Guo v Gao

People disappear - maybe as a result of a tragedy, maybe for other reasons, or, sometimes, for reasons unknown. It may be impossible, at a particular time, to say, with certainty, in relation to a particular person, that she or he, is, in fact, no longer alive. If a person has disappeared, leaving no trace behind, but leaving property, both real and personal, in New South Wales, and it is not known whether she, or he, has died, how is the law to deal with her, or his, assets, deal with representation to be granted of her, or his, estate, and then the distribution of that estate? When, and in what circumstances, can the person, who cannot be located, be presumed dead? These are some of the questions that will need to be answered in the present proceedings.

By Summons filed on 1 October 2019, the Plaintiff, Sijia Guo, who is the daughter of Wiehong Guo (to whom I shall refer, hereafter, without disrespect, as “WG”), sought various forms of relief, including for a family provision order under Chapter 3 of the Succession Act 2006 (NSW). The relief claimed was based upon the premise that WG was dead.

The Defendant named in the Summons was Yong Wei Gao, the husband of WG (but not the father of the Plaintiff). They were married to each other in about March 2000 and remained married at the date of WG’s disappearance.

The proceedings were commenced in the Equity General List, and were referred into the Succession List following an application for substituted service upon the Defendant. (Nothing needs to be said about that application other than to note that it was necessary for the Plaintiff to seek orders for substituted service.) The reasons why the proceedings had not been commenced in the Probate List (as the Succession List then was), and explaining the delay in transferring it to the Succession List, were not elucidated.

On 7 September 2020, at the first directions hearing in the Succession List, counsel appeared for each of the parties. Due to the nature of some of the relief sought, an order was made that the matter continue by pleadings and directions were made in respect of those pleadings.

By Statement of Claim filed on 14 September 2020, the Plaintiff sought various orders in relation to WG, including the declaration referred to, and a declaration that she had died intestate. Presumably, this was done in order to enable a grant of administration to be made relating to the estate of WG and so that the other claims for relief in the Statement of Claim could be determined.

In discussion with the Court, at an early directions hearing, the relief sought by the Plaintiff was refined to seek, amongst other relief, a declaration that WG should be presumed to be dead.

On 9 October 2020, the Defendant filed a Cross-Claim in which he sought certain relief by way of a declaration of trust in relation to real property at Carlingford, of which property he and WG are registered proprietors as joint tenants. As well, he sought a family provision order under Chapter 3 of the Succession Act. The relief that he sought was also based upon the premise that WG was, or should be presumed to be, dead.

On 9 October 2020, directions were made for the filing and service of affidavits. Further directions were made, on a number of occasions, to enable additional evidence to be filed and served.

On 1 March 2021, the parties’ legal representatives informed the Court that the evidence was complete (other than evidence relating to some property in China). How the Court should deal with the relief claimed, in circumstances where there was no evidence that WG had died, was then the subject of some debate.

On 22 March 2021, counsel for the parties, jointly requested the Court to deal, by way of a separate question, with the declaratory relief going to whether WG should be presumed to be dead, upon the basis that there was no dispute, between them, that the declaration sought should be made. Neither had filed a notice of motion and the application was made orally. As it was a joint application, I dispensed with the requirement to file a notice of motion.

Uniform Civil Procedure Rules 2005 (NSW) rule 28, relevantly, provides that the Court may make orders for the decision of any question separately from any other question, whether before, at, or after, any trial, or further trial, in the proceedings. A “question” includes any question or issue in any proceedings, whether of fact or law, or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.

I have stated a summary of the principles to be applied on whether a separate question should be permitted to be determined in Southwell v Bennett [2010] NSWSC 1372 at [15] - [17]. The principles stated in that case were referred to, more recently, by Lonergan J in Loretta Craig v Anthony Johnson [2020] NSWSC 430 at [26]–[28] and by Davies J in Combis & Staatz as joint and several liquidators of RB Hospitality Holdings Pty Ltd (in liq) v Lee [2020] NSWSC 960 at [27]. Davies J also referred to Crawley v Vero Insurance Ltd & Ors [2012] NSWSC 593, in which Beech-Jones J adopted the principles and made five further points. I shall not repeat what was stated in each of the cases.

Despite “the high hurdle that needs to be overcome to secure an order for a separate question” (Sydney Local Health District v Macquarie International Health Clinic Pty Ltd [2020] NSWCA 274, at [187]), I was satisfied, in this case, that an order for the determination of a separate question should be made.

