to have a child was an aspect of the relationship from Zhenya’s perspective, I do not regard it as of such significance to conclude that without a child, there was no shared commitment.

72. [325]

    Zhenya and the Deceased did not have any children together. It would appear, however, that some attempts were made by the Deceased and Zhenya to have a child through IVF. It is difficult to be definitive as to exactly what occurred in this regard. The objective material demonstrates that the Deceased consented to his sperm being kept for a period by Melbourne IVF and being used by Zhenya in the event of his death. Exactly what attempts were made to conceive by IVF at this time is not clear. There is also no evidence of there being any ongoing attempts which at least raises as a possibility of the fact that the Deceased was not, or was no longer, prepared to have a child with Zhenya.

73. [326]

    There is no evidence that Zhenya was in any way involved in performing household duties of washing and cleaning etc. The evidence tends to suggest that the Deceased’s lifestyle was such that these tasks were contracted out to others.

74. [327]

    It appears that Zhenya was quite heavily involved in administrative aspects of the Deceased’s life, including making travel arrangements – both for the two of them jointly and the Deceased when he travelled without Zhenya – as well as liaising with lawyers and accountants. What is not clear is the extent to which Zhenya was paid for performing these administrative tasks.

75. [328]

    Nadja contended that Zhenya’s role was primarily that of a personal assistant for the Deceased, for which she was paid. There is one example in evidence of Zhenya submitting an invoice to the Deceased on 23 January 2019, see [103], for reimbursement of expenses and “earnings”, this last item being akin to a wage.

76. [329]

    The preponderance of the evidence suggests, quite strongly, that the relationship, whilst it began as a professional one, developed into a relationship which was primarily personal with Zhenya performing administrative tasks for the Deceased more as an adjunct to the close personal relationship that had developed.

77. [330]

    There was a deal of evidence that the Deceased and Zhenya held themselves out as a couple, particularly to those associated with Zhenya, being Ms Bruk and Mr Kushkin. I regard this evidence as quite important, particularly that of Mr Kushkin, who was not cross-examined. They also accompanied the Deceased to his friend Jans Niggler’s birthday party and the funeral for the Deceased’s father’s de facto partner.

78. [331]

    It seems equally clear, however, that the two went to great lengths to conceal the true nature of their relationship from the Deceased’s family.

79. [332]

    There is also the registration of their “relationship” in Victoria, although this does not go too far in circumstances where the October 2019 email suggests that the registration was being considered not because it would be a public recognition of the relationship but more because it would potentially assist in travelling around Europe. The absence of the required statutory declarations also diminishes the significance of the registration.

80. [333]

    They were registered as a de facto couple in Portugal and filed at least one joint tax return there.

81. [334]

    In several documents, Zhenya was referred to as the Deceased’s partner, including the document executed by the Deceased with Melbourne IVF.

82. [335]

    Having regard to all of the circumstances, including the matters that I have set out above in relation to each of the s 21C(3) matters, I am comfortably satisfied that as at January 2022 the Defendant and Zhenya were in a relationship as a couple living together. The evidence manifests a relationship of coupledom which involved a merger of two lives. That relationship began at the latest, shortly prior to December 2018.

83. [336]

    Throughout the period from December 2018 to January 2022 the Deceased and Zhenya essentially lived together as a couple. Zhenya had no permanent residence of her own. When the Deceased was staying at La Punta, Zhenya was, for the most part, living with him. Otherwise, the two of them were travelling the world together as a couple. There were periods when they were apart, including because he had Nadja, Janis or Nico staying with him at La Punta or because he was visiting the Twins in Melbourne.

84. [337]

    The time spent in Australia in 2021 provides a useful illustration of their relationship and lifestyle. In addition to their time spent together there was financial interdependency, or perhaps more accurately, financial dependence of Zhenya on the Deceased.

85. [338]

    There were also a number of outward manifestations of their coupledom including the two being introduced as and being regarded as a couple at least by her friends and family, Zhenya becoming a tax resident of Portugal and the registration of their relationship as a de facto couple in Portugal.

86. [339]

    The more difficult question is whether, as contended for by Nadja, the relationship as it was prior to then changed substantially in about January 2022 such that it should be concluded that they were no longer in a relationship as a couple living together as at the date of the death of the Deceased. It is to be remembered in this regard that hiccups in a relationship do not establish that the relationship has ended and what must be demonstrated is an intention on the part of at least one of the parties to permanently end it.

87. [340]

    There is conflicting evidence. The evidence suggesting a change in the relationship may be summarised as follows:

88. [341]

    Against this evidence suggesting a change in the relationship, there is at least the following:

89. [342]

    I am somewhat troubled by the evidence in relation to the purchase of the ring and, in particular, the absence of any objective communications between Zhenya and the Deceased in relation to it. Because of the absence of this material, I do not place much weight on the purchase of the ring.

