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

1. 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 to the plaintiff as Tony and to the deceased by his former name, Youssef.

2. Tony seeks an order for provision out of Youssef’s estate pursuant to Chapter 3 of the Succession Act 2006 (NSW). The somewhat unusual circumstances in which this claim is made are as follows.

Factual background

3. Youssef was born in Lebanon in 1944. He was the eldest son of Salim and Linda El-Bayeh. Youssef migrated to Australia in 1965 when he was about 21 years old. Youssef’s father, Salim, and one of Youssef’s sisters, Josephine, arrived soon afterwards. The remaining members of the El-Bayeh family arrived in 1969. The family initially lived in a house on Anderson Avenue, Ryde, that came to be owned by Youssef.

4. In 1969 when he arrived with his mother, Tony was about four years old, having been born in 1965. In 1969, neither Tony nor his parents spoke any English. In fact, neither Salim nor Linda ever became proficient in English.

5. Tony gave evidence that Youssef became a father figure to him and his siblings, especially his younger brothers, which included him (Tony), Louis and David. Louis and David gave evidence to like effect. Although they were challenged on their characterisation of Youssef as a ‘father figure’, I accept their evidence that that is how they saw him. I do so for several reasons.

6. First, during their infancy Youssef was the only grown-up in the family who spoke English proficiently. It was Youssef who organised their schooling and attended parent teacher interviews. Youssef was also responsible for other aspects of their social life, such as being involved in sporting teams.

7. Secondly and relatedly, there is no doubt that Youssef was in charge of the family finances during the whole of Tony’s childhood and, in fact, well into his adulthood. Salim entrusted his earnings from his factory job to Youssef. Youssef also took receipt of other income, including social security income earned by his younger siblings. He took savings of about $10,000 which David had managed to accumulate as a schoolboy between the ages of about 13 and 18. When as young adults Louis and Tony (and other siblings, including Leila and David) worked in a successful takeaway food business in Parramatta, the business was controlled by Youssef who took receipt of the earnings. It was Youssef who paid expenses for and on behalf of his younger siblings, including groceries, household expenses and school fees throughout their childhoods and early adulthoods.

8. Thirdly, the evidence shows that Youssef was a very strong character who quite willingly assumed the role of the head of the family. He took his responsibilities in that role very seriously. He acquired a property on Caithness Crescent, Winston Hills and, with the assistance of some of his siblings, constructed a house for the entire family to live in. Tony, David and Louis all describe him as being a rather domineering figure. What I have already said about the way he managed the household finances and assets tends to bear this out. So too does other evidence as to his involvement in Tony’s life as a teenager and young adult. For example, Youssef kept possession of Tony’s passport and bank passbook into his early adulthood. He took first receipt of any mail addressed to family members and screened it before passing it on to whomever it was intended for.

9. Fourthly, the evidence of Tony, David and Louis was that Youssef’s role as head of the family was encouraged by their parents, Salim and Linda. They recall that their parents encouraged them to defer to Youssef. As David explained, Salim and Linda were not worldly people. They had no formal education. As he put it, ‘they always reminded their children that they must listen and conform with whatever…Youssef requested’.

10. I therefore accept Tony’s evidence that he regarded Youssef as a father figure right up to his early adulthood.

11. In 1987, Louis took the initiative of starting the takeaway food business to which I have already referred. Initially he did so with a partner, but the partner’s interest was soon acquired by Youssef. From this point, all receipts went to Youssef, who managed the finances of the business. As mentioned above, Tony, Louis and their sister Leila (and occasionally other family members including David) worked very long hours in the business. Opening hours were 7:00AM to 12:00AM on Monday to Thursday and Sunday. On Fridays and Saturdays, it was open from 7:00AM to 4:00AM the next day. Tony worked 10-12 hour days, usually six and sometimes seven days a week. They typically received only $20 per day from Youssef.

12. After leaving school in 1983, Tony stayed at the Caithness Crescent property and received social security benefits for about four years. However, these benefits were paid into his bank account, to which he did not generally have access because Youssef continued to hold the passbook.

13. Tony worked in the takeaway business from 1987 until the business was closed in 1998 when the landlord declined to renew the lease. His only income was the $20 per day to which I have referred.

Youssef acquires properties

14. Youssef worked as a factory worker until 1979, when he was about 35 years old. He then stopped working. He did however continue to acquire properties, often in the names of other family members whose income, including social security income, he continued to receive. In May 1979 he acquired a property on Lanhams Road, Winston Hills, in the name of his sister, Leila.

