Bardi v Giannaros

[2025] NSWSC 917

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bardi v Giannaros (No 2) [2025] NSWSC 917

Hearing dates:

23 May 2025 (hearing); 10 June 2025 (joint schedules provided)

Date of orders:

15 August 2025

Decision date:

15 August 2025

Jurisdiction:

Equity

Before:

Meek J

Decision:

Security for costs application and non-inspection application dismissed.

Catchwords:

SUCCESSION — Family provision — Security for costs — Plaintiff (who claims to be de facto partner of deceased at time of death) resident in Greece — Defendant (executrix and spouse of deceased at time of death) seeks orders for security for costs against plaintiff

SUCCESSION — Security for costs — Counsel vigorously advanced contestable factual and legal propositions as to various issues — Regarding prospects of success, the exercise of the Court is to make an impressionistic evaluation

SUCCESSION — Family provision — Joint schedules — Parties should prepare joint schedules in a way that facilitates ease of reading, even if the schedule is qualified in some way revealing some aspect in which the parties are in contention

EVIDENCE — Family provision — Objections to affidavits — Practical guidance

SUCCESSION — Family provision — Eligibility — Section 57(1)(e) Succession Act — There is no requirement for the facts which give rise to alleged dependency to coincide or co-exist with those that give rise to membership of a household

SUCCESSION — Family provision — Eligibility — Section 57(1) Succession Act — The fact that parties do not own accommodation they are living in does not preclude finding that they are in a de facto relationship or members of the same household

SUCCESSION — Family provision — There is no legal principle that so-called “bare satisfaction of eligibility criteria” necessarily dictates a low level of provision or necessarily moderates the amount of provision such an applicant might receive — That is not to gainsay that provision ‘primacy’ might arise in a specific case by dint of the facts rather than as a legal axiom

JUDGMENTS — Enforcement — Discussion of means and criteria of recognition of an Australian court judgment in Greece and enforcement or seizure options in Greece

WORDS & PHRASES — Promise ring

SUCCESSION — Family provision — Costs — Discussion of applicability of the so-called probate cost exceptions such as the “testator cause exception” or the “investigation exception” to family provision claims — The costs of a unsuccessful family provision plaintiff are not necessarily nor generally informed by analogous application of the so-called probate cost exceptions

SUCCESSION — Family provision — Costs — The financial circumstances of an unsuccessful family provision applicant may be a material consideration, though not necessarily a compelling (let alone decisive) consideration in assessing an appropriate costs order

CIVIL PROCEDURE — Non-inspection application — Discussion of apparent relevance of documents sought to the issue of the extent of the deceased’s estate

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Family Provision Act 1982 (NSW)

Foreign Evidence Act 1994 (Cth)

Foreign Judgments Act 1991 (Cth)

Interpretation Act 1987 (NSW)

Succession Act 2006 (NSW)

Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)

Trustee Act 1925 (NSW)

Foreign Judgments Regulations 1992 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Adelaide (SA Pools & Spa) Manufacturing and Installation Pty Ltd v Westcourt General Insurance Brokers Pty Ltd [2016] SASC 60

Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep: BC8802473)

Angius v Angius [2025] NSWCA 113

Benz v Armstrong; Benz v Armstrong; Benz v Armstrong (No 2) [2022] NSWSC 668

Berkeley Administration Inc v McClelland [1990] 2 QB 407; 1 All ER 958; 2 WLR 1021

Berry v Innovia Security Pty Ltd [2014] FCA 357

Bladwell vDavis [2004] NSWCA 170

Byron Shire Businesses for the Future Inc v Byron Shire Council & Holiday Villages (Byron Bay) Pty Ltd (1994) 83 LGERA 59

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Charnock v Handley [2011] NSWSC 1408

Chen v Golden Land Enterprises Pty Ltd (No 2) [2022] NSWSC 985

Chisak v Presot [2022] NSWCA 100

Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23

Curtis v Curtis [2024] NSWCA 136

Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424

Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639; (1988) 92 FLR 67

DJ Singh v DH Singh [2018] NSWCA 30

East Grace Corporation v Xing (No 1) [2005] FCA 219

Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104; (2018) 17 ASTLR 64

Estate Hawkins; Huxtable v Hawkins [2018] NSWSC 174

Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502

Fairbairn v Radecki (2022) 275 CLR 400; [2022] HCA 18

Farr v Hardy [2008] NSWSC 996

Fiorentini v O’Neill [1998] NSWCA 79

Frank v Angell (2024) 116 NSWLR 1; [2024] NSWCA 264

Haertsch v Whiteway (No 2) [2020] NSWCA 287

Howitt v Bosschieter [2025] NSWCA 179

Hunter v Hunter (1987) 8 NSWLR 573

Jalfox Pty Ltd v Motel Association of New Zealand Inc [1984] 2 NZLR 647

Jvancich v Kennedy (No 2) [2004] NSWCA 397

Khitrova v Khitrov [2008] FamCA 890

Knott v Signature Security Group Pty Ltd (2001) 104 IR 84; [2001] NSWIR Comm 12

Liosatos v Liosatos [2025] NSWSC 44

Li v State of New South Wales [2013] NSWCA 165

Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189

Lo Surdo v Public Trustee [2003] NSWSC 837

Mallitt v Gow [2022] NSWSC 1012

Markulin v Drew (1993) DFC 95-140; BC9301828

Mavani v Ralli Bros Ltd [1973] 1 All ER 555; 1 WLR 468

Milosevska v Milosevski [2019] NSWSC 711

Ministry of Foreign Affairs of the Republic of Italy v Simeone [2016] QDC 160

Moore v Moore [2004] NSWSC 587

Moussa v Moussa [2006] NSWSC 509

Munro v Lake (Supreme Court (NSW), 8 February 1991, unrep: BC9102380)

Nasser v United Bank of Kuwait [2001] All ER (D) 146 (Apr); [2002] 1 All ER 401; [2001] EWCA Civ 556

Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331

Perpetual Trustee v Baker [1999] NSWCA 244

Pethers v Pethers (No 2) [2025] NSWSC 561

Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113

Porthouse v Bridge [2007] NSWSC 686

Porzelack KG v Porzelack (UK) Ltd [1987] 1 All ER 1074; 1 WLR 420

PS Chellaram & Co Ltd v China Ocean Shipping Company [1991] HCA 36; (1991) 102 ALR 321

Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813

Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679

Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698

Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003

Rodny v Weisbord [2024] NSWCA 183

Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442

Sassoon v Rose [2013] NSWCA 220

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Shackles v Broken Hill Proprietary Company Ltd [1996] 2 VR 427

Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40

Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522

Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

Tarbes v Taleb [2023] NSWSC 565

The Estate of Daniele Claudio Legler [2024] NSWSC 726

Valenta v Valenta (Supreme Court (NSW), Powell J, 19 June 1991, unrep: BC9101879)

Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep)

Yee v Yee [2017] NSWCA 305

Yesilhat v Calokerinos [2021] NSWCA 110; (2021) 21 ASTLR 227

Texts Cited:

Dal Pont, GE, Law of Costs (2nd ed, 2009, LexisNexis)

Dal Pont, GE, Law of Costs (3rd ed, 2013, LexisNexis)

Dal Pont, GE, The Law of Costs (5th ed, 2021, LexisNexis)

De Groot, John and Bruce Nickel, Family Provision in Australia (1st ed, 1993, LexisNexis)

Dickey, Anthony, Family Provision After Death (1992, The Law Book Company)

Greek Ministry of Justice, Civil Procedure Code (see endnotes for accessible link)

Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, opened for signature 5 October 1961, 527 UNTS 189 (entered into force 24 January 1965)

Macquarie Dictionary, online ed

Martyn, Ross, Family Provision: Law and Practice (1985, Sweet & Maxwell)

Oxford English Dictionary, online ed

Practice Note SC EQ 7

Shakespeare, Julius Caesar (1599)

Wright, RJ Davern, Testator’s Family Maintenance in Australia and New Zealand (3rd ed, 1974, The Law Book Company Limited)

Category:

Procedural rulings

Parties:

Antzela Bardi / Plaintiff
Kalliopi Giannaros / Defendant

Representation:

Counsel:
R Wilson SC / Plaintiff
P Lowson / Defendant
Solicitors:
L. Rundle & Co Solicitors / Plaintiff
Konstan Lawyers / Defendant

File Number(s):

2024/00228124

JUDGMENT

Introduction

1. HIS HONOUR: George Giannaros (deceased) lived a colourful but “hard living” life characterised by drinking, smoking and drug abuse (including cocaine). ^[1] He passed away on 15 September 2023 at the early age of 55 succumbing to the effects of an aggressive lung cancer diagnosed barely 7 weeks earlier in late July 2023.

   1. Court Book (CB) 43[38]-[39], 93-94[77].

2. The intensity of the deceased’s hard living has been rivalled if not surpassed by the litigious activity of his two lovers who are in heated dispute over property the subject of the deceased’s estate.

3. The defendant, Kalliopi Giannaros (Kelly or applicant), is the deceased’s spouse. They married in February 1995, the marriage lasting 28 years until the deceased’s passing. The plaintiff, Antzela Bardi (Angela or respondent), claims to be the deceased’s de facto partner, having met the deceased on 22 May 2018 in Glyfada, Greece (being introduced to him by a mutual friend, Jim). ^[2] She claims to have formed a romantic and sexual relationship with him for a period of approximately 5 years from about September 2018 continuing until his death. ^[3]

   2. CB 85[32].

   3. CB 83, 131; Angela’s Outline of Submissions (AOS) [11].

4. Kelly was born in 1973 and is now aged 52. She and the deceased were born in New South Wales, though are of Greek heritage. They have two children, Jasmine, born in 1995 (now aged 29), and Evan, born in 2000 (now aged 25).

5. Angela was born in Berat, Albania in October 1987 and is now aged 37. She moved to live in Athens, Greece when she was about 7 years old. ^[4] Angela had been in a relationship with a fiancé Lewis, ^[5] which ended in February 2017. ^[6]

   4. CB 84.

   5. The surname is not disclosed in the evidence.

   6. CB 85.

6. Angela asserts that, after being introduced to the deceased through Jim, she cohabited with the deceased from September 2018, including in Jim’s apartment. ^[7] She says that their relationship developed in a context where the deceased discussed the “breakdown of his marriage” with her, ^[8] including assertions that Kelly cheated on him. ^[9] Angela states that the deceased expressed intentions to divorce Kelly from 2019 ^[10] and commit to a future life with Angela, ^[11] including marriage, ^[12] from about 2020. There is dispute as to whether the deceased was still sleeping with Kelly from 2021 onwards. ^[13] In any event, in 2021, the deceased gave Angela a “promise ring”. ^[14]

   7. Possibly Jim Hiotellis, see CB 319.

   8. CB 83[14].

   9. CB 94[82], 111[17]; cf CB 117[48].

   10. CB 87-88[46].

   11. CB 83[14].

   12. CB 89-90[57].

   13. CB 111[17]; cf CB 47[63].

   14. CB 83[15]; see also CB 91[63].

7. Contrarily, Kelly says she had a close and loving relationship with the deceased from 2018 until his death ^[15] and has already adduced a plethora of photos, Whatsapp messages and texts to support this. ^[16] Kelly contends that her and the deceased did not at any relevant time discuss ending their marriage, separating or divorcing, ^[17] and that she had no knowledge of the plaintiff until one night not long before the deceased died. ^[18] Kelly’s lack of prior knowledge of the relationship is contested. ^[19] Nonetheless, Kelly indicates that Eric, an employee of the deceased, informed her just before the funeral “a woman from Greece called Angela is over here, George was seeing her in Greece during his solo trips over there”. ^[20]

   15. CB 38[13].

   16. CB 41[24], 42[29], 220-241, 249-288, 290-324, 327-328, 331-342, 347, 395-406, 422-440, 442-471, 498-504, 516-520, 534-551, 577-579.

