Ward v Ward

By a Notice of Motion filed on 4 March 2025 (the Motion), the applicant, Ms Monica Ross-Maranik (the applicant), seeks orders directing the respondents to execute documents the effect of which would be to authorise requests for documents to the relevant agencies of the Commonwealth government concerning the respondents’ social security and taxation affairs, which documents would ultimately be provided to the applicant. Those orders are sought so that the information can be used by the applicant in the substantive proceedings.

The applicant on the Motion is the third (and only active) defendant in the substantive proceedings, being the interim administrator of the estate of the late Robert Leslie Ward (the deceased). Without intending any disrespect or overfamiliarity, I will refer to the other family members in this dispute by their first names.

The respondents on the Motion are husband and wife. The first respondent, Mr Timothy James Ward (Timothy) is the plaintiff in the substantive proceedings, and first cross-defendant in the associated cross-claim. The second respondent, Mrs Katrina Ward (Katrina) is not a party to the substantive component of these proceedings but is the second cross-defendant on the aforementioned cross-claim. Where it is not necessary to distinguish between the interests of Timothy and Katrina, I will refer to them together as the respondents.

In the substantive proceedings, Timothy is seeking relief for promises allegedly made to him by the deceased concerning a property in Annangrove where Timothy and Katrina currently reside (the Annangrove property). The central issue of these proceedings is a determination of the beneficial ownership of the Annangrove property.

The cross-claim, which was commenced by the now inactive first and second defendants but appears to now be conducted by the applicant, seeks judgment for possession of the Annangrove property.

The first defendant, Ms Janelle Susan Ward (Janelle), and second defendant, Mr Christopher David Ward (Christopher), in the substantive proceedings are surviving children of the deceased, along with Timothy. They are also the first and second cross-claimants on the cross-claim.

As Janelle and Christopher were representing the deceased’s estate without a grant of probate, the applicant, as interim administrator, has taken on Janelle and Christopher’s positions in these proceedings, including in the cross-claim, which was commenced by a Statement of Cross-Claim filed on 13 October 2022.

The Motion was heard on 14 October 2025. Mr M Condon SC appeared for the applicant. Mr C Zucker appeared as solicitor advocate on behalf of Timothy. He also mentioned the appearance of Katrina. The applicant provided written submissions (AWS), as did Timothy (TWS). Timothy’s submissions were also said to be made “in [Katrina’s] interests on an amicus basis”, given her interests “run parallel to those of Timothy” (TWS [3]).

In their respective written submissions, and in the course of the hearing, the parties referred to “related” proceedings. The Court was informed that in those related proceedings Timothy raises an issue as to the validity of the last will of the deceased, and in the alternative seeks a family provision order (see TWS [6]) (the Probate proceedings).

I note however, that the Probate proceedings are not formally before me and that the Motion as filed is specifically in relation to the substantive proceedings.

For clarity and abundant distinction, I will refer to the substantive proceedings to which the Motion relates as the Property proceedings.

The deceased died on 21 May 2021. He was survived by his three children. His wife, Joyce Ward (Joyce), predeceased him in 2003.

The most recent form of the Statement of Claim relied on by Timothy in the Property proceedings is a Further Amended Statement of Claim filed on 8 November 2022 (the FASOC). By way of summary of the Property proceedings, Timothy pleads in the FASOC that in or about October 1995, he and the deceased entered into an agreement whereby Timothy would:

It has been deposed that at the time of the agreement, Timothy was living with Katrina at a separate location.

Timothy pleads that he undertook and completed his end of the agreement, but that the deceased did not transfer to him the Annangrove property.

Timothy contends that in or about late January 1997, the agreement was varied to include that Timothy would:

Timothy pleads that in or about 1998, the agreement was again varied such that:

Timothy contends that the deceased upheld his end of the agreement, to transfer the Annangrove property through his will, in the deceased’s 2004, 2014 and 2016 wills. In each of those wills the Annangrove property was gifted to Timothy. The gifting of the Annangrove property through the aforementioned wills is not expressly pleaded, but Timothy gives evidence of those gifts in his affidavit sworn 29 July 2022, being an affidavit sworn as part of the Property proceedings.

