Skidmore v Salvatore

The plaintiff, Gordana Skidmore (aged 52), and the defendant, Aleksandra Salvatore (aged 40), are the children of the late Dragica Lukac and her late husband, Vlajko Lukac. Without disrespect, I shall refer to the various family members by their given names.

Vlajko predeceased Dragica in March 2022. Dragica died on 15 January 2023. Aleksandra is the sole beneficiary and executor of her mother’s will. Gordana last saw her mother in 2005.

The value of Dragica’s estate is approximately $59,000. However, in 2022 Dragica executed a transfer of a property at Liverpool (which Dragica had previously owned as joint tenant with Vlajko) to Aleksandra for no consideration. The property was sold in January 2025. Approximately $536,000 of the sale proceeds are currently held in Aleksandra’s solicitors’ trust account. That figure is what is left after sale costs, and $50,000 having been paid to Aleksandra.

By summons filed on 11 November 2024, Gordana seeks an order for family provision pursuant to the Succession Act 2006 (NSW) out of Dragica’s estate or notional estate. It is common ground that the estate has been distributed and that the proceeds are liable to be designated as notional estate.

By an amended notice of motion (further modified in the course of argument as to the quantum of the injunction sought), Gordana brought:

I dismissed the amendment application at the conclusion of that part of the oral argument, and indicated I would give my reasons for that when I determined the injunction application. I have set out the relevant facts and submissions in [9] to [27] below. These are the reasons why I dismissed the amendment application:

For the reasons which follow, the Court will allow the injunction application in respect of $250,000 of the proceeds. Those reasons may be summarised as:

Mr J CY Lee of Counsel appeared for Gordana. Mr J Brown of Counsel appeared for Aleksandra.

Dragica died on 15 January 2023.

The proceedings were commenced by summons filed on 11 November 2024 (and therefore five months out of time: see s 58(2) of the Act) seeking only an order for family provision pursuant to the Act, but including a specific order that certain assets (relevantly for present purposes, the property) be designated as notional estate. The proceedings were commenced without an affidavit from Gordana.

On 19 December 2024, the Registrar in Probate made consent orders for the filing of evidence in accordance with the practice of the Succession – Family Provision List, including appointing 16 May 2025 for a half day Court-annexed mediation. There was no suggestion that the proceedings were anything other than a straightforward family provision claim.

Gordana’s first affidavit, filed on 14 January 2025, referred to and annexed the transfer. The transfer records that it is “without monetary consideration and as regards an intergenerational assignment”. Gordana’s affidavit also noted that the property was currently listed for sale.

In an affidavit filed on 28 February 2025, Aleksandra deposed that the property had been sold with settlement due to occur on 17 March 2005. Settlement did in fact occur on that date.

The status quo in relation to the proceeds was maintained by an inter partes undertaking by Aleksandra. The undertaking has been continued until the determination of the present application.

The proceedings did not settle at the Court-annexed mediation on 16 May 2025.

On 27 May 2025, Gordana’s solicitor wrote to Aleksandra’s solicitor (the 27 May letter):

The next day, Aleksandra’s solicitor replied to the 27 May letter:

On 29 May 2025, the Registrar in Probate made orders for the service of any further affidavits and for certain notices to produce and subpoenas to be issued, with the matter stood over for further directions on 31 July 2025. There was no dispute that in the ordinary course of practice in the List, the proceedings would have been ready to be allocated a hearing date upon compliance with those orders.

On 4 June 2025, Gordana filed a notice of motion making the injunction application. That motion was listed before the Registrar on 26 June 2025.

On the return of the motion on 26 June 2025, the Registrar referred the motion to me. When the matter came before me, Mr Lee sought leave to file an amended notice of motion adding the amendment application. That proposed amendment application had been notified to Aleksandra’s side of the record only three days before, together with a proposed form of statement of claim. Mr Brown ultimately obtained instructions not to oppose the amendment of the notice of motion so that both the injunction application and the amendment application could then proceed, as they did, to be heard immediately.