My reasons for doing so were as follows. I considered that the application was a joint application made by the parties; that the judicial determination of the separate question would involve a conclusive, or final, decision, based on concrete and established facts and, if applicable, a presumption of law; that the overriding purpose of s 56 of the Civil Procedure Act 2005 (NSW), namely the just, quick and cheap resolution of a real issue in the proceedings, would be achieved; the separate question would be able to be resolved, more expeditiously; that the hearing of the balance of the proceedings would then be able to proceed; that there would not be likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at a trial of the remaining questions; and that the determination of the separate question would enable a sensible re-assessment of litigation risks, which, generally, is likely to encourage some form of settlement discussions and may contribute to the settlement of the balance of litigation.

Before the separate question was listed for hearing, it was necessary to also consider whether a proper contradictor was required as the Plaintiff and the Defendant were not in dispute on the issue. I have recently dealt with a similar issue in The Estate of Alan Bruce Beeby [2020] NSWSC 1512 at [55] – [61] as follows:

As in The Estate of Alan Bruce Beeby, I was satisfied, here, that there is no need for a contradictor on the separate question, mainly because the evidence, to which I shall refer, appears to be all one way. The material before the Court, which goes to establishing the necessary elements to enable the question to be answered, will be considered in order to determine whether it provides a proper basis for making the declaration sought by the parties. In any event, there is not any person who, or entity which, would have a sufficient interest to oppose the making of the declaration, or be able to add anything to the evidence that the parties, themselves, have adduced.

There was also sufficient evidence that the next of kin of WG have been notified, or, at least, are aware, of the proceedings. As already stated, the Plaintiff is the only child of WG; the Defendant is WG’s husband; WG’s first husband is a witness in the proceedings and he has given evidence of having had discussions with WG’s parents since WG’s disappearance in 2001. WG’s brother is also a witness.

(There was no evidence that WG was insured at the time she was last seen or heard from. If she had been, evidence would need to be given that the insurer had been notified at least seven days before the hearing: see, Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice: New South Wales (LexisNexis Butterworths) at 9234 [5067]; Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Lawbook Co) at 641.

In all the circumstances, I was satisfied that it would be appropriate to determine, by way of a separate question, what was sought, without the need for a contradictor.

By these reasons, because the question posed has been decided as a separate question, I shall give, or make, such judgment or order as the nature of the case requires.

Following the request made by counsel for the determination of the separate question, the Court made directions regarding an agreed statement of issues to be subsequently determined by the Court (a) that were not disputed by the parties and (b) that were in dispute. On 22 April 2021, counsel forwarded to the Court a joint document setting out certain agreed facts as well as matters in issue. I shall refer to the agreed facts later in these reasons. One fact, however, was that “Weihong Guo disappeared on or about 11 April 2001”.

The matters in issue, which went to the substantive remaining dispute between the parties, were:

Following receipt of the email to which the Statement of Issues was attached, my Associate, at my request, sent an email, in the following terms, to counsel for the parties:

Despite my suggestion that if the declaration sought were made, an independent administrator of WG’s estate might be appointed, the Defendant, by his counsel, prior to the hearing of the separate question, did not agree to that course. Presumably, this response prompted the Plaintiff, on 16 June 2021, to file a notice of motion, in which she sought, amongst other interlocutory relief, an order that Mark Henrick Peoples, a solicitor, be appointed as an independent administrator of WG’s estate.

At the hearing of the separate question, the Court again raised the question whether, if the separate question were determined as sought by the parties, a grant of administration of WG’s estate could be made, and if so, to whom the grant should be made, before the other issues existing between the parties were determined.

An opportunity was given to the legal practitioners to discuss this issue and to also consider how the balance of the proceedings should continue. When the Court adjourned to further consider the evidence and the oral submissions, the parties were able to agree that upon a declaration being made, and the Court being satisfied that WG died intestate, there should be a grant of administration of her estate, on intestacy, to Mr Peoples.

I commend the legal representatives of both parties, and the parties themselves, for adopting the sensible, and practical, course of having an independent solicitor seek the grant of administration. The Plaintiff resides in China, the Defendant in Western Australia, and the Carlingford property, the subject of one of the remaining disputes, is in Sydney, New South Wales. The agreement is one that is in the interests of the parties.