15. In 1989, Youssef caused three properties to be acquired, as follows:

1. A property on Hassall Street, Parramatta, purchased in the name of David.

2. A property on George Street, Rosehill, purchased in the name of Louis.

3. A property on O’Connell Street, Parramatta, purchased in the name of Tony.

16. The circumstances I have described would tend to suggest that in causing these three properties to be acquired in the names of his young siblings, Youssef intended that the properties would be both legally and beneficially owned by them. After all, at this point they were all working long hours in the takeaway business from which Youssef was taking all the receipts.

17. However, Andrew disputes that Youssef intended the O’Connell Street property to be owned by Tony beneficially. Andrew’s case is that in 1989, Youssef acquired the George Street property for Louis’s benefit and the Hassall Street property for the benefit of David and Tony. However, elsewhere in his evidence, he says that all the properties acquired by the deceased but placed in his siblings’ names were held for Youssef’s own benefit and that he caused this to happen so that he could ‘fly under the radar’. By this, he meant that Youssef did not want people to know his true wealth. He presumably includes Youssef’s purchase of the O’Connell Street property in Tony’s name as one such example of this but it was unclear how his evidence as to the George Street and Hassall Street properties reconciles with this evidence.

18. I do not accept Andrew’s characterisation of what occurred, at least so far as the 1989 purchases were concerned. All three of Tony, David and Louis recall attending the local Westpac branch with Youssef in 1989, at which time arrangements were made for funds to be borrowed in their respective names for the purchase of property. David’s evidence as to what occurred was as follows:

“In or about 1987, Youssef promised my parents that Tony, Louis and I would acquire a home to live in from the fruits of the Family Business. I know this because I heard him make that promise to my parents. I recall that Youssef told my parents words to the effect of: ‘Don’t worry about the boys. They will be looked after. They will all have a house to live in.’ I overheard him make that promise to my parents on several occasions from about 1985 to about 1989. The commitment that Youssef made is clear in my memory.

Once I reached adulthood, Youssef acted on his promise to my late parents. We had contributed significantly to the Family Business and I previously advanced $10,000.00 to him. In about 1989, when I was 18 years old, I attended a Westpac Bank branch in Parramatta with my brothers Youssef, Louis and Tony. We went there to take out 3 loans for 3 different properties that we had saved up deposits for from the Family Business. Youssef held all the profits from the business. We met a bank manager there and each signed loan documents for the purchase of:

(i) 100 Hassall Street Parramatta, in the name of David El Bayeh;

(ii) 207 George Street Rosehill in the name of Louis El Bayeh; and

(iii) 52 O’Connell Street [Parramatta] in the name of Tony El Bayeh.”

19. I accept this evidence. It seems to me to accord with the logic of events in circumstances where David, Louis and Tony were working in a family business for which they were otherwise receiving next to no income. The deposits and mortgage payments were all paid for by Youssef, but he was at this stage not employed and there is a strong inference that he made all of these payments out of the earnings from the takeaway business.

20. A further reason to reject Andrew’s submission about the basis on which the properties were acquired in 1989 is to be found in the evidence given by Tony as to some dealings that occurred in 2002. In that year, Youssef directed Tony to sign documents to sell the O’Connell Street property. Tony said to him, ‘why would I do that? What do I get out of it?’. Youssef replied, ‘you will get the Lanhams Road property’. Unbeknownst to Tony, Youssef had in fact already caused the Lanhams Road property to be transferred into the name of ‘Tony Salim’ in 1996. This would seem to be a reference to Tony, because his patronymic middle name is Salim. It is not at all clear why Youssef did this. The fact that he did so could support a conclusion that this particular property was registered in the name of a sibling to allow Youssef to ‘fly under the radar’. However, because of the 2002 discussion to which I have just referred, it is unnecessary to reach a concluded view about the basis on which the Lanhams Road property was initially acquired. What matters is that on the strength of what Youssef told Tony about the Lanhams Road property in 2002, Tony agreed to sign documents for the sale of the O’Connell Street property which, as I have found, had been purchased for Tony’s benefit.

21. Tony received no proceeds from the sale of the O’Connell Street property. His evidence, which I accept, is that Youssef used the proceeds of sale to construct a warehouse on one of the Huntingwood properties which now forms part of his estate.