The claim relevantly sought to challenge the transfer on the basis of either undue influence (although apparently overlooking the well settled presumption of advancement between a mother and adult child) or unconscionable conduct on the part of Aleksandra against her mother. The relevant relief sought in the claim was:

The material allegations in the claim are:

Mr Lee accepted that while the application was in form one for an order that the matter proceed by way of pleadings, it was in substance an amendment application and subject to the principles governing such an application. Accordingly, I approached the matter by reference to the well-known principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 and s 64 of the Civil Procedure Act 2005 (NSW).

Mr Lee submitted that other than it increasing the costs and length of the proceedings, there was no prejudice to Aleksandra if the claim were permitted to be filed. A hearing date had not yet been allocated. He suggested there could even be some advantage to her because, if successful, it would bring back into the estate assets currently in her hands which, as such, would be available to Aleksandra’s former husband in divorce proceedings that had been commenced.

Mr Lee, quite properly, made two concessions that were, in my respectful view, primarily dispositive of the amendment application:

To the concession in the preceding second sub-paragraph, I would add the conclusion which the Court has no hesitation in drawing that, similarly, all of the factual matters relied upon in the claim (and extracted in [22] above) must have been known to Gordana at the time the proceedings were commenced. There may be one small exception to this, which is the allegation in paragraph 29(f) referring to “the defendant's refusal to explain the circumstances surrounding the Transfer”. However, I have real doubt such a refusal could give rise to the inferences pleaded in that paragraph.

In addition to placing heavy emphasis on the complete lack of an explanation for why the amendment application was being brought, Mr Brown made several submissions which I accepted. I have incorporated those into my reasons for rejecting the amendment application set out in [6] above.

Mr Brown raised the issue of the Court’s jurisdiction to restrain dealing in potential notional estate. Section 62 of the Act provides:

In these reasons I shall refer to the highlighted words in s 62(3) as the exception.

Mr Brown’s essential proposition was that s 62(3) of the Act, having been enacted in 2008, qualified the Court’s power under s 66(4) of the SC Act: “The Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just and convenient so to do”. He submitted that s 62(3) was intended to “cover the field” of injunctions pending family provision applications and that Parliament did not intend the holders of notional estate to be restrained. Therefore, the Court’s general statutory jurisdiction and the inherent jurisdiction were no longer available.

Mr Brown relied on what I shall refer to as the inconsistency principle. That is the principle which is captured (confusingly for those uncertain of Latin declensions) as either generalia specialibus non derogant [the general does not override the specific] or generalibus specialia derogant [the specific overrides the general].

Finally, he submitted that if there was any relevant inherent jurisdiction remaining in the Court after the introduction of s 62(3), it was reserved for what he described as “really rare extreme cases” (Tcpt, 26 June 2025, p34(2)).

In response to Mr Brown’s submissions, Mr Lee submitted that s 62(3) was an enabling provision (pointing to the word “may”) which should be strictly read in accordance with its terms, namely that the Court could restrain an interim or final distribution from the estate, which jurisdiction was only limited by the exception. He contended that the sub-section did not otherwise use language of the necessary clarity or specificity that would be required to cut down either the Court’s general statutory injunctive jurisdiction or its inherent jurisdiction to preserve the subject matter of proceedings. There was no relevant inconsistency that would engage the inconsistency principle. He drew attention to what was said by Barrett J in Maiolo v Caristo [2008] NSWSC 236 and Hallen J in Boaz v Hyde [2014] NSWSC 1591. I consider both of these cases below.

Before turning to the specifics of Mr Brown’s argument, the Court must determine the proper construction of s 62(3), starting with (and, unless necessary, going no further than) the ordinary meaning of the words used. Only after it has ascertained that construction, can the Court determine the extent of any inconsistency with the SC Act.