   17. CB 45[53], 46[57], 48[67].

   18. CB 45[48]-[52], 46[57], 48[65]; Transcript (T) 19.44-.46.

   19. CB 104[161]-105[164], 116[45], 117[48], 418.

   20. CB 48[66].

8. The dispute over the deceased’s estate has been formalised by Angela commencing proceedings seeking a family provision order pursuant to Chapter 3 of the Succession Act 2006 (NSW) (Succession Act). She claims eligibility principally on the basis of s 57(1)(b) (“de facto spouse eligibility”) or alternatively by means of s 57(1)(e) (“dependent household member eligibility”). ^[21]

   21. AOS [20].

9. Following the filing of the summons on 20 June 2024, the proceedings have undergone usual case management by the Probate Registrar in the Family Provision List. On 21 November 2024, the matter was referred to a Court Annexed Mediation for half day on 1 April 2025.

10. On 7 February 2025, Angela filed a notice of motion seeking expedition of the hearing of proceedings or, in the alternative, an order for interim provision out of the deceased’s estate. The catalyst for the filing of that motion related to Angela needing funds to complete purchase of an apartment in Glyfada, a town or suburb, south of Athens, alongside what is otherwise known as the Athens Riviera (Glyfada apartment). Ultimately, only the order for interim provision from the estate was pressed. On 27 February 2025, the notice of motion was heard and dismissed by Kunc J with indemnity costs. ^[22] His Honour delivered ex tempore reasons for judgment.

    22. Bardi v Giannaros [2025] NSWSC 137 (Kunc J judgment).

11. On 27 March 2025, Registrar Gerritsen ordered (or perhaps confirmed), the Court Annexed Mediation for 1 April 2025 and made further procedural directions. On 1 April 2025, the mediation proceeded but was not successful.

12. The applications before the Court are two notices of motion filed by Kelly:

1. on 14 March 2025 – seeking a direction that Angela not be permitted to inspect documents produced on subpoena issued to two corporate entities in respect of the deceased, being Carrington Electrical Pty Ltd (CE) and Carrington Electrical Services Pty Ltd (CES) (non-inspection application); and

2. on 27 March 2025 – seeking that Angela provide security for costs and a stay of proceedings until any such security, if ordered, is paid (security application).

13. Ms Lowson appeared for Kelly and Mr Wilson SC appeared for Angela.

14. I will cite the evidence in the proceedings, as I already have, by reference to the Court Book (CB), transcript pages (T) and exhibit numbers. I will cite the submissions by reference to Kelly’s outline of written submissions dated 16 May 2025 (KOS) and Angela’s outline of written submissions dated 16 May 2025 (AOS). Statutory section references will be to the Succession Act and statutory rule references will be to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) unless otherwise specified.

15. The security application was argued by reference to r 42.21 rather than the Court’s inherent jurisdiction. Kelly seeks security for costs in the sum of $75,000 and, alternatively, an order for the costs of registration and enforcement of any judgment for costs. ^[23]

    23. KOS [4]; T 35.21-.22, 63.25-.28.

16. Mr Wilson SC contends that the security application should be dismissed ^[24] and opposes the non-inspection application, seeking access to the documents. ^[25]

    24. AOS [23]-[24].

    25. AOS [29]-[32].

17. For the reasons that follow, I have determined to dismiss both the security for costs application and the non-inspection application.

18. Notwithstanding authorities suggestive that the Court makes an impressionistic evaluation rather than a ‘fine or detailed analysis of the merits’ ^[26] regarding prospects of success for the purposes of security applications, it was contested and argued with comprehensive vigour more akin to that of a final hearing and involved counsel advancing several contestable propositions, which I address below.

    26. Dal Pont, GE, The Law of Costs (5th ed, 2021, LexisNexis) (Dal Pont) at [29.84].

19. For the purposes of the application for interim provision, Kunc J addressed the question of whether Angela is an eligible person.

20. His Honour did not doubt that there was a serious question to be tried as to whether Angela was eligible, but in the circumstances of that (urgent) hearing was not satisfied on the balance of probabilities that she was so eligible. His Honour expressed his conclusions in that respect, as follows:

34.   Having, in the time available, considered the evidence with the benefit of submissions from both parties, I have no doubt that there is a serious question to be tried that Ms Bardi is an eligible person. I express no view about what conclusion will be reached after the final hearing. However, I am not satisfied on the basis of the material I have seen, which remains untested, that it is so clear that I am actually persuaded on the balance of probabilities that Ms Bardi was an eligible person. I am therefore unable to find today on a final basis that she has that status.

35.   However, if I am wrong in that conclusion, I will continue by assuming in Ms Bardi’s favour that she is an eligible person, but without making a finding to that effect. Even on that basis, for the following reasons, Ms Bardi’s application fails.

Claim

21. Angela’s claim for provision, set out in her initial affidavit ^[27] (leaving aside her interim provision claim for a sum to complete the purchase of the Glyfada apartment) is:

1. for an amount to complete the renovations to the Glyfada apartment including building her beauty studio, so as to permit her to operate a beautician business from her apartment to provide her with an income;

2. to supplement her savings; and

3. to provide for contingencies in life.

   27. CB 102[145]-[146].

22. On the hearing before Kunc J, Angela’s claim for provision on the basis of de facto spouse eligibility was for no less than $600,000. ^[28] Mr Wilson SC had submitted that:

Your Honour, we say that on a final basis, for the purposes of section 62, the plaintiff would receive at least $600,000 as a de facto, surviving de facto, of, we say, five years in an estate of this amplitude.

28. T 19.18-.20 (27 February 2025); Kunc J judgment at [13].

23. On hearing of the application before me, Mr Wilson SC submitted: ^[29]

…The Plaintiffs claim is relatively modest, being for provision which would enable her to discharge the loan used to purchase the Athens unit of (E) AUD$316,132 and (E) AUD$45,428, and a buffer for contingencies which includes the cost to renovate the Athens unit to make it habitable of, say, AUD $250,000 to $300,000

29. AOS [21]; see also T 58.14-.35, 59.7-.11.

Issues

24. Various of the r 42.21(1A) matters have no direct application to the circumstances of this case. ^[30] Thus, it is not suggested that: the proceedings are other than genuine; Angela’s impecuniosity is attributable to Kelly’s conduct; Angela is effectively in the position of a defendant; the proceedings involve a matter of public importance; there has been any admission or payment into court; there has been any relevant delay by Angela in commencing the proceedings leading to prejudice of Kelly; ^[31] or that the security sought is disproportionate to the importance and complexity of the subject matter in dispute.

    30. See UCPR r 42.21(1A)(b), (d), (e), (g), (h), (i) and (k).

    31. Ms Lowson accepted that there was no relevant delay on Angela’s part bearing on the question of security for costs: T 6.37-7.1.

25. The parties are agreed that the issues to be determined are whether:

1. Angela should provide security for Kelly’s costs;

2. (if security is ordered) it ought to be limited in quantum to Kelly’s costs of enforcing a judgment in her favour against Angela in Greece; and

3. any documents produced by CE and CES are relevant to any issue in dispute in the proceedings.

26. The above description of issues is pitched at a fairly high level.

26. Ms Lowson’s submissions focused on the following matters: ^[32]

    32. KOS [8].

1. the prospects of success or merits of the proceedings;

2. whether Angela is impecunious;

3. whether an order for security for costs would stifle the proceedings;

4. the costs of the proceedings; and

5. the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff (on the premise that any orders would not be readily enforceable within Australia).

28. Mr Wilson SC addressed these points and additionally submitted that there had been a delay of 9 months (between 20 June 2024 and 27 March 2025) by Kelly in filing any application for security for costs. ^[33]

    33. AOS [27].

29. Despite the above-mentioned matters forming the forensic battleground, counsel in particular spent considerable time addressing 2 of the r 42.21(1A) matters, namely the prospects of success or merits of the proceedings and ease of enforcement.

30. Based on the parties’ outlines of submissions, the contestable underlying contentions (or assumptions) I have referred to above included that:

1. probate cost exception principles (specifically an “investigative” costs exception) inform cost determinations in family provision proceedings;

2. the fact that parties are physically separated for periods of time counts against a finding that they are living together;

3. the fact that the parties do not own accommodation they are living in precludes or strongly counts against findings that they are in a de facto relationship or members of a (common) household; and

4. “bare satisfaction of eligibility criteria” materially or at least ordinarily moderates the amount of provision such an applicant might receive.

Evidence

Affidavits and documents

31. On hearing of the applications, Kelly relied upon 3 affidavits by herself, ^[34] 2 affidavits from Simon Konstantinidis, the solicitor on the record for Kelly in the proceedings, ^[35] and 3 affidavits from John Theodoropoulos, a solicitor in the employ of Konstan Lawyers. ^[36] In response to the applications, Angela relied upon 3 affidavits of herself ^[37] and an affidavit of her solicitor, Benjamin John Dornan. ^[38]

    34. 2 October 2024, 2 October 2024 and 24 October 2024.

    35. 28 March 2025 and 23 May 2025.

    36. 14 March 2025, 27 March 2025 and 9 May 2025.

    37. 7 August 2024, 15 November 2024 and 8 May 2025.

    38. 20 March 2025.

32. The documentary material was tendered and marked as exhibit JP-1. The Court Book is 700 pages in length. All of the affidavits read in respect of Kelly’s applications were read without objection. That included the second affidavit of Mr Konstantinidis which was sworn on the morning of the hearing of the application.

Objections

33. Ms Lowson took a number of objections to Angela’s affidavit evidence. Specifically, there were a series of objections to words such as “cohabited”, “cohabitation”, “spouse”, “partner”, “live together” and “live together as a couple”. I made rulings regarding the objections.