90. [343]

    I am also somewhat troubled by the fact that not all of the communications between the Deceased and Zhenya have been put into evidence when clearly it was within Zhenya’s power to do so. As set out above, this absence of evidence does not permit me, in and of itself, to infer that the absent evidence would have been damaging to Zhenya, only that it would not have assisted her. It also does not permit me to fill gaps in the evidence.

91. [344]

    In circumstances where I am satisfied that Zhenya and the Deceased were in a relationship as a couple living together as at January 2022, the issue is whether that relationship had come to an end as at the date of the death of the Deceased.

92. [345]

    As set out above, the authorities say that hiccups in a relationship are not the same as a relationship coming to an end. There must be an intention to permanently end the relationship on the part of either partner.

93. [346]

    I am not satisfied that the relationship had permanently ended. The messages from the Deceased to Zhenya the day before he died about plans together for the remainder of the year are quite inconsistent with a permanent end. Whilst the departure from La Punta and the communications with Mr Dignum are suggestive of some troubles in the relationship between Zhenya and the Deceased, most likely as a result of Zhenya not being able to have a child with the Deceased, these matters do not lead me to conclude, when regard is had to all of the other circumstances, particularly the communications immediately prior to the Deceased’s death, that the relationship had come to an end. It is to be remembered that this is not the first time that Zhenya had expressed frustration about not being able to have a child with the Deceased and communicated with Mr Dignum in this context.

94. [347]

    I am satisfied that the relationship remained on foot as at the date of the death of the Deceased. She was his de facto within the meaning of the relevant statutory provisions. This conclusion results from a consideration of all of the circumstances principally the objective material and notwithstanding that I have found Zhenya to be an unsatisfactory and unreliable witness.

Who should be appointed administrator?

1. [348]

   The next issue that arises is who should be appointed administrator of the Deceased’s estate.

2. [349]

   Section 63 of the PAA provides:

3. [350]

   Section 74 of the PAA is also relevant. It provides, relevantly, that the Court may, in any cases where a person dies intestate, “if it thinks it is necessary or convenient, appoint some person to be the administrator of the estate of the deceased”.

4. [351]

   There is an obvious overlap between ss 63 and 74. Section 74 gives the Court the widest possible discretion as to whom to appoint. The term “competent” should be read widely: Bar-Mordecai v Rotman (Estate of Hillston) (unreported, NSWSC Einstein J, 4 September 1998) (Bar-Mordecai v Rotman). Whilst s 63 contains an order of preference, it does not oust the wide discretion in s 74.

5. [352]

   The Court has jurisdiction to “pass over” the appointment of a person entitled to a grant of administration and appoint a (different) representative if this is necessary for the due and proper administration of the estate: Re Estate of Crane (2005) 93 SASR 198 at [15]-[30]; Bar-Mordecai v Rotman at p 20-21. One reason why the Court may do this is because of the character and fitness of the person otherwise entitled to the grant.

6. [353]

   I have real concerns about Zhenya’s fitness to be appointed administrator. It is obvious that there is a large element of distrust between Nadja, Janis and Nico on the one hand and Zhenya on the other. Zhenya withdrew large sums of money from the Deceased’s bank accounts immediately upon learning of his death. I have also found her to be an unsatisfactory witness in a number of respects who appears to be motivated by self-interest and financial gain. She has been prepared to provide inconsistent instructions to lawyers in Portugal and in these proceedings to no doubt suit her own interests.

7. [354]

   Whilst it is clear that appointment as administrator would principally allow the NSW assets to be dealt with and it seems the estate in NSW is essentially insolvent, it is not clear to me whether appointment as administrator will have any significance in overseas jurisdictions where assets are held and where there is the likelihood of future litigation.

8. [355]

   In my view, an independent person should be appointed administrator. The parties agreed at the hearing that if I reached this position the parties should be given an opportunity to seek to agree who should be appointed. I will make directions for this to occur.

Conclusion and orders

1. [356]

   I have determined that:

2. [357]

   The parties should be given an opportunity to agree orders to give effect to these reasons, including as to costs. Any declaratory relief, particularly in relation to my conclusion that Zhenya was the Deceased’s de facto spouse, should make it clear that this is in the context of the relevant statutory provisions. If agreement cannot be reached, I will then determine, having regard to the nature and extent of the disagreement, whether I will determine the remaining issues on the papers or re-list the matter for a further short hearing.

3. [358]

   The orders of the Court are:

   1. (1)

      Direct the parties to confer and to seek to agree orders to give effect to these reasons, including as to costs.

   2. (2)

      Direct the parties to provide agreed orders, or competing orders, to my Associate by no later than 1 July 2024.

   3. (3)

      In the event that there is no agreement as to orders, direct the parties to provide to my Associate by no later than 1 July 2024, any submissions and supporting material, such submissions not to exceed 5 pages.

   4. (4)

      Direct the parties to provide to my Associate by no later than 8 July 2024 any submissions and supporting material in reply, such submissions not to exceed 5 pages.

   5. (5)

      Direct the parties to notify my Associate by no later than 8 July 2024 whether an oral hearing is sought in relation to the determination of the outstanding issues.