Bolinger v Bell (No 2); The Estate of Colin Bell

This judgment concerns different proceedings involving the estate of Colin Morton Bell (the deceased) who died testate, on 14 March 2022, leaving property in New South Wales.

As will be read, what the Court is asked to do, in the substantive, albeit different proceedings, is to determine what is the last valid testamentary instrument of the deceased; to determine whether there should be an alteration of property interests in favour of the deceased’s wife in family law proceedings commenced whilst the deceased was alive, and which have been continued since his death by the parties in these proceedings, which have been cross-vested to this Court; and then, to determine a claim sought by the wife, and, separately, by a minor child of the deceased, each for a family provision order out of the estate of the deceased.

A significant amount of Court time has already been spent, no doubt at significant cost to the parties, in determining various, long running, interlocutory, and bitterly contested, disputes that have not finally determined the legal issues that exist between them. Both Lindsay J, and Slattery J, of this Court, have had to deal with different aspects of litigation involving the deceased and the parties in these proceedings.

These reasons, as will be read, deal with a further interlocutory dispute which simply highlights the level of dispute between the parties. Urging both sides to engage in discussions which would avoid further interlocutory argument and enable focus on, and consideration of, the substantive proceedings, fell on deaf ears. The legal contests have continued, and are continuing, with no quarter sought, or given, by either party.

An issue, raised by the Court, during the hearing, which also will be dealt with, relates to how to best case manage the different proceedings going forward.

Regrettably, it is necessary, first, to set out details of the various proceedings that have been brought by one, or other, of the parties, and the tortuous path that has led to these reasons for judgment.

I have considered s 121 of the Family Law Act 1975 (Cth) which makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses, involved in family law proceedings.

Although there was some discussion about s 121 and the possible anonymisation of the names of parties (Tcpt, 29 June 2022, p 3-4), neither party made any application for an order that the parties, in what I shall describe as the family law proceedings, cross-vested to this Court, should each be referred to by pseudonym or otherwise. Nor was it suggested, as it has been recently, in Smith v Jones (No. 3) [2022] NSWSC 1448 at [10] (Lonergan J), that “the making of orders protecting the identity of the parties by way of a pseudonym would protect the proper administration of justice in this case by ensuring comity with the scheme of anonymity mandated by s 121 of the Family Law Act.”

It seems to me, bearing in mind the matters to which reference will be made, there is no choice but to identify the persons in the proceedings. As will be read, another judgment of the Supreme Court has already done so.

Donna-May Bolinger, the wife of the deceased (although they had separated), is one of the parties in the proceedings. Ned Bell, a now adult child of the deceased from a previous marriage, is the other party. For the avoidance of confusion, and because the parties appear in different capacities in the different proceedings, I shall refer to each, and other family members, after introduction, by his, or her, first name, respectively. I do not intend any undue familiarity.

On 10 November 2020, following the breakdown of their marriage, Donna-May initiated proceedings against the deceased in the Family Court of Australia (as it was then known) (SYCXXXX/2020) with respect to the property of the parties to the marriage, or either of them, altering the interests of the parties to the marriage in the property under s 79 of the Family Law Act. In those proceedings, she sought, amongst other things, an order that she receive 50% of the net property and superannuation entitlements belonging to her and the deceased, as well as the transfer to her, absolutely, of certain real estate in Woollahra (“the Woollahra property”), which was solely owned by the deceased.

Doing the best I can from the evidence read in these proceedings, directions hearings, in the Family Court, were held in these proceedings on 15 December 2020, 18 March 2021, 15 April 2021, 3 May 2021, 17 May 2021, 10 August 2021, 16 August 2021, 22 September 2021, 6 December 2021, 14 December 2021, and 6 May 2022.

Applications in a case were, apparently, filed in the Family Court:

Where, before property settlement proceedings are completed, a party to the marriage dies, the proceedings may be continued by, or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings: s 79(8) of the Family Law Act.

On 8 November 2021, as stated, an application was made by Donna-May to cross-vest the family law proceedings to this Court. As the application was opposed by Ned, it came to be listed for a contested hearing on 25 March 2022 in the Federal Circuit and Family Court of Australia.

On 16 March 2022, due to the deceased’s death a short time earlier, the hearing date was vacated. The proceedings were listed, for a procedural directions hearing, before a Judicial Registrar on 8 April 2022. It appears that no directions hearing occurred on that date, although the reasons for this change are unclear.

On 6 May 2022, following receipt of Consent Orders sent by the parties, the Family Court (Judicial Registrar Bardetta) made orders, one of which substituted Ned as the respondent to Donna-May’s substantive application. In this way, any property adjustment order, if made, could be enforced by, or against, the deceased’s estate: ss 79(1A), 79(8)(c) of the Family Law Act.

In addition, the Registrar transferred the proceedings to the Supreme Court of New South Wales pursuant to s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (“the Cross-Vesting Act”) and removed the case from the Family Court’s list of active cases.

So far as I can tell, there was no evidence that, at that time the learned Judicial Registrar made the orders transferring the proceedings to this Court, she was fully appraised of the nature of the proceedings in the Supreme Court; that she had considered whether the family law proceeding arose out of, or were related to, the proceedings in the Supreme Court; and that it was “more appropriate that the family law proceedings should be determined by the Supreme Court, or it was otherwise in the interests of justice that the family law proceedings be determined” by this Court. (I do not mention this as a criticism but simply as stating what is revealed by the evidence read before me.)

In this Court, the proceedings, when cross-vested, are numbered 2022/163059. I shall refer to these proceedings as “the family law proceedings”.

On 30 July 2021, Donna-May commenced proceedings in the Protective List of this Court, against the deceased, Ned, and Kate Perkins, another, now adult, child of the deceased, challenging the validity of various instruments relating to the deceased’s enduring guardianship and a power of attorney over the deceased's affairs. In the alternative she sought to be appointed as manager of the deceased's affairs. I shall refer to these proceedings as “the protective proceedings”.

Doing the best I can, there were hearings held before Registrar Walton, as the Protective List Registrar on 16 August 2021, and then before Lindsay J, the Protective List Judge, on 6 September 2021, 14 September 2021, 16 September 2021, 17 September 2021, 6 October 2021, 12 October 2021, 5 November 2021, 29 November 2021, 16 December 2021, 2 February 2022, 3 March 2022 and 30 March 2022.

In the protective proceedings, a notice of motion was filed:

On 16 September 2021, Lindsay J made an order appointing the NSW Trustee and Guardian (the NSWTG) as receiver and manager of the deceased's affairs under s 41 of the NSW Trustee and Guardian Act 2009 (NSW).

On 17 September 2021, his Honour made the following orders in the protective proceedings:

The orders made by Lindsay J on 17 September 2021 also included a lump sum provision for Donna-May’s costs of the protective proceedings ($100,000) and an amount on account of her claims for a living allowance ($200,000).

A dispute arose, subsequently, concerning whether the NSWTG had complied with the orders made by Lindsay J, and on 14 December 2021, Donna-May filed a notice of motion, in the protective proceedings, seeking orders to resolve the various disputes between her and NSWTG.

Donna-May’s notice of motion came on for hearing, in the protective proceedings, on 15 December 2021. At that hearing, Lindsay J indicated that the order referred to in Paragraph 2(c) above would be amended and he ordered funds to be paid to her. His Honour ordered:

Subsequently, the NSWTG paid the following amounts into Donna-May’s bank account:

On 30 March 2022, Lindsay J ordered that the proceedings be taken out of the Protective List on 13 and 31 May 2022 and that the proceedings be listed, before him, on 14 November 2022, at 9:00 a.m., for directions. His Honour also reserved to any interested person, liberty to apply on three days’ notice and he reserved all questions of costs.

It is not entirely clear what directions, or orders, the parties will seek in the protective proceedings when the matter is next before the Protective List Judge on 14 November 2022.

On 26 November 2021, Donna-May filed a further Summons (proceedings number 2021/336985), seeking orders for a statutory will to be made for the deceased. The matter was managed with the protective proceedings. I shall refer to those proceedings as “the statutory will proceedings”.

A search of JusticeLink reveals that in the statutory will proceedings, orders and notations were last made by Lindsay J on 30 March 2022. His Honour noted that the deceased had died, reserved the question of costs, and stood over the proceedings, for further directions, on 14 November 2022.

As earlier stated, the deceased died on 14 March 2022. On 12 April 2022, Donna-May filed a Statement of Claim and a notice of motion in the Equity Duty List, seeking the appointment of a special administrator of the deceased’s estate: Probate and Administration Act 1898 (NSW), ss 73 and 74. Ned opposed this application.

The notice of motion came before Slattery J, as Duty Judge, on 12 April 2022, 14 April 2022, and 20 April 2022. On 21 April 2022, his Honour made a number of orders, including, relevantly:

On 26 April 2022, his Honour delivered his reasons for making the orders, which bear the medium neutral citation Bollinger v Bell; The Estate of the Late Colin Bell [2022] NSWSC 486.

In accordance with the orders made by Slattery J, proceedings were commenced in the Succession List by Ned, who filed a Statement of Claim on 22 April 2022 (proceedings number 2022/92169). Ned sought an order that Probate of the Will dated 18 May 2015, and the Codicil dated 3 November 2020, of the deceased, be granted to him.

(I shall refer to the Will, as "the 2015 Will" and the Codicil, as “the 2020 Codicil” respectively, for convenience, and without any prejudgment as to validity.)

(The deceased had also made a Will dated 24 March 2009 (to which I shall refer as “the 2009 Will”), but neither party propounds this Will, as it was revoked, by operation of law, as a result of the deceased’s marriage to Donna-May on 11 December 2014: s 12(1) of the Succession Act 2006 (NSW).)