Timothy says that following Joyce’s death in 2003, from about 2007 onwards, Timothy began to also care for the deceased.

However, it is alleged that in 2019, Timothy began experiencing significant stress as a result of his duties as a carer and consequently stepped back from that role.

It is alleged that in response to Timothy stepping back from his carer role, the deceased made a further will in 2019, removing the previous bequest of the Annangrove property to Timothy.

The above narrative is in contention between the parties. It has been set out for the purposes of providing context, as well as to provide some broad understanding of the real issues in dispute, which will in turn provide a framework for any consideration of the “apparent relevance” of documents (see below). The narrative is not to be construed as containing any finding of fact in these proceedings.

The orders sought by the applicant are relevantly in the following terms (formatting as per original):

The documents forming Annexure A referred to in prayer 3 were two copies of a form titled “Freedom of Information”, with the subtitle “Request to access or change documents”. The form is directed to Services Australia and requests Services Australia to provide the applicant with access to various named categories of documents for the period 1 January 1995 to 31 January 2025. The categories of documents sought were:

The documents forming Annexure B referred to in prayer 4 are directed to the Australian Taxation Office (ATO) requesting copies of tax documents, namely, tax returns, notices of assessment, and group certificates or payment summaries, for the period 1 July 1994 to 30 June 2019. As with Annexure A, there are two copies of the relevant form, as there are requests made in relation to both Timothy and Katrina.

Thus, documents are sought from Services Australia (including Centrelink) (prayer 3) and the ATO (prayers 4 and 5). Together, Services Australia and the ATO will be referred to as the Agencies.

Timothy opposed the Motion, though he did not dispute that, subject to relevance (his contention being the documents sought were of no relevance), the Court had the power to make the orders sought in the Motion.

For the reasons set out below, I propose to make the orders sought, subject to some amendments, directing Timothy and Katrina to obtain and produce the documents sought from the Agencies.

Before explaining the power this Court has to grant orders of the kind sought by the applicant, and the principles relevant to the grant of such relief, I shall briefly explain why the applicant’s application is even necessary. The reason it is necessary is that it is not possible for the applicant to obtain the tax and social security records of the respondents by the issue of a subpoena; Commonwealth legislation prohibits information of the kind sought by the applicant being provided by the Agencies to the applicant under a subpoena. While there was no dispute this was the case, I will set out the relevant legislative provisions.

With respect to the tax records sought from the ATO, the relevant prohibition is in s 355-75 of Sch 1 to the Taxation Administration Act 1953 (Cth) (TA Act). That section provides (emphasis added):

There was no dispute that:

With respect to the social security documents sought from Services Australia, the relevant prohibition is in s 207 of the Social Security (Administration) Act 1999 (Cth) (SSA Act). That section provides (emphasis added):

Similarly, there was no dispute that

However, what is possible (at least, what has not been prevented) is for someone to request their own documents about themselves. Additionally, s 208(1)(b)(ii) of the SSA Act allows a person to authorise another person to obtain documents about that first mentioned person. Thus, for the applicant to be able to obtain the documents and information she seeks, she must either have Timothy and Katrina themselves request the documents and transmit them to the applicant once received or, for the social security documents sought from Services Australia, obtain the consent of Timothy and Katrina for the documents to be released to her directly. The applicant has correctly identified these possible paths, and the respondents do not deny their availability.

In considering the legal basis upon which the Court may make the orders sought in the Motion, the Court was greatly assisted by the helpful written submissions in relation to whether the Court has power to make the orders sought, as provided by Mr Zucker on behalf of Timothy. Mr Condon SC, for his part, stated he was indebted to Mr Zucker for his submissions as to this part of the law, submitting they “very fairly and properly set out the principles” (TR (part 2) P27 L50-P28 L2). In this context, the applicant focussed her submissions “on the apparent relevance of the documents sought” (AWS [6]).