34. The objections are understandable in a context in which a number of the above-mentioned words, whilst ordinary English words, are also terminology used within the statutory provisions bearing upon family provision eligibility, for example, “spouse”, ^[39] “living” (in a de facto relationship), ^[40] and “couple living together”. ^[41]

    39. Succession Act s 57(1)(a).

    40. Succession Act s 57(1)(b).

    41. Interpretation Act 1987 (NSW) (Interpretation Act) s 21C(2)(a).

35. Such words may take on different shades of meaning over time. Thus, the verb “cohabit” (including the past tense “cohabited”) historically conveyed the meaning of dwelling or residing in company or in the same place. ^[42] However, modern usage of the word “cohabit” generally, or at least often, will convey the notion of living together in a sexual relationship. ^[43]

    42. Macquarie Dictionary, online ed.

    43. Macquarie Dictionary, online ed.

36. By way of practical guidance, it is convenient to make a few observations about objections to affidavits in family provision proceedings, particularly in the context of interlocutory hearings (though the following remarks might also well inform approaches taken on final hearings).

37. First, in relation to plaintiffs’ affidavits, most such affidavits are structured in accordance with the form of the affidavit in Annexure 1 of Practice Note SC EQ 7 (Practice Note) and adapted appropriately. Thus, in the opening part of such affidavits under the heading “eligibility to make a claim”, it is not merely usual but expected that a plaintiff will make some assertion regarding the basis of his or her eligibility. ^[44] Hence, where an assertion is made that the applicant “was living in a de facto relationship at the time of the deceased person’s death,” that statement is generally understood by judges and practitioners to be an assertion in conformity with the pro forma affidavit set out in the Practice Note rather than some form of conclusive statement which, unless objected to, constitutes an admission in the proceedings.

    44. See [6] of Annexure 1.

38. Secondly, long experience in the law reveals that those who prepare objections to affidavits are often concerned that certain words, if unobjected to, will constitute an admission. That is so even though words used in affidavits are usually contextualised. Practitioners should not readily fear that judges will disregard context when reviewing evidence or that decisive meaning will be attributed to certain words if admitted into evidence, where it is self-evident that the matter is in dispute.

39. One of the ways that legal practitioners may facilitate the just, quick and cheap resolution of the real issues on interlocutory applications is to discuss the content of objections, particularly where certain words are repeatedly used in the body of affidavit evidence, with a view to agreeing how such words should be understood. Such an approach can hopefully avoid overzealous contention consuming time in preparing lengthy objections and responses and time on the hearing in ruling on such objections.

40. Thirdly, the Practice Note expressly permits a form of informal proof of certain relatively common matters, unless the Court orders otherwise or reasonable notice is given that strict proof is necessary. This includes for example, appraisals of items of real property, estimates of other estate assets, estimates of items sought to be acquired or acquiring some form of renovation or refurbishment or other expenses, as well as descriptions of alleged physical, intellectual or mental disabilities coupled with medical or other reports. ^[45] There is an obvious coherence between the overriding purpose provisions of the Civil Procedure Act 2005 (NSW) (CPA) and the Practice Note in this regard. Thus, forensic decision-making regarding objections to evidence should be filtered through the touchstone of the overriding purpose and not merely address whether the content of an affidavit technically complies with the rules of evidence.

Will and estate

45. See [38] and Annexure 1.

Will

41. The deceased left an undated Will (believed by Kelly to have been executed on 4 September 2023), probate of which has been granted to Kelly on 25 June 2024. ^[46] In the events which occurred, the deceased left his entire estate to Kelly.

    46. CB 82.

Extent of the deceased’s estate

42. The inventory of property attached to the grant of probate ^[47] values the deceased’s estate at $4,545,545.88, comprising properties at Belmore, Roselands (Roselands No.1) and Nelson Bay and monies in two National Australia Bank accounts.

    47. CB 606.

43. The inventory of property also refers to another property at Roselands (Roselands No.2) valued at $1,200,000 of which the deceased is said to have had a 50% share, being $600,000. At least as at 2 October 2024, the assets of the deceased’s estate had been transferred by Kelly to herself. ^[48]

    48. CB 28[11].

44. Currently, the parties have widely differing estimates of the value of the deceased’s estate and the notional estate. ^[49] There are liabilities of the estate which, at least from Kelly’s perspective, reduces the value of the net estate. Angela agrees that there are certain liabilities of the estate, however (as will be seen below) they presented them differently within the joint schedule.

    49. AOS [4] and Joint Schedule (see below).

45. It is not necessary or appropriate on the application before the Court to make specific findings regarding the deceased’s estate. It suffices to note the following.

46. The hearing before Kunc J was an urgent hearing.

47. His Honour proceeded on the basis that the estate had a net value of $1.295m (represented by properties, with no significant cash). The extent of notional estate was not expressly addressed by his Honour in a context in which his Honour noted that: ^[50]

Mr Wilson SC made some submissions about available notional estate, but ultimately accepted that possibility was irrelevant given that on any view there was sufficient in the estate to meet the amount that he submitted his client would ultimately receive at a final hearing.

50. Kunc J judgment at [13].

48. Two observations should be immediately recorded.

49. First, it was evident from the extent of materials before me in submissions that Angela now has a much different contention regarding the size of the estate and extent of notional estate. That has a bearing on the outcome of the application for security for costs, which I will address below.

50. Secondly, Ms Lowson emphasised that Mr Wilson SC had conceded during the interim provision application that there were sufficient assets in the estate to meet any award in favour of Angela (concession). ^[51] Mr Wilson SC’s response to that was that he was simply reiterating before Kunc J the effect of s 88(b) of the Succession Act (to the effect that the Court must not make a notional estate order unless, inter alia, it is satisfied that the deceased person’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made). ^[52]

    51. KOS [3]; Kunc J judgment at [13].

    52. T 37.31-.32.

51. The transcript of hearing reveals that Mr Wilson SC tendered certain material and there was an interaction between Mr Wilson SC and his Honour regarding notional estate, including relevantly the fact that certain properties had been transferred at least by transmission application to Kelly. ^[53] It is unnecessary to set out the full text of that interaction. My assessment of the interaction is that for the purposes of the interim provision application, Mr Wilson SC did not need to trouble his Honour with detail regarding notional estate. However, that does not mean that he was conceding that some understanding of the deceased’s wealth and financial resources, including any property that is capable of being designated as notional estate, is irrelevant for the Court to be aware of for the purposes of a final hearing (if indeed the matter goes to a final hearing).

    53. T 32.25-33.48 (27 February 2025).

52. The notion that an executrix in family provision proceedings should be relieved of any obligation to make disclosures about the size, composition, value and whereabouts of the estate or notional estate beyond certain limited disclosures is doubtful and was on the facts expressly rejected by Lindsay J in Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104; (2018) 17 ASTLR 64 (Grundy). Rather, his Honour emphasised that an executrix has a duty to assist the Court in identifying as fully and early as possible the actual and notional estate of the deceased person the subject of the proceedings, the condition and value of the estate at the date of trial, and the exact burden of the costs order likely to fall on the estate. ^[54]  

    54. At [94]-[113], see especially [101] citing Fiorentini v O’Neill [1998] NSWCA 79 at pp 5-6.

53. White J at [53] in Farr v Hardy [2008] NSWSC 996, emphasised that executors have a duty to place before the court all evidence which is relevant, whether positively or negatively, to the factors which warrant the making of the application. ^[55] Thus, even where the plaintiff did not seek to disturb death benefits from a superannuation fund that did not form part of the estate ^[56] nor to have assets of a trust that is indebted to the estate designated as notional estate, ^[57] the executors were still required to make full disclosure of the position and circumstances of those matters. Properly construed, this is not strictly limited to circumstances where property is susceptible to being designated as notional estate or where the trustee of a trust may owe a debt to the estate. In particular, his Honour referenced comments of Kirby P in Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639; (1988) 92 FLR 67 that executors have a duty “to place all relevant evidence before the court”. ^[58]

    55. At [53].

    56. At [89].

    57. At [97].

    58. At [53].

54. On the hearing of the application before me, in the above context, both counsel acknowledged the obligations Kelly has to the Court of full disclosure. ^[59]

    59. T 37.34-.40, 38.12-.13, 39.26-.31.

Overview of deceased’s property interests

55. The deceased operated an electrical contracting business trading under the name Carrington Electrical Services (business). The business was operated through three corporate entities, being CE (the administration arm of the business), CES (the contracting arm of the business) and Carrington Electrical Services Group Pty Ltd (CESG – the labour hire arm of the business). ^[60]

    60. CB 51.

56. Giannaros Holdings Pty Ltd (GH) is the sole shareholder of CES and CE. Carrington Developments Group Pty Ltd (CDG) is the sole shareholder of CESG. ^[61] The deceased was associated with two discretionary family trusts said by Kelly to hold the ownership of the business. The two trusts are:

1. The Giannaros Investments Trust, of which GH is the trustee; and

2. The George Giannaros Family Trust (family trust), of which CDG is the trustee. ^[62]

   61. CB 51.

   62. CB 52.

57. In addition, it is said that the deceased has shareholdings being:

1. a 50% interest in Dumoylen Pty Ltd (Dumoylen); and

2. a 100% interest in Yamiseta EMS Pty Ltd.

58. Notwithstanding the statement in the inventory of property at CB 607, it seems from the joint schedule provided by the parties that Roselands No.2 is wholly owned by Dumoylen.

59. The deceased also held property in Greece, ^[63] including:

1. an apartment in Vouliagmeni, ^[64] (a seaside suburb, about 20 km south of Athens city centre); and

2. an interest in a fish import/export business known as 45 Fish Butchery.

   63. CB 53-54[18].

   64. In some of the evidence Vouliagmeni is spelt with an “s” on the end: CB 36[9], 53[18a], 54[19], 54[22].

60. It appears that the deceased transferred his interest in 45 Fish Butchery to other business partners for no consideration prior to his death. ^[65]

    65. CB 54[20].

Contentions regarding net estate and notional estate

61. In summary, the position from the joint schedule is as follows: ^[66]

    66. Pages 10-11.

Item	Angela’s value	Kelly’s value
Net estate assets	$10,134,049 to $11,134,049	$1,169,049
Net notional estate	$10,716,382	$1,530,000 [67] $4,407,354
Debts	$8,085,000	$0 [68]
Net position	$12,765,431 to $13,765,431	$5,576,403

67. If the Court accepts Kelly's contention that the Trusts have "nil" value until such time as the underlying entities are wound up.

68. Incorporated into assets of the estate and notional estate.

62. Evidently, the parties structured their positions differently. In calculating the net estate assets, Kelly took into account the debts of the estate. When applying the same method to Angela’s values, Angela’s estimate of the net estate assets (ignoring notional estate) is between 2,049,049 ^[69] and 3,049,049, ^[70] compared to Kelly’s estimate of $1,169,049.

    69. $10,134,049 minus $8,085,000.

    70. $11,134,049 minus $8,085,000.

63. This manner of setting out the joint schedule led to it extending to 20 pages and did not facilitate ease of reading. On first blush, it gives the impression that the parties are in much more disagreement than they actually are. Ideally, to facilitate hearings (whether interlocutory or final) parties should co-operate in preparing joint schedules in a way that facilitates ease of reading and understanding of what is in contention.

64. The parties agree that the Belmore property ($1.88m) and Roselands No.1 ($1.36m according to the plaintiff and $1.3m according to the defendant) are assets of the deceased’s estate and subject to mortgages in agreed amounts. The parties also agreed as to the value as at 30 June 2023 of (a) CE net $263,012 (b) CES net $2,154,680; and (c) CESG net $159,522.