It will be necessary to remit the matter to the Senior Deputy Registrar in Probate to deal with the application for the grant following these reasons being published.

The separate question was listed for hearing on 19 August 2021. Mr T J Morahan of counsel appeared for the Plaintiff and Mr K Morrissey of counsel appeared for the Defendant.

Prior to the hearing, in accordance with directions made, the Court was provided with a document dated 30 March 2021 headed “Joint Submissions on the Presumption of Death of Weihong Guo”. Subsequently, on 10 August 2021, each counsel provided an outline of written submissions.

The Plaintiff read the following affidavits:

In addition, counsel tendered a copy of the Statement of Police of Senior Constable Steven McAlister, which was marked as Exhibit P1.

The Defendant only read his affidavit affirmed 30 November 2020.

There were no objections to any parts of the affidavits and none of the deponents was cross-examined.

Following an adjournment of the hearing, the Court indicated that orders and directions in terms similar to those that appear at the conclusion of these reasons would be made. A draft form of orders (which, subsequently, was amended slightly) was provided to counsel, with which orders and directions they agreed. I stated that reasons for making those orders and notations would be published. These are the reasons.

It is necessary, first, to state some of the relevant facts relied upon by the parties. Because of the significant time that has passed between the date on which WG disappeared and the date of the hearing, I shall divide the facts to cover a period that occurred before, and then after, the date of her disappearance. What follows is taken from the agreed facts, or admissions in the pleadings, and a consideration of the affidavits, so far as they are relevant only to the issue to be determined as a separate question.

WG was born in September 1968, in the Sichuan province in Southwest China. She completed her schooling in 1987, and between 1987 and 1991, she studied at the South West Finance and Economics University, a national university in Chengdu, Sichuan province, in the Peoples Republic of China. At the time she was last seen, she was almost 33 years old. There was no evidence that she was, then, suffering ill-health.

WG is the youngest of three children, the other two being her brother, Xian, and her sister, Wenjun Guo.

Between 1991 and 1999, WG was employed in various finance roles in China.

The Defendant was born in Qing Sheng, a small town in China, in April 1963. He finished his schooling in 1986, having achieved a degree majoring in English and international marketing. Thereafter, he worked, first, as a teacher and then as a manager in import and export companies for about 4 years.

WG and the Defendant commenced communicating by letters and telephone calls in about 1990. They commenced a relationship and began living together in February 1992.

In December 1992, the Defendant emigrated from China to Australia, having been granted an Australian student visa to study computing at a business college in Sydney.

In about 1994, the Defendant applied for permanent residency in Australia.

WG and the Defendant kept in contact until, in 1993, she told him that she was getting married. Their relationship then ended.

WG married Jin Hua Guo in 1994. (It is merely a coincidence that he and the Defendant share the same family name.)

The Plaintiff was born in March 1995.

WG and Jin Hua Guo separated in 1999. They were divorced in about January 2000.

Whilst custody was granted to her father, after the divorce, the Plaintiff went to live with her maternal grandparents in Luzhou City, Sichuan Province, until about 2003, when she returned to live with her father.

On 15 June 1999, the Defendant travelled to China and, whilst there, he met WG again. She told him that her marriage had ended and she expressed an interest in returning, with him, to Australia.

In October 1999, WG obtained a tourist visa and travelled to Sydney for about one month.

In 1999, WG had a conversation with her brother, Xian, in which she spoke of taking money to Australia and bringing the Plaintiff and also their parents to Australia, at some time in the future.

In January 2000, the Defendant and WG met, again, in China. On about 15 February 2000, by which time she was divorced, they returned, together, to Australia.

WG remitted the amount of Chinese Yuan Renminbi 6,000,000 to Australia at that time.

The Plaintiff also recalled being told, by her grandmother, that WG had travelled to another country, and that her mother would take the Plaintiff to live with her there. The Plaintiff also recalled WG regularly telephoning her and saying words to the effect of “Mummy is waiting for you to come here. Mummy has prepared you a big house and a big swimming pool”: Affidavit, Sijia Guo, 3 July 2020 at par 13.

Apparently, on 29 February 2000, WG withdrew AUD$15,000 from a joint bank account that was conducted with the Defendant and travelled to Hong Kong. She returned to Australia on 12 March 2000.

On 18 March 2000, WG and the Defendant were married to each other in accordance with the laws of Australia.