22. Yet another reason to reject Andrew’s case as to the basis on which the O’Connell Street property was acquired is to be found in the evidence which Youssef himself gave in proceedings involving David in 2006.

The 2006 proceedings

23. Between December 2000 and March 2001, Youssef drew down funds totalling over $122,000 against a Westpac loan account in David’s name. He was not authorised to do so, nor did David receive any benefit from the drawings. In about 2004, Youssef borrowed $300,000 in David’s name from Perpetual Trustee, without David’s knowledge or consent. Security for these borrowings was the Hassall Street property which was in David’s name.

24. In 2006, Perpetual Trustee commenced proceedings against David to recover the amounts borrowed by Youssef (in David’s name) and to obtain possession of the property. This was the first that David learned of the borrowings in his name. Understandably, he cross-claimed against Youssef for indemnity, pleading fraud.

25. The proceedings ran to a final hearing before McCallum J in 2010.

26. David was successful on his cross-claim for indemnity against Youssef. In the course of the proceedings, Youssef gave evidence that strongly corroborates much of Tony’s case in these proceedings. For example, he described having raised the younger siblings ‘like [his] children’, having kept the family business going, lent them money and bought properties for various of his siblings. He described himself as being a ‘father to 19 people’, which presumably included, at least, his parents, his 10 siblings (including Tony), his wife and his children. He accepted the proposition that he was ‘controlling the financial affairs of the whole family’ in 1989, to which he added that he had done so for his whole life and continued to do so even up to the time of the hearing.

27. So far as concerns the purchase of the three properties in 1989, Youssef’s evidence at the 2010 hearing included the following:

“Q. Then in 1989 you bought a property for each of those three brothers, [Louis], Tony and David, didn't you?

A. WITNESS: Correct.

Q. And you did those three things at the same time, bought the three properties at the same time?

A. WITNESS: I think [Louis] and David the same time, I think from my memory.

…

Q. At the time that you bought these properties you didn't have any documents setting out arrangements between you and any of the three brothers, did you?

A. WITNESS: At that time we always talking and I put them up-to-date what was going on and we do it by law. If we need any paper, we do the paperwork. To the bank or between us, I used to do everything, everything was normal, because I buy the property for their own benefit, not for my benefit. That's the agreement between me and my father. Can I say any more or that's enough?

Q. No, please tell us the rest of what you understand was the arrangement.

A. WITNESS: That's what I say, between me and my father, I promise my father I am very happy to give each my brother house and car when they get married, and I was in my way to do that and that's why I didn't have big argument with my brother [Louis] because he get married and have few children, I gave him the house.

…

Q. Nevertheless, you intended that in due course David would be the sole owner of the xxxxxxx xxxxxx property entitled to do what he wanted to do with it?

A. WITNESS: That thing between me and my God, I put for each brother and 10 sister property. If I had any accident and died they have something in their name, because my heart was for the family, like my father. I come to Australia in '65 and I used to work seven days a week, 16, 18 hour day. I pay for my monthly payment and then every time I save 1,000 English pound I send to my sister to bring sister and brother and I bring all my family before any war start.”

28. Counsel for Andrew objected to the admission of this transcript into evidence on the basis of hearsay. I allowed it on the basis that it was made admissible by s 100(4) of the Succession Act. The tender did not consist of the whole transcript, but only of particular portions identified by senior counsel for the plaintiff. As is clear from the above extract, parts of the evidence on which the plaintiff relied were against Youssef’s interest in the earlier proceedings and against the interests of the estate in these proceedings, because they contained statements that support the conclusion that Youssef acquired properties in 1989 for the benefit of his siblings.

29. Finally, on the question of whether to accept Andrew’s evidence about the basis on which the O’Connell Street property was acquired, I note that Andrew was not a good witness. It is fair to say that his attitude towards his uncles, but most particularly Tony, both in his affidavits and in his oral evidence was sneering and derisive. Although I am not generally inclined to place less weight on a witness’s evidence only because they are argumentative, Andrew was particularly combative during cross-examination and appeared to be somewhat contemptuous of the process.

30. Key aspects of Andrew’s evidence about the relationship between his father and Tony were not at all borne out by other evidence. For example, he said that Youssef and Tony had had a falling out many years prior to 2010 and that Tony had in fact moved out of the Caithness Crescent property in 2006. None of this was correct. Youssef’s evidence at the March 2010 hearing proves as much.