65. The main estate value differences between the parties appear to be as follows:

1. the Vouliagmeni apartment – valued at $6m to $7m as part of the deceased’s actual estate according to Angela and $1.2m as part of the notional estate according to Kelly;

2. the Trusts – Kelly contends that the Trusts have “nil” value until such time as the underlying entities are wound up;

3. the Family Trust – Angela contends in any event that the value is $1,468,690 whereas Kelly contends, if it is wound up, the value is only $459,662 – the main difference being the value attributed to a liability being loan funding;

4. Sylvania duplex – Angela contends that the value is $3m whereas Kelly contends the value is $975,000, being a 50% share of the joint tenancy (and in any event is said to be subject to liability of $550,000, being a 50% share of mortgage);

5. Bondi strata unit – Angela contends that the value is $3.83m whereas Kelly contends the value is $1.3m, being a 50% share of the joint tenancy (and in any event is said to be subject to liability of $1.395m being a 50% share of mortgage); and

6. Dumoylen – Angela contends that the net value is $1,075,978 whereas Kelly contends the net value is $655,978 – the essential difference being Angela values Roselands No.2 at $1.62m rather than $1.2m.

Angela’s financial circumstances

Vocation and income

66. Angela completed high school in Athens in about 2007 and a diploma of business administration in 2010. However, she graduated at a time when unemployment rates were very high in the midst of the Greek government debt crisis and was unable to find employment in that field. Periodically, she worked odd jobs in hospitality. ^[71]

    71. CB 84[21]-[23].

67. It appeared to be common ground between counsel that the last time Angela had any paid employment was in 2021. ^[72] She has had either training or some experience working as a beautician. ^[73] In April 2019, she commenced a 9 month aged care course at ALG College in Sydney with the deceased paying (through others) for all of Angela’s education fees, agent fees and legal fees for her visa. ^[74] Angela states that the deceased arranged for her to stay from April 2019- February 2020 at an apartment in McMahons Point owned by a friend of the deceased, Theodore. ^[75] She returned to Greece for approximately 10 days in September 2019. ^[76] By November 2019 she had almost completed the course. ^[77] However, it is unclear whether she was awarded a degree or certificate. ^[78]

    72. T 46.8-.12.

    73. T 45.13-.26.

    74. CB 88[49].

    75. CB 88-89[50].

    76. CB 89[54].

    77. CB 89-90[57].

    78. T 63.16-.21.

68. There is no dispute that the deceased transferred to Angela via a joint bank account in Greece a sum of €203,649 in the three years prior to the deceased’s death, which Kelly asserts at 2024/2025 exchange rates amounted to approximately AUD $330,000-$350,000. ^[79] According to Angela, ^[80] the monies in the joint account were used for: (a) everyday living expenses of her and the deceased; (b) payment of a deposit for the an apartment in Athens in which she would reside and also from where she would operate a beautician studio; and (c) for renovations to the apartment.

    79. CB 30[19]; KOS [8(b)], [31], [31]; T 24.36-.40.

    80. CB 109[8]; 133[12(g)].

66. In August 2024, Angela was living with her mother (an aged pensioner) in her mother’s rental accommodation without paying any rent. ^[81] She relied upon her savings to pay everyday expenses. ^[82] Currently, Angela is unemployed, ^[83] and has no source of income. ^[84]

    81. CB 101[133], 102[148], 104[159].

    82. CB 101 [134].

    83. CB 133[16].

    84. CB 133[13].

67. Unable to obtain work in Greece, she recently travelled to Switzerland to seek work in the hospitality industry ^[85] (possibly as a waitress). ^[86] Whilst there is no evidence that she has secured employment, she indicates she may return to Switzerland if she can find affordable accommodation, anticipating income of €4,000 per month. ^[87]

    85. CB 133[17].

    86. T 45.36-.42.

    87. CB 133[17].

68. Mr Wilson SC indicated, in response to my query as to how she gets by with no income, that she relies on her savings in a context where she is still living with her mother. ^[88] Ms Lowson disputed that Angela was living on her own savings. She contended that Angela was living on money that the deceased had given her, having regard to the fact that she withdrew approximately €25,000 from a joint account on 13 September 2023. ^[89]

    88. T 48.15-.20, read with T 52.22-.42.

    89. T 62.40-.50.

69. Mr Wilson SC, in response to my musing, appeared to embrace the notion that Angela was getting by depending on or relying upon her mother at least to some degree for meeting expenses. ^[90] That is my impression, though the extent of any such reliance is unclear.

    90. T 53.13-.19.

70. Subsequent to entering into possession of the Glyfada apartment and prior to completion, she undertook some initial renovation and repair works to enable her to operate a beautician business from the apartment. As matters currently stand, it is uninhabitable and she is unable to lease it to a tenant. ^[91]

    91. CB 133[12(g)], 136[34].

Assets and liabilities

74. Angela’s assets and liabilities as at 8 May 2025 were stated as being as follows: ^[92]

    92. CB 134[20], 696.

Solely Owned Assets	$AUD	$AUD
Bank Accounts (€45)	$79
[Glyfada] Apartment (€260,000)	E $457,143
Total Solely Owned Assets	$457,222
Sole Liabilities
Loan payable to Nikos Koube pursuant to Private Loan Agreement dated 27 February 2025 (€179,800)	E $316,132
Personal loan from Plaintiff’s mother (€25,900)	E $45,428
Total Sole Liabilities	E $361,560
Net Position	$95,662
Jointly Owned Assets	$AUD	$AUD
Bank Account held jointly with father (€27) Bank Account held jointly with mother (€0.20)	$47 $0.35
Total Jointly Owned Assets	$47.35

75. Submissions on the application especially focused upon aspects involving the Glyfada apartment and accordingly I will set out some details regarding this.

Glyfada apartment

76. Angela deposed to the fact that prior to the hearing of the application for interim provision, she had sought a loan from the bank to complete the purchase of the Glyfada apartment and that her application was rejected. ^[93] She further deposed to making extensive enquiries about borrowing from family and friends. ^[94]

    93. CB 134[26].

    94. CB 135.

77. Angela completed the purchase of the Glyfada apartment by paying €234,000, ^[95] with a loan she was able to secure from Nikos Koube (the son of a friend of her father) of €179,800. The terms are that the principal of the loan is to be repaid within one year being 27 February 2026, that no interest will accrue on the principal if it is repaid on or before that date, and if it is not repaid by that date she is to pay default interest at 8% per annum. ^[96] The terms of that loan agreement are in evidence. ^[97]

    95. CB 136[33].

    96. CB 135-136[32].

    97. CB 641.

78. Ms Lowson, under a heading “Plaintiff’s conduct of these Proceedings”, stated that, having regard to Angela’s evidence in these applications, it is apparent that Angela had explored if not secured an alternative method of funding purchase of the apartment. She submitted that the premise of Angela’s interim provision application, namely that she would lose the opportunity of finalising the purchase of the apartment and/or seek a damages claim if it failed was “putting the best spin on it – and not the whole truth”. ^[98]

    98. KOS [39].

79. It is not obvious to me that the fact that Angela may have been exploring alternative funding or even signed a loan agreement by the time that Kunc J was dealing with the interim provision claim necessarily means that a case was being advanced on an untruthful premise. The exploration of alternative funding or signing of any loan agreement may have been attended by uncertainty right up until the agreement was signed and, in any event, might not have been known to those advancing her case. I do not regard it as being appropriate for me to make any finding that Angela’s pursuit of the interim provision application was on a “not the whole truth” basis.

80. Angela states the property is uninhabitable and she is unable to lease it to a tenant. She indicates that she owes more than €206,300 although does “not have the risk of a claim for damages to reinstate the property to a liveable condition”. ^[99] It is not entirely clear to me what Angela means by that negated risk.

    99. CB 136[33]-[34].

81. Relevantly, Angela asserts she has no capacity to borrow further monies, stating as follows: ^[100]

I have recently borrowed monies my (sic) parents and a family friend to complete the acquisition of the Athens apartment. I am heavily indebted. I am unable to borrow further monies. I have previously sought a bank loan to fund the completion of the sale of the apartment and was advised that I was unable to borrow due to my inability to demonstrate a capacity to meet the repayments as a consequence of my unemployment.

100. CB 137[39].

82. Further, Angela believes that if she were ordered to pay security for costs she would not be able to do so with the consequence that it would stifle the proceedings. ^[101]

    101. CB 137[40], [42].

83. On the hearing, Ms Lowson objected to Angela’s evidence about seeking a loan from the bank and it being rejected. Ms Lowson upon clarification did not dispute the fact that Angela had sought a loan, but rather intimated that Kelly had sought clarification as to when the loan application had occurred. ^[102]

    102. T 5-6.

84. Kelly contested the value of the property. Mr Konstantinidis arranged for an estate agent, Effie Manolaki, in Athens to provide an appraisal. Ms Manolaki provided a drive-by valuation enclosing the photographs of the outside of the building, noting that she had not inspected inside the apartment (Glyfada appraisal). ^[103] The apartment is a first-floor apartment of a hundred square metres with three bedrooms, one bathroom, but no parking available. The apartment property was constructed in 1975.

    103. See T 47.1-.13.

85. Based on the following circumstances, the property was estimated as having a value of €3,500 per square metre for a total of €350,000: the residential property market in Athens had experienced an annual increase of greater than 10% per annum in certain areas since COVID-19 restrictions were removed; Glyfada is a popular suburb at the start of the Athenian Riviera area; there is a neighbouring area which has undergone Europe’s largest urban regeneration project, said to increase the value of the entire Athenian Riviera region; the apartment size, layout, and many amenities are suitable for a wide range of buyers; and, although the apartment is older and has not been renovated, its potential for renovation or updating adds value.

86. Mr Wilson SC on the hearing of the application seemingly acknowledged that by reason of the above-mentioned evidence (notwithstanding it was not a “complete valuation”) there was equity in the Glyfada apartment which would be available through the execution process. ^[104]

    104. T 44.26-.30.

Costs

87. Ms Lowson submitted that there was no evidence regarding the circumstances of payment of Angela’s costs, any security involved and the extent to which she is risking costs herself. ^[105]

    105. T 63.49-64.3.

88. In response to Ms Lowson’s submission, Mr Wilson SC clarified that Angela has no liability to her legal representatives if she is unsuccessful. He added that there is no contingency amount. ^[106] That position is consistent with the fact that her list of assets and liabilities does not disclose any deposit of funds to Mr Dornan’s firm or any disclosure of security in respect of fees or costs. ^[107]

    106. T 64.28-.30.

    107. T 64.32-.42.

Security for costs

89. Having set out the background and Angela’s financial circumstances, I will now address the relevant principles regarding security for costs applications and factors that bear upon such applications.

Purpose

90. The power to order security for costs has been described as essentially an exercise in risk management as the Court balances the interests of the parties having regard to their legitimate interests both as applicant and respondent. ^[108]

    108. Dal Pont at [28.1] p 1024 citing observations of French J in East Grace Corporation v Xing (No 1) [2005] FCA 219 at [6]. See also Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813 (Battenberg) at [82]-[84] per Lindsay J.