The order which s 62(3) refers to is “an order restraining the final or partial distribution of an estate”. (emphasis added.) However, it is axiomatic that property which is liable to be designated as notional estate is not part of the estate at the relevant time (either because it never was, or because it has been distributed). So much is clear from s 63(5), which provides “a family provision order may be made in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3”. (emphasis added.)

The same distinction between the estate and notional estate informs s 88 of the Act:

That s 62(3) concerns distribution of an estate is supported by the exception. There can be no doubt that the exception expressly prohibits the Court from making an order restraining “a distribution under section 94 (1) of this Act or section 92A of the Probate and Administration Act 1898”. Neither of these sections relate to notional estate.

Section 94 of the Act includes:

Section 92A of the Probate and Administration Act 1898 (NSW) includes:

On this construction, an order restraining dealing with property that is liable to be designated as notional estate is not an order of the kind caught by s 62(3) because it is not “an order restraining the final or partial distribution of an estate”. Applied to the facts of this case, the proceeds are not part of Dragica’s estate, and Aleksandra dealing with the proceeds is not “distribution”.

In my respectful view, the construction I have set out in the preceding paragraphs is the preferable one. However, if it be wrong such that “an order restraining the final or partial distribution of an estate” could extend to property liable to be designated as notional estate, then the balance of the sub-section is consistent with permitting that to occur.

That is because the order is said to be “pending [the Court’s] determination of an application for a family provision order”. Section 3 of the Act includes:

An interim family provision is made under Chapter 3 and is no less a family provision order than a final family provision order, other than it is “interim” and the Court must proceed finally to determine the application (see s 62(2) of the Act). An interim family provision order may be made from assets designated as notional estate. On this construction, s 62(3) affirms that the Court can make an order restraining the holder of property liable to be designated as notional estate.

If more than a consideration of the words of s 62(3) is required, then it is convenient to start with the legislative history, recalling that notional estate was included as a possibility in the Family Provision Act 1982 (NSW) (FP Act).

Sub-sections 62(1) and (2) have their immediate origin in s 9 of the FP Act:

However, s 62(3) is new. It might also be said, with respect, that it does not sit entirely logically in a section dealing with interim provision orders, beyond a conceptual and semantic commonality between an interim order and an interim or interlocutory injunction (invoked by Young J (as his Honour then was) in his leading decision on interim provision in Young v Salkeld (1985) 4 NSWLR 375 at 379).

Section 62 was introduced into the Act by the Succession Amendment (Family Provision) Bill 2008 (NSW). While the Explanatory Note to the Bill refers to the origin of sub-sections 62(1) and (2), it is silent as to s 62(3).

The overview of the Bill records:

The NSW Law Reform Commission report referred to in the overview refers (at p 29) to what became sub-sections 62(1) and (2), but is also silent as to s 62(3).

A clue may be found in the second reading speech of the then Attorney-General, the Hon John Hatzistergos (New South Wales Legislative Council (Hansard), 26 June 2008 at 9423):

Despite the best efforts of skilled librarians, no record of the suggestions made by the expert committee has been able to be found. However, given s 62(3) does not appear in the Law Reform Commission report and there is no explanation of it in the Explanatory Note to the Bill, I infer, there being no further information available, that the now s 62(3) was recommended by the expert committee. I set this out for historical completeness and only to establish that there are no relevant extrinsic materials to which the Court might permissibly and usefully have regard in its task of construing s 62(3): s 34, Interpretation Act 1987 (NSW).

However, an examination of the cases supports the conclusion which I draw, which is that s 62(3) was directed to a particular doubt or mischief: that of resolving a difference of opinion among judges of the Equity Division about the power of the Court to restrain distribution of an estate pending hearing a family provision claim. It was a difference of opinion with which it can be safely assumed, given who they were, that the members of the expert committee were familiar.