31. Senior counsel for Tony submitted that Andrew’s evidence about the relationship between Tony and Youssef overwhelmingly reflected things told to Andrew after his father had already had a falling out with Tony. For example, Andrew’s evidence about the state of their relationship is significantly contradicted by Youssef’s own description given in evidence before McCallum J. He further submitted that Andrew’s evidence about the relationship tended to be self-serving. There is force in all of these submissions.

32. In view of these matters, where there is a dispute in the witnesses’ recollections, I favour the evidence of other witnesses over that of Andrew.

33. In all of these circumstances, I find that Youssef intended that Tony would be the beneficial owner of the O’Connell Street property at the time he caused it to be acquired in Tony’s name in 1989.

The sale of the Lanhams Road property

34. Youssef did not keep his promise to Tony about the Lanhams Road property. In September 2010, after the proceedings before McCallum J had been heard but prior to judgment, Youssef caused a caveat to be lodged over the Lanhams Road property. The estate or interest claimed in the caveat was an equitable charge or an equitable mortgage in the sum of $304,000.

34. It is difficult to know what to make of the fact that Youssef caused this caveat to be lodged. The explanation must, I think, be that he did not consider himself either to be the registered owner or the person beneficially entitled to that property at the time. The registered owner was ‘Tony Salim’. The claimed estate was only as a chargee or mortgagee, not as the beneficial owner. The fact that he caused this caveat to be lodged seems to me to involve a tacit acceptance that he had promised Tony in 2002 that the property was held for his benefit, whatever may have been his intention at the time of purchase and at the time of transferring the property into the name ‘Tony Salim’ in 1996.

35. At about this time, Tony and Youssef finally fell out. Up to about 2010, Tony and Youssef had remained on reasonably good terms. Tony still lived at home with him in the Caithness Crescent property. Throughout the litigation, he had acted as something of a go-between for Youssef in his communications with Louis and David. Youssef said as much during the course of his cross-examination in early 2010, accepting that Tony was an intermediary and saying that Tony was ‘still with [him]’ and ‘in the middle’.

36. However, Youssef eventually saw Tony as aligned with his brothers and asked him to leave. Tony moved out of Youssef’s home in 2010 at the age of 45. This was the first time that Tony had lived independently of Youssef since he was four years old. Tony initially moved into the Hassall Street property with David. He eventually moved into shared rental accommodation with a friend, where he continues to live.

37. On 9 December 2011, Youssef was declared bankrupt. This was apparently due to the amount that Youssef was ordered to pay following the 2006 proceedings, including for his own legal costs, costs of other parties and amounts to Perpetual Trustee. The gist of Andrew’s evidence in this respect was that he quit his own job at this point and dedicated his life to rebuilding Youssef’s wealth.

38. In the years that followed their falling out, Tony became concerned that Youssef would attempt to deal with the Lanhams Road property in a way that was adverse to his (Tony’s) interests. In February 2013, he spoke to a local solicitor who notified the Land & Property Information Service of the threat of a fraud being perpetrated in relation to the Lanhams Road property. They caused a ‘registration and search stopper’ to be placed against the title.

39. However, in 2020, Youssef formally changed his name to ‘Tony Salim’, which was the name in which the Lanhams Road property was registered. He then caused his caveat (lodged in an iteration of his former name, ‘Yousseff El-Bayeh’) to be withdrawn on 20 August 2020, which he did using another iteration of his former name. He then sold the Lanhams Road property for the sum of $1,070,000. The evidence shows that at about this time, Youssef had a debt of about $800,000 to Centrelink. It appears that he used the proceeds of sale of the Lanhams Road property to repay this debt.

Youssef’s will

41. Youssef left a will dated 13 March 2023. He appointed his son, Andrew, as his executor and trustee and divided his estate as follows:

1. A legacy of $1,000,000 to each of his daughters, Denise, Linda and Elizabeth.

2. A legacy of $50,000 to his brother, Sayed.

3. A legacy of $100,000 to his wife, Yvonne.

4. The rest and residue of the estate to Andrew subject to:

1. the right of Yvonne to reside in the Caithness Crescent property;

2. Andrew meeting the costs associated with the upkeep of the Caithness Crescent property; and

3. Andrew providing financially for Yvonne from ‘the proceeds of [Youssef’s] estate’ until such time as she dies.

42. Probate was granted to Andrew on 25 September 2024. The value of property shown in the inventory annexed to the grant totals $24,164,622.40. The property includes the family home on Caithness Crescent as well as properties in Huntingwood said to have a combined estimated value of $20,000,000. However, even on the defendant’s case this is a gross understatement. As at 3 August 2025, Andrew estimates that the land in the estate has a combined value of over $50,000,000. He estimates the net value of the estate to be $44,775,327.29.