To resolve the issue of whether to make the orders sought, the following questions must be answered:

The Court has a broad range of powers available to it in relation to the conduct of litigation: see Civil Procedure Act 2005 (NSW) (CPA) s 61(1)-(2); Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 2.1. In Merkuloff v Yalisheff [2003] NSWSC 1183 (Merkuloff), Young CJ in Eq, provided the following synopsis as to the consequences of a litigant’s submission to courts of equity:

I note that at [10]-[11] and [18]-[19] of that decision, Young CJ in Eq expressly considered that he had the jurisdiction to make orders of the kind sought by the applicant in this case. However, his Honour ultimately did not make the orders the defendant in that case sought, and instead stayed the plaintiff’s proceedings, requiring him to obtain himself the information sought by the defendant in that case.

In considering these principles, the question arises as to whether the Court has the power to enforce a party to be “fair dinkum with the Court”.

Section 56 of the CPA directs that the Court must seek to give effect to the overriding purpose of the CPA and of rules of court in their application to civil proceedings, being to facilitate the just, quick and cheap resolution of the real issues of the proceedings. Moreover, each of the parties to civil proceedings has a duty to assist the Court in furthering the overriding purpose, and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court (s 56(3)). To that end, s 61(1) of the CPA provides that the Court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.

In El-Helou v Smith [2009] NSWSC 741 (El-Helou), Harrison J considered the broad application of s 56 of the CPA, in the context of an application similar to the instant one by the applicant. His Honour was dealing with an application by the defendant in that case seeking an order that the plaintiff provide an executed authority to enable the defendant to obtain information held by Centrelink in relation to the plaintiff. This was in the context of a personal injuries claim, where the material sought was said to contain information relevant to assessing the plaintiff’s health prior to the motor vehicle accident the subject of El-Helou. At [23], his Honour said:

I was also referred to the more recent decision of Tahana v Hines [2021] NSWSC 564 (Tahana). Similarly to Harrison J, Cavanagh J was dealing with an application by the first defendant and its insurer (another defendant) seeking an order that the plaintiff provide a signed authority to the applicant-defendants for them to obtain the plaintiff’s records from Centrelink. This was in the context of a personal injuries claim by the plaintiff, where the plaintiff was claiming damages for economic loss. His Honour considered whether his Honour had the power to make the orders sought at [25]-[38], concluding that Pt 6 of the CPA, in particular s 61 read with s 56, provided the source of the Court’s power to make the orders sought in that case.

On this issue, the applicant in her written submissions referred to (at AWS [7]) what Meek J said in Tarbes v Taleb [2023] NSWSC 565 on the issue of the Court’s jurisdiction (at [295]-[298]):

While it was common ground between the parties that the Court has the requisite power to make the orders sought by the applicant, I am independently satisfied that this is the case.

The authorities I was taken to establish that the Court has the requisite power to direct a party to provide their consent in relation to a request for the production of documents held by a third party in so far as it facilitates the quick, just and cheap resolution of the proceedings before it.

However, the authorities I was referred to by the parties dealt only with applications requiring a party to authorise another party to obtain the first party’s social security documents from the relevant Commonwealth agency. I was not referred to any authority which considered whether the Court has the power to order a person themselves to request information about themselves, noting that is what prayers 4 and 5 are the applicant’s Motion are seeking. That being said, there is no reason to treat this kind of direction any differently. Requiring the respondents to approach the ATO and obtain their own records so that they can then be provided to the applicant is no different in substance to requiring the respondents to authorise the applicant to obtain the documents. In either case, practically speaking, the respondents are the bridge between the information held by the relevant agency and the applicant. Orders of the kind made in Tahana and El-Helou and sought in prayer 3 in the Motion require the respondents to allow the applicant access to that metaphorical bridge. Orders of the kind sought in prayers 4-5 of this Motion are doing the same thing. What is said by Cavanagh J in Tahana at [32] and by Harrison J in El-Helou at [23] is equally applicable in justifying why the Court has power to make an order requiring a party to obtain its own records from somewhere else and then provide them to the requesting party, noting the breadth of the power given to the Court by s 61(1)-(2) of the CPA.