The starting point is the decision of McLelland J (as his Honour then was) in Rayner v Schuttler; unreported; 29 January 1985 at 1 – 2, a case which only concerned actual estate:

In Massie v Laundy; unreported; 7 February 1986, (again concerning only actual estate) Young J (as his Honour then was) said at 10-11:

Then, in Deguara v Mercieca; unreported; 23 August 1988, Powell J had to determine a motion filed by an applicant for family provision seeking to restrain an executor from distributing the estate pending the hearing of the application. Having expressed dissatisfaction with the assistance of counsel in what some practitioners of the time might recall as characteristically trenchant terms, his Honour was “obliged to rely upon such researches as I have been able to make during the course of the luncheon adjournment” (p 13) and concluded (at 12-13):

The question of restraining the distribution of an estate pending the hearing of a family provision application recurred before Young J in Packo v Packo (1989) 17 NSWLR 316. His Honour granted an injunction in relation to actual (as opposed to notional) estate based upon the Court’s inherent jurisdiction to preserve the subject matter of proceedings or under s 23 of the SC Act (“The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales”). His Honour referred to both his decision in Massie and Powell J’s views in Deguara, and adhered to his view that the Court had jurisdiction, saying (at 318-319):

In Wentworth v Wentworth; unreported; 6 May 1992 Young J continued an injunction over assets that had been designated as notional estate that had been obtained by a successful family provision applicant pending leave to appeal to the High Court. His Honour said (at p 2) that “There are doubts as to the power of the court to make an order of this nature in proceedings under the Family Provision Act”.

By the time that litigation returned to his Honour (Wentworth v Wentworth; unreported; 11 June 1992), his Honour identified (at p 4) that there were three slightly different sets of principles to be applied: Mareva injunction; an application to protect the plaintiff if she obtained a higher award of provision in the High Court; and protection for the plaintiff against being frustrated from recovering what she may recover from notional estate under an application for additional provision under s 8 of the FP Act. As to the last, citing his decision in Packo, his Honour said (at p 11) he would “assume, in an appropriate case, the court has jurisdiction to grant an injunction to restrain distribution of an estate pending the hearing of an application under the” FP Act. However, he went on to say (at p 11) that “it was not completely clear” citing the different views in Rayner and Deguara. Assuming the Court had the jurisdiction, his Honour concluded he would have declined relief on the facts before him.

In Moon v Gordon; unreported; 30 April 1996, Young J had to consider the law as it then stood in relation to restraining both actual and notional estate. He reviewed Massie, Deguara, Packo and Wentworth. Of his decision in Packo, his Honour said (at 4):

On the question of notional estate, his Honour said (at 6-7):

His Honour then recalled that in Wentworth he had been prepared to assume that an injunction could be laid in relation to notional estate but would not have made an order in that case. His Honour took the same approach in Moon, ultimately not making an order on the facts of that case.

To take stock of the state of the authorities at this point, it is clear from the decisions of Young J, especially Packo, that notwithstanding the doubts of Powell J, the weight of authority (McLelland J and Young J) was that the Court had power derived from both s 23 of the SC Act and its inherent jurisdiction to preserve the subject matter of proceedings to restrain the distribution of actual estate pending the determination of proceedings for a family provision order. However, there had been no determination (as opposed to assumption) by any judge of whether that power extended to notional estate. There were only Young J’s “great doubts” expressed in Moon. Notably, however, his Honour did not indicate why he had those doubts.

The issue of restraining what might be designated as notional estate next arose before Gzell J in Lo Surdo v Public Trustee [2003] NSWSC 837. In that case the potential notional estate was property that had been distributed to the second defendant. After considering the cases, including Massie, Deguara, Packo and Moon, his Honour concluded:

Because his analysis is referred to in later cases, the next decision of note is the judgment of J C Campbell J (as his Honour then was) in Grizonic v Suttor [2004] NSWSC 137. His Honour said:

The issue before his Honour was whether there was a proper basis to stay an application under s 66G of the Conveyancing Act 1919 (NSW). His Honour’s observations are therefore obiter dicta, but nevertheless entitled to great respect. However, it is not apparent whether his Honour intended his summary of the FP Act authorities to encompass notional estate. The examination of those authorities that I have set out above makes clear that his Honour’s summary is, with respect, correct as to restraining the distribution of actual estate, but is not supported by those authorities as to notional estate.