91. The object of a security order is to have a fund available within the jurisdiction against which a judgment for costs can be enforced if the plaintiff is ultimately unsuccessful in the proceedings. ^[109]

    109. Li v State of New South Wales [2013] NSWCA 165 (Li) per Ward JA at [21]-[22] (Macfarlan and Gleeson JJA agreeing at [1] and [55] respectively) citing GE Dal Pont, Law of Costs (2nd ed, 2009, LexisNexis) (Dal Pont 2E) at [29.63].

Enlivening condition

92. Kelly’s application for security for costs was based on the circumstance that Angela is ordinarily resident outside Australia. ^[110]

    110. UCPR 42.21(1)(a); KOS [6].

93. In such a circumstance, the Court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant’s costs of the proceedings and that the proceedings be stayed until the security is given. ^[111]

    111. UCPR 42.21(1)(a).

Relevant considerations bearing upon determination

94. In determining whether it is appropriate to make such an order for security for costs, the Court may have regard to 14 enumerated matters and such other matters as it considers relevant. ^[112] The 14 matters are:

    112. UCPR r 42.21(1A).

(a) the prospects of success or merits of the proceedings,

(b) the genuineness of the proceedings,

(c) the impecuniosity of the plaintiff,

(d) whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct,

(e) whether the plaintiff is effectively in the position of a defendant,

(f) whether an order for security for costs would stifle the proceedings,

(g) whether the proceedings involves a matter of public importance,

(h) whether there has been an admission or payment in court,

(i) whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant,

(j) the costs of the proceedings,

(k) whether the security sought is proportionate to the importance and complexity of the subject matter in dispute,

(l) the timing of the application for security for costs,

(m) whether an order for costs made against the plaintiff would be enforceable within Australia,

(n) the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff.

95. The provisions do not: (a) require that all or any of such matters must be taken into account; (b) prioritise the list of matters; (c) specify any particular weight to be given to any such matter; or (d) direct or mandate that any of the matters listed will necessarily be of decisive significance in determining the application for security. ^[113]

    113. Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 (Guamani) at [141] referencing the comments of Hallen J analysing similarly structured provisions in the context of family provision proceedings in Mallitt v Gow [2022] NSWSC 1012 at [222]-[224].

96. In PS Chellaram & Co Ltd v China Ocean Shipping Company [1991] HCA 36; (1991) 102 ALR 321 (Chellaram), McHugh J stated: ^[114]

… the court exercising the discretion must weigh all the circumstances of the case. The weight to be given to any circumstance depends not only upon its own intrinsic persuasiveness but upon the impact of the other circumstances which have to be weighed. A circumstance which may have very great weight when only two or three circumstances have to be weighed may be of minor significance when many circumstances have to be weighed…

114. At 323.

97. An order for security for costs cannot be made merely on account of the impecuniosity of a ‘natural person’ plaintiff. ^[115]

    115. UCPR r 42.21(1B).

98. Security for costs is to be given in such manner, at such time and on such terms (if any) as the Court may by order direct. ^[116] Failure to comply with such an order permits the Court to order that the proceedings be dismissed. ^[117]

    116. UCPR r 42.21(2).

    117. UCPR r 42.21(3).

99. In construing r 42.21, it is necessary to have regard to the purpose or object underlying the provision so as to adopt a construction that would promote that purpose or object rather than a construction that would not. ^[118] Further, the Court must seek to give effect to and best advance the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in any proceedings when it interprets and exercises any power given to it by the UCPR. ^[119]

    118. Interpretation Act s 33.

    119. CPA ss 56(1), (2), 57(2).

Prospects of success or merits of the proceedings

100. The strength of a plaintiff’s case can impact the Court’s discretion vis-à-vis security for costs because, the weaker the plaintiff’s case, the greater the likelihood that costs will be ordered against the plaintiff should the matter be litigated. ^[120] Both Ms Lowson and Mr Wilson SC accepted this. ^[121] Ms Lowson emphasised that a weak case increases the risks to the defending party of incurring costs where those costs may not be recoverable because the plaintiff is a non-resident of Australia. ^[122]

     120. Dal Pont at [29.82].

     121. KOS [9]; AOS [22(ii)].

     122. KOS [9].

101. Generally, the evaluation of the strength of the plaintiff’s case is necessarily tentative and largely ‘impressionistic’. ^[123] Exceptional cases aside, authorities ‘counsel against undertaking too fine or detailed an analysis of the merits’. ^[124]

     123. Dal Pont at [29.84] citing Byron Shire Businesses for the Future Inc v Byron Shire Council & Holiday Villages (Byron Bay) Pty Ltd (1994) 83 LGERA 59 at 65 per Pearlman J (LEC).

     124. Dal Pont at [29.84] citing Adelaide (SA Pools & Spa) Manufacturing and Installation Pty Ltd v Westcourt General Insurance Brokers Pty Ltd [2016] SASC 60 at [36] per Doyle J.

Ease of enforcement

102. Dal Pont observes that, historically, in the absence of special circumstances, in a case where costs follow the event, a natural non-resident plaintiff will be ordered to lodge security precisely because of the difficulty of enforcing the judgment for costs overseas. ^[125]

     125. Dal Pont at [29.72] citing Mavani v Ralli Bros Ltd [1973] 1 All ER 555; 1 WLR 468 at 475 per Kerr J; Porzelack KG v Porzelack (UK) Ltd [1987] 1 All ER 1074; 1 WLR 420 at 424 per Sir Nicolas Browne-Wilkinson VC; Berkeley Administration Inc v McClelland [1990] 2 QB 407; 1 All ER 958 at 963-4 per Parker LJ; 2 WLR 1021; Shackles v Broken Hill Proprietary Company Ltd [1996] 2 VR 427 at 428-9 per Byrne J.

103. In Chen v Golden Land Enterprises Pty Ltd (No 2) [2022] NSWSC 985 (Chen), Parker J also addressed the origins of the procedural principle which informs r 42.21(1)(a) and the changes of approach over time having regard to systems establishing reciprocal enforcement of judgment between countries. ^[126]

     126. At [23]-[66].

104. In Chellaram McHugh J stated: ^[127]

... for over 200 years, the fact that a party, bringing proceedings, is resident out of the jurisdiction and has no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. Indeed, for many years the practice has been to order such a party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction.

127. At 323.

105. Nonetheless, by reference to the decision of Gaudron J in Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521 ^[128] (Singer No.1), Dal Pont observes that: ^[129]

But as the rules require ‘a discretionary judgment of a very broad kind made by reference to the circumstances of the particular case and not by reference to a rule or rules which direct a decision one way or the other’, the above is no blanket imperative.

128. At 521-522.

129. Dal Pont at [29.72].

106. Dal Pont notes that “the trend of the cases shows that the ease and convenience of enforcement procedures in the plaintiff’s country of residence will ordinarily be a primary consideration” ^[130] and conversely ^[131] “that the judgment would be simple to enforce is a powerful factor against the making of a security order”. ^[132]

     130. Ibid citing Jalfox Pty Ltd v Motel Association of New Zealand Inc [1984] 2 NZLR 647 at 649 per Ongley J (HC); Nasser v United Bank of Kuwait [2002] 1 All ER 401 at 419-20; [2001] EWCA Civ 556 (Nasser) per Mance LJ; Berry v Innovia Security Pty Ltd [2014] FCA 357 at [34] per Buchanan J; Ministry of Foreign Affairs of the Republic of Italy v Simeone [2016] QDC 160 at [13] per McGill DCJ.

     131. Li per Ward JA at [24] citing Dal Pont 2E at [29.63].

     132. Dal Pont at [29.72] citing for example, Knott v Signature Security Group Pty Ltd (2001) 104 IR 84 at 94-5; [2001] NSWIR Comm 12 per Wright J. Cf Nasser [2002] 1 All ER 401 at 420 per Mance LJ.

107. Further, Dal Pont notes that another consideration is whether the foreign jurisdiction in question has legislation entitling Australian judgments to be registered and enforced in it. ^[133] In such a case he observes that a defendant who goes to the expense of registering a costs order obtained from an Australian court will be in a position no worse than had the plaintiff been resident in Australia, ^[134] the rationale being: ^[135]

Otherwise an impecunious plaintiff could be ordered to give security ‘merely because he was ordinarily resident outside Australia, although his absence from Australia had little, if any, prejudicial effect on the respondent’s prospects of recovering his costs’. It is nonetheless customary, in such a case, to order the plaintiff to lodge security for the costs of registering and enforcing a judgment in his or her country of residence, as a successful defendant should not ‘have to risk incurring that additional expenditure in enforcing a judgment for costs’.

133. Dal Pont at [29.73] citing Foreign Judgments Act 1991 (Cth) (Foreign Judgments Act) s 5(1) (which provides that judgments of the courts of another country can be registered and enforced in Australian courts if there is reciprocity with that other country in this respect); the Foreign Judgments Regulations 1992 (Cth) (Foreign Judgments Regulations) list certain countries for this purpose).

134. Dal Pont at [29.73]

135. Dal Pont at [29.73].

108. Dal Pont suggests reciprocity of enforcement is not necessarily conclusive against an order for security. ^[136]

     136. Dal Pont at [29.74].

109. Curiously, Dal Pont does not address the decision of Gzell J in Lo Surdo v Public Trustee [2003] NSWSC 837 (Lo Surdo). In that case, the plaintiff who claimed to be a child of the deceased and was domiciled in Italy commenced a family provision claim in circumstances where the estate had been almost completely distributed. He sought an order designating certain real property in New South Wales as notional estate. The active defendant was a daughter of the deceased and the sole beneficiary under the deceased’s Will. The defendant asserted that the plaintiff had been adopted by another family with the consequence that he was not a child of the deceased nor otherwise eligible. The defendant applied to stay or strike out the proceedings and alternatively sought an order for security for costs. The plaintiff had no assets in Australia, but did have assets in Italy.

108. Mr Wilson SC relies on Gzell J’s statement that, whilst non-residence is a pre-condition to the exercise of the Court’s discretion, there must be something more to justify an order. ^[137]  His Honour had particular regard to the existence of effective reciprocal legislation permitting enforcement of judgments in a foreign country. ^[138] Italy was a country having such reciprocity. ^[139] His Honour referred to the decision of Gaudron J in Singer No.1, and the “special nature” of costs orders in family provision proceedings. ^[140] His Honour dismissed the application for security for costs, observing that: ^[141]

…Furthermore, if I had been minded to grant security for costs, I would have limited the amount to a registration fee in Italy of a judgment of this court. In the absence of any evidence as to this amount, or if evidence revealed a relatively small amount was payable, I would have exercised my discretion against making any order…. 