The real issue in dispute between the parties on the Motion was whether the documents sought from the Agencies were in fact “apparently relevant” to the issues in dispute in the Property proceedings. The applicant acknowledged that submissions as to the appropriate test were also only “implicit in the submissions of both parties” (TR (part 2) P10 L7). The applicant submitted that given the orders were being sought as a substitute for a subpoena, it followed that the Court should apply the test used to assess whether a subpoena seeking the production of documents possesses a legitimate forensic purpose (ie, the test of apparent relevance) (TR (part 2) P10 L7-23). Timothy’s written submissions proceed on the same footing (see TWS [22]-[23], see also [15]-[20]).

It should be said that the authorities to which I was referred did not directly state a “test” that the Court should apply in deciding whether to make the orders of the kind sought by the applicant.

In the context of accepting the Court had the power to make an order, Timothy made submissions in relation to matters the Court ought to have regard to when considering whether the Court ought to exercise its discretion to make the orders sought by the applicant. In doing so, the Court was referred to Tahana. Timothy submitted, and as was already discussed above, the Court in that case was of the view that it was entitled to make an order requiring the plaintiff to provide the defendant-applicants in that case a signed authority to obtain Centrelink records, pursuant to ss 56 and 61 of the CPA. In considering whether to exercise the Court’s discretion to make the order sought, Cavanagh J stated (emphasis added):

Timothy also referred to the decision in El-Helou, quoting what Harrison J said at [21] (in part) as follows:

In Wray v Wray [2007] NSWSC 164 (Wray) at [9]-[11], and at [16], a case to which the applicant referred, Gzell J appears to have proceeded on the basis that it was appropriate to determine whether the documents sought under the Centrelink authority requested by the plaintiff in that case were relevant, as part of considering whether the plaintiff’s application in that case should be granted. I acknowledge that Gzell J did not expressly outline any “test” that needed to be satisfied, but his Honour’s approach suggests I should be satisfied the documents sought by the respondents are “relevant” in some sense to the proceedings before I grant the orders sought by the applicant.

I note that Merkuloff says nothing as to whether the documents sought need to be “relevant” before an order is to be made.

Taking what Cavanagh J has said in Tahana in the paragraphs quoted above with the approaches taken by Harrison J in El-Helou and Gzell J in Wray, where the “relevance” of the documents sought was part of their Honour’s reasoning in making the orders sought in the applications determined in those cases, leads me to the conclusion that I should be satisfied that the documents sought by the applicant are “relevant” in some sense. The parties proceeded on the basis that the test is the same as that for a valid subpoena, ie, the documents sought must be apparently relevant. I will accordingly proceed on the basis of that common position.

The applicant, for her part, submitted (AWS [8]) that no narrow view of relevance should be taken, and relied on what the Court said in El-Helou at [23] (quoted earlier in these reasons).

More broadly, the applicant relied in her written submissions on what Bell P said in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown) at [64]-[65] (emphasis in original):

On the issue of the degree of latitude that might be justified when a party does not know precisely what may be contained in apparently relevant records, the applicant relied on what Brereton J said in Portal Software v Bodsworth [2005] NSWSC 1115 at [25], which bears setting out in full:

In the context of questioning the length of time for which the documents are sought by the applicant, being the period commencing 1 July 1994 (for the tax documents)/1 January 1995 (for the social security documents), Timothy raised the issue of whether the claim for the documents had a legitimate forensic purpose. In raising this issue, Timothy drew my attention to the decision of Ward CJ in Eq in Rinehart v Rinehart [2018] NSWSC 1102, particularly [43]-[50]. In those paragraphs, her Honour said:

When considering the issue of apparent relevance below, the Court will have regard to the issues in dispute in the Property proceedings, as summarised above at [3]-[22], which in turn are based upon particularised claims set out in the FASOC, together with the affidavit evidence before the Court.

The applicant submitted that a fact in issue is Timothy’s capacity to make the payments particularised in the FASOC, both one-off and ongoing, and the source of funds available to him over time (AWS [11]-[12]).