That J C Campbell J’s observations in Grizonic are both obiter dicta and, in my respectful opinion, not an accurate reflection of the state of the authorities in relation to restraining property that may be designated as notional estate, does not appear to have been drawn to the attention of Barrett J (as his Honour then was) in Maiolo, a decision delivered in March 2008. His Honour was there considering an application to restrain dealing with potential notional estate. His Honour appears only to have been referred to Grizonic, of which his Honour said (at [9]) “The object of injunctive relief of this kind is to preserve the subject matter of the litigation. The earlier differences of opinion between judges of this Division as to the basis of the jurisdiction has been laid to rest. I refer, in particular, to the very useful summary of the present position at paragraph [11]” of Grizonic (set out in [64] above). Barrett J therefore accepted that he had jurisdiction in relation to the potential notional estate but refused the injunction on discretionary grounds.

The next step in the chronology is the introduction of s 62(3) a few months later. Given the history of doubt and division disclosed by the authorities I have set out above and the intervention of an expert panel including judges of the Equity Division in the drafting of s 62(3) (see [50] above), I am fortified in the construction of s 62(3) which I have preferred in [40] above, by the conclusion which I infer from that history that s 62(3) was introduced to resolve the mischief of doubt about the Court’s powers to restrain a distribution of the actual estate pending determination of a family provision application. Neither the words of the section nor that view of the mischief supports the conclusion that s 62(3) was intended to say anything about restraining notional estate or that by confirming that jurisdiction it was intended to “cover the field” and foreclose an order in relation to notional estate.

Finally, the Court was taken to only one authority under the Act, being the decision of Hallen J in Boaz v Hyde [2014] NSWSC 1591. This was an application to restrain dealing in actual estate, about which there was no dispute as to the Court’s jurisdiction. His Honour said:

Although not the subject of argument before him, I respectfully agree with both his Honour’s confined reading of s 62(3) as being only concerned with final or partial distribution, and his Honour’s implicit acceptance of the availability of s 66(4) of the SC Act.

It follows from the foregoing that there has been no case in which a judge of this Division has expressly decided whether or not the Court has jurisdiction to restrain dealing in assets which are liable to be designated as notional estate. On the preferable construction, s 62(3) (other than the exception) does not cut down the Court’s powers under s 23 or s 66(4) of the SC Act. In my respectful view, those powers provide the jurisdiction for the Court to restrain a dealing in property liable to be designated as notional estate if the tests otherwise required for an interlocutory injunction can be satisfied in the particular case.

I also maintain the preferable construction over that propounded by Mr Brown because it promotes the objects of the Act, whereas Mr Brown’s would not (see s 33 of the Interpretation Act 1987 (NSW)). The preamble of the Act records one of its purposes is “to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person”. An important part of that purpose is achieved by assets being, in effect, brought back into an estate through the notional estate provisions. It would not promote the efficacy of those provisions if s 62(3) were interpreted so as to foreclose the Court’s power, in appropriate cases after considering whether there is a serious question to be tried and the balance of convenience, to restrain assets that are liable to be designated as notional estate for a family provision order from being dissipated before that question is finally determined.

I have recorded above that both Young J and Gzell J expressed doubt about the existence of the power in relation to assets which could be, but were yet to be, designated as notional estate. Their Honours, with respect, did not elaborate on the reason for that doubt. In my respectful view, the better reading of their Honours’ reservation is that it related to the likely ability of an applicant to demonstrate a serious question to be tried given the additional statutory prerequisites (over and above those for the making of a family provision order out of the estate) before the Court would make an order designating notional estate. So much is clearly apparent in the reference to s 28 of the FP Act in Lo Surdo at [53] (see [63] above).

