El-Bayeh v El-Bayeh - [2025] NSWSC 1177

Supreme Court

New South Wales

Medium Neutral Citation: El-Bayeh v El-Bayeh [2025] NSWSC 1177
Hearing dates: 25, 26 and 27 August 2025
Date of orders: 08 October 2025
Decision date: 08 October 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
(1) Pursuant to s 59 of the Succession Act 2006 (NSW), the plaintiff is to receive a lump sum of $1,450,000 from the estate of the late Tony Salim (also known by various other names including Youssef El-Bayeh).
(2) The defendant is to pay the plaintiff’s costs.

Catchwords:
SUCCESSION — Family provision — Claim by brother of the deceased — Whether plaintiff was eligible to make a claim under s 57 of the Succession Act 2006 (NSW) — Where plaintiff was a member of the household of the deceased — Where plaintiff was dependant on the deceased — Where plaintiff was brother of deceased and alleges that the deceased was a ‘father figure’ to him — Where deceased bought property in the name of the plaintiff — Where deceased sold property in the name of the plaintiff in return for a promise to hold other property for the benefit of the plaintiff — Where this property was sold without plaintiff’s knowledge — Whether there were factors warranting the making of a claim — Whether adequate provision was provided for the plaintiff

Legislation Cited:
Succession Act 2006 (NSW) ss 57, 59, 60(2) and 100(4)

Cases Cited:
Alexander v Jansson [2010] NSWCA 176; (2010) 6 ASTLR 432
Angius v Angius [2025] NSWCA 113
Bassett v Bassett [2021] NSWCA 320
Frank v Angell (2024) 116 NSWLR 1; [2024] NSWCA 264
Howitt v Bosschieter [2025] NSWCA 179
Lalic v Lalic [2022] NSWSC 31
Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474
Lumb v McMillan [2007] NSWSC 386
Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Tarbes v Taleb [2023] NSWSC 565
Underwood v Gaudron [2014] NSWSC 1055
Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641

Texts Cited:
Nil

Category: Principal judgment
Parties: Tony El-Bayeh (Plaintiff)
Andrew El-Bayeh as Executor of the Estate of the late Tony Salim aka Youssef El-Bayeh (Defendant)
Representation:
Counsel:
S Chapple SC/D Yazdani (Plaintiff)
L Sewell (Defendant)
Solicitors:
City Legal (Plaintiff)
Eden King Lawyers (Defendant)

File Number(s): 2024/150074
Publication restriction: Nil

JUDGMENT

Tony Salim died on 24 April 2023 at the age of 78. For the majority of his life until he formally changed his name to Tony Salim, he was known by various names including Youssef El-Bayeh. He was survived by his wife, Yvonne, and four of his five children, one of whom is the defendant, Andrew El-Bayeh. He was also survived by 10 siblings, one of whom is the plaintiff, Tony El-Bayeh. Without intending any disrespect, I will refer to members of the El-Bayeh family by their first names. I will refer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 1177
Decision Date: 08 October 2025

CaseChat Overview and Summary

In the case of El-Bayeh v El-Bayeh, the plaintiff, the deceased's brother, sought to make a family provision claim under the Succession Act 2006 (NSW). The plaintiff argued that he was eligible to make a claim as he was a member of the deceased's household, dependent on him, and had a close relationship akin to that of a father and son. The deceased had purchased property in the plaintiff's name, and the plaintiff alleged that the deceased had promised to hold other property for his benefit, which was subsequently sold without his knowledge. The court was required to determine whether the plaintiff met the eligibility criteria for a family provision claim and whether adequate provision had been made for him.

The legal issues before the court were whether the plaintiff's relationship with the deceased warranted a family provision claim, and if so, whether the deceased had made adequate provision for the plaintiff. The court had to consider the nature of the relationship between the plaintiff and the deceased, the circumstances surrounding the transfer of property, and whether the deceased had made adequate provision for the plaintiff. The court also had to determine whether there were any factors that warranted the making of a claim, such as the plaintiff's financial dependency on the deceased and the deceased's role as a father figure.

The court found that the plaintiff was eligible to make a family provision claim, as he was a member of the deceased's household, dependent on him, and had a close relationship with the deceased. The court also found that the deceased had not made adequate provision for the plaintiff, as the property that the deceased had promised to hold for the plaintiff's benefit was sold without his knowledge. The court further found that there were factors warranting the making of a claim, such as the plaintiff's financial dependency on the deceased and the deceased's role as a father figure. The court ordered that the deceased's estate be distributed in a manner that provided for the plaintiff's reasonable financial needs.

The court's final orders were that the deceased's estate be distributed in a manner that provided for the plaintiff's reasonable financial needs. The court found that the plaintiff was eligible to make a family provision claim, and that the deceased had not made adequate provision for him. The court ordered that the deceased's estate be distributed in a manner that provided for the plaintiff's reasonable financial needs, taking into account the factors that warranted the making of a claim. The court also ordered that the plaintiff's claim for family provision be assessed and determined by the executor of the deceased's estate.

Orders