The applicant, at AWS [17]-[20], also pointed to evidence already available that she says suggests some of the regular payments made by Timothy to the deceased were rental payments. This includes evidence that the deceased told his long-standing lawyer that Timothy paid him rent, and that Timothy had received rental assistance from the government. Timothy denies he paid rent to the deceased, and in turn asserts that the regular cash payments ($100 weekly) made by him were not rent, but rather, the repayment of a loan.

It was submitted that documents recording Timothy received rental assistance from the Commonwealth “will shed light on the nature of any understanding between Timothy and the deceased” (AWS [21]). In this, it was submitted that the production of the documents would provide evidence of Timothy’s financial position more broadly, which will be relevant to assessing his capacity to make payments, assessing his need to borrow from the deceased at the time he was allegedly loaned money by the deceased, and assessing whether Timothy acted to his detriment at the time he says he did (AWS [21]-[22]).

It was said that the production of more recent documents, for both Timothy and Katrina, will also inform his family provision claim (AWS [23]). However, as noted in [9]-[10] above, Timothy’s family provision claim forms part of the Probate proceedings, rather than the Property proceedings, which are the subject of the Motion. The extent to which the Court, in deciding this Motion, may have regard to the terms of the pleadings in the “related” Probate proceedings when assessing the apparent relevance of documents to the Property proceedings is not clear. I did not receive submissions addressing this point.

During the hearing, the applicant submitted, inter alia, that Timothy has deposed that he was a full-time carer for both of his parents. It followed that any documents produced by Services Australia would shed light onto whether he claimed his carer’s pension, and whether, absent full-time employment, he received any social security benefits which would have been used in the financial contributions to the property allegedly made by Timothy from 1995.

In her oral submissions, the applicant addressed the issue of the basis of the claim for orders in relation to Katrina (as opposed to just Timothy), who is not a party to the principal component of the Property proceedings, and is only a party to the cross-claim by dint of her residing in the Annangrove property with her husband. On this issue, the applicant submitted that Timothy and Katrina were a “single financial unit” (TR (part 2) P26 L7) or “an economic unit” (TR (part 2) P22 L12), and thus any assessment of Timothy’s financial undertakings, commitments, and circumstances more broadly will necessarily involve an assessment of Katrina’s financial circumstances.

The applicant supported this submission by taking the Court to an affidavit sworn in the Property proceedings by Timothy on 29 July 2022 (Timothy’s affidavit), which was in evidence on the Motion, which included statements from Timothy such as:

The Court was also taken to part of [92], and it will be noted that [92], [93], and part of [94] relevantly provide the following evidence (emphasis added):

Having regard to Timothy’s own evidence, I accept the applicant’s submission that Timothy and Katrina may be considered as a single financial or economic unit. To that end, to the extent that any apparent relevance attaches to particular documents in relation to Timothy, I accept that that same apparent relevance will attach to the documents of Katrina. Further, it is my view that any full disclosure of Timothy’s financial circumstances would not be possible without the disclosure of Katrina’s financial circumstances also.

On the issue of relevant time period in relation to which documents should be produced, having regard to the terms of the FASOC, together with the (disputed) narrative set out above at [12]-[21], and the evidence contained in Timothy’s affidavit cited above, I also accept that any inquiry as to the respondents’ financial circumstances will relevantly commence around 1994, and continue until the time that Timothy ceased caring for the deceased in 2019.

I note the applicant seeks the production of documents up to 2025, stating (at AWS [23]) that “[t]he production of more recent documents will also speak to the income and assets of the plaintiff and his spouse, which will inform his family provision claim”. However, as already noted at [62] above, the extent to which the Court, in deciding this Motion, may have regard to the “related” Probate proceedings is not clear.

On the issue of relevance in relation to the documents sought from Services Australia, I accept that the documents may be relevant to the issue of any government rental assistance received by the respondents, to the issue of whether Timothy was a carer as he alleged, and to the issue of what financial means he had, and the reason for their relevance is because information about receipt of government benefits sheds light on the facts. In this, I accept there is a reasonable basis beyond speculation that it is likely the documents will assist any determination of the facts in issue.