Finally, as was expressly identified in Packo, Moon, Grizonic and Maiolo, the Court has a general inherent power to make interlocutory orders to preserve the subject matter of proceedings. In my respectful opinion, that must extend, where the usual tests for an interlocutory order are met, to assets that are liable to be designated for notional estate.

Two possible objections may be raised.

The first relates to why the jurisdiction should extend to assets which have not yet been designated. The answer is that those assets are no different, in principle, to assets over which, for example, a remedial constructive trust is claimed which do not become subject to the trust until it is declared. Such assets can be restrained if the usual interlocutory tests can be satisfied in relation to the constructive trust claim. If a serious question to be tried is demonstrated on the question of designation (among satisfying the other prerequisites), I do not see any reason of principle why an interlocutory injunction should not be ordered to preserve that possibility.

The second relates to assets in the hands of “third parties”, which would encompass anyone other than the executor or administrator. In my respectful view, the terminology is unhelpful for its lack of precision. For example, if the recipient is otherwise a beneficiary (as in the case at bar), they are in real terms hardly a “third party”. If they are genuinely at arm’s length, then that in and of itself is not an objection to the existence of jurisdiction. For example, it is now well established that assets in the hands of “third parties” may be the subject of asset preservation orders. In my view, the primary relevance of “third party” status is more often than not to the question of balance of convenience.

Mr Brown also submitted that s 62(3) was inconsistent with the inherent jurisdiction and therefore prevailed. Alternatively, if it did continue, he submitted that it would be confined to extreme cases. There is no basis in principle for the alternative submission. Either the jurisdiction does or does not exist.

As to the submission of inconsistency, it is correct insofar as the exception is concerned because that is an express statutory prohibition on the Court making a specifically identified order. However, apart from the exception, I do not agree that s 62(3) expressly or impliedly limits the Court’s inherent jurisdiction to make an interlocutory order to preserve the subject matter of proceedings. I reach that conclusion both on the preferred construction or Mr Brown’s construction, even if it were correct, for the reason which follows.

The Court’s inherent jurisdiction derives from its status as a superior court of record. I respectfully adopt and apply this passage from the seminal article “The Inherent Jurisdiction of the Court” (1983) 57 ALJ 449 by Keith Mason QC (as the future President of the Court of Appeal then was), where he wrote (at 457) under the heading “Curtailing the Inherent Jurisdiction”:

Even on his construction of s 62(3), I do not consider that Mr Brown has discharged what I respectfully consider would be the heavy onus of demonstrating that the sub-section curtailed the Court’s inherent power to preserve the subject matter of the litigation in an appropriate case.

For the foregoing reasons, the Court concludes that pursuant to each of ss 23 and 66(4) of the SC Act and the inherent jurisdiction of the Court, it has jurisdiction to grant the relief sought by Gordana in relation to the proceeds as assets liable to be designated as notional estate. That jurisdiction is to be exercised in accordance with the usual requirements for the grant of an interlocutory injunction, which are considered in what next follows.

During the course of argument, Mr Lee made it clear that his client sought an injunction over only $300,000 of the proceeds. That would release $236,000 to Aleksandra. I consider the amount to be restrained further in [91] below.

The application proceeded against the background of these matters as accepted or not in contest:

In relation to prima facie case, with the exception of the matters referred to in the preceding paragraph, all of the statutory and discretionary elements for Gordana to succeed at a final hearing were in issue, both as to whether a family provision order would be made at all (ss 59 and 60 of the Act) and, if so, whether any part of the proceeds would be designated as notional estate to satisfy that order (ss 78 to 90 of the Act).

Both parties conducted this aspect of the argument at a high level of generality.