137. AOS [22(i)]; Lo Surdo at [26].

138. At [21]-[25].

139. At [22].

140. At [30].

141. At [31].

111. In Milosevska v Milosevski [2019] NSWSC 711 (Milosevski), Hallen J referred to Lo Surdo. His Honour referred to the fact that security for costs applications were “somewhat unusual” in family provision cases though “not unheard of”. His Honour set out a helpful summary of general principles in relation to applications for security for costs, ^[142] and I have had regard to them.

     142. At [76(a)-(y)].

112. His Honour observed that the general principles that he had outlined do not support, entirely, the proposition that “there must be something more to justify an order” (in the case of non-residence). ^[143]

     143. At [110].

113. Mr Wilson SC noted ^[144] that Lindsay J in Battenberg had cited Lo Surdo. Specifically, Lindsay J identified what the “something more” was, stating: ^[145]

Non-residence is a pre-condition to an exercise of the discretion to order security, but there must be something more to justify an order: Lo Surdo v Public Trustee [2003] NSWSC 837 at [26]. That “something more” is an unacceptable risk that, unless an order for security is made, a costs order made later in the proceedings will be frustrated by an unwillingness or inability of the plaintiff to satisfy it.

144. T 46.14-.32.

145. At [121].

114. In any event, in Milosevski, Hallen J observed that Lo Surdo was a case “very different” to the case before him. ^[146] In Milosevski, the plaintiff had no assets in New South Wales or in Macedonia and there was no evidence that Macedonia had legislation entitling an Australian judgment to be registered and enforced in that jurisdiction nor was it a jurisdiction where there is a reciprocal right of enforcement pursuant to the Foreign Judgments Act and Sch 2 to the Foreign Judgments Regulations. ^[147]

     146. At [107].

     147. At [108].

115. Ms Lowson submitted that there is no general rule that a costs order against a person resident outside Australia must be limited to the costs of enforcement, citing Chen at [51]. The submission, so far as it goes, is correct. However, it is not evident to me that the judgment of Parker J expressly supports that contention as distinct from being consistent with it.

Costs in family provision proceedings

116. The approach to costs in family provision proceedings inform the Court’s exercise of discretion in determining whether to make orders for security for costs.

Character of family provision proceedings and the overall justice of the case

117. Generally, costs are in the discretion of the Court, subject to the CPA, rules of Court and any other Act. ^[148] If the Court makes any order as to costs, the Court is to order that the 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. ^[149] In family provision proceedings, the purpose of the jurisdiction, character of the proceedings and specific legislation ^[150] inform the approach of the Court both as to costs ^[151] and security for costs. ^[152]

     148. CPA s 98(1)(a).

     149. UCPR r 42.1.

     150. Succession Act s 99; Trustee Act 1925 (NSW) especially s 59.

     151. Pethers v Pethers (No 2) [2025] NSWSC 561 (Pethers No.2) at [39]-[42].

     152. Singer No.1 at 522 (see also AOS [22(iii)]).

118. Ordinarily (leaving aside costs offers) the costs of a successful applicant will be ordered to be paid out of the estate calculated on the ordinary basis. ^[153]

     153. Benz v Armstrong; Benz v Armstrong; Benz v Armstrong (No 2) [2022] NSWSC 668 per Ward CJ in Eq at [27].

119. In Milosevski, Hallen J directed some comments to costs orders in respect of unsuccessful applicants in family provision proceedings. His Honour stated:

101.   Whilst there remains the discretion to not order an unsuccessful plaintiff to pay a successful defendant’s costs, the usual rule as to costs, prescribed by the Civil Procedure Act, applies the same way as it does to any proceedings brought in this Court.

102.   I have written, more than once, for example in Harkness v Harkness (No 2) [2012] NSWSC 35, at [18], that:

“(c) The view of some practitioners advising a potential applicant contemplating a claim for a family provision order, that there is little risk, and probably much to be gained, in making a claim, however tenuous, because even if the claim fails the applicant will, very likely, get his, or her, costs out of the estate and that he, or she, will not be significantly out of pocket, and the legal practitioner will receive his, or her, costs and disbursements in any event, has been thoroughly discredited.

(d) Parties should not assume that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) [2010] VSCA 195. It is now much more common than it previously was for an unsuccessful applicant to be ordered to pay the defendant’s costs of the proceedings (Lillis v Lillis [2010] NSWSC 359 at [23]) and be disallowed his, or her, own costs.

…”

103.   The passages that I have repeated were adopted, and emphasised, by Pembroke J in Sung v Malaxos (No 2) [2015] NSWSC 290, at [8].

120. In particular, his Honour noted some limitations to the passage appearing in the third edition of Dal Pont’s “Law of Costs”. His Honour stated:

104.   The Plaintiff did not refer to what was written in Law of Costs (3rd ed, 2013, LexisNexis Butterworths, Australia), at 931-932, by Professor GE Dal Pont, particularly at [28.4]:

“[28.4] …[Courts] are reticent to accede to applications for security for costs in classes of case where, aside from any statutory directive, costs are not uncommonly met out of a fund. A typical example is the case law involving justifiable challenges to testamentary dispositions. Unsuccessful applications in family provision cases, for instance, may lead the court to make no order as to costs, particularly if it would have a detrimental effect on the applicant’s financial position. As such, a court is unlikely to order security in such cases unless convinced that the claim is frivolous or otherwise unmeritorious.” (Footnotes omitted)

105.   Perhaps, the paragraph was not referred to because of the plethora of cases, since 2013, in which an order for costs against an unsuccessful plaintiff for a family provision order has been made. In Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392, Basten JA, at [27], referred to the relevant principles that apply. His Honour’s exposition and reference to principles, suggest that what was written by Professor Dal Pont in the paragraph above, is no longer the state of the law.

121. Very broadly speaking, his Honour’s observations accord with my experience. At least in New South Wales, the terminology deployed by Dal Pont may no longer be apt.

122. Ms Lowson initially submitted that “under the current rules and the current legislation, it is common for a plaintiff to bear their own costs if they are unsuccessful in a family provision matter”. ^[154] Later, she stated: ^[155]

that question of whether or not costs would follow the event in a family provision proceedings is more attenuated than it would be in other proceedings, but it is certainly not a foregone conclusion that it would not occur, otherwise there would really be no work for the security for costs provisions to do at all in family provision proceedings and that is not the position.

154. T 10.5-.7.

155. T 65.31-.36.

123. Resort to generalisation regarding family provision costs is a little fraught.

124. Evidently, for security for costs purposes, in assessing likely cost outcomes, the default rules in rr 42.1 and 42.20 apply to family provision proceedings. ^[156] However, High Court and Court of Appeal authority still indicates that family provision cases stand apart from cases in which costs follow the event and that costs orders in such cases generally depend on the “overall justice of the case”. ^[157] True it is that the “overall justice of the case” is “not remote from costs following the event”. ^[158] Nonetheless, family provision cases call for additional “liberality and discrimination” in considering whether to exercise the discretion to override the usual rule. ^[159]

     156. Pethers No.2 at [55].

     157. Singer No.1 at 522 per Gaudron J.

     158. Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442 (Salmon v Osmond) at [174] per Beazley P (McColl and Gleeson JJA agreeing at [180] and [181] respectively) citing Jvancich v Kennedy (No 2) [2004] NSWCA 397 (Jvancich No.2).

     159. Haertsch v Whiteway (No 2) [2020] NSWCA 287 (Haertsch) per Macfarlan, Meagher and Leeming JJA at [6]; Salmon v Osmond at [174] per Beazley P citing Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 (Chapple v Wilcox) at [138]-[139].

125. The very fact that costs “generally depend on the ’overall justice of the case’” distinguishes such costs outcomes from the general run of cases where costs follow the event, and invites nuance.

126. Specifically, one reason for the more liberal approach to costs is that “although family provision claims can only succeed or fail, those binary outcomes tend to conceal difficult and even “borderline” questions of the nature of the evaluative and discretionary judgment of such claims”. ^[160]

     160. Haertsch at [11] citing Re Sherborne Estate (No 2) (2005) 65 NSWLR 268 at 279; [2005] NSWSC 1003 (Re Sherborne) and Moussa v Moussa [2006] NSWSC 509 at [8].

127. For the above reasons, the character of family provision proceedings may with other relevant factors be a consideration which leads to an outcome against the ordering of security. ^[161]

Do the “investigation exception” and “testator cause exception” apply to family provision proceedings?

161. Singer No.1 at 522-523. This is recognised by Ward JA in Li at [27].

128. On the hearing, Mr Wilson SC made a submission (as explained below) referable to exceptions to the general rule that costs follow the event which apply to probate proceedings. As I have previously commented in Guamani at [185], the probate costs exceptions are usually identified by reference to the decision of Powell J in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 (Hodges) at 709E-G namely that:

1. where the cause or responsibility for the litigation can fairly be laid at the feet of the testator the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate (“testator cause exception”); and

2. if the circumstances in which the testamentary instrument was created are such as to reasonably invite an investigation by the Court, the costs of that exercise may be left to be borne by those who respectively incur them (“investigation exception”).

129. Mr Wilson SC submitted that if Angela is unsuccessful in the family provision claim, there is doubt that the court would order her to pay costs because: ^[162]

Applying the line of authority commencing with Singer v Berghouse, and applied in Chapple v Wilcox, this is a case where, by analogy to the probate context, there is a need for an investigation as to the Plaintiff’s application where the consequence of any costs order is likely to be that each party pay their own costs of the proceedings.

162. AOS [23(ii)].

130. During oral submissions, Mr Wilson SC developed the submission ^[163] referring in particular to comments by Barrett JA in Chapple v Wilcox as follows:

141   Generally speaking, of course, a litigant’s financial position is irrelevant when it comes to the exercise of the costs discretion, particularly where that litigant is a plaintiff. Having subjected the defendant to court proceedings and lost, a plaintiff without means will generally not be able to resist a costs order just because he or she cannot pay. That general principle may be subject to some relaxation in family provision cases by application of “liberality and discrimination” - but only, I think, where the claim, although ultimately unsuccessful, had merit and involved a genuine question whether the scheme of testamentary benefaction in fact applying was, in the particular circumstances, one reflecting community standards. In Jvancich v Kennedy (No 2) (above), Giles JA recognized an analogy, as to costs, between family provision cases and probate proceedings. He noted that, in probate cases, departure from the rule that costs follow the event is often recognized as appropriate where the testator has been the cause of the litigation - where, for example, the will is ambiguous. In such cases, the costs of unsuccessfully opposing the executor may be ordered to be paid out of the estate. It may be said, in the same way, that if the testator has been the cause of family provision litigation by failing to make some disposition that he or she arguably should have made in accordance with community standards, the costs burden should fall on the estate, even if the ultimate decision of the court does not accommodate that disposition.

142   This is not such a case. There was very little merit indeed to the respondent’s contention that he should, to some extent, supplant his mother - the deceased’s only child - to whom the whole estate had been given. Applying the probate analogy, the testator was not the cause of the litigation.

163. T 49.42-.48.

131. I do not regard the comments of Giles JA in Jvancich No.2 (properly construed) as supporting the proposition that so-called probate cost exceptions ^[164] have some meaningful application to costs in first instance family provision proceedings.