On 6 June 2000, WG travelled to China. She returned in July 2000.

WG obtained permanent residency in Australia in 2000.

The Defendant went to China in December 2000 and returned in late December 2000. He went there, again, in January 2001 and returned a short time later.

The Defendant and WG purchased a property at Edinburgh Avenue, Carlingford (“the Carlingford property”), as joint tenants, on 3 October 2000. The purchase price was $470,000. There is a dispute as to the source of the purchase price. (That is one of the issues in dispute that is yet to be determined.)

At the date of the Contract for the purchase of the Carlingford property, WG was overseas. She had travelled to China, again, in September 2000. She returned to Australia in October 2000.

In February 2001, WG enrolled in two English courses, which she attended from 8 February 2001 until early April 2001.

The evidence reveals that until April 2001, WG would write to the Plaintiff and to her parents to express her desire that they should all come and live in Australia:

There is no evidence of any letters or emails having been received by the Plaintiff from WG since April 2001.

WG’s brother, Xian, stated that he usually received an email from WG every four or five days. He did not receive any email correspondence from her after April 2001.

(Xian said he received an email dated 11 April 2001, from WG’s email address, indicating that she would be travelling to Hong Kong and then to China, on a false passport. He said that he did not think that the email had been written by WG. The Defendant, during the Coronial Inquest, denied that he had sent the email: CIT68.44-46. It is not possible to determine this issue, but as will be read, no other emails, subsequently, have been received.)

The Defendant stated that, occasionally, when WG went to China, she would not tell him her plans, or when she was going, but would merely ask to be dropped off somewhere. However, in April 2001, WG told the Defendant that she wanted to go back to China to (amongst other things) to “see about getting her daughter to Australia”: Affidavit, Yong Wei Gao, 30 November 2020 at par 65.

On 11 April 2001, WG withdrew $1,000 from her bank account. Subsequently, she asked the Defendant to drop her off at a bus stop, with a handbag and one suitcase, at Pennant Hills Road, Carlingford, which he did. He said that it was the last time he saw her.

The last time a neighbour in Carlingford saw WG was in about April 2001.

In about May 2001, the Defendant was hospitalised at Royal North Shore Hospital.

There is an extremely detailed written Statement, dated 10 November 2009, of Inspector Darren Newman of NSW Police, a copy of which is annexed to the affidavit affirmed 4 June 2021, of Zhi Li, solicitor. In the Statement, Inspector Newman details the investigations, searches, and enquiries, made by members of the NSW Police following the making of a missing person’s report in late 2001 (to which I shall refer) until about 2009.

There is also a Statement of Police dated 22 December 2011 by Senior Constable S McAlister (Ex P1), in which he sets out the enquiries made by him, including with the Department of Immigration and Citizenship, with banks and financial institutions, with the Australian Police Service, including with the State Coroner’s Office, with Centrelink and with the Health Insurance Commission. The enquiries were unsuccessful.

A relatively short summary of what is revealed in the two Statements is as follows.

WG’s brother, Xian, attempted to contact WG by telephone and by email for two months after early April 2001.

The Defendant forwarded a letter dated 31 December 2001, by facsimile transmission to NSW Police stating that he had not seen or spoken to WG since April 2001, had travelled to China to make enquiries of members of her family, without success, and “was very confused on what may happen to her. I have tried all my efforts and am still trying but so far I have not got the information regarding her whereabouts”.

In about January 2002, Stephen Kwok Kan Yu, a friend, on behalf of the family of WG in China, reported her as a missing person to the Police Service of New South Wales at City Central Police Station.

Attempts to involve the Missing Persons Unit of NSW Police have not resulted in locating WG. As at 4 October 2011, the Missing Persons Unit conducted inquiries (through Senior Constable McAllister) with the Department of Immigration and Citizenship. Its records revealed no movements into, or out of, Australia, by WG, following her re-entry into Australia on 22 October 2000.

Enquiries were also made with all Police Missing Persons Units throughout Australia. It was requested that each State and Territory make inquiries with all known information sources, in the respective State or Territory, including inquiries with the State Coroner's Office for records relating to WG and all unidentified bodies. Each State and Territory Missing Persons Units replied that it had no information in respect of WG.

WG’s Medicare card had expired on 22 March 2003. On 4 October 2011, NSW Police inquired with Medicare for updated information. On 22 December 2011, Medicare records indicated that there had been no medical services for which a Medicare, or PBS (Pharmaceutical Benefits Scheme), benefit, had been claimed since WG’s disappearance in April 2001.

On 4 October 2011, NSW Police checked the New South Wales Police mainframe in relation to the COPS (which I assume is Community Oriented Policing Services), RTA and the integrated licensing system, and there had been no entry into any of the systems for WG, since her disappearance. (WG had obtained her driver’s licence in the latter part of 2000).

On 6 October 2011, requests were made by the Police to St George, CBA, NAB and Westpac inquiring whether any of those banks held any accounts under the name of WG. A reply received from each Bank stated that no accounts were held.

On 6 October 2011, NSW Police also contacted Centrelink. The reply stated that, as at 14 October 2011, WG had not been a “customer” of that organisation.

Other NSW Police searches and enquiries made, including those of, and with the Defendant, and other persons, in 2002, 2003, 2005, and 2006, are stated in meticulous detail.

The Statement made by Inspector Newman concluded:

Despite what may have been the suspicions of the NSW Police, and others, no charges were ever brought against any person.

On 10 September 2012, the then State Coroner, M Jerram, following an inquest into the missing person report relating to WG, handed down an:

In that Coronial Inquest, the Defendant gave evidence. He said that he did not know where WG was, that he did not know whether she was alive or dead, that neither he, nor any person he knew, had anything to do with her disappearance, and that he had not killed her.

In May 2013, the Defendant lodged an Application for Possessory Title in respect of the Carlingford property with the Registrar General under s 45D of the Real Property Act 1900 (NSW).

On 22 May 2017, the Plaintiff lodged a caveat with the New South Wales Land and Property Information division prohibiting the grant of any application for possessory title.

The Plaintiff has stated that she has not seen, or heard, from WG since 2000. More recently, she has been in contact with NSW Police to ascertain whether there had been “any updates on [WG’s] disappearance” and was told “there were no further updates”. Although the Plaintiff has not specifically stated that she has not heard from WG, it is the only inference that can be drawn in all the circumstances of the case.

Xian, WG’s brother, stated, in his affidavit affirmed 13 May 2021, that he has had:

In his affidavit affirmed on 13 May 2021 Jin Hua Guo, the former husband of WG and the father of the Plaintiff, confirmed that since April 2001, he has not heard anything from WG. He adds that he has kept in contact with WG’s parents, and that they have told him they have not heard from her either. He has also searched through WG’s belongings, in his possession, that she left in China, but has not found “any will or documents of such nature”.

The Defendant has stated, in an affidavit affirmed on 30 November 2020, that he has not had any contact with WG since he dropped her off at the bus stop. He states that she “has not made any transactions on any bank accounts and credit cards known to me… since that time”. He adds that after she disappeared he has “spent a lot of time and money trying to locate her. I went to China, Hong Kong, Canada and USA to look for her.” He has also contacted various identified banks and has found “no record of any account being held either by my wife or myself with those banks”.

The Defendant formed a new relationship, and between 2004 and 2019 was in a de facto relationship with Shaorong Zhan. He moved to New Zealand in 2004 and moved to Perth in 2009 where he lived with Ms Zhan until 2019, when she returned to China. He currently lives in Woodvale, Western Australia.

Finally, in the Statement of Claim, at paragraph 14, the Plaintiff asserted that “[S]ince 2002, despite all reasonable search and enquiry, [WG] has not been found”. This paragraph is admitted in the Paragraph 14 of the Defence.

There is no reliable information adverted to by any deponent which suggests that she, or he, has heard of, or from, WG, since April 2001.

Searches have not revealed any Will made by WG. The parties agree that she left no Will or other testamentary instrument. Without more, and if the declaration sought is made, WG’s estate would be distributed under the operation of the rules of intestacy.

The parties are the only persons who are, or who may be, entitled to WG’s estate under the operation of the rules of intestacy.

Each of the Plaintiff and the Defendant is an eligible person for the purposes of Chapter 3 of the Succession Act, as is Jin Hua Guo, the former spouse of WG who is resident in China.

It is fundamental to any application for probate, or letters of administration, to show that the person whose estate would be the subject of the proposed grant of probate or administration is dead. That is usually satisfied by the presentation of a death certificate. No death certificate has been issued in this case. However, as will be read, the Court can also make a grant of probate or administration where the person’s death can be presumed.

The test to establish the death of a person is a positive one based upon direct evidence of death. In relation to presumed death, the test is one dependent upon an absence of knowledge of the death of the missing person.

In Application by Walsh & Anor (Estate of Robert Charles Walsh (deceased)) [2020] NSWSC 976 at [33]-[35], I wrote:

It has been written that “[a]n application for a grant on presumption of death occurs in all cases where the body is not found … This is the case even though a certificate of death may have issued”: Mason and Handler Succession Law and Practice: New South Wales at 9234 [5067]; Wills, Probate and Administration Law in New South Wales at 636.

It is important not to confuse the process of inferring death from the evidence available, and the application of the presumption of death at law. The learned authors of Wills, Probate and Administration Law in New South Wales write at 637:

Section 40A(1) of the Probate and Administration Act 1898 (NSW) provides, relevantly, that where the Court is satisfied, whether by direct evidence or on presumption of death, that any person is dead, the Court shall have jurisdiction to grant administration of the person's estate, notwithstanding that it may subsequently appear that the person was living at the date of the grant.

Section 40B applies where a grant is made on presumption of death. Relevantly, it provides:

I turn next to the principles that relate to the presumption of death.

In Elaraby & Ors v Minister for Immigration & Anor [2018] FCCA 1101, Judge Manousaridis wrote at [38] – [43]:

In the present case, there is no acceptable, affirmative, or direct evidence that WG is dead. Nor is there proof of death by inference. For these reasons, the parties rely upon proof of death by presumption of law. That presumption, which is a common law evidentiary presumption, applies when it is established that the person (termed the propositus) has been absent, and not been heard of, or from, by those who might have been expected to hear of, or from, her, or him, for a period of seven years up to the commencement of the relevant legal proceedings.

The determination of the presumption is a matter of fact: Axon v Axon (1937) 59 CLR 395; [1937] HCA 80 at 412-413. The onus of establishing the presumption rests on the party who seeks it and it is found on the balance of probabilities: Estate of Howard (1996) 39 NSWLR 409 per Cohen J.

The Court will “approach the question of proof of death with a great deal of caution because there are all kinds of unknown factors which will influence a person to move from his ordinary environment for no apparent reason whatsoever; and yet people do that very thing”: R A Sundberg, Griffith’s Probate Law and Practice in Victoria (3rd ed, 1983, Law Book Co), at 13-14. Yet, the burden of proof remains on the balance of probabilities.

In Axon v Axon, the Court was required to determine whether the first husband of the appellant was presumed to be dead as at the date of the appellant's second marriage to the respondent. The appellant's first husband had left her in 1923 and she had not seen him or heard from him again. The appellant then married the respondent on 6 January 1932. The respondent later claimed that his marriage to the appellant was not valid, because the appellant's first husband was still alive at the time it took place.

The Court held that if a person has not been heard of by persons who might have been expected to hear of him for a period of not less than seven years, he may be presumed to be dead at the time when the question arises in legal proceedings. It should be stressed that the important facts are that “at least seven years have elapsed since [the person] was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communication from him”.

Dixon J wrote at 404-405:

The High Court also made it clear that there is no presumption as to the time of the person’s death prior to the institution of the proceedings. Latham CJ wrote at 401:

Evatt J wrote at 411-412:

In Chard v Chard [1956] P 259 at 272, Sachs J wrote:

This passage of Sachs J’s judgment was quoted, with apparent approval, by Holt M in In re Margarete Maria White [2001] TASSC 7 at [10], by Gray J in In the Estate of Peter Dale Hills [2009] SASC 176 at [6], and cited by Ferguson J (as her Honour then was) in Re Curran [2010] VSC 455 at [8].

In In the Estate of Peter Dale Hills, leave to swear to death was granted where the propositus had been missing for 13 years without any contact with his family. Gray J reviewed the authorities and then observed at [7] and [8]:

The party seeking to rely on a presumption of death must prove absence from the last place of residence (or, if this is not known, absence from the last place in which the missing person resided): M'Mahon v M'Elroy (1869) 5 IR Eq 1 at 12; Allman & Co v M’Cabe [1911] 2 IR 398 at 426-427.

In Allman & Co v M’Cabe, Boyd, J also wrote at 402:

To rely upon this presumption, it will be necessary to establish, on the balance of probabilities, the following essential matters, namely that WG has not been seen, or heard of, for a continuous period of seven years, or more, after she was last seen alive; that there are persons who would be likely to have heard of, or from, her, over that period; that those persons have not heard of, or from her; and that all due inquiries have been made appropriate to the circumstances.

In Prudential Assurance Co v Edmonds (1877) 2 App. Cas. 487, a case, initially, tried before a Judge sitting with a jury, the House of Lords suggested that a person is not "heard of" if no reliable information concerning the missing person is received by persons likely to have heard from her or him.

There is, of course, a distinction between missing and not being in communication. The people with whom the missing person would be likely to communicate if she, or he, were alive, would be persons who would be more likely than not in contact with the missing person if she, or he, were alive, and who she, or he, would have had access to by ordinary means of communication. One would not expect the group to include every fellow resident or relative, or friend, with whom the missing person, from time to time, had communicated with in the ordinary course of daily life. In this case, such persons would be those who were likely to, and who did, worry about, or wonder what had become of WG, and who have also made searches for her, including approaching the NSW Police.

Whilst not an essential matter to be established, one of the circumstances that the Court may take into account is whether there is a valid explanation why a person has not been heard of for that period: Estate of Howard (1996) 39 NSWLR 409 at 413 (Cohen J). Where the missing person had a reason for not communicating with a person who would be likely to have heard of, or from, them, the presumption will not be invoked: Watson v England (1844) 60 ER 266; 14 Sim 28; Estate of Howard at 414 per Cohen J.

As Cohen J also noted, at 415:

If there is evidence that the missing person has died, and the date of death is clear, and it will not be difficult to fix that date. The position is less straightforward where there is evidence to satisfy the Court that the missing person has not been heard of for at least seven years.

If relevant matters are established, there arises a rebuttable presumption of law that WG died at some time within that period, and the party upon whom the burden falls of proving her death may rely upon that presumption: Chard v Chard at 272 (Sachs J).

Thus, if a grant of probate or administration is made on presumption of death, it will not be possible for the date of death of the propositus to be recorded on the grant. In particular, death is not presumed at the end of the seven year period: Halbert v Mynar [1981] 2 NSWLR 659 at 664 (Waddell J).

Both counsel submitted that WG was, ultimately, setting up a home in Australia for herself, her parents, and her daughter, the Plaintiff. They pointed to the sums of money which WG bought from China to Australia, her joint purchase of the Carlingford property, her enrolment in an English course, and her stated intentions to bring her family to Australia: Tcpt, 19 August 2021, p 13(38)-14(03).

Counsel further submitted that there was no evidence that WG set up “her disappearance to abscond and set up a new life somewhere else”: Tcpt, 19 August 2021, p 14(14-15).

In regard to due inquiries conducted since 2012, counsel for the Plaintiff submitted that “apart from monitoring whether there is any activity there comes a time when people draw a line under it and say ‘She disappeared. We cannot find her’. If a red light appears that she made some sort of contact with a friend or if she has accessed some sort of financial institution or made a claim somewhere, that would come up and we can restart some investigations, but there comes a time when you say ‘She has gone. She is missing. We cannot do much more about it except monitor" and that is exactly what has happened here’: Tcpt, 19 August 2021, p 14(24-31).

Counsel for the Plaintiff pointed to “the utility of making such a declaration now because there is obviously ‑ there is no real contradictor. There is no interested person who may come forward in the future to screen the information or make any submissions to the contrary at the moment, and there does not appear to be any interested person who would have an interest to have a contrary result so there is utility in making the declaration”: Tcpt, 19 August 2021, p 15(15-20).

Counsel for the Plaintiff submitted that any evidence that WG was not dead (being the evidence of a false passport, WG’s alleged connection to Canada and her intention to return to China on the day she disappeared) came from the Defendant, rather than WG herself: Tcpt, 19 August 2021, p 13(05-21).

In this case, having carefully considered the evidence and the submissions of counsel, I am satisfied, on the balance of probabilities, that:

While the law has provides the period of seven years as a yardstick to displace the inference that the missing person remains alive, the period during which WG has been missing is substantially longer. The effect of the presumption is to give rise to a conclusion that, at the time of the proceedings, WG is no longer alive.

The Court makes the following orders and notations:

It will be necessary for the matter to be relisted by arrangement with my Associate after 24 August 2021.