In relation to the documents sought from the ATO, I also accept that those documents are apparently relevant to the facts in issue. In accepting this, I have considered the applicant’s acknowledgement that the records sought from the ATO will not reflect actual savings in bank accounts. However, in circumstances where primary documents may no longer be available, the ATO documents might well be the best evidence available. On this, the applicant submitted (TR (part 2) P19 L12-19):

Thus, whilst the ATO documents would not be capable of providing direct evidence of any loan or payments or ongoing financial outgoings, they may be capable of providing evidence of the respondents’ overall financial circumstances by way of their incomes over the period of time the subject of events particularised in the FASOC, and thus provide indirect evidence of the respondents capacity to take on, service, or discharge, any particular financial liability.

Timothy submitted in writing that any enquiry into his financial position was not something “which of itself should disturb the rights to privacy of communications with Centrelink and the ATO that are enshrined in the legislation.” It was said that this was all the more so “when it is realised that neither Centrelink nor the ATO would be aware of, or would have records of, domestic expenditure, private payments or personal loan arrangements” (TWS [16]).

On the issue of rights to privacy, the Court is mindful of the importance of the privacy considerations in relation to the documents sought from and held by the Agencies. However, I accept the applicant’s submissions that the documents have an apparent relevance to the facts in issue, and that the production of the documents could have potential beneficial consequences for the just, quick and cheap resolution of this case. In this, as Timothy is the plaintiff in the substantive proceedings, the Court requires that Timothy be “rectus in curia” before being heard (that is, to use Young CJ in Eq’s expression, be fair dinkum with the Court).

In his written submissions (at TWS [17]), Timothy acknowledged that in bringing a family provision claim “as a backup claim in the related [Probate] proceedings”, he has a duty to disclose his financial circumstances. However, he submitted that the critical time for such disclosure is the time when the court is considering the application (per s 59(1)(c) of the Succession Act 2006 (NSW)) (TWS [17]). In oral submissions, Timothy accepted that as Katrina is a member of Timothy’s household, her financial circumstances are relevant to his family provision claim (TR (part 2) P33 L8-10).

Again, as already mentioned above (at [62] and [69]), the extent to which the Court, in deciding this Motion, may have regard to the terms of the pleadings in the “related” Probate proceedings, which includes the family provision claim, is not clear. I will return to this issue at [86] below.

Timothy also refers to the disputed issue as to whether rent was paid by him and submits that this is of “miniscule relevance” to the issue to be decided by the Court (TWS [19]). Timothy also queried whether the Centrelink or ATO records would in any event disclose any alleged rent payments (which are denied) and submitted that the quest for documents may well be futile (TWS [20]-[21]).

In so far as the narrow issue of the putative rent payments is concerned, I accept the submission that the documents from the Agencies are not likely to provide direct evidence on this issue. However, I accept that the Centrelink documents are capable of disclosing government rental assistance documents, should they exist, as well as carer’s pension documents, should they exist. I also accept that the ATO documents will provide some evidence as to the funds available to Timothy by way of income, and their source, for the relevant period, which at a higher level, goes to a number of real issues in the proceedings, including the issue of Timothy’s capacity to perform the obligations under the claimed agreement with the deceased.

On behalf of Katrina, Timothy made the following written submissions:

For the reasons already explained, and evidence already referred to, I have accepted the submission made by the applicant that Timothy and Katrina are an economic unit, and thus any documents from the Agencies properly sought in relation to Timothy will also be properly sought in relation to Katrina.

In relation to the nature of the documents sought, Timothy questioned the use to be made of the ATO documents, after which the following exchange took place, which led to a concession by Timothy (TR (part 2) P31 L10-42):

I am of the view that this concession was properly made. Timothy has put in issue one-off, and ongoing and regular payments over the span of decades, and ATO records are one way of seeking to establish Timothy’s capacity to make such payments.

Having regard to the evidence before the Court, and the submissions made on behalf of the parties, I accept the submissions of the applicant and propose to exercise the discretion available to the Court and make the orders sought in the Motion, with some amendment.

In relation to the range of time for which documents should be produced, it is Timothy, by virtue of his particularisation of events in the FASOC, that has set the scope of any particular range of time over which documents will be properly sought.