     164. Guamani at [185] citing Hodges at 709E-G.

132. In Jvancich No.2, the Court of Appeal was dealing with the question of the costs of family provision proceedings both at first instance before a Master and on a successful appeal. The costs decision was delivered by Giles JA. Each of Handley JA at [1] and McColl JA at [22] agreed with Giles JA.

133. Giles JA in addressing the costs of the proceedings before the Master in particular addressed and rejected ^[165] a faint submission that costs should be limited to a ceiling of $35,000 in accordance with the observations by Young CJ in Eq in Moore v Moore [2004] NSWSC 587 at [43]-[47].

     165. At [4]-[6].

134. Giles JA then went on to address the costs of the appeal in a context in which the appellant had submitted that the appeal was adversary litigation and the normal rule that costs follow the event ought to apply and the respondent had conversely submitted that in a successful appeal the costs of both parties are generally ordered to be paid out of the estate (though acknowledging that in rare cases the respondent is ordered to pay the costs). ^[166]

     166. At [7]-[8], [16].

135. His Honour addressed the cases relied on by the respondent. In both Hunter v Hunter (1987) 8 NSWLR 573 and Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23, successful appeals resulted in costs of all parties being paid from the estate without discussion in the reasons. His Honour referred to the comments of de Groot and Nickel in Family Provision in Australia and New Zealand (1^st ed, 1993, LexisNexis) at [902.4(a)] that:

In the case of a successful appeal the usual order is for costs of both parties to be paid out of the estate… On rare occasions the respondent will be ordered to pay the appellant’s costs… The basis is not clear but it seems that will happen where the respondent is perceived not to have acted properly… An order that the parties bear their own costs may also be made where the estate is small…

136. His Honour then stated “some assistance may be gained from the disposition of appellate costs in probate proceedings” before considering the decision of Perpetual Trustee v Baker [1999] NSWCA 244 (Baker). That was a probate appeal case where his Honour along with Brownie AJA said the following regarding the extension of the probate exceptions to the normal costs rules at [15]:

We consider that the approach in these cases extends to the costs of unsuccessfully seeking to uphold a grant of probate on appeal, at least where the result at first instance was not obviously erroneous. In the present case the respondent was a necessary contradictor, and can hardly be said to have acted unreasonably when possessed of a judicially sanctioned grant. In the circumstances of the present case, we consider that a proper exercise of discretion is that the costs of the appeal should be paid out of the estate of the deceased, in the case of the appellant on a trustee basis.

137. Having considered Baker, his Honour Giles JA in Jvancich No.2 then used the same line of reasoning to comment that the costs approach at first instance in family provision proceedings may inform the approach to costs orders on appeal:

18 These observations were considered in this Court in Shorten v Shorten (No 2) [2003] NSWCA 60, with particular reference to the distinction between the testator being the cause of the litigation and the circumstances reasonably leading to an investigation. There was no occasion to pass upon the extension of the approach in the cases to the costs of unsuccessfully seeking to uphold a grant of probate on appeal.

19 It should be emphasised that costs are discretionary, and the order depends on the particular circumstances. In my opinion, however, in like manner the approach at first instance in Family Provision applications extends to the costs of unsuccessfully seeking to uphold an order for provision on appeal.

20 In the present case, I do not think the respondent acted unreasonably in seeking to uphold the Master’s order. The appeal was part of working out the provision the deceased should have made. In my opinion, her costs of the appeal should be paid out of the notional estate.

138. Accordingly, it seems to me his Honour was drawing an analogy with the way that the exceptions that apply at first instance in probate proceedings may be relevant for the purposes of an appeal, to make the point that a similar extension can apply to costs approaches in family provision proceedings, ^[167] rather than suggesting that probate principles should inform family provision costs determinations.

     167. At [19].

139. I accept that Barrett JA in Chapple v Wilcox at [141] appears to have construed the comments of Giles JA in Jvancich No.2, as giving rise to the possibility that costs in family provision proceedings might be informed by the fact that:

.. the claim, although ultimately unsuccessful, had merit and involved a genuine question whether the scheme of testamentary benefaction in fact applying was, in the particular circumstances, one reflecting community standards

[or]

.. the testator has been the cause of family provision litigation by failing to make some disposition that he or she arguably should have made in accordance with community standards, the costs burden should fall on the estate, even if the ultimate decision of the court does not accommodate that disposition.

140. However, assuming for the moment that Barrett JA proceeded upon that understanding, on the facts, his Honour gave the proposition short shrift, relevantly stating:

142 This is not such a case. There was very little merit indeed to the respondent’s contention that he should, to some extent, supplant his mother - the deceased’s only child - to whom the whole estate had been given. Applying the probate analogy, the testator was not the cause of the litigation.

261. Enforcement requires an application by a Greek lawyer at the first instance to a single-member Court of Athens for a hearing date for the court to recognise that the Australian judgment meets certain standards and enforceability in Greece. ^[292] The documents to be lodged include: (a) the original Australian judgment with Apostille, translated in Greek; (b) an Australian court certificate that the judgment is final and enforceable under Australian law, with Apostille and (c) a certificate from the Greek court that there is no contrary Greek court judgment on the same issue. ^[293]

     292. CB 692.

     293. CB 692-693.

262. The requirement for apostille certification was not explained but may relate to the Apostille Convention, ^[294] to which both Australia ^[295] and Greece are parties. The Convention facilitates the cross-border use of public documents by allowing simplified certification of the authenticity of the signature on a public document. ^[296]

     294. The full title is “Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents”, opened for signature 5 October 1961, 527 UNTS 189 (entered into force 24 January 1965).

     295. The Convention is incorporated into Australian domestic law: Foreign Evidence Act 1994 (Cth) s 37.

     296. See Khitrova v Khitrov [2008] FamCA 890 at [6]-[8] per Bennett J.

263. At the hearing, the Greek court examines whether or not: the Australian judgment is contrary to Greek law; the issuing court has jurisdiction; the defendant was duly summoned and participated in the proceedings; the judgment is final or enforceable under Australian law; and there is no contrary Greek court judgment on the same issue. ^[297]

     297. CB 692.

264. The cost for the above process amounts to around €1,700-€2,000 and translations are charged separately with fees being approximately €50 per page. If the party with the benefit of the judgment is a full-time resident of Australia (as Kelly would be, if she obtained a costs order against Angela at final hearing) there is no GST or VAT applicable unless the legal services are related with real estate in Greece. ^[298]

     298. CB 693.

265. The above “recognition” phase takes at least 6-8 months. ^[299]

     299. CB 693.

266. If the Australian judgment is recognised, the next phase is one of execution. To proceed with that, there must be an application for an execution deed and payment of the relevant stamp fees. The stamp fee amount varies according to “the legal base” of every court judgment but “when it comes to legal expenses ordered by a Court usually no stamp fees apply”. ^[300]

     300. CB 693.

267. As soon as the execution deed is issued, the Greek lawyer has to draft a warrant for enforcement which must precisely define the claim and include the amount due as per the Australian judgment. Drafting fees are said to be €120 per hour, and service fees approximately €50 for serving the warrant in the greater city of Athens area. Apparently, there are other minor related costs. ^[301]

     301. CB 693.

268. Once served, the judgment debtor has three business days to comply voluntarily with the judgment (presumably by making payment). If not, then after that lapse of time, the judgment creditor has the right to proceed with seizure options. ^[302]

     302. CB 693.

269. There are 4 common seizure options explained by Mr Anastasopoulos. I will not recite the detail of those options or the cost breakdowns. However, broadly speaking, the indicative costs are as follows: ^[303]

     303. CB 693-694.

1. seizure of a bank account €650-€850+;

2. seizure of salary or of rental income or debtor’s funds held by a third person on the debtor’s behalf €650-€850+;

3. seizure and public auction of real estate €2,050-€4,600; and

4. seizure and public auction of movable property €1,300-€3,200.

273. In the case of seizure and public auction of real estate, there are seemingly other public fees and legal fund contributions which are said to be usually 3% to 5% of the claim amount. ^[304]

     304. CB 694.

274. According to Mr Theodoropoulos, based on the exchange rate as at 9 May 2025 (being €1 equating to $1.75 AUD) the upper range of the estimated costs and disbursements is $29,750 AUD. ^[305]

     305. CB 78[20]; T 63.27-.33.

275. Further, there are certain factors that may affect that final cost, including the fact that higher “claim amounts” will result in higher legal fees and contributions; costs may increase if the matter has some complexity (such as there being multiple debtors or mortgage/encumbrances exist); and additional legal costs will apply if the debtor files objections or legal challenges to the process. ^[306] Mr Theodoropoulos surmises that in circumstances where solicitor/party costs for the whole matter for Kelly might total $250,000 AUD, the levy payable in Greece could be up to $12,500 AUD. ^[307]

     306. CB 694.

     307. CB 79[21].

276. There is no process in the Greek legal system for examination of a debtor by a court other than in connection with an application for bankruptcy filed by a debtor. ^[308] Initiating bankruptcy proceedings against a debtor in Greece is legally complex and relatively expensive process governed by the Greek Bankruptcy Code. Costs associated with this essentially range between €2,950 and €6,400. ^[309]

     308. CB 694.

     309. CB 695.

277. Ms Lowson submits that, strictly in the alternative, if the Court determines that there is an immutable rule that an amount of security in the case of a person resident outside Australia must be limited to the costs of enforcement, Kelly seeks an order for security of costs on the basis of the evidence attached to the affidavit of Mr Theodoropoulos. ^[310]

     310. KOS [35] citing CB 74, 692.

278. Further, Ms Lowson submits that: ^[311]

1. as presently informed, the Court does not know what other claims might take priority over the defendant’s enforcement of a costs order;

2. there is no easy mechanism of monitoring Angela’s dealings with the property before the determination of proceedings ^[312] or to prevent her from selling it even after the publication of a judgment against her; and

3. there is no purpose in limiting an order for costs to the costs of enforcement since the sufficiency of Angela’s Greek assets to meet Kelly’s costs is uncertain. ^[313]

   311. KOS [36].

   312. T 63.42-.47

   313. KOS [37].

279. Mr Wilson SC noted that there are no risks regarding enforcement in this case having regard to the fact that there is an ability to register and enforce a judgment in Greece ^[314] and Angela has property in Athens (being the Glyfada apartment) which he says (as noted above) reveals equity which would be available through an execution process. ^[315]

     314. T 59.31-.34.

     315. T 44.25-.30.

280. Mr Wilson SC seemingly accepted that the wording of r 42.21(1A)(n) does not necessarily limit security for costs to costs of registration but nonetheless submitted that the appropriate approach was that taken by Lindsay J in Battenberg. ^[316]

     316. T 47.17-.27.

Impecuniosity and stifling of proceedings

281. Ms Lowson in her written submissions raised as an issue for consideration of the security application the question of “what assets are held by the plaintiff in Greece”, ^[317] citing r 42.21(1A)(c) by which the Court may consider “the impecuniosity of the plaintiff”.

     317. KOS [8(c)].

282. Mr Wilson SC submits that Angela is impecunious. ^[318] In light of her current circumstances, Angela indicates that she does not have sufficient funds to pay security for costs sought by Kelly. ^[319] Accordingly, Mr Wilson SC contended that an order for security for costs would stifle the proceedings. ^[320]

     318. AOS [25].

     319. CB 133[19].

     320. AOS [26]; T 35.31-.33, 59.34-.38.

283. Ms Lowson disputed that an order for security for costs would stifle the proceedings. ^[321] She submitted that Angela’s evidence is such that she “has demonstrated an ability to obtain loans to secure the purchase of the apartment, (on favourable terms)” ^[322] and still has the capacity to borrow funds.

     321. KOS [33]; T 35.26-.39.

     322. KOS [33].

284. Part of the purpose of Ms Lowson adducing evidence regarding the Glyfada appraisal (valuing the apartment at €350,000 as opposed to Angela’s estimate of €260,000) was to suggest that Angela has greater capacity to borrow funds than she had asserted. ^[323] However, that does not necessarily follow. The mere fact that evidence has been adduced that a property has a larger valuation than that contended by another party does not demonstrate the other party is necessarily able to borrow funds on the strength of the additional alleged value of the property. Angela’s evidence is that she is unable to borrow further monies. When she sought a bank loan, the reason she was unable to borrow was not because of an assumed value of the property but rather her inability to demonstrate the capacity to meet repayments as a consequence of her unemployment. ^[324]

     323. T 33.39-35.27.

     324. CB 137[39]; T 44.25-45.10.

285. Alternatively, Ms Lowson submitted that Anegla could sell assets to provide security for costs. ^[325] She emphasised that selling her apartment would generate funds of at least $95,662 on her own evidence or a further $130,000 on the evidence of Mr Konstantinidis. ^[326]

     325. T 35.5-.39.

     326. T 35.5-.24.

286. Ms Lowson also emphasised that Angela “has the ability to work (noting that the plaintiff has provided no evidence of her attempts to secure employment since June 2021)”.

287. Regarding Kelly’s costs, Ms Lowson submitted that: ^[327]

The defendant had incurred costs of $150,000 as at 27 March. Some of those costs are already the subject of a costs order against the plaintiff. Further significant costs have been incurred in preparing for the hearing of these motions, and more costs will be incurred at a final hearing. Whilst the costs will be payable from the estate, as the sole beneficiary the cost of defending this claim in effect are coming from the defendant’s pocket.

327. KOS [34].

288. Thus, the costs are already at a level where the plaintiff has no disclosed sufficient net assets to provide security for the total, though I am mindful that the notice of motion seeks for Angela to pay security in the sum of $75,000.

289. I am not satisfied that Angela has the borrowing capacity as asserted by Ms Lowson. Angela states, and I accept, that she is unable to borrow further monies. ^[328] As detailed above, Angela has already borrowed funds on terms from Mr Koube ^[329] and has borrowed funds from her mother, with whom she lives with in rented accommodation. ^[330] Her parents are separated and both retired. ^[331] There is no indication that she would be able to obtain any further funds from a bank or otherwise.

     328. CB 137[39].

     329. CB 135.

     330. CB 102[148].

     331. CB 135[27].

290. Whilst it is true that Angela has not gone into chapter and verse regarding attempts to secure employment, her evidence, which for interlocutory purposes I accept above, is that she is unemployed and has so far not been able to secure employment even in Switzerland.

291. Further, Mr Wilson SC submits that the consequence of a finding that Angela has good or even reasonable prospects of success is that “she may not be burdened with a costs order, in which case that’s a factor militating significantly against security, because there’d be no need for it”. ^[332] He also submitted that if Angela is unsuccessful in the family provision claim, there is doubt that the Court would order her to pay costs. ^[333]

     332. T 59.22-.29.

     333. AOS [23(ii)]; T 59.29-.31.

292. I have taken into account that the prospects of success impact the likelihood of an adverse costs order. I have addressed the strength of the proposition that the Court may in any event exercise its discretion not to make an adverse costs order against an unsuccessful claimant in family provision proceedings.

Security determination

293. Ms Lowson accepted that whether an order for security for costs is made or not at least in part involves the Court considering the interests of each party, including the rights of a plaintiff to bring a claim and the rights of the defendant not to be burdened by a Pyrrhic victory. ^[334]

     334. T 66.4-.13.

294. Ms Lowson submits that having regard to the purposes of an order for security, Kelly should be protected from the risk that if Angela’s claim fails and an order for costs is made in favour of Kelly that Kelly is unable to recover those costs. ^[335]

     335. KOS [7]; T 32.29-.31, 65.9-.15.

295. Mr Wilson SC submits that, in any event, if security were to be ordered, it ought to be limited to the cost of registering a judgment which, based on the evidence of Mr Anastasopoulos, he suggested would be between €1,700-€2,000. ^[336]

     336. AOS [23(iii)].

296. Overall, balancing all the considerations, it seems to me that no order should be made for the provision of security for costs.

297. On the contested matters, I note the following:

1. I have rejected Ms Lowson’s submissions that Angela’s prospects of success are weak. I consider, at least on the basis of dependent household member eligibility, Angela has reasonable to good prospects of success.

2. Angela is currently unemployed, has meagre ready cash resources and her only asset of any substance, being the Glyfada apartment, is currently not in a condition in which it can be used for any remunerative employment by Angela. Angela is indebted to both her mother and to Mr Koube and I am not satisfied that Angela has any further borrowing capacity. I have also taken into account Ms Lowson’s submission that Angela can sell her assets to provide security for costs. However, attempting to fairly balance the interests of the parties, I am not persuaded that sale of Angela’s only asset of substance, the Glyfada apartment (which in any event is subject to debt), is a realistic or appropriate option.

3. Overall, I consider that any order for security would stifle the proceedings.

4. As a consequence of my finding above regarding her prospects of success, I consider she has similar prospects of obtaining an order for her costs to be paid out of the estate on the ordinary basis. Further, having regard to the fact that, in family provision claims, costs orders in relation to unsuccessful applicants “generally depend on the ’overall justice of the case’”, it is not clear to me that, even if she failed in the proceedings, she would necessarily be subject to an adverse costs order.

5. Further, there is an available “recognition” and enforcement procedure of the judgment in Greece.

298. Even if I am incorrect in respect of the above determination and it be found that some form of security ought to be provided by Angela, I consider that an amount of security ought to be no more than €1,700-€2,000. That is because I am not satisfied that Anglela has the resources to provide a meaningful amount of security beyond registration costs and I consider that an order for a greater amount would stifle the proceedings.

299. Lastly, in light of my determination, it is not necessary for me to deal with Mr Wilson SC’s submission that Kelly has delayed (unacceptably) in bringing the application for security. Whilst I note that the application for security was not filed until approximately 9 months after the commencement of the proceedings, I would not be inclined to rely upon that matter to refuse the application per se.

Non-inspection application

300. The non-inspection application is framed in terms of a direction that the plaintiff is not permitted to inspect documents produced by CE and CES. However, the specific opposition to inspection focuses upon access to bank statements of those companies. ^[337]

     337. See inter alia AOS [29].

301. Ms Lowson submitted that the companies (CE and CES) are owned by a family trust and used to operate the day-to-day transactions of the business. ^[338] She contended that Mr Wilson SC had accepted that there are sufficient funds in the estate to meet her family provision claim, were it to succeed ^[339] and that the material from the bank statements can only be relevant to the question of notional estate. ^[340]

     338. KOS [42].

     339. KOS [43]; T 35.50-36.3.

     340. T 35.45.48.

302. While she acknowledged the Court expects to be properly informed of the extent of the estate and notional estate, she submitted this does not require Angela to have access to the day-to-day dealings of the deceased’s companies, that level of detail being “simply irrelevant” to the proceedings. Further, she contended that allowing access will necessarily increase the costs to both parties. ^[341]

     341. KOS [43].

303. Ms Lowson, whilst not resiling from Kelly’s obligation to properly identify the extent of notional estate, contended that access to bank records was a “step too far and unnecessary for the purposes that your Honour has described”. ^[342] I had in conventional terms extracted from the decision in Grundy that the extent of the deceased’s wealth, property controlled by the deceased and property susceptible to being designated as notional estate nonetheless was a matter that informed the consideration of the overall context of the plaintiff’s application.

     342. T 39.26-.31.

304. Mr Wilson SC submitted ^[343] that the opposition to access to the bank accounts appears to be based on a misconceived view as to the purpose and extent of the concession before Kunc J. ^[344] Mr Wilson SC also made reference to the decision of White J in Farr (see above) to support his contention that access should be given to the documents. ^[345]

     343. AOS [30].

     344. KOS [3]; Kunc J judgment at [13]; T 32.25-33.48 (27 February 2025).

     345. KOS [32].

305. Property may be designated as notional estate under s 80 if it is property that is held by, or on trust for, a person by whom property became held as the result of a relevant property transaction, whether or not the property was the subject of the relevant property transaction: s 80(3)(a) Succession Act. ^[346]

     346. For example, see Charnock v Handley [2011] NSWSC 1408 at [180]-[196] and, particularly [191] per Hallen AsJ.

306. At least for the above reasons, there is some relevance in being aware of the extent of property that is currently held by an entity who holds property as a result of a relevant property transaction.

307. Mr Wilson SC contended that there is reason to think that there is material in the bank statements that has not accurately been reflected in balance sheets of the companies. ^[347] In a context in which he states that Kelly has asserted that the trading trust has a nominal value but financial accounts of the entity suggest otherwise and he wishes to test the accounts by reference to bank statements, ^[348] it seems to me that there is sufficient apparent relevance ^[349] for him to be permitted to explore that issue.

     347. T 39.33-.47.

     348. T 39.49-41.7.

     349. Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [32], [44]-[50], [56], [60], [68]-[71], [80] per Bell P, [88]-[89] per Brereton JA.

308. To be clear, the documents sought by Angela’s side under subpoena have already been produced. Ms Lowson’s objection essentially is that if inspection is permitted, it will necessarily engage both sides in further work. ^[350] That may be true. However, it does not seem to me to be a sufficient answer to preclude inspection.

     350. T 42.5-.8.

309. Lastly, Ms Lowson submitted that, if I were to permit inspection, there should be a restriction of access to the bank statements to the legal representatives in the proceedings. Mr Wilson SC did not oppose that ^[351] and accordingly I will order that access be so limited.

     351. T 42.23-.29.

Conclusion

310. In light of my above-mentioned findings, I dismiss both the security application and the non-inspection application. The subpoenaed material may be inspected, though there should be a restriction of access to the bank statements to the legal representatives in the proceedings.

311. Prima facie, costs follow the event.

312. However, Ms Lowson indicated that Kelly seeks to be heard in relation to the payment of costs of the applications. ^[352] Thus, I will give her that opportunity, if she wishes to be heard that a costs order other than I have provisionally indicated should be made.

     352. KOS [44].

**********

Endnotes

Amendments

21 August 2025 - Case title amended to reflect that it is the second decision in the proceedings.

Decision last updated: 21 August 2025