43. Although the plaintiff sought notional estate orders in the summons, the evidence was that the estate has not yet been administered. Any order for provision may therefore be met out of estate assets.

Tony’s circumstances

44. The plaintiff does not own any real property and has no substantial assets. His assets as of 15 August 2025 totalled about $105,000. They consisted of superannuation to the value of $94,024.01 (which he does not yet have access to), minimal savings, a car valued at about $7,500 and furniture and personal effects worth about $3,500.

45. Hanna Douaihy is a lawyer in charge of administering the estate of the plaintiff’s and the deceased’s father, Salim. Salim owned several properties in Lebanon. Her affidavit was read at the hearing before me but she was not required for cross-examination. Ms Douaihy says that neither Salim nor Linda made wills so, according to Lebanese law, Salim’s entire estate goes equally to his eleven children. As of early August 2025, his properties in Lebanon were expected to be sold by October 2025 with beneficiaries to receive sale proceeds within two months of sale. Each beneficiary (and therefore the plaintiff) is expected to receive USD$30,000 to USD$48,000 each.

46. The plaintiff’s liabilities as of 15 August 2025 consisted of $421.30 in ANZ credit card debt, and a $15,000 loan from his brother David.

Income and expenses

47. Since 2011, Tony has worked as a massage therapist. He makes about $1,200 a month from this job. He also receives income from Centrelink. His monthly income as of 15 August 2025 is about $3,202.

48. Tony has lived in the unit he shares with a friend since 2020. They share 50% of the rent, as well as the household expenses. He is single, has never been married and has no children or dependants.

49. Tony’s health circumstances are poor. He has had subsisting heart problems even following a 2022 surgery to have a stent placed in one of his heart valves. He visits a cardiologist about twice a year. He also suffers from a form of long COVID-19, bursitis in his left shoulder, onychomycosis, a left inguinal hernia, high cholesterol and vitamin D deficiency. Tony also says that he suffers from severe functional dyspepsia, irritable bowel syndrome and chronic abdominal pain.

50. Because of these health issues, Tony takes various forms of medication, many on a daily basis.

51. Tony’s monthly expenditure as of 15 August 2025 is roughly $4,662. This consists mostly of rent (at $1,300 per month), household expenses including food and utilities (over $1,200 per month), and vehicle-related and health-related costs (which both roughly cost Tony $700 per month).

52. In the result, Tony’s expenses presently outweigh his income by almost $1,500 a month.

Current and future needs

53. Tony wishes to pay off his existing debts to ANZ and to his brother, which total $15,421.30. He wishes to continue appointments with a cardiologist biannually, which will cost him about $408 per annum after the Medicare rebate. Tony also wishes to buy a property, stating that he can no longer afford to rent. In his affidavit, he gave a value of about $1 million to $1.5 million for this, and then an additional $25,000 for furnishings. He also says that his current car has about 239,000 km on the odometer and is in need of replacement. Tony estimates this to require about $68,633.

54. In his affidavit, Tony also stated that he needed a sum for future contingencies, but did not specify an amount.

The estate

55. Andrew gave evidence that the value of the estate assets as of 3 August 2025 was in the range of about $45,711,979.29 to $54,811,979.29.

56. His evidence was that the estate consisted of:

1. The Caithness Crescent property, with an estimated value of $2,100,000 to $2,300,000;

2. The Huntingwood properties, with an estimated value of $41,400,000 to $50,300,000;

3. Savings in an ANZ Bank Account of $24,564.28; and

4. Myer shares with a value of $2,187,415.01.

57. The estate liabilities as of 3 August 2025 included the ANZ Mortgage of $5,486,652 on the Huntingwood properties. Andrew also said that the estate had a land tax liability of about $42,000 due in September 2025. He also pointed out that CGT would need to be paid in relation to the Myer shares if these are to be sold.