On 31 March 2022, Ned had published on the Courts’ Online Registry, notice of intended application for Probate of the 2015 Will and the 2020 Codicil.

The Defendant named in the proceedings was, of course, Donna-May. On 2 June 2022, she filed a Defence in which she stated that she “did not know if the deceased knew and approved the contents of the 2015 Will”; admitted that the 2015 Will “appears to bear the deceased’s signature”; admitted that the deceased had testamentary capacity to execute the 2015 Will; and did not otherwise admit the validity of the 2015 Will. She denied the validity of the 2020 Codicil upon the basis that the deceased’s lacked testamentary capacity and asserted that “there are suspicious circumstances regarding the making of the Will and the Codicil”.

On 2 May 2022, Donna-May filed a Cross-Claim. On 4 May 2022, she filed an amended Cross-Claim in which, she sought a declaration that the deceased died intestate; and an order that letters of administration on intestacy be granted to her. She also sought a number of other orders, in the alternative, including, relevantly, an order pursuant to s 59 of the Succession Act, that provision, or further provision, be made for her out of the estate of the deceased.

I shall refer to these proceedings as “the Probate proceedings” so far as they relate to the 2015 Will and the 2020 Codicil. I shall refer to Donna-May’s claim for a family provision order as “the family provision proceedings”.

None of the substantive proceedings involving Donna-May and Ned are ready to be determined. Indeed, the parties are currently in the process of completing some of the evidence. There has also been significant debate as to when, and how, the family law proceedings should be heard and determined, particularly in circumstances where Donna-May confirmed she would continue with the family law proceedings, even if she is successful in the Probate proceedings: Tcpt, 29 June 2022, p 7(33)-8(2).

I should mention, in order to complete the litigation landscape, that on 29 June 2022, separate proceedings for a family provision order, were commenced, in this Court, by Gina Agathopoulos, as tutor for William Agathopoulos, (proceedings number 2022/189398). I shall refer to these proceedings as “William’s proceedings”. They are not relevant to the interlocutory proceedings with which I am presently concerned as all parties, in these, and the associated proceedings, agree that the Probate proceedings and the family law proceedings must be dealt with before the family provision proceedings, or William’s proceedings, can be heard and determined.

In addition, Donna-May has a now adult, child, from a previous relationship, Benton Hershel Dunagen. In her evidence, she deposed that Benton does not work or receive any income from the government. There was a statement made at the hearing, that he may commence proceedings seeking a family provision order: Tcpt, 8 September 2021, p 3(23-40).

The prescribed period for making an application for a family provision order (not later than 12 months after the date of the death of the deceased) has not yet expired. Any such proceedings, if commenced, before the expiration of that time, will have to await the determination of the Probate proceedings and the family law proceedings also.

At the time of these reasons being completed, the Court has not been informed, specifically, that any such proceedings have been commenced and a search of JusticeLink does not reveal any such proceedings.

Although there appear to be a number of different notices of motion that have been filed and served, I shall refer, hereafter, principally, to the notices of motion which were the subject of the hearing before me and which are the subject of these reasons.

On 3 May 2022, Donna-May filed an amended notice of motion seeking several different orders, to which it is no longer necessary to refer.

On 9 June 2022, I made a number of directions and orders in relation to Donna-May’s amended notice of motion, including:

On 16 June 2022, Donna-May filed another notice of motion (incorrectly shown thereon as having been filed on 15 June 2022), this time in the family law proceedings, in which she sought, as against Ned (in his capacity as special administrator of the deceased’s estate):

Subsequently, it appeared that it was this notice of motion, rather than the amended notice of motion, filed by Donna-May on 3 May 2022, which she wished the Court to deal with at the hearing. In the circumstances, it will be necessary to dismiss the notice of motion of 3 May 2022.

In relation to the notice of motion filed 16 June 2022, Donna-May, initially, relied upon the following bases for relief, namely:

By the date of the hearing, Donna-May refined, significantly, the basis of her claim for interim relief to solely rely upon ss 79 and 80 of the Family Law Act (Tcpt, 29 June 2022, p 6(31-50); 21(36-50)). She sought orders for:

Counsel for Donna-May specifically disclaimed reliance “on the costs power under s 117 as the source of power”, thereby avoiding the need “for an assessment to be made of the amount that is required”: Donna-May’s second written outline of submissions dated 6 September 2022 at [55].

Counsel submitted that the reasons for the interim order were (a) to pay costs both incurred, and to be incurred; (b) to pay outstanding liabilities; (c) to pay on account of living, or other, reasonable, expenses; and (d) to provide a buffer in relation to expenses.

“Interim” orders for settlement of property are expressly referred to in the Family Law Act: see ss 79(6) and 80(1)(h); Strahan & Strahan (Interim Property Orders) (2009) 241 FLR 1; [2009] FamCAFC 166 at [113]-[114]. Donna-May specifically relies upon these sections as the source of power to make the interim property order. She also stated, perhaps in aid of any subsequent application, that an earlier order made under s 80(1)(h) is capable of alteration at any time prior to, or as part of, the final exercise of the s 79 power: Gabel & Yardley (2008) 221 FLR 270; [2008] FamCAFC 162 at [69]-[73] (Bryant CJ and Coleman J).

Although the claims made do not specifically provide for the payment of legal costs, in the second written outline of submissions, counsel maintained, at [4]-[5], that:

Unsurprisingly, Ned opposed Donna-May’s application for interim relief even on the limited ground. He sought an order that the notice of motion be dismissed with costs.

On 31 May 2022, Ned filed a notice of motion seeking:

Ned’s notice of motion was not the subject of substantial debate. On 1 July 2022, without opposition, the Court dealt with the first two orders that had been sought as follows:

Originally, in listing the notices of motion for hearing, the legal representatives had stated that hearing would be concluded within one-half day. Making every allowance for the vagaries of litigation, including the possibility of pre-reading, that the hearing, comprising the two contested applications, could be heard within a one-half day, was wildly optimistic. That this is so, is demonstrated by the fact that shortly, prior to the hearing, a Court Book, comprising 2 folders (1026 pages and 780 pages respectively) was delivered to the Court. At the hearing, the Court Book was marked as Ex JE1.

In addition, during the hearing, additional documents were tendered. It will be necessary to refer to only some of these documents in these reasons.

On 29 June 2022, the first day of the hearing, Mr R Wilson SC, with Mr J Brown and Mr R Size, both of counsel, appeared for Donna-May whilst Mr M Kearney SC, with Mr A Langshaw of counsel appeared for Ned. There was also short appearance by Mr P Livingston of counsel, for Gina Agathopoulos, the tutor for William, in respect of his claim for a family provision order. He was excused from continuing to appear upon the basis that, if required, he would be requested to return.

On 8 September 2022, the second day of the hearing, Ms J Needham SC with Mr I Duane of counsel appeared for Donna-May, whilst Mr Kearney SC and Mr Langshaw, appeared again, for Ned. Whilst counsel for Donna-May narrowed, significantly, the basis of the claim for an interim order, a significant amount of time, on each day, was spent debating how the substantive proceedings should be dealt with. It will be necessary to return to this topic later in the reasons.

On the first day of the hearing, the Court had suggested that if the evidence in the Probate proceedings were completed promptly, dates for a hearing of 5 days duration might be able to be given this year or early in 2023. This could avoid the necessity for the determination of the application for interim relief and save the parties further delay, time and costs. The suggestion made by the Court was rejected on that occasion: Tcpt, 29 June 2022, p 16(50)-18(4).

On the second day of the hearing, further time was spent debating how long the hearing of all matters would take and the parties agreed that no less than 20 days of Court time would be required, if the matters were heard consecutively, with the evidence in one being evidence in the other.

During the debate, however, counsel for the parties all appeared to be somewhat reticent about having all of the evidence in the family law proceedings being filed and served at, or about, the same time as the evidence in the Probate proceedings. It was postulated that the Probate proceedings should be heard and determined first; only after that, would the parties complete the evidence in the family law proceedings; and only then, after the family law proceedings were determined, all of the family provision claims would be dealt with.

All counsel agreed, however, that the family provision proceedings, William’s family provision proceedings, and if commenced, Benton’s family provision proceedings, could not be dealt with until the Probate proceedings and the family law proceedings were determined as the nature and value of the deceased’s estate would not be known.

In response to the suggestion made, the Court pointed to the obvious delay, and the risk of even further delay, in the event of an appeal in either the Probate proceedings and/or the family law proceedings, and the inconvenience of one judge being required to hear the different, but what were said to be associated, matters, in this piecemeal way.

Indeed, during debate, the Court suggested that the family law proceedings could be remitted to be dealt with in the Federal Circuit and Family Court of Australia, as it is now called, as those proceedings had been commenced prior to 1 September 2021. (On that date, the federal court known immediately before 1 September 2021 as the Family Court of Australia had been continued in existence and became known as the Family Court and the Federal Circuit Court Division 1 Court.) The Probate proceedings would be determined, whilst the parties were preparing for the family law matter, with the family provision proceedings, including the claim by William, being dealt with after the conclusion of the family law matter.

At the end of the second day, I adjourned the proceedings until 28 September 2022, to allow the Plaintiff time so that she could decide how she wished to proceed. At the hearing on 28 September 2022, unsurprisingly, the debate continued, with both parties unable to agree as to the way forward.

Ultimately, on that occasion, the Court directed:

As there was no agreement between the parties, it will be necessary to return to the submissions that were made by counsel on this topic later in these reasons, so that the way forward in this litigation is clearly established.

I pause here to observe that in dealing with the notices of motion, this Court, at this time, is not the appropriate forum to resolve factual disputes. Apart from everything else, the evidence read, at this stage, has not been tested. Much more work will have to be done to enable the Court to come to a concluded view about the facts that are in dispute (of which there are likely to be many).

However, it seems to me, that there is no real dispute about the facts referred to in this part of the reasons and they may be stated without provoking controversy.

The deceased was born in December 1941, and died in March 2022, aged 80 years. He left property, both real and personal, in New South Wales.

The deceased commenced a romantic relationship with Donna-May in 2010. In 2011, they commenced living together, and they were married in December 2014. There were no children of their marriage.

The deceased had three wives prior to Donna-May, being Louise Bell, Caroline Bell, and Emlen Gaudino, respectively. Louise and Caroline both predeceased the deceased. Emlen is still alive and is referred to by Ned as an “eligible person” within the meaning of that term in s 57(1)(d) of the Succession Act (a former spouse of the deceased).

The deceased and Louise had one child, Kate Perkins (nee Bell). The deceased and Caroline had one child, Ned, and Caroline also had a child from a previous marriage, who is a stepchild of the deceased, being Sophie Balderstone. Those three persons are the sole residuary beneficiaries named in the 2015 Will.

The deceased, as stated, also had a relationship with Gina Agathopoulos between 2008 and 2010. William was born in April 2010 and is named as an object of a testamentary discretionary trust which is formed under the 2015 Will (to which reference will be made).

On 22 November 2016, the deceased appointed Donna-May as his enduring guardian.

On 8 March 2018, the deceased suffered an arterial blockage and clot in the brain, or a ‘stroke’ and presented at St Vincent’s Hospital.

In July 2018, the deceased was diagnosed with aortic valve endocarditis following which he had an Aortic Valve Replacement at the Mayo Clinic in the United States of America.

On 11 February 2019, the deceased appointed Donna-May and Ned to be his attorneys under an Enduring Power of Attorney.

On 4 August 2019, the deceased had a serious seizure, from which time he required regular assistance with his activities of daily living.

Ned alleges that on 25 September 2020, Donna-May and the deceased separated. Although the date and the circumstances of the separation are contested, with Donna-May claiming that they did not separate until 7 December 2020; in the initial written submissions filed and served on her behalf, at [3] it was written that they “had lived together from about 2010 until 25 September 2020”. Probably, nothing much will turn on the dispute of fact.

Ned alleged that Donna-May had transferred two amounts of $175,000 from the NAB Joint Account to one of her Westpac accounts on or about 28 September 2020, totalling $350,000. Ned also asserted that on 8 October 2020, she had transferred an amount of $480,035 (including the $350,000 earlier transferred) from the NAB Joint Account, held with the deceased, to one of her own Westpac accounts. (It appears that the $35 was an overseas bank transaction fee.) The total of the amount transferred was $480,035.

It appears from other evidence that there is no dispute about the transfer of the funds on or about 28 September 2020 and on 8 October 2020. However, there remains a dispute about whether the deceased had consented to Donna-May withdrawing each from the joint accounts and transferring those funds to herself: see Ex JE1/193 and Ex JE1/209. The issue of consent will be determined at the hearing. The withdrawal of funds is referred to in order to demonstrate amounts that Donna-May has received, at or about the time, or following, separation.

On 13 October 2020, the deceased executed a document that revoked the appointment of Donna-May and Ned as his enduring Attorneys. On 3 November 2020, he executed a document which appointed Kate and Ned as his enduring guardians, and another document, which appointed Ned, alone, as his enduring Attorney. As earlier stated, Donna-May has disputed the validity of all of these documents.

In March 2021, the NSW Police sought, and obtained, an interim apprehended domestic violence order against Donna-May, the consequence of which was that she was prevented from taking certain actions in relation to the deceased, including approaching, or contacting, him.

As stated, the deceased’s last Will was the 2015 Will. It was duly executed.

In the 2015 Will, the deceased relevantly:

At the hearing of the notices of motion, Mr Langshaw, junior counsel for Ned, confirmed, without demur from counsel for Donna-May, that there was no longer any dispute about the validity of the 2015 Will: Tcpt, 28 September 2022, p 13(33-42).

The statement made by Mr Langshaw, is now supported by Paragraph 6 of the amended Defence and Paragraphs 4, 5 and 6 of the further amended Cross-Claim which were filed on 27 September 2022, which stated:

It follows that unless Ned establishes the validity of the 2020 Codicil, Donna-May will be entitled to a devise of the Woollahra property, free from all duties and taxes, and all of the deceased’s household goods, excluding the “Excluded Items” defined in Schedule 4. As will be read, the value of the Woollahra property, alone, is substantial.

The 2020 Codicil provided:

There remains a substantial dispute about the validity of the 2020 Codicil, although, ironically, Donna-May relied upon Clause 2 thereof, stating that the deceased’s wish to reach “a financial settlement” with her was relevant to the determination of her claim for an interim order in the family law proceedings: Tcpt, 8 September 2022, p 47(47)-48(4).

The 2009 Will is irrelevant, other than as demonstrating the deceased’s testamentary intention at that time. In the 2009 Will, the deceased relevantly:

(I mention that it is unsurprising that Donna-May is not a beneficiary named in the 2009 Will as their romantic relationship did not begin until 2010.)

The case is a significant one in terms of value.

On 16 June 2022, in the family law proceedings commenced by Donna-May, Ned filed an administrator’s affidavit to which he annexed a copy of the inventory of property of the estate. The total value of the estate was said to be $128,780,459. (I shall omit, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.) The estate was said to comprise:

Furthermore, there was evidence, filed in the protective proceedings, suggesting that the deceased owned a 1/3rd share in a luxury sailing yacht, “The Southern Cloud”. Whether the deceased owned this 1/3rd share as tenants in common, or as joint tenants, is not the subject of evidence. This asset was not included in the inventory of property. Counsel for Donna-May submitted, during the first day of the hearing: “I don’t think there’s any dispute, your Honour, that they owned a very valuable multi-million dollar yacht, which they used extensively, as well”: Tcpt, 29 June 2022, p 45(12-13).

Apart from the issue of the yacht, Donna-May disputed the value of the estate, saying that its true value could not be determined until valuation evidence was obtained. Her then solicitor, Mr R C Walker, in an affidavit sworn 12 April 2022, asserted that the deceased’s estate “is worth at least $180,000,000”.

The parties agree that it will be necessary to obtain valuation evidence in the family law proceedings (which will also be relevant in respect of each of the family provision claims).

In any event, it is unnecessary to express a view as to which estimate of value is more correct. On either estimate, the deceased’s estate is quite complex, and also, very large.

The Woollahra property is not generating any income for the estate as Donna-May lives there, rent free. A claim for mesne profits, in the event that she is ultimately found not to be entitled to have remained in occupation has been foreshadowed, by Ned.

It is next necessary to write something about the financial and material circumstances of Donna-May.

I set out her evidence on this topic. I shall use the contents of her affidavit evidence as it was not suggested that I should not do so for the purposes of her application for an interim order. It is to be remembered that, at the present time, it remains untested.

As at the date of her affidavit, Donna-May’s assets and liabilities were as follows:

It should be noted that Donna-May asserts that there is a charge on the Redfern Property so that if the property were sold, a lump sum of $2,000,000 will be required to be deposited into the New Benton Trust, of which Benton is the sole beneficiary. (Although it was asserted by counsel for Donna-May that there was documentation of this trust, that documentation does not form part of the evidence referred to at the hearing: Tcpt, 8 September 2022, p 45(39)-46(4).)

Donna-May receives weekly income of $1,145 consisting of rental income from a section of the Darlinghurst property, although she claims that the rent does not cover the outgoing and expenses for the properties she owns, including the mortgage repayments.

On 25 August 2021, Donna-May refinanced the mortgage registered on the property that she owns in Darlinghurst, which allowed her to transfer an additional $137,491 into one of her Westpac accounts.

As mentioned previously, pursuant to orders made by Lindsay J, between December 2021 and February 2022, deposits totalling $240,000 were made by the NSWTG. Donna-May asserted that these amounts have since been spent, in part payment of the legal fees ($591,318) that she has paid.

Donna-May disclosed that her average weekly expenditure was $10,435, although in her submissions this was increased to $10,915: Tcpt, 29 June 2022, p 78(13).

I am unable to place much weight on her evidence of the quantum of her expenditure as her senior counsel conceded that, other than the bank statements which show withdrawals, there was no evidence of how her weekly expenditure was calculated: Tcpt, 29 June 2022, p 79(8-50).

As stated, Donna-May, at least, indirectly, seeks a sum to pay off her debts, and to fund the costs of the Probate, family law and family provision proceedings, and to enable renovations to the Woollahra Property. She gives evidence of having been informed, by her solicitor, Mr R C Walker, that the likely costs, will be in the order of $1,860,000, including GST: Affidavit, Donna-May Bolinger, 16 June 2022 at pars 61-62.

It was not made clear why her legal costs could not, otherwise, be funded by, for example, her legal representatives taking a charge on one, or both, of her properties, or from the proceeds of sale of one, or other, of the properties that she currently owns: Tcpt, 29 June 2022, p 58(11-24); 67(38-42); 68(37-41).

In addition, why renovation costs would need to be incurred by her at a time when the validity of the 2020 Codicil was the subject of challenge was also not made clear. After all, she might not receive the Woollahra property if the 2020 Codicil is found to be a valid testamentary document. Alternatively, if Ned is unsuccessful, she will receive it with the consequence that maintenance and repairs will be her responsibility.

Senior counsel submitted that Donna-May had no earning capacity as she was unable to recommence work as an international designer, having lost all of her business contacts as a result of caring for the deceased: Tcpt, 29 June 2022, p 66(6-16). In response to this aspect of her claim, on Ned’s side, there was tendered as part of Ex NMR1, a copy of an Application for Mortgage Finance, dated 17 May 2021, signed by Donna-May, which included the assertion that she was self-employed as a sole trader in fashion design, although the income details, next to the heading “Gross taxable income (self-employed)” was left blank.

In addition, in that Application, the Redfern property was said to have a value of $4.8 million and the Darlinghurst property was said to have a value of $3.8 million (with an amount owing on the Darlinghurst property of $329,700).

One of the documents relied upon by Donna-May, in support of her amended notice of motion for an interim property order, was the Response, dated 3 May 2021, which had been filed on behalf of the deceased, in the family law proceedings. A copy of the Response, which was tendered on the first day of the hearing and marked Ex NMA1, includes, as part of the orders then sought by the deceased:

As a term of any payment, an order was sought that Donna-May “do all acts and things and sign all documents presented to her by the husband as are necessary to assign to the husband, the whole of her right, title and interest and liability (if any) in any loan account (credit or debit) and/or unpaid distributions” in a number of entities defined in Paragraph 1.1 of the notations.

The Statement of Truth of the Contents of the Response appears to have been signed by Aaron Randell, “as Case Guardian for” the deceased.

(At the time of the Response, it appears that the Woollahra property was owned by the deceased and his brother Lewis Morton Bell, “as joint tenants in ½ share and by the husband…in ½ share as tenants in common”: Paragraph 1.4 of the notations.)

There was no evidence of any loan account (credit or debit) and/or unpaid distributions, in any of the entities referred to, relied upon by either party in support, or in defence, of any notice of motion.

Donna-May submitted, in writing, that the contents of the order sought demonstrated “the deceased accepted Ms Bollinger would at a final hearing be entitled to at least $2,000,000”.

I mention that on 28 June 2022, Ned had filed an “Amended Response to Initiating Application” in the family law proceedings, in which the principal order sought was that: “The wife’s application for orders pursuant to s 79 of the Family Law Act 1975 is dismissed”.

Counsel for Donna-May caused four sets of written submissions to be delivered.

I have earlier referred to the bases on which reliance for the orders that she sought was initially placed. In the first written outline of submissions, Donna-May’s counsel submitted that the notice of motion did not tie the orders to any specific source of power, but rather that the orders could be made noting the various sources of power and leaving the precise characterisation of the orders to be determined by the trial judge.

In the event that the Court was not minded to take such a flexible approach, they submitted that any monthly payments should be characterised as interim family provision orders under s 62 of the Succession Act, and any lump sum payment as an interim costs order under ss 80(1)(h) or 117(2) of the Family Law Act.

However, in her second written outline of submissions, counsel submitted that as there was no agreement to leave the categorisation of the basis for the order until the final hearing, it was necessary for the Court to identify the source of the power for making any order, as it is the source of power that determines the necessary pre-conditions and relevant considerations for making the order: Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 at [30] (Brereton J), Strahan at [84].

Counsel made plain the basis of the claim for interim provision, noting:

Counsel for Donna-May submitted that the relevant power was to make a partial interim property order pursuant to the Family Law Act. They referred to s 80 of the Family Law Act which provides that the Court may make an order for payment in a lump sum (s 80(1)(a)) or by periodic payment (s 80(1)(b)) and may make such orders on an interim basis pending disposal of the proceedings (s 80(1)(h)). It was submitted that this power is a broad power, and that there is no justification for imposing limits on its ordinary meaning and operation in its application to s 79: Zschokke & Zschokke (1996) 133 FLR 375; Strahan at [122].

They went on to submit that there are two steps to enable an exercise of power to make an interim order pursuant to s 80(1)(h): Strahan at [118]. The first step was jurisdictional, to determine whether to exercise the power before a final hearing. This would depend on whether it was an appropriate case in order to do justice: Strahan at [127]. Three matters may be relevant to that determination, namely, a position of relative strength on the part of the respondent, a capacity on the part of the respondent to meet his, or her, own litigation costs, and an inability on the part of the applicant to meet her, or his, own litigation costs: Strahan at [90]; Zschokke at 392.

Complexity in the financial affairs of the deceased was an additional factor which would add considerable weight in the making of an order of this type: Strahan at [90].

Counsel submitted that it was appropriate to exercise jurisdiction to make an interim order in this case, for several reasons including, Donna-May’s need for support, the care she provided to the deceased during his lifetime, the ability of the deceased’s estate to provide some financial support pending the final hearing, and the unavailability of spousal maintenance by virtue of s 82 of the Family Law Act, combined with the ability to make orders for property alteration effectively in lieu of spousal maintenance.

It was also submitted that an interim property order for Donna-May’s costs already incurred, and her future costs, would “level the playing field” and provide her with an equal, or near equal, opportunity of presenting her case: In the Marriage of Poletti (1990) 105 FLR 312 at 314, 317-318 (Ellis, Strauss and Butler JJ); Novakovic & Novakovic [2012] FamCA 809 at [23] (Collier J).

Ultimately, counsel submitted that since the power sought to be exercised was one seeking an adjustment of property interests under s 79, rather than seeking an order for her costs (cf. s 117 of the Family Law Act), an overly detailed assessment of costs was not required, but rather an overall impressionistic assessment should be given on the need for an advance for costs: Strahan at [97].

For similar reasons, they stated that the estimate of costs should not be limited to those incurred in the family law proceedings, but should include those costs incurred in the Probate, the family provision, and the protective proceedings.

It was put that if the Court accepted that it was appropriate to exercise jurisdiction to make an interim property order, then the second stage involved the considerations under ss 79(2), 79(4) and 75(2), relevant to how the nature and quantum of such an order ought to be determined: Strahan at [115], [118]. Counsel submitted that it would be appropriate to follow the process of reasoning outlined in Bevan & Bevan (2013) 279 FLR 1; [2013] FamCAFC 116.

It was submitted that the ultimate touchstone for the exercise of the Court’s discretionary power under the Family Law Act was whether the Court “is satisfied that, in all the circumstances, it is just and equitable…”: s 79(2); Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52.

Counsel for Donna-May also raised that even on a conservative estimate of the size of the estate, assuming the proceedings continued for 5 years, the amount sought by Donna-May would total $4.4 million, equating to approximately 3.6% of the estimated net estate, which was well within a conservative ambit as suggested in In the Marriage of Harris (1993) 113 FLR 472 at 479-480; Strahan at [99]-[100].

Counsel submitted that in the unlikely event that she was unsuccessful in the Probate, family law and family provision proceedings, there was no credible submission that the orders sought would not be reversible, as Donna-May had offered security over her property at Darlinghurst and the property at Redfern (Tcpt, 29 June 2022, p 53(13-15)); Cao & Trong (No. 2) [2019] FamCA 941 at [34]; Zschokke; Gabel & Yardley at [69], [72] and [126]; Strahan at [136].

It was submitted that it would be “preposterous” to suggest that Donna-May would be unsuccessful in all three proceedings: Tcpt, 8 September 2022, p 52(26-34). (In her second written outline of submissions, counsel for Donna-May had limited the description “preposterous” to the proposition that she would “not receive any property settlement notwithstanding the length of the relationship, the importance of her contributions, the significance of her needs, and the size of the Estate”.)

Counsel emphasised that in accordance with s 79(4)(a), (b) and (c), matters which the court would take into account, included Donna-May’s financial and non-financial contributions to the marriage with the deceased. Her financial contributions were said to include, an initial contribution of the real estate and other assets owned by her at the commencement of the relationship, along with some earnings over the course of the relationship. Equally as important, Donna-May had made significant non-financial contributions to the matrimonial pool in her capacity as a homemaker, which should be given full value: Mallet & Mallet (1984) 156 CLR 605; [1984] HCA 21; Fields & Smith (2015) FLC 93-638; [2015] FamCAFC 57. However, counsel conceded that the deceased had made significantly greater financial contributions to the parties during the marriage.

Considering the “future needs” factors in ss 75(2) and 79(4), counsel for Donna-May submitted that the following factors are favourable to Donna-May, including:

It was submitted that whether s 75(2)(k) applied is contentious given this is not an application for maintenance: see Tcpt, 29 June 2022, p 82(1-18).

Counsel for Donna-May also submitted that the Court should be satisfied that the deceased no longer had any needs-based considerations, which were now matters solely relevant to Donna-May: Tasmanian Trustee Ltd v Gleeson (1990) 14 FamLR 189.

As earlier stated, during the course of her oral submissions, senior counsel referred to the 2020 Codicil, which Ned was propounding, and the deceased’s wish to enter into a property arrangement with Donna-May. She said that this supported her submission that he expected orders to be made under s 79 of the Family Law Act: Tcpt, 8 September 2022, p 48(6-15).

On 14 October 2022, counsel for Donna-May provided a third outline of written submissions relating to the way in which the hearing of the various proceedings should continue.

They submitted that there appeared to be, potentially, three options being:

Counsel for Donna-May submitted that the hearing should proceed in accordance with Option 1, or alternatively, Option 2.

It was submitted that Option 3 was the least convenient for many reasons, not least of which being the significant cross-over between the evidence in each of the proceedings.

The primary basis for this submission was that it is generally undesirable for cross-vesting transfers to go back and forth between courts. There is likely to be a long delay if the family law proceedings are heard in the Federal Circuit and Family Court of Australia. However, given the size of the asset pool and complexity of the family law proceedings, the matter could be heard in a pilot program known as the Major Complex Financial proceedings list pursuant to a Practice Direction dated 30 September 2021.

In light of the 12-month time limit for bringing family provision claims, which in this matter expires on 14 March 2023, and the likelihood that there will be other applications for provision, it was submitted that the Probate and family provision proceedings ought ordinarily be determined without undue delay.

It was submitted that if the family law proceedings were transferred back to the Federal Circuit and Family Court of Australia, the Supreme Court would lose the opportunity to control the prompt resolution of the Probate and family provision aspects of the proceedings.

Turning to the issue of the factual overlap between each of the proceedings, counsel for Donna-May submitted that it was clear from the submissions in the application for interim property orders that other applications, which spanned more than one of the proceedings, may be necessary, and that there was a significant degree of convenience in the Court having all disputes before it so that applications and timetables can be set with the overriding purpose of the Civil Procedure Act 2005 (NSW) in mind.

In relation to Option 3, it was written, at [39]:

Ultimately, it was submitted that the interests of justice require the need for the evidence and controversies which overlap in the proceedings to be determined once, rather than repetitively in different courts. The basis for that submission was that, notwithstanding the fact the family law proceedings have the most factual overlap with the family provision proceedings (in particular the identification and valuation of the estate), there is considerable overlap of significant and hard-fought contests of fact regarding matters such as the identification and circumstances of, and the weight to be accorded to, certain contributions.

Additionally, counsel pointed to the circumstances of separation, which they submitted were contested, and relevant to the Probate proceedings, with respect to the circumstances surrounding the preparation of the 2020 Codicil, the family provision proceedings, in addition to the issue of whether the separation was voluntary, and the family law proceedings, with respect to Donna-May’s assertion that her contributions to the deceased’s welfare were halted at the time of physical separation, but not at the behest of the deceased.

As to the need for the family provision proceedings, counsel submitted that, although it seems unlikely, should Donna-May be unsuccessful in each of the Probate and family law proceedings, it is likely that she, a widow of some number of years, with little cash flow and needs arising out of her properties, each of which require renovation to provide a reasonable income, there is at least an arguable case for her to succeed in her claim for family provision orders.

Counsel for Donna-May submitted that, notwithstanding that the Federal Circuit and Family Court of Australia has the advantage of being a specialist court, the overriding purpose referred to in s 56 of the Civil Procedure Act and similar considerations in the Federal Circuit and Family Court of Australia Act 2021 (Cth) support the submission that the proceedings should remain in the Supreme Court and be determined either in one large consecutive trial, or in two discrete, but not significantly disconnected, trials.

On 24 October 2022, counsel for Donna-May provided the fourth outline of written submissions in reply to the submissions of Ned dated 14 October 2022. The primary contention in these submissions was that most of the advantages of the “successive hearing approach” were still possible under the approach sought by Donna-May, as she would also prefer each set of proceedings to be heard consecutively, perhaps with a short intermission between each one. Additionally, to the extent that there was any complexity or uncertainty, it was submitted that the Court would be able to find pragmatic solutions to such matters: see Estate Hemmes; Cameron v Mead [2018] NSWSC 85 at [15].

In these submissions, counsel for Donna-May also noted that Lindsay J had made notations inviting the Defendants to apply for the family law proceedings to be cross-vested back in September 2021, and submitted that the cross-vesting of the family law proceedings had been an issue for some time, and hence was not limited to the premise suggested by counsel for Ned.

Counsel for Ned, initially, submitted that Donna-May’s notice of motion should be dismissed on the grounds that Donna-May had failed to identify precisely upon which of the legal bases her application should proceed. It was submitted that Donna-May was simply asking the Court to order that she be paid the significant sum whilst deferring any question concerning the Court’s power to do so.

Counsel relied upon several authorities which emphasised the importance in identifying the relevant source of power for any proposed order in this context: Paris King Investments at [30]; Strahan at [84]. It was submitted that the principles governing the Court’s exercise of each of the powers relied upon by Donna-May were distinct, and, therefore, it was necessary for her to properly identify the precise power of the Court sought to be invoked, as well as establishing that it ought to be exercised. (Strictly speaking, these submissions are now, partly, irrelevant in view of the way in which the second outline of written submissions stated the power upon which Donna-May relied and the basis of her claim for an interim property order. I mention them for completeness.)

Counsel for Ned described Donna-May’s financial disclosure as opaque and submitted that her application was brought because she does not wish to utilise her own assets to meet her personal expenses, including her past and future litigation expenses, instead seeking an order that those expenses should be borne by the estate of the deceased. It was put that Donna-May held substantial personal assets, namely, the Redfern property valued at about $4,000,000 and the Darlinghurst property valued at about $2,500,000 and that despite the loan over the Darlinghurst property, securing $473,095, she still had more than $2,000,000 equity in the Darlinghurst property alone.

It was submitted that Donna-May’s contentions were no more than bare assertions, particularly that there was an equitable charge over the Redfern property in favour of her son in the amount of $2,000,000. Even if that assertion were accepted at face value, counsel noted that there remained about $2,000,000 in equity in the Redfern property.

In addition, senior counsel reminded the Court that after what was said to be the separation from the deceased in September 2020, Donna-May had received payments, or funds withdrawn from bank accounts, of about $1,020,000, comprising the amount of $480,000, which she had transferred from the joint bank account in October 2020; the sum of $200,000 that she had received in September 2021 as a lump sum payment on account of her expected future entitlement to spousal maintenance; the sum of $100,000 on account of her costs of the protective proceedings; and the sum of $240,000 (being the total of six monthly maintenance payments of $40,000 made by the NSWTG in accordance with the orders of Lindsay J).

Counsel for Ned submitted that it was difficult to understand, without a more fulsome explanation, how Donna-May could have, reasonably, incurred legal fees of almost $1,000,000 in proceedings which had not yet reached a final hearing.

With respect to Donna-May’s various, more modest, liabilities to public authorities, totalling just over $40,000, it was submitted that all of those were foreseeable expenses, and the funds received ought to have been set aside to meet those liabilities.

With respect to Donna-May’s alleged expenses and future needs, it was submitted that her evidence rose no higher than a bare statement that she expected her weekly expenditure, excluding her legal fees, to be approximately $10,435. Notwithstanding the onus upon her to adduce sufficient evidence of such expenditure and the Court’s directions, Donna-May had made no attempt to explain the nature of any of those expenses: In the Marriage of Mee and Ferguson (1986) 84 FLR 179; Hall v Hall (2016) 257 CLR 490; [2016] HCA 23.

In circumstances where she was not paying any accommodation expenses, absent some clear and detailed explanation of how her expenses could possibly be so significant (almost $550,000 per year), the Court should approach that bare assertion with a high degree of scepticism.

Furthermore, Donna-May had only provided bare statements of her estimated future legal costs of all proceedings, claiming her solicitor had estimated those costs would ultimately total $1,700,000. No explanation of, or underlying basis for, the estimate had been given to the Court. Nor had any explanation been given of the assumptions which informed that estimate, or how those costs would be affected by the different potential outcomes that may arise at different stages of these proceedings.

Counsel for Ned submitted that Donna-May had demonstrated no entitlement to any interim, or partial, order under s 79 of the Family Law Act. They agreed that the application involved two steps: first, whether it is appropriate to exercise the power under s 79 of the Family Law Act before a final hearing, and second, if so, to determine how that power ought to be exercised: Strahan at [118].

It was submitted that, with respect to the first step, the ordinary course is there would be only one exercise of the Court’s power under s 79. She was required to demonstrate matters sufficient to outweigh the benefits of that ordinary course such as to warrant an interim order: Strahan at [223]-[225].

It was next submitted that the specific matters relied upon by Donna-May to justify such a departure from the ordinary course were unclear. The lack of clarity provided as to how, precisely, she intended to apply any funds received by way of an interim order weighed against the Court exercising its power at a preliminary stage.

Donna-May’s principal debts are past legal fees incurred by her. She had not provided any invoice or described the work for which those fees had been incurred. In addition, she had already received significant payments from the estate of the deceased on account of her expected legal fees in earlier proceedings. She has a significant pool of assets to draw upon to pay her debts.

Counsel for Ned accepted that the power under s 79 of the Family Law Act could be employed to provide a party with litigation funding for family law proceedings, but submitted that there were three difficulties with Donna-May’s contention that she had an immediate need of funding for the present proceedings, being:

With respect to Donna-May’s claim that she required funding to undertake renovations to the Woollahra property, it was submitted that Donna-May had not obtained any consent to undertake any work to be done to the Woollahra property, and that she ought not carry out any such works, much less receive funding for those works.

It was submitted that Donna-May had not met the threshold requirement in the first stage as she had failed to demonstrate the existence of any circumstances warranting the Court’s exercise of its power under s 79.

Then, it was submitted that even if the Court did conclude that it was appropriate to exercise that power at an interim stage, the Court should not exercise that power in the manner sought by Donna-May, and should decline to make any interim order on the current state of the untested evidence.

Counsel for Ned submitted that there are two considerations of particular importance when considering how to exercise the power under s 79 on an interim basis: first, the power must be exercised within the parameters of s 79 subject to the fact it is an interim exercise of the power, and second, the Court must exercise the power conservatively and be satisfied that the order is capable of being reversed or adjusted later: Harris; Strahan at [134]-[137].

It was submitted that the matters that weighed against the Court exercising any power under s 79 to make an interim property order were:

Donna-May had failed to put forward any evidence of her application capable of satisfying the Court of the above matters, nor as to any likely entitlement having regard to the factors in s 79(4) of the Family Law Act. She had, therefore, failed to discharge her onus to establish the threshold requirements for an interim order on the balance of probabilities: Hall at [8]. That was so even before accounting for the fact that one possible outcome of the Probate proceedings will be that Donna-May receives the Woollahra property absolutely.

Furthermore, the Court could not be satisfied that Donna-May could, or would, be able to repay any lump sum she received over and above any amount to which she is found to be entitled on a final order.

Counsel for Ned submitted that, in substance, the appropriate orders for the future conduct of the proceedings were as follows:

It was submitted that this “sequential hearing approach” was a logical and preferable course, compared to hearing the Probate, family law, and family provision proceedings by way of a single joint or concurrent hearing (the “joint hearing approach”) for a number of reasons. First, the sequential hearing approach would avoid the procedural difficulties (both foreseeable and unforeseeable) that may arise from a joint, or concurrent, hearing of the proceedings, which would call for an exercise of both state jurisdiction (for the Probate and family provision proceedings), and cross-vested Federal jurisdiction (for the family law proceedings).

For example, counsel referred to s 7(5) of the Cross-Vesting Act, which would have the effect that the NSW Court of Appeal would not have any jurisdiction to determine an appeal from any matter arising under the Family Law Act, irrespective of any other matters raised in such an appeal: Boensch v Pascoe (2016) 349 ALR 193; [2016] NSWCA 191; Morris Finance Ltd v Brown (2016) 93 NSWLR 551; [2016] NSWCA 343 at [21]-[44]; Karlsson v Griffith University (2020) 103 NSWLR 131; [2020] NSWCA 176. Rather, the only Court empowered to determine any such appeal would be the Full Court of the Family Court. Thus, the Full Court of the Family Court would have to deal with the entire appeal, including any further issues relating to the Probate proceeding, and the family provision proceedings which otherwise would be outside the scope of that Court’s regular jurisdiction.

Secondly, it was submitted that the sequential hearing approach will avoid the significant detrimental impact, that would otherwise arise for the individual claimants in the family provision proceedings who are not parties to either the Probate or family law proceedings. Under the joint hearing approach, these parties would have to be dealt with as part of that single hearing, or potentially, be stood over until after the determination of Donna-May’s claims, including any appeals.

In the first instance, the claimants would have to participate in a lengthy hearing that would only in small part directly concern their interests, a result that is not in the interests of justice: Skinner v Shine Pty Ltd [2019] NSWSC 1709 at [22], citing Wilson v Minister for Land and Water Conservation for NSW (2003) 126 FCR 500; [2003] FCA 307 at [46]. Additionally, counsel suggested that there would also be various complexities as to trial management, procedural matters, and the cross-admissibility of evidence between each of the proceedings.

In the second instance, there would be a significant further delay in the hearing and determination of the family provision proceedings pursued by the other claimants, whose claims would unfairly take priority over the claims advanced by other claimants on the estate.

However, counsel accepted that under the sequential hearing approach, there may remain some delay, as the hearing of other family provision claims may need to be listed after the determination of the family law proceedings, given the potential for that proceeding to affect the size of the estate.

Thirdly, counsel for the Plaintiff submitted that the sequential hearing approach, will avoid unnecessary duplication and complexity that would arise under the joint hearing approach. In the event there was a joint hearing, the claimants in the other family provision proceedings would need to call evidence and make submissions in respect of each claim that addresses each of the possible permutations of outcomes that may arise from each of the Probate and family law claims which are logically anterior, resulting in cumulative complexity and uncertainty, in working through the logical sequencing of the various claims.

Relatedly, it was submitted that because of this complexity, there is a real prospect that the total hearing time required under the joint hearing approach would exceed the cumulative hearing time required under the sequential hearing approach. Counsel currently estimated that using the sequential hearing approach, no more than 14 days of total hearing time would be required to determine all claims. It was estimated that any hearing of the Probate proceedings would take seven days, the hearing of the family law proceedings would take four days, and the hearing of any family provision proceedings, would collectively take three days. Conversely, counsel estimated that using the joint hearing approach, the hearing would take at least 20 days.

Fourthly, counsel claimed that the sequential hearing approach would more readily accommodate the possibility of reaching a settlement of those claims which logically follow the Probate proceedings. It was submitted that the outcome of the Probate proceedings is both binary and of high significance, that is whether the 2020 Codicil is valid, renders it difficult for the parties to engage in negotiations as to any potential settlement of the family law proceedings.

Once the Probate proceedings are determined, and Donna-May’s entitlement under the testamentary documents is clear, counsel believed that the parties would be in a position to engage in more constructive negotiations. Furthermore, the uncertainty as to the size of the estate, makes it more difficult for the parties in the other family provision proceedings to discuss the settlement of their claims. Indeed, it was submitted that there is a possibility that adopting the sequential hearing approach will ultimately render some of the later proceedings unnecessary, in contrast to the joint hearing approach.

Fifthly, the joint hearing approach will almost certainly mean a significant delay in any grant of Probate when compared to the sequential hearing approach, due to both the additional preparatory steps involved, and the likely availability of the Court for a single hearing for all of the claims. Consequently, this will extend the period in which the estate is subject to management by a special administrator with powers limited to those expressly granted by the Court, preventing the realisation of the estate assets, and any partial distributions.

Specifically, regarding the return of the family law proceedings to the Federal Circuit and Family Court of Australia, counsel for Ned, highlighted that the family law proceedings were initially cross-vested to this Court for a limited, and, now, an unnecessary purpose. Having regard to the wording of the orders made by Slattery J on 21 April 2022, counsel submitted that the premise of the cross-vesting application by Donna-May, was on the basis that she intended to apply for interim maintenance under both the Succession Act and Family Law Act. However, Donna-May had abandoned her application under the Succession Act, and only pressed her application for orders under s 79 of the Family Law Act, with the result that there was no need to have the family law proceedings transferred to this Court. Thus, there now remained no logical, or compelling, reason for the family law proceedings to remain case managed, and heard, by this Court, particularly in circumstances where Division 1 of the the Federal Circuit and Family Court of Australia is a specialist court and has its own bespoke procedures for case management and hearing of such proceedings, and where any appeal from the family law proceedings would in any event lie to the Full Court of the Federal Circuit and Family Court of Australia.

In Ned’s written outline of submissions in reply dated 24 October 2022, it was submitted that there was no “significant crossover in evidence” between the Probate and the family law proceedings, where the Probate proceedings are principally focused on the testamentary capacity of the deceased, whilst the family law proceedings are focused on identifying assets and considering in all the circumstances, whether it is just and equitable to make a property adjustment order.

Counsel for Ned submitted that the circumstances of separation would be unlikely to play a meaningful role in the Probate proceedings, but would merely be a contextual matter. Consequently, there was no risk of inconsistent findings on the same issues: cf. Valceski v Valceski (2007) 70 NSWLR 36 at [62]-[63].

I shall deal with this issue first as it is relevant to what follows.

Rule 28.5 of the UCPR provides:

In Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110 at [26]-[32], Austin J identified the factors that a court is likely to take into account in the exercise of its discretion on an application for consolidation or joint hearing. His Honour cited some nine matters referred to by Besanko J to be considered, in the course of determining whether it was appropriate that eight proceedings be tried together in Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 at [11]:

In Marzol v Joubert; Marzol v Killen [2018] NSWSC 586 at [9], Harrison J wrote:

This passage was quoted, with approval, in Kyriacou v Raphis Securities Pty Ltd [2022] NSWSC 196 at [42], by Ward CJ in Eq (as the President then was).

More recently, Meek J, in Aviani v Loh (No 2) [2022] NSWSC 1148 at [267]-[269] wrote:

Without expressing any view as to what the learned Registrar of the then Family Court of Australia ought to have done in relation to the family law proceedings, I am of the view, those proceedings having now been cross-vested to this Court, that this Court should now deal with the proceedings, as well as dealing with the Probate claim and the family provision claims. The cross-vesting order is conclusive: Elias & Elias Pty Ltd atf the Elias Family Trust v Chidiac [2010] NSWSC 1364 at [39] (Brereton J). Indeed, s 13(a) of the Cross-Vesting Act, contains an outright prohibition on any appeal from a decision in relation to the transfer of a proceeding under that Act: Gomez v Carrafa [2021] VSCA 37 at [12].

Whilst there is a real degree of attraction in returning the family law proceedings to the Federal Circuit and Family Court of Australia, the Division 1 Court (a superior court of record and a court of law and equity), as the issues in the family law proceedings are of a type heard daily in that Court, the jurisdiction to hear the family law proceedings is now one in which both courts have jurisdiction.

Ultimately, as was noted by Rein J in Xie v Li [2019] NSWSC 808 at [22]:

Ned cannot now complain of the family law matter remaining in this Court because it appears that the learned Registrar made the order sought with the consent of both parties. The concerns expressed in the written submissions ought to have been considered before the consent order was delivered to the Registrar of the then Family Court and before any order was made. (However, Ned’s second outline of written submissions dated 14 October 2022 at [36]-[38] may be relevant on the issue of costs.)

The family law proceedings and the Probate proceedings will only involve Donna-May and Ned as parties now that the only issue is the validity of the 2020 Codicil. It may be necessary to make credit findings, and remitting the family law proceedings back to the Federal Circuit and Family Court of Australia, even if that were possible, may present problems with the possibility of inconsistent findings.

I have borne in mind that the financial and non-financial contributions of both Donna-May and the deceased, and that the valuation of the assets of the parties will be an important matter in each of the family law proceedings and the family provision proceedings. Whilst the contributions may be the subject of dispute, one would expect that in order to avoid cost and delay, in respect of the value of the property of each of the parties, and the value of the estate, to the extent, it is not agreed, a single expert, or experts, will be appointed. (Indeed, at [15] of Donna-May’s third written outline of submissions dated 14 October 2022, she states that a single expert had been appointed in December 2020 in the family law proceedings when in the Family Court.)

Whilst it is regrettable that there will be delay in having Probate granted, that delay is ameliorated, to the extent possible, by the special grant of administration to Ned that has already been made.

Any other Plaintiff in the family provision proceedings will not have to attend the whole hearing. It will not be beyond the ingenuity of the legal representatives of each of the parties, and the trial Judge, to determine when the family provision proceedings will be heard. Similarly, it will be for the parties to co-operate in ensuring a hearing which is conducted with s 56 of the Civil Procedure Act in mind.

In considering the question, I have also borne in mind that a flexible approach having regard to the particular circumstances of the cases and their history should be adopted. The orders to be made must have in mind the objectives prescribed by s 56 of the Civil Procedure Act. There are no hard and fast rules which establish that simply because parties are identical and there are some common questions of fact, or law, it would be expedient and proper to order that the matters be heard together with the evidence in one being evidence in the other. However, where there is an overlapping of issues and parties, and where issues of credit may arise, it is desirable to resolve the disputes in the different actions on one occasion by the same judge. Ultimately, the question is answered from a case management perspective, rather than by the application of principles of law. The court approaches the question in a practical and common-sense way, to meet the justice of the situation.

It is important to the orderly conduct of public justice that there be only one set of proceedings going forward, at any one time, between the same parties involving overlapping subject matters.

I am not satisfied that having the cases heard separately will save much time. It will certainly not save the time the trial judge must spend preparing for the hearing and writing reasons for judgment if the proceedings are heard separately.

Having had careful regard to the untested evidence, as well as the written and oral submissions, and having given careful consideration to the options to which reference has been made, with some hesitation, I have been driven to the view that I should follow, in broad terms, the course identified as “Option 1”. By ordering that the proceedings be heard together consecutively, and perhaps also that the evidence in one be received as evidence in the other, there should be a saving of cost and time, without creating the procedural complexities that arise when formal consolidation is ordered.

This is not to say that the sequence of the hearing will not be as submitted by Ned. Although the hearing will be for all of the claims, logically and factually, the evidence in the Probate proceedings should be dealt with first, followed by the evidence in the family law proceedings, and then the evidence in the family provision proceedings. It will be for the trial judge to determine whether there should be a break between the hearing of each of the separate proceedings and for the parties to determine the order of witnesses and the like. No doubt there will be pre-trial directions, and, as I am conscious of the different stages of the different proceedings, no doubt, whoever hears the proceedings will also.

I make clear to the parties and the legal representatives that the evidence in all proceedings referred to will need to be completed before the matters are set down for hearing. This may require effort by the parties, their legal representatives, and, perhaps, others, to ensure that the preparation of the evidence in the family law proceedings does not delay the hearing of the other proceedings. (In regard to this matter, the expert evidence of value of the property of both Donna-May and the estate will have to be resolved before the matters are set down for hearing.)

By the date of the commencement of the hearing, agreement should be reached on the value of the property of Donna-May or the deceased that is in dispute.

In relation to Ned’s submissions regarding resolution, it often happens that cases resolve during a hearing. Whilst, on present indications, settlement seems unlikely, it could occur at any time. One would have thought that before the matters are set down for hearing, an opportunity to engage in some alternative dispute resolution will be given. There would be no reason why one, or other of the different proceedings could not be resolved if the parties wish to do so.

I shall case manage the Probate proceedings and the family law proceedings until they are ready to be listed for hearing, after which I shall refer the matter to Hammerschlag CJ in Eq, or as he directs, to appoint a hearing in a manner that best suits the Court.

In light of my determination, that the Probate proceedings, family law proceedings, and any family provisions should remain in this Court and be heard together consecutively; order 5 sought by Ned’s notice of motion filed 31 May 2022, seeking an order under r 28.2 of the UCPR that the Probate proceedings be determined separately, has now effectively been determined. The remainder of Ned’s notice of motion was addressed by the Court’s orders made on 1 July 2022, as I have outlined earlier.

I shall now deal with the family law aspects as Donna-May’s current application is one pursuant to the Family Law Act and now only seeks an interim, or partial, property order from the estate of the deceased.

There was really no dispute that the proceedings, having been commenced by Donna-May in the Family Court before the death of the deceased, did not abate after his death.

Part VIII of the Family Law Act carries the heading “Property, spousal maintenance and maintenance agreements”. It governs the scope of the Court’s power with respect to property and financial matters. There is no further definition of “property” or any expressions which, of themselves, amplify, extend or, for that matter, limit the definition appearing in s 4.

The Part includes, relevantly, ss 79 and 80. These sections are clearly with respect to "proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings ... arising out of the marital relationship".

Section 79 of the Family Law Act, relevantly, provides:

The claim made by Donna-May in the family law proceedings is one based upon a statutory right to make a claim as a party to the marriage with the deceased, under s 79(1) of the Family Law Act. That right is to obtain an order altering the interests of the parties to a marriage in all property to which either, or both, of them are entitled, if the Court "is satisfied that, in all the circumstances, it is just and equitable to make the order" under s 79(2), taking into account the matters referred to in s 79(4). Those matters extend beyond financial, or other, contributions, which either of the parties may have made to the acquisition, conservation, or improvement, of property, and include, amongst other things, the contribution made by each to the welfare of the family as well as the matters referred to in s 75(2) so far as they are relevant: s 79(4).

Whilst it has been written that an order pursuant to s 79 is a “once and for all order” (see Strahan at [132]) it is also clear that the power in s 79 may be exercised by a succession of orders until the power is exhausted by final orders dealing with all known property. Brereton J in Paris King Investments referred to the Full Court’s decision in Zschokke, noting, at [33], that

Section 80 of the Family Law Act, relevantly, provides:

It was not in dispute that together, ss 79 and 80 confer power on the Court to make an order by way of interim property settlement. Section 80 alone is not a source of jurisdiction for such an order. Rather, s 80 is what has been described as an “enabling provision” that provides various ways in which the general power in s 79 may be exercised in individual cases.

In Harris at 477, the Full Court observed:

In In the Marriage of Davidson (1994) 117 FLR 335 at 347, the Full Court wrote:

(See also the comments of the Full Court in In the Marriage of Yunghanns (1999) 149 FLR 247 at 281)

Therefore, in exercising the power under s 79 of the Family Law Act, the Court may make an order of the type described in s 80(1)(h): Strahan at [122], [213].

Even after the death of a party to the marriage, an interim order, under s 80(1)(h), is permissible, so long as the requirements of s 79(8) are satisfied.

Section 79(8) provides:

The power under s 79(8) has been considered by the High Court, in a number of cases. Essentially, the provision is designed to satisfy the moral obligations arising from a marriage, which the death of a spouse may have otherwise defeated. The sub-section has been upheld as constitutionally valid.

In very broad terms, Ned, in conducting these proceedings in substitution for the deceased, stands in the same position as the deceased would have stood but for his death.

In In the Marriage of Fisher (1986) 161 CLR 438 at 457-458; [1986] HCA 61, Brennan J wrote:

Gibbs CJ (with whom Wilson J agreed) wrote at 448:

In Stanford, at [24], s 79(8)(b) was analysed as follows:

In Grace v Grace [2012] NSWSC 976, Brereton J after referring to the two necessary conditions, added at [242]-[243]:

Turning next to the way in which s 79 and s 80 operate, in Marshall & Marshall [2015] FamCA 712 at [33] McClelland J wrote:

In Mulford & Mulford [2019] FamCA 843 at [16], and Cao & Trong (No. 2) at [34], Wilson J summarised the guiding principles for the determination of interim property orders, which was subsequently cited in Leventis & Leventis [2021] FedCFamC1F 46 at [15]; Verdon & Verdon (2020) 62 FamLR 573 at 585; and most recently in May & May [2022] FedCFamC1F 227 at [27]:

There was really no dispute that it is for the applicant for an interim order, at a time prior to final hearing, to satisfy the Court of the reasons why it is in the interests of justice for such an order to be made, rather than for there to be a once and for all order made at final hearing.

In this regard, in Medlow & Medlow (2016) 306 FLR 183 at 199-200; [2016] FamCAFC 34, the Court wrote:

Any interim property order should not exhaust the discretion in s 79 of the Act. In Strahan, at [136], the Full Court wrote:

In Osferatu & Osferatu [2012] FamCA 408 at [41], Watts J made clear a detailed inquiry is not required:

In Zha & Wun (No 2) [2022] FedCFamC1F 576 at [30], Schonell J after citing both Strahan and Medlow wrote:

Finally, in Bing & Bing (2007) FLC 93-318; [2007] FamCA 418 at [23], it was observed by the Full Court that:

I have made clear that the various proceedings involving Donna-May and Ned are hard-fought and likely to be somewhat complex. Their disputes have already continued for almost 3 years.

Also, as this is an interlocutory application, I am unable to determine issues of fact or what, if any order, would be made in one, or other, of the different proceedings: Iphostrou & Iphostrou [2011] FamCA 20 at [44] (Cronin J); Edgar & Strofield [2016] FamCAFC 93 at [15].

I also bear in mind that applications for property adjustment should not be commenced with the assumption “that one or other party has the right to have the property of the parties divided between them”: Sirola & Sirola [2018] FamCA 1011 at [34] (McClelland J), citing Stanford at [40]. It should also be noted that since an interim order is likely to be "a somewhat imprecise exercise", the Court's discretion "must be exercised conservatively": Harris at 480. Ultimately, what is required is that, in the circumstances, it is appropriate to exercise the power, there being evidence to satisfy the necessary requirements of s 79 of the Act. That section is the source of power, while s 80 enables the making of the order.

Having considered all of the evidence to which I have previously adverted, and also the detailed submissions of each of the protagonists, I am satisfied that, in all the circumstances, it is appropriate to exercise the power to make an interim property order, as it is in the interests of justice to do so in favour of Donna-May, but not in the terms that she seeks.

Whilst not productive of children, the relationship and marriage of Donna-May and the deceased was of reasonable duration; no doubt, there were varied contributions by each of the parties to the marriage and other matters will have to be considered in determining, on a final basis, orders that are just and equitable. Donna-May, for example, asserts that she gave up her own business, thereby becoming financially dependent upon the deceased. She also asserts that she cared for him when he became unwell. He had generously provided for her during the marriage. Spousal maintenance is not currently available to her.

There can be no doubt that the deceased’s estate is in a position of relative financial strength compared with Donna-May, and that she is not in a position to meet her day to day expenses, including litigation costs, without selling, or otherwise diminishing, her own property, by sale or mortgage. Having regard to the value of the deceased’s property, the potential impact of any orders made upon parties, or beneficiaries, at this point in time: Sully & Sully (No 2) [2016] FamCA 706 at [33]-[36], will be negligible bearing in mind the security which is to be provided to ensure repayment if that becomes necessary.

As there are sufficient funds to enable the payment of interim order, and since the effect of any such order can be readily taken into account at a final hearing, it cannot be regarded as difficult for such an order to be made, particularly where a need is shown.

I accept that a mere preference to retain assets does not make a proposed order just and equitable, the question to be answered being whether the evidence established that Donna-May is unable to meet her expenses, (which would justify an interim property adjustment order). In this regard, it is relevant that her earning capacity appears to be somewhat limited. Yet, there could very well be potential injustice caused by an outcome of the notice of motion which has the consequence of her having to sell, or mortgage, her property to pay what could be paid, at least partially, by way of interim property adjustment order.

In particular, I am satisfied that the case raised by Donna-May is sufficient, in all of the circumstances, as to its nature and prospects, to justify an interim order: Salvage & Fosse (2020) 61 FamLR 45 at 49-50; [2020] FamCAFC 144 at [21]. However, in reaching the quantum of the interim order, amounts that she has already received must be taken into account.

Also, I have taken account of what was written in the 2020 Codicil (even though it is said by Donna-May to be one written when the deceased lacked testamentary capacity and also that he did not know and approve its contents). I have also considered the Initial Response filed in the family law proceedings, to which reference has been made, in which the litigation guardian of the deceased seemed to accept that she would receive $2 million. (I have earlier referred to the amended Response which seeks the dismissal of the family law proceedings). Finally, I have also considered her family provision claim, in the event that she was unsuccessful in the other proceedings. In this regard, the value of the deceased’s estate, whether as asserted by Donna-May or Ned is extremely large.

As I have already identified, Ned has submitted that the Court will, ultimately, be satisfied that a property adjustment order ought not be made at all. However, as I have already said without reaching a definitive conclusion, I am satisfied, at this interim stage, that one, or other, of the proceedings brought by Donna-May has some prospects of success. Yet, bearing in mind the position of the estate and Donna-May’s agreement to secure any amount awarded in case she does not succeed in all of her claims, this would provide a way of reversing any order now made. Thus, it is also just, in the circumstances, to make an order securing repayment of the amount provided to her. If an order is made in any of the three different proceedings, the fact of any interim property order and any litigation funding order can be appropriately adjusted.

I then turn to “if the power to make an interim property order is to be exercised, how should it be exercised”. The second step requires that the provisions of s 79 be considered and applied, but with some limitations, given that the hearing is not final in nature: Strahan at [135].

The “overriding requirement” for the exercise of the Court’s discretionary power under s 79 is that the Court “is satisfied that, in all the circumstances it is just and equitable”: s 79(2) of the Family Law Act; Bevan at [70]; Mallet at 647 (Dawson J).

In Swift & Swift [2020] FamCA 991 at [26], Gill J acknowledged that due to the inherent limitations of interim proceedings, it may not be possible to identify definitively, or even approximately, the interests of the parties or the values to be attributed to such interests.

His Honour then continued at [29]-[30], saying:

This is particularly the case where there are also probate proceedings that remain on foot.

Another complicating factor in these proceedings, is that while the estate remains unadministered, the beneficiaries have no legal or beneficial interest in assets comprising the estate, but only a right against the executors to have the estate properly administered: Commissioner of Stamp Duties v Livingston (1964) 112 CLR 12 at 17-18 (Privy Council).

However, Donna-May has adduced sufficient evidence, which, even though it is likely to be tested, is reasonably able to satisfy the Court, at this relatively early stage of the various proceedings, that this is a case in which justice and equity could require the making of an order. I make clear in stating this, I am doing no more than stating, in light of the circumstances, including the nature of the challenge to the validity of the 2020 Codicil, the duration of the marriage, her contributions thereto, the nature of the family provision proceedings, and the recoverability of any amount advanced, to which she has deposed, that each is, at least, arguable, on the current evidence, and none of which appears to be fanciful or misguided.

Secondly, the court must take into account the respective contributions of the parties referred to in paragraphs (a), (b) and (c) of s 79(4): Zschokke at 390.

It is well settled that the assessment of contributions is not a mathematical exercise, nor does there need to be a causal relationship between contributions and a financial product of contributions: Barnell & Barnell (2020) 60 Fam LR 377; [2020] FamCFAFC 102 at [30]-[31], citing Lovine & Connor (2012) FLC 93-515; [2012] FamCFAFC 168 at [40]-[42], and Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 at [14]-[21].

Relevantly, in Dickons at [19]-[21], the Full Court observed:

Thirdly, the Court is required to undertake consideration of the matters in s 79(4) of the Family Law Act including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant.

However, consideration of such matters may be brief: Strahan at [137]; Osferatu at [41] (Watts J). If it is established that “it seems likely to the Court that … the applicant … will be likely to receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”: Zschokke at 390; In the Marriage of Poletti.

I have also borne in mind that Donna-May remains in occupation of the Woollahra property and that she is paying no rent or occupation fee. Whether, ultimately, she will be required to do so will be determined at another time. In addition, the amounts withdrawn by her, whether with, or without consent, totalling $830,035, together with the amounts totalling $540,000 that she received pursuant to the orders made Lindsay J, should be taken into account as a contribution by the estate to her post-separation expenses: Grier & Malphas [2016] FamCAFC 84 at [57] (Bryant CJ, Murphy and Kent JJ agreeing at [141]).

I also note that Donna-May accepts that the deceased “made significantly greater financial contributions” during the marriage.

I do not accept, however, that Donna-May should receive the lump sum that she seeks, based upon what are said to be her weekly expenses, which have not been properly quantified, or that her legal costs are likely to be in the range of $1.8 million.

Naturally, I have borne in mind the submissions of Ned’s counsel regarding what are said to be her “opaque financial disclosure”: Ned’s first outline of written submissions dated 26 June 2022, at [19]-[27], and [32]-[33]. However, Donna-May should take, at least, partial, responsibility, for her own expenditure, and also for the incurring of legal costs, as is demonstrated by the history of the various proceedings.

In Strahan at [138], the Full Court had accepted that an inability on the part of an applicant for an interim property order to defray the costs of litigation to meet his, or her, litigation costs would be a relevant matter to take into account at the procedural or first stage: Zschokke at 392. Given that Donna-May’s application is one now for an interim property order and not a litigation funding order under s 117, she can use any amount received as she sees fit. The amount paid pursuant to the interim property order becomes her property. (In any event, there was no evidence that she could not obtain a litigation funding loan to meet, in whole or in part, such litigation costs.)

Any amount that Donna-May receives out of the deceased’s estate should be characterised as an interim property settlement order. In addition, as she has offered, the lump sum to be paid to her should be secured over one, other, or both, of the parcels of real estate that she owns, or otherwise. In this way, since there appears to be reasonable equity, notwithstanding the existing mortgage on the Darlinghurst Property, or the alleged equitable charge over the Redfern Property, Ned, on behalf of the estate will be able to recover any overpayment. In this way, if the order is made and satisfied, it would not defeat Ned’s legitimate claims, on behalf of the deceased’s estate, at a final hearing.

I am also satisfied that there are sufficient funds in the deceased’s estate to enable a payment of the amount the subject of an interim property order, and that the effect of any such order can be readily taken into account at a final hearing. On the other hand, I have not been persuaded that it is just to require Donna-May to sell one, or both, of the properties that she owns. The effect of the interim property order that I propose to make will not interfere with the power of the court to make just and equitable orders on a final basis. Nor will it defeat either party’s claims or defences.

Weighing all of the factors, and doing the best I can on an interim hearing, I am of the view that Donna-May should receive, by way of an interim property order, the amount of $750,000. That, taken with the amounts she has received, would total slightly more than $1.7 million. As stated, the lump sum of $750,000, should be the subject of security so that, if necessary, it can be recovered. I shall leave it to Ned, initially, to determine the question of the source of the funds to meet such a payment and to the parties to agree upon the way in which the amount paid should be appropriately secured. It should be paid within 14 days of the security being provided.

I shall allow the parties to provide a form of orders that reflect the reasons and to work out the method by which Donna-May can secure the amount. The order should also include the dismissal of the notice of motion filed on 3 May 2022.

The matters are already returnable before me for directions on 16 November 2022, and I shall retain that date for the making of orders and give further directions for the further conduct of the proceedings. In regard to directions, the parties should discuss the evidence required to be obtained, including any joint expert evidence of valuations and, if at all possible, should have agreed short minutes dealing with the evidence.

Subject to any argument about costs, it seems to me that the costs of the various motions, determined by the orders to be made, should be costs in the proceedings to which they are specifically referable. In this way, the trial judge will, at the conclusion of the hearing be able to exercise jurisdiction bearing in mind the results of the different proceedings.