Mr Lee submitted that Gordana was one of two daughters and that no provision had been made for her. He acknowledged that there had been two extended periods of no contact between Gordana and her parents, the second commencing in 2005 and lasting for the rest of her parents’ lives. He emphasised that those periods could not, on the evidence, be solely attributed to Gordana, and that Gordana and her mother had suffered a great deal of abuse at the hands of Vlajko. Gordana’s husband is unable to work and receives no Centrelink or other income. They have been renting a house from the Aboriginal Land Council for the last 24 years. They have combined net assets (including superannuation) of approximately $65,000 and their annual living expenses are approximately $85,280. Gordana is employed and earns a gross income of approximately $95,000 per annum. Mr Lee submitted that, in relation to notional estate, the special circumstances required for a notional estate order made out of time (s 90(2)(b)) of the Act was that the abuse she had suffered had led to her lack of contact with her mother and lack of knowledge of her parents’ death.

Mr Brown submitted that s 90(2)(b) could be not satisfied. This was because it required more than an explanation for the application being out of time. He submitted that Gordana had secure accommodation in which she had been living on a concessional rent for 24 years. She had not seen her mother since 2005. He drew to attention Aleksandra’s competing claim, being a mother of two school age children in the process of reaching a property settlement. She has approximately $900,000 in nett assets jointly with her former husband (including the former matrimonial home), superannuation in her own name of $100,000, the proceeds, a car worth $35,000 and some cash. She is living in rented accommodation and her children divide their time between her and her former husband. She is facing the possibility of significant legal costs in relation to her divorce.

Given their heavily discretionary and fact based nature, the outcome of family provision cases is notoriously difficult to predict. My own experience in hearing such cases is that what seems a likely outcome at the start of a hearing may be quite different after the evidence is fully understood and the parties seen in the witness box. That is particularly the case where issues of lack of contact arise. The untested evidence I have seen suggests there is an arguable basis for Gordana to contend that the reason for the lack of contact was not something that should reflect on her adversely.

Having regard to the evidence to which my attention was drawn at face value, and noting the discretionary barriers under the Act to the making of a notional estate order (including s 90(2)(b)), I am satisfied that Gordana has demonstrated a prima facie case of entitlement to a family provision order from the proceeds designated as notional estate, albeit not a strong one. Nevertheless, to adopt the language of Young J in Massie (see [54] above), it is definitely not “hopeless”.

Before turning to the balance of convenience, it is necessary to say something about the quantum sought to be restrained. Mr Lee submitted it should be $300,000, being $150,000 for provision and $150,000 for his client’s costs, with some allowance between the two (the provision perhaps being higher and the costs perhaps being lower, or vice versa).

The proceeds are $536,000. The evidence was that Gordana’s costs up to and including the mediation were $44,000 and Aleksandra’s for the same period $33,000 (both on the indemnity basis and inclusive of GST). Mr Brown reminded the Court that his client was funding the litigation out of her own funds because there was no estate. He also submitted that by the end of a hearing the amount available for a family provision order would be further reduced by costs leaving a lower amount to balance the parties’ competing claims. Furthermore, given the size of the estate, it was likely there would be cost capping orders. All of those matters, he submitted, suggested that the two figures propounded by Mr Lee were too high. I accept that submission. Doing the best I can, I have come to the view that if an injunction is to be laid, it should be in respect of $250,000 of the proceeds, representing a fund for both provision and Gordana’s costs to be satisfied from notional estate.

Returning to the balance of convenience, given Mr Brown’s concession recorded in [83(4)] above, it should apply all the more if his client is now to have access to approximately $286,000 of the proceeds. Where there are only the proceeds available to be designated as notional estate, the balance of convenience is in Gordana’s favour for an injunction over $250,000 of the proceeds until further order.

The Court will hear the parties as to costs. They will also be referred to the Registrar in Equity in next Monday’s list so that the earliest available final hearing date can be fixed.