Noting the terms of the Motion, I accept that an appropriate range will commence from “early 1995” (per FASOC [5]) and thus commence on 1 January 1995. In relation to the ATO records, the appropriate commencement date will be the commencement of the financial year which will include “early 1995”, that being the financial year commencing on 1 July 1994.

Determining the end date of the range is more problematic. If I am to determine the appropriate date range using only what is pleaded in the FASOC, I am of the view that the end date of the range would be 2019, given the real issues for determination raised in the Property proceedings, which provides the touchstone for any consideration of “apparent relevance”.

In circumstances where payments and other forms of reliance described by Timothy have at times been claimed to extend “to 2019”, without more detail (for example, see Timothy’s affidavit at [92]), I propose to extend the end date of the range to 31 December 2019.

The applicant has sought copies of documents up until 2025 however, with the justification in relation to “apparent relevance” being their relevance to Timothy’s family provision claim. As already noted, the family provision claim forms no part of the Property proceedings and is not otherwise referred to in the FASOC. As a result of this being the case, I do not believe that, in relation to this Motion, I can properly make an order facilitating a request for documents to be produced relating to years beyond 2019.

To the extent that each of the applicant and Timothy accept that documents from the Agencies may well be relevant to Timothy’s family provision claim (as appeared to me on the hearing of the Motion), I consider it open to the parties to the Probate proceedings, to the extent they are able to agree, to seek appropriate orders by consent from the Court in relation to those proceedings, essentially in the same terms as any orders ultimately made in these proceedings, in order to fill the documentary gap between 2019 and 2025. Should this occur, any request forms for documents submitted to the Agencies may then cover the whole of the date range sought in these proceedings (ie 1 July 1994 to 2025), having been so authorised by orders made in these proceedings (as a result of the Motion), together with any consent orders subsequently made in the Probate proceedings.

Of course, this will be a matter for the parties to the Probate proceedings, having regard to the need to take steps which will facilitate the just, quick and cheap resolution of the real issues in those proceedings.

In relation to the terms of the relief sought by the applicant, Timothy submitted that any final orders made by the Court should not be in the form originally sought. Timothy submitted various alterations to the prayers of relief contained in the Motion ought to be made if the Court were otherwise minded to grant the applicant’s application. For her part, the applicant indicated she did not oppose the Court’s final orders accounting for the alterations to her prayers for relief suggested by Timothy (TR (part 2) P28-29, see also P32 L26-44).

I propose to make the amendments to the orders sought by Timothy which appear both proper and reasonable.

To account for the fact the relief to be granted will not be what is originally sought in the Motion, the Court will direct the parties to provide an agreed form of orders. So that there is no doubt, the final relief should include orders to the following effect:

The parties respectively sought their costs on the Motion. Despite both parties seeking their costs, no submissions were made in relation to costs.

The usual order as to the costs of an interlocutory application is that the costs of the application be costs in the cause: UCPR r 42.7(1), Wilson v Gillies (No 2) [2020] NSWSC 658 at [11] (Rees J); Wang v Cai (No 2) [2021] NSWSC 1268 at [61] (Ward CJ in Eq); Skytraders Pty Ltd v Meyer [2023] NSWSC 857 at [2] (Richmond J); United Crib Blocks Construction Pty Ltd v Asmaro [2025] NSWSC 1156 at [98]-[100] (Bennett J).

I do not consider it appropriate, at this stage, to order the applicant have her costs. It is clear the applicant has been successful, largely, on the Motion. That being said, it is uncertain as to who might benefit from the documents sought from the Agencies. That would depend on what is said in the documents. As such, whether the expense of the Motion was a justified one for which the applicants should be compensated is not one that can be judged now. The merits otherwise of the parties’ respective cases also cannot be judged now.

There is no other reason apparent to me that I should otherwise exercise the Court’s costs discretion in a party’s favour.

The costs of the Motion should be costs in the cause. The Short Minutes of Order prepared by the parties should reflect this costs outcome.

For the reasons set out above, I make the following orders: