Gardiner v Wong

By Statement of Claim filed 28 October 2024 (SOC), the plaintiff, Queenie Hin Wan Gardiner seeks declarations that certain real property in Parramatta was held on trust for her mother, the late Elisa Lai Sum Wong (the deceased), and therefore forms part of the assets of her estate. The defendant and son of the deceased, Edwin Wong, is the current registered proprietor of the property in question. In the alternative, the plaintiff makes an application for a family provision order pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act) from the estate of the deceased. The plaintiff and the defendant are the only children of the deceased.

I note that in the SOC, prayers for relief 3-6 sought orders revoking the grant of probate in the deceased’s estate made in favour of the defendant. In oral closing submissions, the plaintiff, through her counsel, confirmed she was not pressing these prayers for relief (TR P95 L11-20).

As is usual in proceedings of this nature and given this is a matter about a family with shared surnames, and without intending any disrespect or overfamiliarity, I will refer to the various parties in this proceeding by their first names, as counsel did in the course of the proceedings.

The following background is a narrative of the relevant history. The facts set out at [5]-[12] below go towards the underlying factual matrix of this application and are not contested, unless otherwise indicated. I therefore accept the evidence cited which underpinned the facts set out at [5]-[12], and the facts and events set out therein can be taken as findings of the Court. When dealing with certain of the contested issues, I will separately address these issues as they arise, having regard to issues of credit and reliability when relevant.

The property that is at the centre of these proceedings is an apartment in Parramatta. Specifically, it is Unit X, X Henry Street, Parramatta, being the property in Lot X of SP XXXXX (the Henry Street Property).

The Henry Street Property was purchased by the deceased on 23 March 1999 for a purchase price of around $188,000. The cost of acquisition of the Henry Street Property was provided by the deceased and her then husband Joe Yin Ngai Wong (they divorced with effect from 24 August 2012), and together with money borrowed, a loan was secured by a mortgage over the Henry Street Property. In respect of the mortgage, the deceased is named as the mortgagor and Joe as the guarantor. The repayments of the loan secured by the mortgage were made by the deceased and Joe. I note there is evidence that the separation of Joe and the deceased began earlier than 24 August 2012, and also that Joe and the deceased continued some sort of relationship, including living together, for years after their divorce.

By a memorandum of transfer executed and registered on or about 19 December 2006, the deceased transferred title to the Henry Street Property to Edwin.

At this time, Edwin was 19 years old and living at home with his parents in Cherrybrook.

As of October 2006, the Henry Street Property was occupied by the deceased’s brother, Ricky Ming Lai Young, and his family. After the transfer of title, Ricky continued to occupy the property, an arrangement which continued until around February 2012. Edwin recalls agreeing to his uncle, Ricky, living in the property.

Throughout Ricky’s tenancy, the deceased is said to have collected $300 per week in rent from Ricky. Ricky also gave affidavit evidence that on one occasion, when the stove in the Henry Street Property stopped working, the deceased paid for the replacement of the stove.

In early 2012, Ricky vacated the Henry Street Property. Edwin subsequently engaged real estate agents to lease the Henry Street Property out to third parties, though the deceased was still listed as the contact person on each of the agency agreements. The extent to which the deceased remained involved in the management of the Henry Street Property after 2012 is a matter in dispute.

The deceased died on 19 April 2024, aged 71. Her last will was executed on 14 August 2023 (the Will). Edwin is the executor of the deceased’s estate, and was granted Probate of the Will dated 14 August 2023 on 9 September 2024. The Will gives the residue of the deceased’s estate, after the payment of debts, funeral expenses and testamentary expenses, to the deceased’s children, Queenie and Edwin, in equal shares.

The central issue in this dispute is whether, after the transfer in December 2006, Edwin held the Henry Street Property on trust for the deceased.

In the alternative, Queenie makes a claim for a family provision order.

For the reasons which follow, the Court is not satisfied that the Henry Street Property was held on trust for the deceased. Consequently, the Court considers that the Henry Street Property does not form part of the estate of the deceased. The Court is also satisfied that adequate provision for the proper maintenance, education or advancement in life of Queenie has been made by the Will. Both of Queenie’s claims have failed. The Statement of Claim must therefore be dismissed.

The final hearing of this matter was originally listed for 3 February 2026, on an estimate of one day. However, as it happened, only the evidence was able to be completed on 3 February 2026 itself. The closing submissions were heard for half a day on the following day, 4 February 2026.

Mr M Evans of counsel appeared for the plaintiff. Mr C Birtles of counsel appeared for the defendant.

On 29 January 2026, in accordance with pre-trial directions I had made, by consent, I received two written outlines of submissions on 29 January 2026, one from Mr Evans for the plaintiff (PWS Trusts) and one from Mr Birtles for the defendant (DWS Opening). These written submissions from Mr Evans only addressed the issue of whether the Henry Street Property was held on trust by Edwin, hence the defined term I have given them. There was no indication in the plaintiff’s opening written submissions that the family provision claim was pressed by Queenie. For the defendant’s part, the DWS Opening made submissions opposing any family provision claim, noting that such a claim had been foreshadowed in the SOC.

On 2 February 2026, the day before the hearing, I received further written submissions from Mr Evans addressing Queenie’s family provision claim (PWS Family Provision). More will be said about the totality of the submissions made on Queenie’s family provision claim later in these reasons.

In the course of oral opening submissions, submissions were made on the case of Allen v Snyder [1977] 2 NSWLR 685 (Allen v Snyder). At my request (TR P4 L5-18), Mr Evans put on further supplementary written submissions concerning that authority and how it impacted these proceedings, which were provided on the morning of 4 February 2026 (PWS Supplementary).

Mr Birtles also provided to me written closing submissions (DWS Closing).

I have had regard to each of these written submissions as well as the oral submissions made by the parties in opening and closing.

Queenie read and relied on six affidavits:

Queenie and Joe were each required for cross-examination.

Edwin read and relied upon the following affidavits:

Edwin was required for cross-examination.

As for the documentary evidence, there were 387 pages of documents of such evidence in the Court Book, comprising documents annexed or exhibited to the affidavits. The parties also tendered some further documents separate to the Court Book.

This was a case, like others, where different versions of events were provided by witnesses, concerning events which took place years before. Here, the testimonial evidence, including that given by affidavit, was often not supported by contemporaneous documents, especially in relation to the circumstances of the transfer of the Henry Street Property in 2006.

On the task of a trial judge in needing to evaluate witness evidence and make factual findings, McGrath J in Toppi v Toppi (No 3) [2025] NSWSC 733 at [18]-[19] summarised the principles relevant to fact finding. I will reproduce that summary below for convenience:

The process of assessing the credibility of witnesses at trial has been said to be “multi-faceted” and to involve a “complex synthesis”. On this issue, Stern JA (with the agreement of Bell CJ and Gleeson JA) in Frank v Angell (2024) 116 NSWLR 1; [2024] NSWCA 264 at [41]-[42] said the following:

I respectfully adopt and apply the principles summarised and set out above. In doing so, I propose to make specific comments about credibility and/or reliability of the evidence of particular witnesses in my findings where the issue arises. I also make more general remarks about witness credibility below, bearing in mind the principles just stated.

As stated earlier, Queenie, Joe and Edwin were each required for cross-examination.

Queenie appeared to me to be doing her best to answer the questions asked of her.

Edwin did make submissions about how I ought to treat Queenie’s evidence. He submitted that I should treat it with caution given that she is purporting to give evidence of conversations with deceased persons, citing Plunkett v Bull (1915) 19 CLR 544 at 548-549 (Isaacs J); [1915] HCA 14 (DWS Closing [15], see also at [7]). In that case, Isaacs J said as follows:

Edwin did not otherwise directly make submissions as to Queenie’s credit. However, Edwin did arguably make two further submissions going to Queenie’s credit which ought to be addressed. For reasons I will explain, I do not think either point made by Edwin should be accepted as bearing on Queenie’s credibility.

First, he submitted that Queenie did not “give evidence of her circumstances at the time of” the transfer of the Henry Street Property to Edwin, and an appreciation of those circumstances “put a completely different complexion on the relevant facts” (TR P102 L18-22). At [16] of DWS Closing, Edwin elaborated on this submission, namely to point out that in Queenie’s affidavit evidence, there was nothing said about the financial assistance that had apparently been provided to her by her parents to purchase a unit in Westmead, and about the fact that at the time of transfer of the Henry Street Property, Queenie owned both the property at Westmead just mentioned, and a separate property at Stanhope Gardens.

I accept that Queenie did not put these surrounding circumstances into her affidavit evidence. I acknowledge, however, that at [15(d)] of her affidavit affirmed 14 February 2025, Queenie does make a reference to purchasing her first property in 2001, albeit without any further details. The cross-examination of Queenie did not involve asking her why she did not put these property dealings with her mother into her prior affidavit evidence. I also accept these dealings provide relevant context against which the transfer of the Henry Street Property in 2006 should be understood. However, in the absence of any explicit suggestion that this should be held against Queenie’s credit and absence of any opportunity for Queenie to explain why she did not initially mention these dealings, I am not inclined to hold these omissions against Queenie in assessing her evidence, at least not in any significant sense. Once asked about these other properties, Queenie did not seek to deny them or otherwise engage with the cross-examiner in a combative manner in relation to them. She still appeared to honestly answer questions.

Second, Edwin drew attention to the fact that in the initial letter of demand sent on 16 July 2024 by Queenie’s solicitor there was no mention of any allegation that Edwin held the Henry Street Property on trust by reason of an agreement with the deceased. He submitted that “it would have been the first thing that she told her solicitor if that was her recollection at the time” (DWS Closing [18]).

The letter does make an allegation the property was held subject to a resulting trust as the deceased did not intend to transfer the beneficial interest in the property to Edwin. In cross-examination, Queenie conceded that the letter dated 16 July 2024, failing to refer to an agreement, reflects the fact that at that time her solicitor had no instructions to that effect (TR P15 L37-40). She denied, however, that the reason she did not give such instructions in July 2024 was because the deceased had never spoken to her about such an agreement (TR P16 L5-7). Queenie also gave evidence that the “July letter was mainly to stop the probate process from happening” and that the “first thing” she said to her solicitor “was about the probate, not about the trust”, as it “was the caveat [over the deceased’s estate] that was the main reason” she engaged her solicitor (TR P15 L42-P16 L3).

It is not immediately obvious what I am to draw from the apparent omission of an allegation that there was an agreement between Edwin and the deceased in the July 2024 letter of demand sent on Queenie’s behalf. One reading of these submissions is that Edwin is submitting that this matter is relevant to Queenie’s credibility. Another reading is that Edwin is submitting that Queenie’s evidence as to her recollections are unreliable. Again, in the absence of an express submission that I should draw some inference adverse to Queenie on the basis of what she did not apparently say to her solicitor in 2024, I am inclined to just acknowledge this fact as part of how I assess the reliability of her evidence (about which I will say something further later in these reasons). The fact she conceded in cross-examination that she did not initially tell her solicitor about her recollection that Edwin and the deceased had an agreement concerning the Henry Street Property is to her credit.

I also consider Joe was doing his best to answer the questions asked of him. I do not have any concerns about his credibility. That being said, there is some “difficulty” about the evidence of Joe because of “problems with translation”, which was acknowledged by Queenie in closing oral submissions (TR P79 L25-27). Queenie also accepted that Joe gave “some confusing answers” but explained those as being a product of the need to interpret the questions put to Joe by counsel for Edwin (TR P114 L6-8). I accept that explanation.

I did raise during Joe’s cross-examination my concern that Joe was not understanding the questions asked of him, and suggested that he may benefit from a more concrete form of questions to assist his comprehension, which the counsel for Edwin did his best to accommodate (TR P31 L10-23). Nevertheless, no submissions were made as to the issue of Joe’s credit or reliability.

Edwin himself did not make any submissions as to Joe’s credibility. However, he did submit that Joe’s evidence contained “contradictions”, namely that his evidence at times was “suggestive of advancement”, but later contained statements that the transfer was “in name only” (TR P105 L1-16, DWS Closing [28]). Even accepting that some of Joe’s evidence might be contradictory, I am not prepared to hold that against him as a matter impugning his credibility, acknowledging the difficulties presented by the interpreting of his evidence and the cross-examiner’s questions. Nonetheless, later in these reasons I will deal with the extent to which Joe’s evidence could be properly characterised as self-contradictory, and the significance of such a characterisation.

I consider that Edwin was a credible witness. I accepted his submissions (at [10] of DWS Closing) that he appeared to listen to questions carefully, answer them to the best of his ability and make concessions as appropriate. I generally accept his evidence.

Queenie submitted that Edwin’s evidence as to the contents of a critical conversation he says he had with this mother regarding the transfer of the Henry Street Property was “inherently improbable” because the conversation was “remarkably brief” (TR P85 L38-48). Queenie also submitted that Edwin’s evidence more generally surrounding management and use of the Henry Street Property was “unbelievable” because he displayed such little understanding about what was going on (TR P114 L16-31). During cross-examination of Edwin, counsel for Queenie appeared to be critical of Edwin for not being able to recall details about the management of the property in 2007, like whether his uncle, Ricky, was paying rent or whether rates notices or levy notices were received (TR P51 L48-P56 L41).

I do not consider Edwin’s inability to recall what happened in and around the time of the transfer of the Property to him bears on his credibility directly. Edwin’s level of understanding is consistent, in my view, with the opinions of a 19-year-old having conversations with his family, as recalled almost 20 years ago later.

Queenie also made a submission that Edwin’s recollection of what was discussed at a will-drafting conference attended by the deceased, Edwin, Queenie and the solicitor who drafted the Will bore on his credibility as Edwin’s recollection was apparently contradicted by other evidence. I consider that dealing with this submission is more appropriately done later in these reasons, as opposed to this section where I am making more general observations as to Edwin’s credit.

While I do not consider there were any serious challenges to anyone’s credibility in this case, much of the evidence in this case, concerning events before, around and after the time of the transfer of the Henry Street Property to Edwin, involved recollections of conversations from many years ago. There were not that many contemporaneous documents or records.

Given the time that has passed since many of the key events in this case, it is enough to observe that even whilst I consider the witnesses in this case to be honestly trying to recall what happened so many years ago, I am cognisant that evidence might nonetheless be unreliable, simply by reason of the effluxion of time and the fallibility of human memory. At the very least, I will approach the fact-finding task in this case by keeping this consideration in mind when it comes to assessing the evidence of everyone.

In her written opening submissions (PWS Trusts [9]-[10], [38]), Queenie submitted that the Court should draw inferences adverse to Edwin from his failure to call two solicitors, Jacob Jang and Elsie Chan, who acted for Queenie, Edwin and the deceased at key points during the chronology of events in this case. However, in her oral closing submissions, Queenie did not appear to press that any such adverse inferences should be drawn. For that reason alone, I am inclined not to draw any inference of the kind sought by Queenie.

However, for completeness, I record that I accept Edwin’s submission that no such adverse inferences should be drawn in this case from the failure to call Mr Jang and Ms Chan. I will briefly explain who each solicitor is before stating why I accept Edwin’s submissions.

Jacob Jang was the solicitor who acted for Edwin when the Henry Street Property was transferred to him in 2006. He was not called by Edwin. Edwin tendered an email sent by Mr Jang on 17 July 2025 which was a response to an email from Edwin’s solicitor in these proceedings. Mr Jang confirmed that he did “not have any independent recollection of the transaction or of the instructions provided at the time”, and that he no longer held any files relating to the transfer. I accept Edwin’s submissions that this is a cogent explanation for Mr Jang’s absence (DWS Closing [34]).

Mr Jang also confirmed that a Ms Cindy Tam worked at the law firm Mr Jang was then working at, at the time of the transfer. Ms Tam’s name appears on the transfer dealing as the witness for the deceased’s signature. It appears then that the same firm acted for both the deceased and Edwin. With that in mind, I accept Edwin’s submissions that it would have been the ordinary course that the file would have been destroyed so many years into the future.

I also accept his submission that in any event, it is not clear that Mr Jang’s evidence would shed light on this case one way or the other, as it is not clear Mr Jang was told about the existence of any alleged agreement to create a trust (DWS Closing [35]). There should be no adverse inference drawn against Edwin for his failure to call Jacob Jang.

Ms Elsie Chan was the solicitor who drafted the Will for the deceased in 2023. The apparent relevance to any evidence Ms Chan could have given would have been as to what happened at a conference between Ms Chan and the deceased, at which both Queenie and Edwin were also present. The conference was in relation to the drafting of the Will. There is a dispute about what happened that conference. Edwin gave evidence that both the property owned by Joe and the deceased, as joint tenants, in Cherrybrook (the Cherrybrook Property) and the Henry Street Property were discussed. Queenie denies that there was any discussion concerning the Henry Street Property at this conference.

Queenie also suggested in oral closing submissions that the Cherrybrook Property was not discussed at this conference (TR P115 L40-46), and she suggested in her written opening submissions it was “improbable” this had happened (PWS Trusts [36]). However, these submissions were not maintainable in light of Queenie’s own evidence that the deceased did mention the Cherrybrook Property at this conference (TR P21 L42-48).

Queenie tendered evidence of communications between Edwin’s solicitors and Ms Chan. In an email from Edwin’s solicitors to Ms Chan dated 30 October 2024, the writer observes that while Ms Chan did provide some documents to Edwin’s solicitors (though what exactly was provided is not clear), there were no file notes of any instructions given by the deceased. Also in evidence was a file note from Edwin’s solicitors of a telephone call that Mr Dornan, the principal of the firm representing Edwin, had with Ms Chan. It is worth setting out the content of that file note, in full, as it was typed:

It is notable that, as noted in the file note and otherwise established by other evidence, Elsie Chan did initially act for Edwin regarding probate.

Edwin says no inference adverse to him should be drawn from a failure to call Ms Chan because she had given advice to Queenie after the deceased’s death and was conflicted (DWS Closing [37]). Queenie’s current solicitors mentioned Queenie receiving advice from Ms Chan in a letter sent to Ms Chan when she was still acting for Edwin in relation to the application for probate in the deceased’s estate. While I am not sure the mere fact Ms Chan might be “conflicted” means no adverse inference should be drawn against Edwin, I am satisfied that given Ms Chan could be said to have an affiliation with both sides (from having acted for Queenie at some point), I should not draw any inference against Edwin for not calling her.

Additionally, I consider an inference adverse to Edwin should not be drawn in relation to not calling Ms Chan for reasons similar to why one should not be drawn in relation to not calling Mr Jang. In short, it is also not clear to me that Ms Chan’s evidence would shed light on this case one way or the other. First, as a matter of principle, given any evidence she could have given would have been about events in 2023, I have my reservations on whether her evidence would be of much if any relevance to ascertaining what the deceased’s and Edwin’s intentions were in around December 2006. Moreover, even if one accepts her evidence could be relevant, it appears that Ms Chan does not remember much. The evidence suggests Ms Chan kept no file notes of what happened in the relevant conference. As recorded in Mr Dornan’s file note, Ms Chan appears to have not much memory of what happened, which could be inferred from her using words such as “I don’t think”, and the rather vague way in which she describes what she might have done for the deceased. I do not think that any evidence from Ms Chan evidence would likely have risen any higher than her recollections as recorded in Mr Dornan’s file note from his conversation with Ms Chan – and of course, that document is now in evidence.

Having regard to the procedural and factual background set out above, together with the relevant legal principles and submissions made by the parties (see below), the following issues arise for consideration:

In summary, and for the reasons which follow, my conclusions are as follows:

As a consequence, the Statement of Claim should be dismissed.

In [12] of the SOC, Queenie pleads the following:

Nowhere in the SOC does Queenie specify the kind of trust that she alleges the Henry Street Property is subject to (for instance, an express trust or a resulting trust). The pleading at [12] does say there was an “agreement reached” between the deceased, Joe and Edwin that Edwin would hold the property on trust. But again, the pleading provides no particulars whatsoever about the alleged agreement. There is just a bare pleading that Edwin agreed to “take title to the Henry Street Unit as trustee”.

In his Defence at [12], Edwin denied [12] of the SOC. Edwin then elaborated, expressly making more specific responses to both “if the alleged agreement is an express trust” and “if the alleged agreement is a resulting trust”.

Edwin’s written submissions refer to a request for particulars made by his solicitors on 26 November 2024, which was responded to by letter on 28 November 2024 (DWS Opening [7]). The response letter clarified that the alleged agreement was oral and not recorded in writing but for the transfer (DWS Opening [7]). That response also “referred to a ‘common intention’” which was said to be inferred from “the fact that the deceased transferred the Henry Street property to the Defendant without consideration … the fact that the deceased thereafter received rents paid for the leasing of the property and from the fact that the deceased reimbursed the Defendant for expenses incurred by the Defendant as the registered proprietor of the property”. Queenie also referred to both Allen v Snyder and Shepherd v Doolan [2005] NSWSC 42.

In PWS Trusts at [12], Queenie submitted that:

PWS Trusts at [21]-[25] traverses numerous statements of principle in relation to the presumption of resulting trusts and the presumption of advancement, particularly drawing upon various passages from the decision of the High Court in Bosanac v Commissioner of Taxation (2022) 275 CLR 37; [2022] HCA 34 (Bosanac). The main point that appears to be made in this part of Queenie’s submissions is what is stated at the end of [24]: that “the operation of either presumption, of resulting trust or advancement, still requires the absence of evidence of an actual intention” (emphasis in original).

In her oral opening submissions, in response to questioning by me as to what kind of trust was sought (TR P2 L43-P3 L25), counsel for Queenie stated “the Court shouldn’t be distracted by the question of names” (TR P4 L1). In particular, Queenie drew my attention to the decision in Allen v Snyder, where Glass JA noted at 691:

Edwin submitted orally that “labels are important” (TR P4 L24-25). In DWS Opening at [11], he submitted that the “characterisation of [Queenie’s] claim is important because the relevant principles are different for different types for trusts”. I accept those submissions. It is insufficient to appeal to broad notions of “trust”. For one, as Edwin’s submissions recognise, different kinds of trusts are governed by differing legal principles. Second, because of the invocation by Edwin of ss 23C and 54A of the Conveyancing Act 1919 (NSW) (Conveyancing Act) in this case, it is important to precisely identify what kind of trust is being sought to be found. Section 23C imposes writing requirements for dispositions of equitable interests or declarations of trust respecting any land or interest therein but that provision expressly provides that the creation or operation of “resulting, implied or constructive trusts” is not affected.

In relation to the issue of the presumption of resulting trust, and the counter presumption of advancement, Queenie again emphasised that those presumptions “operate in the absence of evidence” (TR P4 L38-39). Queenie then went onto say “this is a case [where] we have evidence” and “this is not a case to which the presumption should be applied” (TR P4 L39-40).

By the time closing submissions commenced, it was still not clear to me precisely what kind of trust (even in the alternative) Queenie was submitting that I should find in the circumstances of this case. Consequently, I engaged in a lengthy dialogue with counsel for Queenie asking for assistance as to the details of the case I was required to decide (TR P74-78). Within this exchange, Queenie clarified that “plan A” for her was a finding that an express trust existed by reason of the agreement or common intention of Edwin and the deceased and “plan B” was that the Court should declare a constructive trust (TR P76 L6-14). It should be said that Queenie submitted that an express trust “can become a constructive trust where the trustee of the express trust purports to deny the trust” (TR P76 L3-4).

It is still not entirely clear what sort of constructive trust was sought to be relied upon as “plan B”. One understanding of this exchange is that a sort of constructive trust exists that can be declared where an express trust is denied by the trustee. No authority or principled basis was provided to support this use of the constructive trust, and I do not propose to consider this use any further. Alternatively, this exchange could simply be a shorthand way of saying that a finding that there was a “common intention constructive trust” was sought.

Despite the exchange just recounted, later in closing submissions, when I was again confirming with counsel for Queenie what I needed to address in my reasons for judgment, Queenie’s position appeared to have changed. It was confirmed that “plan A” was still a finding that there was an express trust over the Henry Street Property but counsel for Queenie then appeared to say that the issue of whether there was a common intention constructive trust no longer needed to be addressed (TR P89 L10-33). At TR P89 L31-33, the following exchange happened:

It should be said that Queenie relied upon the same evidence to support a conclusion that there was an express trust or that there was common intention constructive trust. Any distinction between these two kinds of trust was not explored in any depth by counsel for Queenie.

Despite the exchanges I had with counsel for Queenie during closing oral submissions seeking to clarify the ambit of Queenie’s claim, Edwin’s closing submissions, both written and oral, still proceeded on the basis that multiple kinds of trust were in play. Namely, Edwin’s submissions still sought to negative all of the following propositions:

Having regard to various (and varying) clarifications made by counsel for Queenie, as cited above, I will address two kinds of trust in these reasons for judgment. That is, I will consider, in turn:

While Edwin made submissions “just in case”, I do think it is clear that Queenie did not ultimately intend to seek a finding that the presumption of resulting trust applied in the circumstances of this case. I understand the portion of transcript extracted at [72] to not only be a submission by Queenie that the presumption of advancement does not apply, but rather also an acknowledgement that on her case, there is evidence of what the deceased intended to do with the Henry Street Property. Additionally, Edwin expressly stated his understanding that the presumption of resulting trust was not being relied upon and there was no suggestion by Queenie that understanding was incorrect. I will accordingly not address any further the operation of any presumption of resulting trust in these reasons.

The essential elements of an express trust are well known, and not in contest. In Dimitrovski v Boland (No 2) [2025] NSWSC 17 (Dimitrovski v Boland) at [134], Kunc J summarised it as follows:

In Korda v AET, French CJ elaborated at [3] on what is required to demonstrate an intention to create a trust (footnotes omitted):

In that same decision, French CJ also made observations at [5] as to the level of certainty required for an express trust (footnotes omitted):

In Li v Ye at [35], Kirk JA (with whom Mitchelmore JA agreed) elaborated on the principles applicable to determining the sufficiency of the intention to create a trust (emphasis added):

Edwin calls in aid ss 23C and 54A of the Conveyancing Act to say that any alleged express trust over the Henry Street Property cannot be enforced for a lack of writing (DWS Closing [44]). Those sections provide as follows:

It should be noted that, as I read the pleadings and understand the submissions in this case, the allegation is that there was an immediately effective declaration of trust in the deceased’s favour (constituted by the alleged agreement) and not an agreement that a trust would be declared in the future. Therefore, if there is an express trust, it is s 23(1)(b), and not sub-s (1)(a) which applies to this case. What that means is the alleged declaration of trust need only be “manifested or proved” by some writing, but the failure to do so means any trust which may have been created was unenforceable, not void: Meshumar v Otmy (2018) 97 NSWLR 615; [2018] NSWSC 125 (Meshumar) at [404] (Robb J).

As far as trusts which are not express trusts are concerned, s 23C(2) expressly exempts the creation of resulting, “implied” or constructive trusts from any requirements of writing.

While the declaration of an express trust respecting land should, generally, be “manifested and proved by some writing by some person who is able to declare such trust” to be enforceable, there are two relevant circumstances where someone may nonetheless enforce a trust declared orally.

First, there is the doctrine of part performance. Section 23E(d) of the Conveyancing Act provides that nothing in s 23C (or ss 23B or 23D) affects the operation of the law relating to part performance. The doctrine has been said to apply to failed assurances of or dispositions of other interests in land where there was no contractual obligation to make the assurance or disposition. That is what Robb J held in Meshumar, which was cited to me by Queenie. The “purpose” of the doctrine in this context would be to make practically enforceable what might otherwise be unenforceable due to a lack of writing. It should be said, as was clarified in Pipikos v Trayans (2018) 265 CLR 522; [2018] HCA 39 (Pipikos) at [52], by Kiefel CJ, Bell, Gageler and Keane JJ, what is actually being enforced are the equities generated by partial performance, not a parol contract or, by extension, assurance of or disposition of an interest in land.

To demonstrate the doctrine of part performance applies in this case, Queenie must show that there were acts of part performance which were unequivocally and in their nature referable to some assurance of the general nature of that alleged. In Pipikos, the High Court confirmed that such unequivocal acts were required if the doctrine of part performance was to be successfully invoked in the case of a contract for the sale or other disposition of land or any interest in land not in writing, rejecting an attempt to water down that requirement (see at [4]-[6] (Kiefel CJ, Bell, Gageler and Keane JJ); at [83] and [122] (Nettle and Gordon JJ); at [125] (Edelman J)). In Meshumar (a decision which predated Pipikos), Robb J said at [430] that in cases concerning assurances of land, “the acts of part performance must be unequivocally and in their nature referable to some assurance of the general nature of that alleged”. That conclusion flowed from a distillation by his Honour of what was necessary to successfully invoke the doctrine of part performance as it developed in the context of unwritten contracts, and his Honour then applying those principles to assurances of land not founded on a contractual promise. The short point is that if Queenie is to successfully rely upon part performance, she must point to acts of part performance unequivocally referable to the alleged agreement or declaration of trust manifested by that agreement she pleads.

Second, there may be a broader principle that courts will not let the Statute of Frauds be used as an instrument of fraud: Allen v Snyder at 689, 692 (Glass JA). In PWS Supplementary at [9], Queenie submitted that there is a “fundamental principle” that the “Statute of Frauds cannot be invoked to protect a fraud”. Whether there is some “fundamental principle” of the kind described by Queenie need not be explored. Queenie’s submissions focused on what was stated by Lindley LJ in Rochefoucauld v Boustead [1897] 1 Ch 196 (Rochefoucauld) at 206. That decision was referred to and applied by the Court of Appeal in Li v Tao [2023] NSWCA 310 (Li v Tao). In that decision at [68], Kirk JA (with whom Ward P and Michelmore JA agreed), set out four requirements for when equity will not permit the Statute of Frauds to be used as an instrument of fraud, those requirements being sourced from Rochefoucauld. Those four requirements are as follows:

Applying the principle does not depend on the weighing up of the merits of the conduct of the parties; it is sufficient that the requirements stated in Rochefoucald are made out: Li v Tao at [94].

It should be noted that in Li v Tao, there was no dispute as to the applicability of the principles stated in Rochefoucauld, and the appellant in that case (who stood to lose the appeal if it was successfully applied) did not contend the Conveyancing Act excluded those principles: Li v Tao at [71]. Similarly, Edwin did not contend that what was stated in Rochefoucauld and applied in Li v Tao did not form part of the law of this State. Edwin did say Li v Tao did not deal with s 54A of the Conveyancing Act (see TR P111 L34-38), though the significance of that was not elaborated on by Edwin.

To the extent s 54A was relied upon by Edwin in answer to Queenie’s case, I do not consider that reliance well founded and accept Queenie’s submission this is not “a section 54A case” (TR P115 L11-12). As Queenie submitted, this is not a case where she alleges that there was a contract between Edwin and the deceased for Edwin to dispose of the beneficial interest in the Henry Street Property. Of course, Queenie does say there was an agreement, but it is clear that “agreement” is being used in its broader sense: at multiple times in her oral closing submissions, she expressly submitted that a trust can be created by agreement without there being a contract (see, eg, TR P73 L34-40, P93 L3-4). There is no contract, and there is no apparent basis to think that “contract” in s 54A means more than its plain meaning.

In Harvey v Harvey [2024] NSWSC 623 (Harvey) at [23], Peden J concisely summarised the relevant principles for when what may conveniently be called a “common intention constructive trust” will arise:

I also acknowledge that some “questions have been raised” about whether the doctrine of common intention constructive trusts survives in Australian law as an institution separate from the law of proprietary estoppel: see, eg, Galatidis v Kallidis [2025] NSWSC 1555 at [68] (Brereton J); Macdonald v Whitelaw [2025] NSWSC 1542 at [12] (Brereton J); Harvey at [21] each referring to, inter alia, Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336 (Leeming JA) (see especially at [116]-[118]). However, like Leeming JA, Brereton J, and Peden J, I simply note these questions. No debate was had before me about the continuation of “common intention constructive trusts” as a separate legal institution. I will proceed on the basis that it remains so.

To the extent Queenie’s case is based on a common intention or agreement, the trust is not manifested by any writing.

To again quote part of Queenie’s written submissions, in PWS Trusts at [12], Queenie submitted that:

To deal more directly with this particular submission by Queenie, I do not agree that “the label given to the trust is of no great significance”.

As I said earlier at [71], the proper characterisation of the trust alleged in this case would appear to affect whether Edwin can invoke s 23C of the Conveyancing Act as an answer to Queenie’s claim. If the trust relationship between Edwin and the deceased is properly characterised as an express trust, and not one in writing, then I will need to consider whether the writing requirements of s 23C can be avoided. However, if the trust relationship is characterised a constructive trust, s 23C(2) means Edwin cannot use s 23C(1)(b) to answer Queenie’s allegations.

Additionally, the principles summarised above relating to “common intention constructive trusts” seem to rather firmly establish that it is necessary for Queenie to show that, once a common intention between Edwin and the deceased was formed that the latter would possess the beneficial interest in the Henry Street Property, the deceased acted to her detriment on the basis of that agreement or common intention. Detrimental reliance is not necessary to establish an express trust.

As already stated, I have found Queenie’s trust claim to lack clarity and particularisation. Queenie’s submissions proceeded principally on the basis that the kind of trust that existed in this case should be characterised as an express trust but not one in writing. That being said, at least at some points, Queenie also contended that the trust was a constructive trust.

On the other hand, in relation to trusts founded on a common intention, decisions of this Court, including the Court of Appeal (in addition to those cited above, see also Green v Green (1989) 17 NSWLR 343 (Green v Green) at 352-355 (Gleeson CJ, Priestley JA agreeing) and Koprivnjak v Koprivnjak [2023] NSWCA 2 (Koprivnjak v Koprivnjak) (Griffiths AJA, Leeming and Mitchelmore JJA agreeing)), along with intermediate appellate authority elsewhere (see, eg, Silvia (Trustee) v Williams [2018] FCAFC 194 at [14]-[17]), have proceeded on the basis a trust founded on the common intention of the parties is a constructive trust, rather than an express trust. Edwin’s submissions in opposition to a finding there was a trust of the kind recognised in Allen v Snyder focused on the need to prove detrimental reliance (see DWS Closing [58]).

Queenie did not engage with the fact that authorities post-dating Allen v Snyder seem to have mostly treated a trust founded on a common intention as a constructive trust, with an additional element to prove. In fairness, it does not appear that any one case has squarely resolved the apparent tension of what Glass JA said in Allen v Snyder (that a trust based on a common intention not documented is an express trust, not in writing) and what later authorities such as Green v Green do (namely, treating a trust based on common intention as a constructive trust). It would seem the currently preferred view of this Court (at least, its first instance judges) is that a trust founded on a common intention, not in writing is vindicated by a finding of constructive trust, but before a constructive trust is declared, there must be proof of detrimental reliance on the common intention.

In this case, no serious submissions were made on this issue. I do not intend to contribute to this debate and should not be taken as doing so.

However, for abundant caution, I will address both possibilities seemingly contended for by Queenie in this case. That is, I will first assess whether there is an express trust not in writing and then turn to whether there is a constructive trust based on a common intention. I do so for this reason. Given the way her case is pleaded, Queenie must first prove the deceased and Edwin had a common intention that the deceased would hold the beneficial interest in the Henry Street Property. If she cannot prove that, then her claim must fail. As I consider Queenie’s claim fails because she was unable to prove this first step, it will not strictly matter whether Queenie’s case is best understood as urging the Court to find there was ultimately an express trust (requiring consideration of the need to sidestep the Conveyancing Act’s writing requirements) or a constructive trust (requiring proof of detrimental reliance by the deceased).

Against the possibility my initial finding there was no agreement or common intention between Edwin and the deceased is wrong, I will endeavour to address, in the alternative, all of the ways Queenie’s claim could be understood. That is what Edwin did in his submissions. I consider I must do this in any event to avoid failing to consider and determine the whole of Queenie’s case based on a misunderstanding as to what she was ultimately contending vis-à-vis the trusts issue. This may be thought to be an unduly cautious approach, but I consider it the preferable one in the circumstances of this case and how it was conducted. I acknowledge this will contribute to the lengthiness of this judgment.

Many of the facts upon which Queenie relies upon in this case to establish there was an express trust (or, for that matter, a common intention constructive trust) post-date the transfer of the Henry Street Property to Edwin. For that reason, I consider it useful to address in these reasons the temporal focus of the inquiry into whether Edwin held the Henry Street Property on trust.

Queenie submits that the “relevant intention of the transferor is the intention held by the transferor at the time of the time of the transaction or immediately thereafter, although evidence of later acts and declarations may be admissible as admissions against interest” (PWS Trusts [33]). In support of that proposition, she cites the judgment of Ward CJ in Eq in Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 at [161]-[168], cited with approval in Koprivnjak v Koprivnjak (see in particular at [18]-[19] and [94] (Griffiths AJA, Leeming and Mitchelmore JJA agreeing)).

Queenie’s submission as to the law would seem rather uncontroversial. Edwin did not contend otherwise. This is also consistent with what Kirk JA said on this aspect of the law in Li v Ye at [42]-[43] and [95] (as well as in the way his Honour dealt with evidence of conduct after the time the trust alleged in that case had purportedly been formed at [85] and [89]), and what Peden J said in Harvey at [25(5)] in her Honour’s summary of the relevant principles.

Consequently, to the extent that evidence of conduct post-dating the transfer of the Henry Street Property (or soon after as to constitute part of the transaction) is relied upon to establish any kind of trust (or to negate a finding there was a trust), I will consider whether that evidence is in fact relevant to my task at all as evidence of an admission against interest before dealing with it in substance.

As I said earlier in these reasons, I will address Queenie’s case by considering whether there was an express trust or a constructive trust. However, in light of the way Queenie pleaded her case, on either case, I must be satisfied that Edwin and the deceased reached an agreement or possessed a common intention that Edwin would take title to the Henry Street Property as trustee. That being the case, I will first consider whether such an agreement or common intention existed. For the reasons which follow, I do not consider that it did.

The transfer of the Henry Street Property is not clearly dated but does have a stamp concerning transfer duty which is dated 19 December 2006, and a certificate of title dated the same date shows Edwin as the registered proprietor of the Henry Street Property. Edwin gave affidavit evidence that the transfer occurred “on or about 8 January 2007”. Queenie’s submissions also refer to January 2007 as the time in which the transfer took place.

The contemporaneous transfer form by which the registration of Edwin’s title was effected and the certificate of title itself showing the registration of Edwin as the owner of the Henry Street Property together lead me to the conclusion the transfer took place on 19 December 2006. It is not immediately obvious to me from where it has emerged that the transfer took effect in January 2007. However, I do not consider it matters much. I am still empowered to, without qualification, examine evidence of the intentions of the parties using conduct or statements that post-date the transaction so long as such conduct occurred or statements were made so immediately after the transaction they constitute a part of it. Edwin did not suggest that there would be any issue in taking into account anything that might have happened in January 2007.

I consider that, for present purposes, I can proceed on the basis that January 2007 was still sufficiently close to the transfer so as to form part of it.

There is little evidence about what happened prior to the transfer.

In her affidavit affirmed 28 October 2024, the only evidence Queenie gives of any common intention between Edwin and the deceased was at [36] of that affidavit, which reads:

I accept Edwin’s submissions at [19] of DWS Closing that this particular paragraph of evidence should be given no weight. As Edwin submitted, this is a “rolled up summary of a number of different conversations” and has “no context around it”. Edwin makes a complaint about form, but I do not consider that in and of itself to be an issue in light of what was said by Kirk JA (with the agreement of Bell CJ) in Wild v Meduri (2024) 115 NSWLR 445; [2024] NSWCA 230 at [356]. The bigger issue is that there is simply very little this paragraph even tells the Court. Queenie did not provide any information about the terms of any oral agreement the deceased may have had with Edwin based on her discussions with her mother. Queenie did not say when these conversations took place, such that it is not clear this is even relevant to the task before me. This evidence takes the matter nowhere.

Under cross-examination, Queenie maintained that the deceased “always mentioned that this property [the Henry Street Property] belonged to her and dad” (TR P23 L8). This evidence, on its own, should also be given little weight given for the same reasons identified in the previous paragraph.

Queenie submitted that evidence from Joe could satisfy the Court that there was an agreement or common intention between Edwin and the deceased as to the beneficial interest in the Henry Street Property (TR P79 L1-P80 L5).

In his affidavit affirmed 18 February 2025 at [10], Joe gave evidence that he and the deceased determined to transfer the Henry Street Property to Edwin “so that when [they] reached retirement, the deceased would qualify for the old age pension.”

In the witness box, and under cross-examination, Joe gave further, and arguably contradictory, evidence as to the purpose of the transfer. He first said the transfer of the Henry Street Property was his idea, as he felt Edwin was “big enough” and that it was “time” (TR P31 L5-6). But immediately after giving the evidence just recounted, Joe then said “the transfer of property to him is not a gift, it is only under the name” (TR P31 L6-7).

The position appears to have been made clearest at the conclusion of his oral testimony, where Joe gave the following answers to questions under cross-examination (TR P39 L49-P40 L5):

An issue arises as to whether Joe’s intentions about the creation of this trust matter. Edwin submits they are irrelevant (DWS Closing [29]). I agree. I will explain my reasons for that conclusion now.

The first Joe’s intentions might matter is to the extent he is party to the agreement that is said to underlie the trust alleged in this case. The agreement which was said to have created a trust over the Henry Street Property was pleaded as one between the deceased, Edwin and Joe (SOC [12]).

Joe’s participation in the agreement is not particularised. Joe could be a participant in the agreement as a beneficiary of any trust. But the way Queenie pleaded her case suggests that only the deceased was a beneficiary of the trust. Prayer 1 in the SOC is a declaration that the Henry Street Property was held on trust for the deceased only, and prayer 2 is a declaration the property forms part of the assets of the deceased’s estate. The critical paragraph in the SOC, [12], pleads that the agreement which is foundational to the alleged trust in this case was that Edwin would take title to the Henry Street Property “as trustee for the deceased”.

Somewhat contrastingly, in her closing oral submissions, Queenie submitted that the beneficiary of any trust would either, or “at least”, be the deceased or possibly “the wider family” (TR P78 L33-34, P90 L18-19). The way Queenie’s case was finally put in her oral submissions seems to leave open the possibility that Joe (and nameless others) might have been a beneficiary of the alleged trust, but even then, the baseline position appears to be that only the deceased was a beneficiary of a trust. I acknowledge that earlier in these reasons, I referred to Queenie’s oral and affidavit evidence about conversations she says she had with the deceased which may be suggestive of her case being that the property was held on trust for both the deceased and Joe, but for reasons already explained, I consider that particular evidence should be given little weight.

Queenie’s pleaded case, both in terms of the form of relief sought and at [12] of the SOC, is that the beneficiary of any trust over the Henry Street Property is only the deceased. She should be held to the manner in which her case is pleaded. In any event, that is largely consistent with what I have identified as “the baseline position” in Queenie’s closing oral submissions. It follows then that Joe is not a party to the agreement as a beneficiary, and his intentions are not relevant on the basis he is a beneficiary of the trust alleged (at least, in the way Queenie pleaded her case).

The only other relevant way Joe could be a participant in the agreement is as someone who had an interest in the Henry Street Property to give to Edwin to hold on trust. To the extent that the alleged trust is an express trust of some kind, the person whose intention is relevant is that of the settlor. In the case of a trust founded on a common intention, it would seem necessary that one of the people whose common intention is relevant is that of the person whose property is being subject to the trust, ie the person who might otherwise be the settlor of an express trust. Here, the deceased was the sole registered proprietor of the Henry Street Property prior to its transfer to Edwin. Joe was not registered as a proprietor of the Henry Street Property.

The plaintiff submitted that it was an “inevitable conclusion” that Joe had an interest in the Henry Street Property, given he contributed to the purchase price, acted as guarantor to the loan (secured by a mortgage) , assisted with payment of the mortgage and was married to the deceased for 26 years (PWS Trusts [35(g)]). Consequently, Queenie argues, the decision to transfer the Henry Street Property “would have been a joint decision made by Joe Wong and the deceased and not by the deceased alone”.

No finding was sought that Joe independently held an interest in the Henry Street Property. He was not the registered proprietor of the Henry Street Property before Edwin was. To the extent that the “inevitable conclusion” that Joe might have an interest in the Henry Street Property is founded on the contention there was a purchase price money resulting trust (Bosanac at [51] (Gageler J), [94] (Gordon and Edelman JJ)), Edwin points to evidence given by Joe under cross-examination of an awareness that only the deceased would hold the Henry Street Property, and that it was the deceased who was borrowing money, with Joe only being the guarantor (see TR P32 L29-P33 L10). Given any contribution by Joe to the purchase price of the Henry Street Property would have been one made by a husband to his wife, the spectre of the presumption of advancement also looms over any presumption of resulting trust that Queenie may be relying upon to make the assertion Joe had an interest in the Henry Street Property (Bosanac at [17] (Kiefel CJ and Gleeson J)). If there was some other basis for Joe to have an interest in the Henry Street Property, no such basis is obvious, nor was one identified by Queenie.

I am not attempting to resolve finally the issue of whether Joe might have had an interest in the Henry Street Property. The point is that Queenie did not positively seek a finding Joe held an interest in the Henry Street Property of some kind prior to its transfer. I consider, therefore, I am not in a position to properly consider whether Joe had an interest in the Henry Street Property, especially in light of some of the possible issues that might have arisen had such a finding been sought, as I have briefly sketched out in this paragraph.

I am therefore in a position where it appears Joe does not have an interest in the Henry Street Property to give away. Consequently, and without even getting into the question of how the nature of any interest Joe might have had in the property, which would only have been an unregistered equitable interest, would affect the trust alleged in this case, it suffices to say that Joe’s intentions vis-à-vis the Henry Street Property are not relevant as far as he may have been a settlor.

My conclusion is therefore that Joe’s intentions are not relevant in this case to the extent he might be a party to the alleged agreement in this case.

Another way Joe’s intentions might be relevant is to the extent they may evidence what the deceased intended.

Queenie submitted that, “as head of the family, he [Joe] probably thought he should have a say” (TR P88 L28-29). As noted earlier, Queenie submitted the decision to transfer the Henry Street Property to Edwin would have been a joint decision. The deceased and Joe married in 1973. At the time of the transfer of the property to Edwin, the parties would have been married approximately 33 years.

I reject any submission, in absolute terms, that Joe’s understanding would necessarily be indicative of the deceased’s. Joe’s own evidence contains an example of how the deceased and he may not necessarily have been of the same mind. In 2001, when Queenie purchased a property at Mowie Street in Westmead (the Mowie Street Property), the Henry Street Property was put up as security, alongside the Mowie Street Property itself, for the loan which was taken out by Queenie and the deceased to finance the purchase of the Mowie Street Property. Joe’s oral evidence was that he was not involved in that arrangement (TR P33 L25-P34 L5). No evidence was provided to me of Joe controlling the financial decisions of the household, save perhaps for Joe’s own evidence that at around the time the Henry Street Property was first purchased by the deceased, if the deceased was lacking money, she would ask him and he would give it to her because during that time Joe earned more money (TR P33 L6-10). That is far from establishing Joe necessarily controlled the financial affairs of the household such that what he says could be taken to be what the deceased intended. There is evidence from Joe that the purchase of the Henry Street Property was a joint decision between him and the deceased (TR P30 L46-48), an inference which might also be drawn given Joe was a guarantor on the relevant loan given to the deceased. But I do not consider that evidence allows me to conclude that the decision to transfer the Henry Street Property to Edwin was a joint decision such that the deceased’s intentions could be evidenced by Joe.

I can accept that as the deceased’s husband over what was even in 2006 a relatively long marriage, Joe might be uniquely placed to be aware of the deceased’s understanding or be involved in decision-making by her. I am not finding that to be so; I am simply accepting that might be a possibility in the context of a long marriage. Nevertheless, on the evidence before me, I am not satisfied, to the extent Joe gives evidence of what he thought in 2006 and 2007, that Joe’s thoughts could be used as evidence of the deceased’s intentions in 2006 and 2007. That is especially so in the absence of evidence allowing me to conclude that the decision to transfer to Edwin the Henry Street Property was a joint decision. I accept Edwin’s submission that there is no basis upon which Joe could express an intention on behalf of his wife (TR P99 L27-30).

Edwin also gave evidence which he submitted showed that the deceased had a poor relationship with Joe (DWS Closing [9(b)]). Edwin gave evidence that Joe was physically and emotionally abusive towards him, Queenie and the deceased during Edwin’s childhood, which evidence did not appear to be challenged in cross-examination. In cross-examination, Queenie accepted her father was “verbally abusive” to the deceased but not physically abusive, noting she lived with Edwin and her parents only until about 1994 (TR P25 L1-16). However, she also denied that the relationship between her parents had broken down completely prior to their divorce in 2012 (TR P25 L18-20). In closing submissions, Queenie described Joe as a “difficult husband” (TR P86 L32).

I do not think it is necessary to resolve the real issues in dispute, to make any findings as to the nature and extent of any abuse that Joe may have perpetrated against the deceased. Joe was not squarely asked about the topic in cross-examination. He was asked whether at the time of his divorce, he did not get along with the deceased, which Joe conceded was the case though he noted they still lived together afterwards (TR P37 L49-P48 L1). It would be procedurally unfair to make such critical adverse findings of him in that context.

That being said, there is still evidence before the Court that the relationship between the deceased and Joe was not particularly positive. Queenie herself gave evidence and made submissions consistent with them having a difficult relationship.

All I think I can safely draw from the evidence is that at about the time of the transfer of the Henry Street Property, the relationship of the deceased and Joe was difficult and that there may have been some verbal abuse by Joe against the deceased. That makes it more difficult for me to conclude the deceased and Joe were necessarily of one mind when it came to the transfer of the Henry Street Property, in the absence of any other evidence going the other way.

Edwin submitted that Joe’s evidence really should be understood as to what he thinks or understands today rather than in 2006 or 2007 (TR P110 L11). I am not prepared to go that far and conclude that Joe was simply saying what he now thinks about the transfer of the Henry Street Property. Joe gave his answers through an interpreter and, consequently, it appeared to me there were occasions during cross-examination that Joe did not necessarily understand counsel for Edwin. Care needs to be taken in approaching Joe’s evidence because of this.

I am not satisfied the deceased and Joe were necessarily of one mind when it came to the transfer of the Henry Street Property. I therefore do not consider that Joe’s intentions were relevant as far as any agreement between Edwin and the deceased are concerned.

Edwin also made the submission that even if Joe’s evidence of his intentions in 2006 might be reflective of what the deceased thought in 2006, there is no evidence that Edwin shared the intentions Joe said he (and, so, the deceased) had (TR P110 L10-14). That is also a forceful point.

Queenie then submitted that Joe’s and the deceased agreed to give the property to Edwin to assist the deceased so she could qualify for and obtain “the old age pension”. Ricky, in his affidavit evidence, says the deceased explained to him that she “changed the name on the property to assist with obtaining the old age pension in the future” when she and Joe retired. Joe also gave affidavit evidence that he and the deceased had determined to transfer the Henry Street Property so that the deceased would qualify for the pension.

One might accept it is likely Joe and Ricky’s evidence helps elucidate the deceased’s understanding at the time. While I have set out my reasons as to why I do not think Joe’s intentions can be said to be the same as the deceased’s intentions, it is still the case that evidence of Joe about what the deceased might have agreed with him (or otherwise said to him) may be relevant in ascertaining the deceased’s intentions given she is not here to give evidence of those intentions herself.

As far as Ricky goes, Edwin seemed to proceed on the basis that Ricky’s evidence should be accepted at face value, seeing as it was not challenged, though Edwin submitted that Ricky’s evidence was rather limited (TR P104 L20-31). Additionally, Edwin pointed out that there is no evidence given by Ricky as to when it was apparently explained to him by the deceased why the Henry Street Property was transferred to Edwin (TR P104 L28-31). This immediately raises a question as to whether Ricky’s evidence is in fact relevant if the evidence is viewed as not an admission against the deceased’s interests, particularly if the conversations post-date the transfer of the property to Edwin by a significant period of time. However, I will deal with the substance of Ricky’s evidence, on the basis that the conversation deposed to by Ricky might have occurred before or at the time of the transfer.

Neither Joe’s nor Ricky’s evidence actually enables the Court to infer how the deceased thought that transferring the Henry Street Property to Edwin would affect her ability to qualify for a pension. The chain of logic that is probably implied is that transferring the Henry Street Property to Edwin would reduce the deceased’s assets for the purposes of the asset testing that would typically come with an application for a pension from the Commonwealth. While I was not given references to the social security laws as they stood in around 2006 or 2007, or even a summary of them, to contextualise Ricky’s and Joe’s evidence, Edwin did not dispute that the deceased reducing the quantum of assets in her name would be beneficial to her ability to qualify for a pension.

The problem for Queenie is that there is no explicit suggestion in the evidence cited by her that the deceased believed transferring the property to Edwin subject to a trust would relevantly “reduce” the deceased’s assets for the purpose of any asset test administered as part of a hypothetical future application for the pension. As Edwin submitted (TR P104 L23-28), nothing in Ricky’s limited evidence refers to the deceased saying, for example, that the property would be held for the deceased, or the deceased and Joe.

While Joe gave oral evidence of his view that the transfer of the Henry Street Property was not a gift, as discussed earlier, that evidence is not tied back to his affidavit evidence as to the deceased transferring the property to Edwin to qualify for the pension. In re-examination, counsel for Queenie and Joe had the following exchange (TR P39 L31-40, emphasis added):

On one view, Joe seems to be resiling from a suggestion that the property was transferred to Edwin to help the deceased qualify for the pension. But the evidence is not especially clear. Again, that might come down to the difficulties in interpreted evidence in this case.

Overall, both Ricky and Joe say nothing explicitly which allows the Court to be satisfied that the deceased wanted Edwin to receive the property as trustee. Accepting she might have wanted to reduce her assets, looking at the evidence Queenie pointed me to, it is not apparent from just what those witnesses say that the deceased necessarily had in mind an arrangement whereby Edwin would hold the property on trust for the deceased.

Additionally, without delving unnecessarily into social security law, I am inclined to accept Edwin’s submission that the explanation that the transaction was undertaken to obtain the old age pension could only have been effective if the deceased parted with the full legal and beneficial interest (DWS Closing [25]; TR P104 L31-34). In support of this submission, Edwin cited Guirguis v Girgis [2021] NSWCA 156 at [57]. In that case, the question on appeal was whether certain properties registered in the respondent’s name were held pursuant to a resulting trust in favour of the appellant. The appeal was dismissed. The primary judge in that case had determined that (see [56]):

The case cited by Edwin does not say that for the purposes of an application for the pension, the deceased had to have parted with the beneficial interest in the Henry Street Property for her to lawfully exclude it from her assets as part of any asset test. All it says is that it is necessary to part with the beneficial interest in a property to lawfully keep assets out of the reach of creditors and/or of a spouse.

However, Queenie appeared to accept the underlying thrust of Edwin’s argument, namely that for the deceased to lawfully exclude the Henry Street Property from her assets for the purposes of a pension application, she must also have parted with the beneficial interest in the property. Queenie submitted in writing (at PWS Trusts [32]) and orally (TR P85 L17-20) that in this case, there would not be an “illegal trust” because the deceased never applied for or received a pension from the Commonwealth. While not a direct concession, it does appear Queenie accepts that if the deceased still held a beneficial interest in the Henry Street Property but applied for or actually received a pension on the basis that the property was not part of her assets, the failure to declare her beneficial interest in the Henry Street Property would be unlawful.

As Edwin submitted, there is no suggestion from anyone, nor any evidentiary basis to conclude, that the deceased is a dishonest person. That being so, I am not prepared to find that the deceased wanted to both retain the beneficial interest in the Henry Street Property and yet dispose of the legal interest in the property for the purposes of qualifying for the pension. I would accept that to the extent there is evidence of the deceased’s intention behind the transfer being to obtain the old age pension, that is better described as evidence that the intention of the deceased was that Edwin would be the sole owner of the property.

Even if I am wrong and the deceased had the intention of keeping the beneficial interest in the property while disposing of the legal interest to assist the deceased obtain the pension, Queenie has not shown that Edwin shared that common intention. Under cross-examination, Edwin denied his parents said something to the effect of “we want the property to be transferred to your name so that in the future Mum will have a better chance of applying for the pension” (TR P68 L25-28). Even without considering Edwin’s own evidence as to what the deceased’s intentions may have been in 2006 or 2007, which I shall come to consider shortly, there is no other evidence that contradicts Edwin’s denial. Even if I was to disbelieve Edwin, there is simply no other evidence to say Edwin had a common intention with the deceased that the Henry Street Property would be held on trust by him for the purposes of giving the deceased a better chance of applying for the pension.

The plaintiff has, at this stage, failed to prove with evidence of acts and declarations before or at the time of the transfer of the Henry Street Property, or so immediately thereafter as to constitute a part of the transaction, that the deceased had a common intention or agreement with Edwin that Edwin was to hold the Henry Street Property as trustee for the deceased.

Edwin says he received the Henry Street Property as a gift to ensure his financial future is secure. In his longer affidavit sworn 7 February 2025, at [15], he deposed to having the following conversation with the deceased “in or about 2006” in words to the following effect:

In a later affidavit, the longer one sworn on 18 July 2025, Edwin said:

Queenie, in her closing oral submissions, was critical of Edwin’s evidence. As recorded earlier in these reasons, Queenie submitted that this conversation was “inherently improbable” (TR P85 L38-48). The reasons for that submission were as follows:

Queenie also submitted the following in writing at [16]-[17] of PWS Trusts, in relation to this aspect of Edwin’s evidence:

Contrary to Queenie’s submissions, I accept Edwin’s evidence on the conversation he had with his mother in 2006.

I immediately acknowledge that, as Queenie points out, Edwin does not give particularly detailed evidence of the conversation he says he had with the deceased. However, that is readily explicable by the fact that Edwin is recalling events almost 20 years later. It would be surprising if, absent some recourse to a contemporaneous or near contemporaneous note or record, Edwin could remember with precision the conversations he had with his mother around 2006. In cross-examination, Edwin could not recall whether he had previously discussed his financial future with his mother (TR P46 L33-P47 L3), but that is not surprising seeing as Edwin would have been a reasonably young adult or perhaps even a child (to the extent counsel for Queenie was asking about conversations that happened prior to February 2005, when Edwin would have turned 18). He has not resiled from the substance of his evidence.

Edwin at no point has purported to give an exact recollection of the conversation he had with his mother in 2006. His use of “words to the effect” appropriately indicates that the direct speech he is recording in his affidavit is really only the substance, effect or gist of what he recalls was said. Given how long ago these events were, and in light of other evidence Edwin gave where he could not recall matters which happened so many years ago (or recalling them at a high level at best), it would seem to me that Edwin is faithfully recording his recollection that his mother told him he was getting the Henry Street Property to provide for his future. I accept his submissions to this effect at [11] of DWS Closing.

Queenie submitted it was unlikely the transfer of the Henry Street Property would be a gift the following reasons:

I reject Queenie’s submission that it is inherently improbable or unlikely that the deceased would want to gift Edwin the Henry Street Property to secure his future. Edwin’s evidence is that he and the deceased had a “close relationship” (TR P47 L18-21, L40-43; P48 L23-24). At no point does that appear to have been seriously contested by Queenie. In my opinion, it is well within the realm of possibility that the deceased would want to gift a home to Edwin to secure his financial future, in light of their close relationship.

Queenie asserts that the university studies which Edwin was undertaking at the time of the transfer of the Henry Street Property would have made it likely Edwin was on his way to a financially secure future. I am not satisfied I can even accept that assertion on its face – I have no evidence of, nor do I consider I could take judicial notice of, what the income prospects were of someone who graduated with a Bachelor of Business Administration or Bachelor of Arts from Macquarie University in the mid 2000s. Accordingly, I do not consider Edwin’s course of study at the time of the transfer made it less likely the deceased gifted the Henry Street Property to Edwin.

As to the competing needs of Edwin and Queenie at the time of the transfer, whilst it might be accepted Edwin was a younger university student living at home, that is not necessarily the full picture. For one, on Edwin’s case, the transfer of the Henry Street Property was to secure Edwin’s financial future. There is no suggestion that the deceased would have had short term considerations in mind, but rather, the long term. By the time of the transfer, Queenie, who it must not be forgotten is about 14 years older than Edwin, had moved out of home. She conceded in cross-examination that at the time of the transfer, she owned the Mowie Street Property and, with her husband at the time, a property at Stanhope Gardens (TR P20 L38-42). Queenie also gave evidence of some assistance given to her by the deceased with respect to the acquisition of the Mowie Street Property. Queenie says she was not given any funds directly, rather the assistance provided was in permitting the Henry Street Property to be used as security for a loan (TR P26 L17-20). So much can be accepted. However, the point to be made is that by the time of the transfer, Queenie had two properties, of which one was obtained with some assistance from her mother. If financial security could be obtained by owning a home, then from the deceased’s perspective, it would seem Queenie’s future was already secured. That provides a cogent explanation for why, in 2006 or 2007, the deceased would give the Henry Street Property to Edwin. I accept Edwin’s submission that his evidence his mother wanted to secure his financial future is not unbelievable once Queenie’s other property holdings are taken into account (TR P101 L34-39). There was no reason to believe that Queenie was otherwise in financially dire straits such that she needed further assistance. She did not give evidence that would suggest anything of the sort.

Given Joe’s evidence that occasionally there would be a shortfall between the rent received from the Henry Street Property when it was rented to third-party tenants prior to 2006 and the loan repayments, perhaps one might question whether the deceased could afford to gift the Henry Street Property as she did. However, there is no evidence as to what the regular loan repayments were. Additionally, Ricky was also paying rent once he moved in. Ricky says he moved into the Henry Street Property in October 2006. Edwin’s evidence about the conversation he had with his mother prior to the transfer of the property acknowledges that his mother had said his uncle was going to live in the property for a while. Either way, there was still a continued source of rental income coming from the Henry Street Property. The rent might have been something less than what could have been received at market – Ricky says he paid $300 a week. But no evidence was led by Queenie to suggest that the rent received from Ricky added to whatever was covered by Joe was materially unaffordable for the deceased and Joe. Therefore, I cannot be satisfied the deceased could not afford in some way to give the Henry Street Property to Edwin. I will consider separately below whether Edwin’s act of not receiving the rent from Ricky itself amounts to some sort of admission against his interest.

Queenie also points to the lack of consideration paid by Edwin and the fact that a single firm acted on the transfer as further evidence that this transfer was “engineered” by the deceased with the intent that Edwin would receive the title but not beneficial ownership of the property (TR P115 L11-19). It is my view that it does not follow that because no consideration was paid the transfer of the Henry Street Property is likely to be subject to a trust in the deceased’s favour. Considering Edwin’s competing characterisation is that the property was a gift to secure Edwin’s financial future, the lack of consideration does not provide persuasive evidence against that case.

Edwin says he has no recollection of meeting the solicitor who apparently acted on his behalf in the transfer (TR P51 L14-26). Again, that is probably partly explicable by the fact these events happened so long ago, when Edwin was much younger. In any event, I do not consider the mere fact that one firm acted on this transfer is, in isolation, suggestive of an intention by the deceased not to part with the beneficial interest in the Henry Street Property when it was transferred to Edwin. Perhaps it might give credence to the submission that the transfer was “engineered” by the deceased, but that could just as well be consistent with her intention being to gift it to Edwin. It is a circumstance of limited if any utility, at best, in this case. Similarly, Edwin’s failure to recall apparently being given any documentation about the transfer and saying that his mother had “just told [him] it was registered” (see TR P51 L48-P52 L14) is equivocal at best.

For those reasons, based on the evidence of acts and declarations before or at the time of the transfer of the Henry Street Property, or so immediately thereafter as to constitute a part of the transaction, I am not satisfied that the deceased had a common intention or agreement with Edwin that Edwin was to hold the property as trustee for the deceased.

Much of the other evidence relied upon by Queenie to establish a common intention between the deceased and Edwin is evidence of conduct or statements after the Henry Street Property was transferred to Edwin. Queenie relied on undisputed evidence of a series of conduct after January 2007 in support of a submission that the deceased did engage in conduct which suggested she retained an interest in the Henry Street Property after its transfer, contrary to evidence from Edwin that the deceased “did not say or do anything” of the sort (PWS Trusts [35]). Edwin sought to emphasise what happened at a will drafting conference in 2023, where he says the deceased acknowledged the property was Edwin’s to keep.

At the outset, I reiterate that based on the legal principles discussed above, such conduct is only relevant if it is an admission against interest. Both Queenie and Edwin did not expressly submit that evidence of matters post-dating the transfer of the property should be taken into account as an admission against interest. However, to the extent that parties have relied upon evidence post-dating the transfer, I have assumed in their favour that the intention of that party was to rely upon the facts sought to be proved by the evidence as an admission against their opponent’s interests.

Particular emphasis was placed by Queenie on what happened in the period immediately following, and perhaps immediately preceding, the transfer of the property, namely, the nature of Ricky’s occupancy of the property. I will deal with that evidence first.

The unchallenged facts to which Ricky deposes as regards his and his family’s occupancy of the property are as follows:

Edwin gave the following evidence in cross-examination, which adhered in substance to his affidavit evidence:

The evidence discloses that in the period from 2006 to 2012 when Uncle Ricky lived in the property, the deceased still remained involved in the management of the property notwithstanding the transfer of it to Edwin. Edwin’s own evidence confirms he was not particularly involved in managing the Henry Street Property during Ricky’s occupancy of the property. In that respect, perhaps his omission to act could fairly be regarded as an admission against interest, to the extent that Queenie submits this is evidence that the deceased ultimately controlled the property because it was being held on trust for her. However, I do not accept that the deceased’s continuing management of and involvement with the Henry Street Property during Ricky’s occupancy is indicative of her holding a beneficial interest in the property.

At DWS Closing [12], Edwin made the following submissions in relation to what could be made of Ricky’s occupancy of the property:

I accept that submission.

Queenie submitted that Edwin “did not engage in any act as the owner of the property” in the period 2006 to 2012 (TR P91 L9-10). But this is explicable by the fact that the deceased transferred the property subject to an agreement, which Edwin was aware of, that her brother Ricky would continue to reside in the property. It must also be remembered that Edwin was aged 19 to 25 during Ricky’s occupancy of the Henry Street Property. He turned 20 and was still in university in 2007, the time period around which much of his cross-examination centred. He was still relatively young and had not moved out of home yet. I consider it unsurprising the deceased, as Edwin’s mother and someone who had some experience being involved with managing a property (whether by herself or with Joe), namely, the Henry Street Property itself when it was being rented out to third parties, would have taken on a management role in respect of the property. I therefore accept that a relatively youthful Edwin did not inquire particularly deeply into the arrangements surrounding Ricky’s occupancy. It was not a stranger occupying the property, but a family member. And not just any family member, but the deceased’s brother. Given the familial context surrounding Ricky’s occupancy of the property, I do not consider Edwin’s denial there was any trust relationship with the deceased to be inconsistent with her managing the property initially.

I accept that the receipt of rent by the deceased from Ricky is one factor which tends in favour of Queenie’s assertion that the deceased retained a beneficial interest in the property. Beyond Edwin admitting he did not receive rent however, there is no evidence what was actually done with the rent money received by the deceased. Even the receipt of rent from the deceased is not necessarily inconsistent with the deceased not retaining a beneficial interest in the Henry Street Property. Again, the arrangements as between Ricky and the deceased were of a familial nature. The deceased did not, for example, receive and retain rent from third parties such that one could more forcefully say she was obtaining the ultimate economic benefit of the property.

More fundamentally, however, this single isolated fact which might tend in favour of a finding there was a trust relationship cannot overcome the other circumstances of this case which I have discussed to this point.

In about 2012, when Edwin purchased his current home, located at Good Street in Westmead (the Good Street Property), the purchase of that property was funded by way of a bank loan from Bankwest. The properties used as security for that loan were the Good Street Property and the Henry Street Property. Edwin gave affidavit evidence that he had a conversation with his mother in 2012 to the following effect:

Queenie submitted that it would be “odd that someone with a degree in business administration would be asking his mother, who works at a student shop at Macquarie, advice about mortgage insurance.” She submitted that a conversation of this sort probably happened but that it was a conversation where Edwin asked the deceased for her consent to use the Henry Street Property as security for loan, rather than seeking some sort of advice (TR P86 L11-19). I reject this submission. For one thing, the deceased appears to be a financially literate person. The evidence discloses she (with Joe) was purchasing and selling properties, and Queenie herself said that at some point the deceased was paying money in relation to the Henry Street Property (TR P19 L15-20, P20 L33-36, P25 L49-P26 L15). Edwin asking his mother for advice in relation to purchasing a property when aged 25 is not inherently improbable. Additionally, there is nothing before me to say that someone with a degree in business administration would necessarily be imbued with knowledge as to matters pertaining to home ownership. I do not consider I can take judicial notice of what a business administration degree in the mid-2000s might have taught someone.

Having regard to what I said earlier in this judgment about his credibility generally, I otherwise accept Edwin’s evidence as to the substance of the conversation he had with the deceased in 2012, as set out in his affidavit evidence, and that conversation has Edwin asking for advice, not permission to use the Henry Street Property as security.

Queenie additionally made a series of submissions in relation to the way Edwin operated the Henry Street Property after February 2012, when Ricky left the property. After this point Edwin engaged real estate agents to rent out the Henry Street Property. Edwin was listed as the principal on each of the agreements with the real estate agencies and signed all of them. Edwin gave evidence he put down the deceased as the “contact person” on the agency agreements. He explained in cross-examination that he did this so that if he could not be reached while at work, the real estate agents could get in touch with the deceased, and she could relay messages to Edwin (TR P57 L1-10). Queenie seems to rely upon this fact as a fact consistent with Edwin holding the Henry Street Property on trust for the deceased (see PWS Trusts [35(i)]). To the extent that fact is being relied upon as conduct which constitutes an admission against Edwin’s interest, I reject such a submission. The deceased stopped working in 2017 and so from then on, it is easy to accept Edwin’s explanation as to why his mother was listed as a contact person. While Edwin was working, there was someone who could readily answer the phone if needed. As for the period between 2012 and 2017, I consider there is no reason to doubt Edwin’s evidence that it would be more convenient for the deceased to be the contact person regarding the Henry Street Property. Moreover, listing the deceased as the contact person on an agency agreement does not strike me as being consistent with Edwin holding the property on trust, particularly given Edwin was still the principal under those agreements.

Queenie then relied on evidence of the manner in which Edwin managed the money which he was receiving and paying on account of the Henry Street Property, emanating from bank statements which Edwin put into evidence.

Edwin had an account with ANZ with account number XXXX-XX363 (the 363 account), which he described as a “personal” account.

Queenie submitted that for the period of 20 May 2013 to 20 August 2024, the only payments into the 363 account were rental receipts, and the withdrawals are mostly expenses such as rates, body corporate levies and other costs relevant to the Henry Street Property, though there were some cash withdrawals at ATMs in 2013 (PWS Trusts [35(j)]). Queenie says the Court should infer that the deceased may have been making those withdrawals (TR P82 L12-13). Evidence of the deceased having access to or controlling the 363 account, which appears solely referable to the Henry Street Property, might be an admission against Edwin’s interest in that he would be concurring in the deceased obtaining some of the benefit from the Henry Street Property. However, I refuse to draw the inference sought by Queenie. There is simply no evidence upon which it can be based. Edwin denied that his mother made these withdrawals and that she had access to the 363 account (TR P59 L49-P60 L23). The transactions themselves, at least the ones I was taken to, were labelled as being in Cherrybrook or “Castle Towers”. Cherrybrook was where Edwin was living at the time, with the deceased, at the Cherrybrook Property. Having asked Queenie’s counsel whether I could do this (at TR P82 L23-36), I take judicial notice that Castle Towers is a shopping centre located in the suburb of Castle Hill, which is not particularly far from Cherrybrook. It seems very plausible to me that Edwin was the one withdrawing the money in 2013. Neither location at which the cash was withdrawn made it implausible Edwin was the one making the withdrawals. In fact, the locations of the withdrawals make it highly plausible it was Edwin. There is no evidence the account was accessible to the deceased or that money was withdrawn by her. It follows that evidence of the cash withdrawals from the 363 account are not helpful for Queenie’s case, as they are not admissions against Edwin’s interest.

Queenie says there are no sorts of expenses of the kind ordinarily seen in personal accounts, eg, payments for groceries (PWS Trusts [35(k)]). Queenie says that, therefore, this is evidence of the separate bank account which Joe says, in his affidavit evidence, was set up by the deceased to receive rents from the Henry Street Property (PWS Trusts [35(l)], TR P82 L40-P83 L22). Joe says the deceased said words to the following effect to him at some unspecified point:

The deceased setting up a bank account to receive rent from the Henry Street Property, and Edwin accepting payments as reimbursement for any increase in his personal income tax liabilities as a result of that rent, could be an admission against interest, in the sense that is perhaps conduct akin to a trustee being reimbursed. However, again, there is no evidence this occurred as Joe says it did. I reiterate, there is no evidence the deceased had any control over or access to the 363 account. Additionally, there is no evidence the deceased set up this bank account for Edwin. Edwin’s evidence is that he set up the 363 account (TR P63 L15-19). The only evidence to the contrary is Joe’s assertion.

Edwin also denied ever being reimbursed for any tax payable which was referable to the rental income received from the Henry Street Property. I was taken to no records of such reimbursement occurring. I accept Edwin’s evidence and therefore reject Queenie’s submission that the 363 account was a separate account set up by the deceased. Accordingly, I also reject Queenie’s reliance on that fact as an admission against Edwin’s interest. I also do not accept Queenie’s submission that Edwin was reimbursed for the extra tax he had to pay as a result of receiving rent from the Henry Street Property, and so again do not accept her reliance on that fact as an admission against Edwin’s interest.

As is apparent, Queenie sought to make something of the fact that despite being called a “personal account”, there were no personal expenses paid from the 363 account, and that there are payments to the Australian Taxation Office (ATO) concerning only that part of Edwin’s tax liabilities arising out of his receipt of rental income (TR P83 L46-50). Edwin in cross-examination accepted the payments to the ATO mentioned in the statements for the 363 account were related to the tax he was required to pay on his rental income (TR P61 L24-26). Queenie queried why he simply did not pay whatever money he needed to pay as tax out of one account, and submitted this account was effectively being run as a trust account for the operation of the property, keeping the “financial side” of the property separate from his personal financial arrangements (TR P84 L14-20). When asked about where his salary was being paid, Edwin gave evidence, which was not challenged, that he had “multiple personal accounts” (TR P59 L40-47).

I accept Edwin’s submission that no criticism can be levied at him for not annexing copies of the bank statements for any other account he has or may have had (DWS Closing [14]). Edwin did put on evidence of the bank account which related to the Henry Street Property. He did not say the 363 account was his only bank account, and it does not appear that other bank statements for other personal accounts Edwin may have would necessarily have been relevant.

I reject Queenie’s characterisation of the 363 account as some sort of trust account held by Edwin on behalf of the deceased. I do not accept that just because there was a separate bank account concerning the Henry Street Property, that meant it was a “trust account”. It is not outside the realm of ordinary human experience that someone holding an investment property would want to keep the “financial side” of that property quarantined in a separate account. Considering my earlier findings, most importantly that it does not appear the deceased had any access to, received any money from, or had any control over the 363 account, there is no real basis for me to infer that Edwin was running this as a trust account of sorts. I therefore reject Queenie’s reliance on the fact of the 363 account being run as a separate account solely concerning the Henry Street Property as an admission against Edwin’s interest.

For those reasons, I reject Queenie’s submissions that the 363 account and how it was handled provide any support for her case that Edwin held the Henry Street Property on trust for the deceased.

The final important factual circumstance raised by the parties was a will-drafting conference in August 2023, attended by Queenie, Edwin, the deceased and her then solicitor Ms Chan, to which reference has already been made (see [47], [55]ff). The purpose of this conference was to prepare the Will.

It is in Edwin’s longer affidavit sworn 7 February 2025 where the most detail is provided as to what supposedly happened at this conference. As I stated at [55], there is a dispute about what happened at this conference.

Edwin says that two properties were discussed. First was the Cherrybrook Property. In summary, Edwin says the deceased and Ms Chan had a conversation about how she could ensure that the deceased’s half share of Cherrybrook Property (which was still owned by Joe, her now former husband, and her as joint tenants) formed part of her estate. Queenie initially accepted in cross-examination that there was a discussion about the assets owned by the deceased and what she could dispose of by her will, and that the deceased spoke to Ms Chan about her intention to leave her interest in the Cherrybrook Property to her children (ie, Queenie and Edwin) (TR P21 L34-44). However, when her counsel for Edwin asked again whether Ms Chan had asked the deceased about what assets she had to dispose, Queenie denied that there had been discussion about property (TR P22 L17-20) but then reaffirmed her recollection that the Cherrybrook Property was mentioned (TR P22 L45-46).

Queenie submitted that Ms Chan’s recollection of the conference recorded in the file note reproduced at [57] above, namely that she does not think “they” asked about transferring any property, suggests that no instructions to sever the joint tenancy between Joe and the deceased were discussed. However, I reject this submission. At best, Ms Chan does not remember the Cherrybrook Property being discussed. She does not positively deny it being discussed. In a letter dated 26 September 2024 to Edwin’s solicitors, Ms Chan’s firm does deny there being a file or any “case matter” about instructions to sever the joint tenancy, but that is not necessarily conclusive about whether the Cherrybrook Property was discussed at the will drafting conference. Moreover, even if I should take Ms Chan’s failure to recollect a discussion of the Cherrybrook Property as her denying that no transfer of property was discussed, I do not accept that I can give Ms Chan’s recollection much weight. She is not having regard to any file notes to assert a transfer of property was not discussed. Ms Chan is not even sure that the only work she did for the deceased was on the Will. As I said before, it is not clear Ms Chan remembers much of this matter (and I say that without any criticism of her).

I have no contemporaneous evidence to go off about what happened at the will drafting conference. I really only have Queenie’s word against Edwin’s. Both of their evidence is consistent in so far as the Cherrybrook Property was mentioned. I find that the Cherrybrook Property was mentioned at the conference. Queenie appears to have accepted that the reason it was brought up was because the deceased wanted to ask how she might have her share of the property fall into her estate. I also accept Edwin’s evidence to that effect. I therefore find that at the will drafting conference, the Cherrybrook Property was discussed in the context of the deceased wishing to put her half-share in the property into her estate.

Edwin says that the Henry Street Property was discussed. He says Ms Chan and the deceased had a conversation in relation to that property using words to the following effect:

Queenie denies altogether that the Henry Street Property was discussed. In her affidavit affirmed 14 February 2025, Queenie accepted she did not raise the topic of the Henry Street Property but said that was because the topic was not raised by anyone at the conference. She maintained repeatedly in cross-examination that only the Cherrybrook Property was mentioned at the conference (TR P21 L46-48; P22 L26-37, P22 L45-46). She denied the reason she did not mention the Henry Street Property was because there was no trust arrangement concerning that property (TR P23 L1-4) but offered a further reason as to why she didn’t mention it. Her evidence in the witness box was that as her mother was “very sick with cancer”, she did not want to be “arguing about” what her mother wanted to do with her will (TR P22 L39-43).

I prefer Edwin’s evidence as to what happened at the conference. That is, I accept that the deceased mentioned the Henry Street Property in the manner that Edwin describes in his affidavit. He was not directly challenged on his recollection and as stated earlier, I am inclined to generally accept his evidence. I do not find his version of events inherently improbable. While Queenie denies the Henry Street Property was mentioned, Edwin’s recollection of what happened was rather specific. Even though she conceded the Cherrybrook Property was discussed, Queenie gave no particular evidence of what she remembered occurring at the will drafting conference. I therefore cannot accept her bare assertion that the Henry Street Property was not mentioned. This is not because I consider Queenie’s credibility has been impugned. Rather, I do not accept Queenie’s memory of the conference is more reliable than Edwin’s recollection. Queenie also submitted that Ms Chan’s comment to Edwin’s solicitor that she does not think the transfer of property was discussed also goes to show the Henry Street Property was not discussed (TR P115 L40-43). For the same reasons as above, I do not give Ms Chan’s recollections much weight.

As foreshadowed already in [47], Queenie suggested Edwin’s evidence on this issue bore on his credibility. More specifically, she submitted that as the Henry Street Property was not mentioned at the will drafting conference (and to the extent the Cherrybrook Property was mentioned, there were no instructions to sever the joint tenancy between the deceased and Joe), that bore adversely on Edwin’s credibility (TR P115 L40-46). But seeing as I have in fact accepted Edwin’s version of events, this challenge to Edwin’s credibility falls away.

Having found the Henry Street Property was mentioned at the 2023 will drafting conference, I need to consider whether it matters at all. It is evidence of a declaration by the deceased that occurred well after the transfer of the property to Edwin. It seems to be an admission against the deceased’s interest. The terms of the conversation which I have accepted occurred have the deceased acknowledging the property is Edwin’s to keep. This is inconsistent with the notion that the property is being held on trust for the deceased. Accordingly, it appears that the evidence can be permissibly taken into account to assist Edwin’s case. Given the weight of evidence in this case firmly lies against a finding that the Henry Street Property was held on trust by Edwin for the deceased, the outcome of Queenie’s trusts case is not materially altered by my finding. Nonetheless, what I have found the deceased to have mentioned at the will drafting conference is further evidence in support of a finding that her intention was not to retain the beneficial interst in the Henry Street Property.

I also pause to acknowledge that whether or not the Henry Street Property was mentioned at this will drafting conference is ultimately of no assistance to Queenie. The conference is approximately 17 years after the transfer of the property to Edwin. Any failure to mention the property could only be relevant as an admission against a party. It is certainly not against Edwin’s interest that the property was not mentioned, if it was not mentioned. Edwin submitted that if the Court accepts the Henry Street Property was not mentioned, that goes against Queenie’s case, as if the deceased intended the Henry Street Property be part of the estate, so both Queenie and Edwin could share in it, notwithstanding Edwin was then the registered proprietor of the property, she would have mentioned it then. Given I accept the Henry Street Property was mentioned at the conference, I do not need to determine whether I should accept this alternative submission of Edwin’s.

Queenie also raised two other matters which she says point in favour of a trust existing over the Henry Street Property. These do not appear to have been particularly significant points, and I will deal with these summarily.

First, Queenie submits that the fact various possessions of hers were allowed to remain in a garage in the Henry Street Property after she had moved out of the property until the deceased’s death is consistent with the property being “a family resource” and consistent with the deceased retaining the beneficial interest in the property (TR P86 L49-P87 L9, PWS Trusts). I accept Edwin’s response that this is again simply explained by the family relationships underlying this case (TR P101 L1-L19).

Second, Queenie submits that if Edwin truly understood the Henry Street Property to be his own, he would have sold it earlier when it would have been more advantageous for him or when he was married (TR P88 L39-47). I reject the contention that this fact points in favour of the property being held on trust. In isolation, I do not think this necessarily demonstrates the property was subject to a trust. There can be many reasons why the property was held, not least because it was an income-earning asset.

For the reasons stated above, I am not satisfied that the deceased and Edwin shared a common intention or reached an agreement that Edwin would have the Henry Street Property transferred to him as trustee and that the deceased would retain a beneficial interest in the property. Most critically, there is no evidence of the deceased (let alone Edwin) having such an intention prior to or at the time of the transfer of the property. I am satisfied her intention as communicated to Edwin in 2006 was to give the property to him unencumbered by a trust. To the extent Queenie sought to rely on evidence post-dating the transfer of the property, and assuming that evidence was intended to be relied upon as evidence of admissions against interest, I have not been satisfied that the evidence relied upon by Queenie showed Edwin held the property subject to a trust. To the extent Edwin sought to rely on the 2023 will drafting conference as an admission by the deceased against interest, I have accepted that what happened at that conference supports Edwin’s case that the deceased intended to part with the beneficial interest in the Henry Street Property once it was transferred to Edwin.

Queenie’s pleaded case that the Henry Street Property was held by Edwin subject to a trust in the deceased’s favour required her to show there was a common intention or agreement between Edwin and the deceased that the property would be so held. She has not shown such a common intention or agreement. Her trusts case fails and she is not entitled to the declaration sought.

Against the possibility I am wrong to find that there is no common intention or agreement between Edwin and the deceased, I will consider in the alternative the remainder of Queenie’s case.

In the absence of evidence that the deceased, in conjunction with Edwin, had an intention to transfer the Henry Street Property to Edwin as trustee for the benefit of the deceased, there cannot be an express trust.

If I had found certainty of intention on the deceased’s part, to find there was an express trust, I also must be satisfied there is certainty of subject matter and certainty of object. Had it been necessary to decide, I would have been satisfied the other two essential ingredients of an express trust were made out in this case.

There is certainty as to the subject of the trust: the subject is the Henry Street Property.

Is there a certainty as to the object of the alleged trust? As I explained earlier in these reasons at [124]-[127], though Queenie at times in her submissions seemed to oscillate between contending the deceased was the only beneficiary of the alleged trust and contending that the deceased and others in the family were beneficiaries, I have ultimately proceeded on the basis that Queenie’s case, based on her SOC, is that the deceased was the sole beneficiary of the alleged trust. Therefore, there would also have been certainty of object too.

If I had been satisfied that Edwin held the Henry Street Property subject to an express trust, I would have had to address Edwin’s reliance on ss 23C and 54A(1) of the Conveyancing Act as a defence to Queenie’s trust claim.

In his pleadings and in his submissions, Edwin contends that, if an express trust had been found, it would unenforceable by reason of ss 23C(1) and 54A(1) of the Conveyancing Act as the trust was not in writing. For the reasons I explained at [93] above, I do not consider it necessary to refer to s 54A any further.

It is certainly clear that any alleged trust is not manifested in writing. However, Queenie submits that the alleged trust being made orally is not determinative, as equity will not permit the Statute of Frauds to be made an instrument of fraud.

To reiterate, because I have concluded Queenie’s trust claim should fail, it is not strictly necessary to consider whether Queenie would successfully be able to sidestep the requirements the writing requirements of the Conveyancing Act. However, against the possibility I am wrong in rejecting Queenie’s principal claim that there is no express trust in this case, I will address this issue.

Earlier in these reasons, I referred to two circumstances in which the writing requirements of s 23C in particular might be sidestepped.

The first is the doctrine of part performance. It is not apparent to me that the doctrine of part performance should apply in this case to permit Queenie to sidestep the writing requirements in s 23C in proving the trust she alleges.

For one, it is not clear in any event Queenie is relying upon the doctrine of part performance. Edwin, in DWS Closing, at [48], submitted that Queenie “claims part performance”. While Queenie does mention “part performance” in the paragraph of her opening submissions which Edwin cited in his closing submissions (PWS Trusts at [8(b)]), it is not clear that just by mentioning the doctrine of part performance, without elaborating on it, Queenie intends to rely on it. There is nothing in the pleadings foreshadowing Queenie’s intent to invoke the doctrine of part performance. In PWS Supplementary, Queenie does again mention part performance, and the decision of Meshumar, but only to make a broader point about how a court of equity will not permit the Statute of Frauds to be made an instrument of fraud (this doctrine was said to underlie the law of part performance). This is also what occurred in oral closing submissions (see TR P93 L14-23).

If Queenie did seek to rely on part performance, she did not point to any acts that unequivocally, and in their own nature, are referable to an assurance of the general nature of that alleged that could constitute part performance.

I again note that Queenie pleaded no acts of part performance. She made no oral submissions about such acts. In PWS Trusts at [8(b)], Queenie referred to the “giving and taking of title to land”, citing Regent v Millett (1976) 133 CLR 679 (Regent v Millett) at 683 (Gibbs J, with whom Stephen, Mason, Jacobs and Murphy JJ agreed); [1976] HCA 40 to say that such an act is an act of part performance “par excellence”. Beyond this, it is not clear that Queenie is even attempting to invoke the doctrine of part performance.

If Queenie intended to submit that the doctrine of part performance applies here, I would have rejected it. First, again, there was no pleading of part performance. Second, and more fundamentally, I would accept Edwin’s submission that the transfer of the Henry Street Property to Edwin is not something which is unequivocally and, in its nature, referable to a declaration of trust respecting land.

The reliance by Queenie on Regent v Miller is not apposite. In that case, what Gibbs J was referring to as an example of an act of part performance par excellence was the giving and taking of possession. In that case, the respondents had taken possession, but title had not been transferred to them yet pursuant to the unwritten contract in that case. The very point of the action commenced by the respondents, as plaintiffs, in Regent v Miller was to obtain a transfer of title to them.

Queenie provided no reason that a transfer of land to Edwin in this case is, in its own nature, unequivocally referable to the declaration of a trust. In Li v Tao at [59], it was said that the putting of the property in issue in that case in the appellant’s name (the alleged trustee) was not unequivocally referable to the property being held on trust. Even without the benefit of a statement rejecting such a broad contention from the Court of Appeal, there is nothing about a transfer of property from one to another that is unequivocally referable to a declaration of trust. Certainly, Queenie gave no suggestion to say otherwise.

For those reasons, if part performance is being relied upon by Queenie to avoid the writing requirements of s 23C of the Conveyancing Act, I would have rejected that reliance.

The second circumstance in which the writing requirements of s 23C could be avoided is by the principle in Rochefoucauld.

If there had been an express trust made out in this case, I would have accepted Queenie’s submissions that the principle was applicable in this case. The four requirements which must be met for that principle to apply appear to have been met here.

Here, the trust alleged by Queenie was that the deceased agreed with Edwin that he would hold the Henry Street Property on trust for the deceased. Like in Li v Tao, had an express trust been found in this case, the first two requirements of the principle in Rochefoucauld would have been met: Edwin had the land conveyed to him on trust, and he knew that that was so, given I would have had to conclude he agreed that would be the case. Edwin conceded as much in his oral closing submissions (TR P111 L22-30).

Immediately prior to his concession, Edwin had initially submitted that the Court should not find that Edwin knew about any intention the deceased may have had that the Henry Street Property was to be held on trust by him (P111 L15-20). If the focus of Queenie’s case had solely been about what the deceased (and perhaps Joe) intended, this submission may have been an answer to Queenie’s attempt to rely on Rochefoucauld. But Queenie’s case also relies on Edwin’s agreement. If I had found there was an express trust, that would have been because Edwin and the deceased had formed such an agreement. That was Queenie’s pleaded case. Accordingly, even without Edwin’s concession, there could not have been any room to suggest Edwin somehow both agreed to the transfer of the Henry Street Property to him subject to a trust relationship, and yet did not know about it. There may be a set of facts where a party to an agreement to establish a trust could be said to not know about that agreement. This is not such a case. I would have rejected Edwin’s submissions that the second element identified in Rochefoucauld was not satisfied. In any event, Edwin ultimately conceded the point.

The remaining two elements of the principle in Rochefoucauld are easily satisfied. Edwin is denying the trust and he is doing so in order to claim the land for himself. He is the registered proprietor and denying the trust means he would get to keep the Henry Street Property for himself.

It follows that if I had concluded there was an express trust in the deceased’s favour concerning the Henry Street Property, then applying the principle in Rochefoucauld, I would have accepted Queenie’s contention that Edwin cannot deny the trust notwithstanding it is not manifested in writing.

In Harvey, Peden J observed that for a common intention constructive trust to arise, it must be established that the plaintiff, or in this instance, the deceased, relied to their detriment on the common intention as to ownership, and it would be unconscientious for the owner to deny the beneficial interest.

Edwin submitted that Queenie has failed to prove detrimental reliance, and that nothing of that nature is present (DWS Closing [58]-[60], TR P109 L45-P110 L8).

Queenie never specified any potential acts of detrimental reliance. For that reason alone, I would have been inclined to reject any case founded on a common intention constructive trust, if it were necessary to decide.

Edwin submitted that the transfer of the Henry Street Property itself could not constitute detrimental reliance, in that it is not an act which the deceased could not reasonably be expected to embark upon unless she were to have an interest in the property (TR P109 L50-P110 L3). Edwin said it was natural for the deceased to transfer the property to her only son in circumstances where Queenie was “already established in life at the time” (DWS Closing [60]).

Having regard to all of the circumstances, I find that Queenie has not proved any detrimental reliance.

However, to the extent this issue is being decided in the alternative, I am to decide whether there is detrimental reliance in the context of a hypothetical finding, contrary to the conclusion I actually reached. That is, that there was a common intention or agreement that Edwin would hold the Henry Street Property on trust for the deceased. Detrimental reliance may be inferred from the same evidence from which a common intention is inferred (Harvey at [25(7)]). However, Queenie ultimately never identified an act of detrimental reliance at any point during her case, and so it is not necessary to deal with, in the alternative, Edwin’s submission that the transfer of the property to Edwin did not constitute detrimental reliance in this case.

In the absence of any established trust, the Henry Street Property thus does not form part of the estate of the deceased.

Edwin has attained indefeasible title to the Henry Street Property on registration of his proprietorship, per s 42 of the Real Property Act 1900 (NSW). As there is nothing to impeach his title nor is there an equitable obligation on Edwin regarding the property by reason of any subsisting trust relationship, Edwin must retain the property.

A family provision order was sought by Queenie in the alternative. In the SOC, the plaintiff pleads as follows:

The orders I made on 17 December 2025, by consent, included a direction to each party to serve on all other parties and provide by email to the Chambers of Bennett J a written outline of submissions and a chronology of relevant events by 4:00pm on 29 January 2026.

In compliance with this order, Queenie filed opening submissions dated 29 January 2026, which were PWS Trusts. No submissions were made on family provision in this document. DWS Opening, also filed in compliance with the orders made on 17 December 2025, contained submissions on the family provision claim.

Queenie filed supplementary opening submissions, being PWS Family Provision, on 2 February 2026, which were received electronically by my Chambers at 9:27am that morning. This was one day before the hearing was set to commence.

Such delayed submissions had the potential to create a procedural fairness problem for Edwin, as Edwin would have had a limited opportunity to address Queenie’s submissions with a satisfactory level of detail.

The submissions contained in PWS Family Provision are also sparse on details. The submissions are 16 paragraphs long, contain no references to any case law, mention the Succession Act 2006 (NSW) only regarding Queenie’s eligibility under s 57 and without regard to the rest of Ch 3, and instead focus primarily on setting out Queenie’s financial circumstances.

Towards the end of oral closing submissions by counsel for Queenie, I raised my concern as to Queenie’s submissions in relation to the family provision claim (TR P95 L1-44):

The above was the sum total of oral submissions made on behalf of Queenie in relation to her alternative family provision claim.

Edwin made further submissions about the paucity of information before the Court in relation to Queenie’s family provision claim.

In the DWS Opening, Edwin observes “[o]n the family provision claim, at the time of the preparation of these submissions, Queenie has not served her updating affidavit.” I note such updating affidavits are standard practice, as the Court is required to have regard to facts known to it at the time of making the order (per Hammerschlag CJ in Eq in Baker v Baker [2024] NSWSC 559 at [22]-[24]; see also Rodny v Weisbord [2024] NSWCA 183 at [2]-[3] (Ward P), [11] (Stern JA), [67] (Basten AJA)).

The most recent affidavit outlining the financial circumstances of Queenie was that dated 28 October 2024. No updating affidavits were provided.

I also note that the schedule summarising Queenie’s financial circumstances provided by her were only three pages long. Details such as a valuation of the townhouse owned by Queenie in Telopea were not presented, and instead the Court was asked to rely on an estimate provided by Queenie with no understanding as to how this estimate was reached.

The Court is thus in an invidious position, being asked to make a judgment on family provision in the absence of substantive detail.

Notwithstanding this, I note the observations of Campbell J in Collings v Vakas [2006] NSWSC 393 at [67] concerning the standard of up-to-date financial disclosure required by the Court. His Honour stated:

Accordingly, I will still address family provision, as I have been provided with the broad outline of Queenie’s financial position.

I will also observe, however, that I am entitled to draw unfavourable inferences to Queenie where there is uncertainty left by imprecise or inaccurate evidence presented to the Court: Blendell v Blendell [2020] NSWCA 154 at [28]-[29] (Meagher JA, Gleeson and Leeming JJA agreeing).

In Pilatos v Whillier [2025] NSWSC 1221 at [92]-[99], I summarised the principles governing family provision applications generally. At [100], I also summarised the principles regarding family provision and adult children. Without reproducing those paragraphs in this judgment, I will apply those same principles here.

Edwin also drew my attention to Georgopoulos v Tsiokanis [2022] NSWSC 563 at [309], where Hallen J made the following observations about family provision for adult children:

Queenie contends (inferentially, as she does not otherwise engage with the legal test) that adequate provision for her proper maintenance, education or advancement in life has not been made by the Will.

Queenie submitted that her financial circumstances were such that she would not be able to adequately provide for herself in retirement (PWS Family Provision [14]).

Edwin has raised his own circumstances as a competing claimant, as he is entitled to do.

With respect to this claim, Edwin submitted in his DWS Closing that:

Queenie’s primary asset is a townhouse in Telopea, with an estimated value of $1 million and a mortgage of $290,000.00 in October 2024. I note this estimation is merely Queenie’s best approximation and not a formal valuation.

As of October 2024, Queenie had approximately $30,000 in savings. She also had $225,017.03 in superannuation.

As of October 2024, Queenie had an annual salary of approximately $113,000, being an annual net salary of $85,870.08. Her net monthly expenses were $6,723.03, that is, expenditure not exceeding the income of her family.

I observe again that no updating affidavit was provided by Queenie.

Noting the net distributable estate of the deceased is said to be $503,039.65, Edwin submits that, if this application had not been made, the provision for Queenie would have been in the order of $251,500. This would have allowed Queenie to reduce her mortgage to $45,000 and increase her ability to save for retirement (DWS Closing [71]-[73]).

Further, Edwin submits that the Queenie’s expenses are likely to be significantly reduced compared to October 2024 now her daughter has finished school (which Queenie admitted in cross-examination (TR P24 L1-10)) and she continued to make mortgage repayments for over a year (DWS Closing [73]). Queenie conceded in cross-examination that the statement of her financial circumstances from October 2024 is not an accurate summary of her financial circumstances today (TR P24 L12-15).

Second, Queenie makes the following submission (PWS Family Provision [11]-[13]):

Queenie provided no further submissions on what the testamentary intentions of the deceased were.

Finally, Edwin submitted that he has greater need to retain the provision made for him under the Will (DWS Opening [21(d)]).

Edwin’s primary asset is his property in Good Street, valued at $525,000. The mortgage was paid off by the proceeds of sale of the Henry Street Property. I note this estimation is also merely Edwin’s best approximation and not a formal valuation.

Edwin has approximately $19,535 in his bank account and $337,249 in his superannuation account. His wife has approximately $13,000 in savings, and the balance of his wife’s superannuation was not put in evidence. Edwin also has a motor vehicle valued at $20,000, and his wife also has a motor vehicle with a value not provided.

Edwin has a gross annual income of $115,203. His wife has a gross annual income of $107,713.

Edwin submits that his primary financial need is that him and his wife plan to have children in the future, and he intends to use provision made for him under the Will to purchase a home suitable for his future family.

In these proceedings, it is common ground that Queenie is an eligible person, being the child of the deceased (s 57(1)(c) of the Succession Act) and that the application by Queenie was made within time (s 58 of the Succession Act).

I also observe that in determining whether adequate provision for the proper maintenance, education or advancement in life of Queenie has been made by the Will, I should have regard to all of the circumstances of the case as well as the matters set out in s 60(2) of the Succession Act.

I accept that the deceased had a moral duty to make some provision for Queenie. However, I am of the view the deceased discharged that duty in the provision that was made for Queenie under the Will.

First, Queenie has stable financial prospects. I make this point noting that, based on the information before the Court:

I also observe that Queenie’s expenditure may have decreased now her daughter has finished school, her home loan may have been serviced further, and her income, superannuation and savings may have increased. I am entitled to make unfavourable inferences on Queenie’s position considering an updating affidavit was not provided.

I accept the submission from Edwin that no financial hardship was argued by Queenie.

I reject the submission that Queenie is unable to adequately provide for herself in retirement. I firstly observe that the assumption given by Queenie that she would be unable to remain in employment beyond the age of 65 is unsubstantiated, particularly considering no health concerns were raised and she works as a Demand Planner in Supply Chain with Manassen Foods. I also observe that, more generally, I was not provided with sufficient evidence to come to a reasoned judgment about this claim, as no estimates were provided to me about Queenie’s ongoing needs or expenditure, or why her current assets were insufficient to meet these. Finally, I accept the submission that the community generally does not expect a parent to look after their children for the rest of the child’s life and into retirement (see also, Limberger v Limberger [2021] NSWSC 474 at [473] (Hallen J)).

The Court does not consider this evidence establishes a need that would lead to a conclusion other than that Queenie was adequately and properly provided for in the Will.

Queenie made no submissions with respect to the deceased’s testamentary intentions directly, aside from her arguments in relation to her trust case.

The implicit submission from Queenie is that the deceased intended that her children be provided for equally, per the language of the Will.

In considering the issue of the respect to give to a capable testator’s will, I note the oft cited authority of Slack v Rogan [2013] NSWSC 522, where White J noted at [127] (emphasis added):

It is clear that the starting point for considering the deceased’s testamentary intentions is the terms of the Will itself. There is no evidence before me to suggest the deceased was anything other than capable of giving due consideration to what provision should be made to her children and did that in the Will. Considerable weight should therefore be given to the testator’s testamentary intention as expressed in the Will.

I therefore do not accept the submission that the deceased would not have intended for Queenie to get $250,000 in the Will, whilst Edwin was provided for with approximately $775,000 in his life, considering both the provision made for him under the Will and the transfer of the Henry Street Property to him. The deceased’s conceptions of equality, whatever they may be, are not something for the Court to try to go behind.

I observe that no submissions were made as to contributions made by Queenie (pursuant to s 60(2)(h) of the Succession Act) or Edwin to the welfare of the deceased or her estate. I do note however, that it was submitted by Queenie that “[t]here is nothing in the evidence to suggest that the plaintiff was anything other than a loving and dutiful daughter” (PWS Family Provision [16]).

As to the circumstances of Edwin, I find these carry little weight when they are objectively equal to or better than Queenie’s. Edwin has an equivalent salary, nearly equal savings to Queenie, and more money in superannuation. Furthermore, Edwin has the proceeds of the sale of the Henry Street Property.

I note Edwin submitted he had greater financial need as he and his wife intend on having children in the near future and need a larger house. This submission is of some relevance to establish that Edwin has competing financial needs. However, I consider that this carries only minimal weight considering the dual income of Edwin and his partner. It is my view that Edwin and Queenie are, in a broad sense, in similar financial positions and both are of stable financial prospects.

As a consequence of a consideration of the evidence put before the Court in this application, and the submissions made in support of a family provision order, and against, I have formed the view that adequate provision was made for the proper maintenance, education or advancement in life of Queenie in the Will. In forming this view, I had regard to Queenie’s financial and material needs, but also to a broad range of matters, including the testamentary intentions of the deceased and the financial position of Edwin.

In the event that I erred in reaching this conclusion, in considering the discretion given to the Court under s 59(2) of the Succession Act, I would still not exercise my discretion and make an order for provision for Queenie from the deceased’s estate. In declining to exercise this discretion, I affirm the matters considered and raised above.

The relief sought for further provision for Queenie from the deceased’s estate is therefore declined.

As is uncontroversial, s 98(1) of the Civil Procedure Act 2005 (NSW) (CPA) gives the Court a broad discretion with respect to costs, though that discretion is to be exercised judicially: Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (No 2) [2025] NSWCA 218 (Stern and Ball JJA, Griffiths AJA); Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 at [136] (McColl JA, Sackville AJA and Adamson J agreeing).

The general rule is that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: UCPR r 42.1. Whether a costs order departing from the general rule should be made will depend on the circumstances of the case viewed against the wide discretionary powers of the Court, which powers should be liberally construed: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [8] (Beazley, McColl and Basten JJA); State of New South Wales v Stanley [2007] NSWCA 330 at [18] (Hislop J, Beazley and Tobias JJA agreeing).

Edwin has been wholly successful in the proceedings. My preliminary view is that costs should follow the event and Queenie should be ordered to pay Edwin’s costs on the ordinary basis. Additionally, my preliminary view is that Edwin is entitled to his costs out of the estate pursuant to r 42.25 of the UCPR.

However, I will not make any costs orders for the moment and I will instead give the parties the opportunity to either agree on the appropriate orders or to otherwise make submissions on costs. I did indicate to the parties during the hearing that I would give them the opportunity to be heard on costs.

I also note that Edwin, in DWS Opening at [1], referred to an order by Slattery J on 4 March 2025 pursuant to r 42.4 of the UCPR which fixed the maximum costs recoverable by one party from another. I cannot find a costs-capping order made by his Honour on that day. However, on 4 March 2025, his Honour made the following relevant notations:

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