Issues in dispute

58. The issues in dispute are as follows:

1. Is Tony an eligible person within the meaning of s 57 of the Succession Act?

2. Are there factors warranting the making of the application within the meaning of s 59 of the Succession Act?

3. Did Youssef make ‘adequate provision for the proper maintenance, education or advancement in life’ for Tony?

4. If the Court finds that Youssef did not make adequate and proper provision for Tony, what is the appropriate order that the Court should make?

Eligible person

59. Tony may only seek a family provision order if he is an eligible person within the meaning of s 57(1)(e) of the Succession Act. That section provides as follows:

The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person—

…

(e) a person—

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

60. There is no doubt that Tony was a member of the same household as Youssef for many years. The only question is whether Tony was ‘wholly or partly dependent’ on him.

61. In Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331 at [101], Sackville AJA said that the word ‘dependent’ should be given its ordinary meaning and that the question of whether someone was wholly or partly dependent is one of fact. It is settled that the notion of dependency should not be given a restricted meaning: Howitt v Bosschieter [2025] NSWCA 179 at [67] (Free JA).

62. In the present case, Tony was dependent on Youssef to a significant degree for the whole of his childhood and for much of his early adulthood. He was dependent on him for accommodation from 1969 until 2010. He was at least partially dependent on him financially until at least 2004, when he briefly took some work as a labourer. For the whole of his childhood, it was Youssef who was responsible for meeting all household expenses including groceries, clothes, utilities, Tony’s school fees and so on. Tony was also heavily dependent on Youssef for social and other non-financial support from a very young age. As explained above, he lived in a household in which Youssef was the unquestioned pater familias. He justifiably saw him as a father figure.

Factors warranting

63. In circumstances where a person is eligible by reason of s 57(1)(e), the Court must also be satisfied that there are factors which warrant the making of the application: s 59(1)(b). The factors that are generally accepted to warrant the making of an application are those which tend to give the person the status of someone who would generally be regarded as a natural object of testamentary recognition: Frank v Angell (2024) 116 NSWLR 1; [2024] NSWCA 264 at [83]. This same notion has sometimes been expressed as being that there must be factors that demonstrate a social, domestic or moral obligation on the testator to make some provision for the plaintiff: Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [97] (Payne JA).

64. In this case, the facts as a whole satisfy me that there are factors warranting. I particularly note the following matters.

65. The first and most significant matter concerns Youssef’s purchase of properties in 1989. At the time these properties were acquired, Tony was working long hours in the family business but was not receiving anything remotely like a proper wage. Tony earned no more than $20 per day for about 11 years. Although he assumed responsibility for the business’ financial management in that he took all the receipts and met the outgoings, Yvonne’s evidence in cross-examination was that Youssef did not actually work in the business.

66. It was in this context that Youssef said to his father that he would look after the ‘brothers’, including Tony. In this respect I particularly note David’s evidence, which I set out at paragraph [18] above. It was after this conversation that Youssef did, in fact, purchase three properties, one of which was in Tony’s name. I have already set out my conclusions as to the basis on which the O’Connell Street property was acquired at paragraphs [15]-[33] above. As I pointed out at paragraph [27], Youssef said in evidence before McCallum J that he wanted his brothers, including Tony, to have the benefit of those properties if anything should happen to him. This was a clear acknowledgement of a testamentary obligation towards his younger siblings, including Tony. It was to meet that obligation that he purchased the three properties in 1989. I note that David and Louis, for whom Youssef acquired properties at the same time, continue to own those properties.

67. Finally in this connection it is important to note that when the O’Connell Street property was sold in 2002, Tony only agreed to sign documentation after having been told by Youssef that he would get the Lanhams Road property. I have found that the lodgement of the caveat in 2010 tends to support a conclusion that, at least at that point, Youssef himself saw the Lanhams Road property as being Tony’s property.

68. These dealings all tend to show that for the whole of the period between at least 1987 and 2010, Youssef considered himself honour-bound to provide for Tony. This attitude only seems to have changed in 2010 in the context of the proceedings in which Youssef was found to have defrauded David.

69. Other matters are also relevant here. Youssef’s very considerable wealth was in no small way a function of the fact that he collected the earnings of the family business as well as other income and social security benefits from his numerous siblings, including Tony, for many years. It would be reasonable to expect that someone in his position, having gained wealth in part through the sacrifices of his younger siblings, should recognise a testamentary obligation towards them.

Should the Court make a family provision order?

70. Having found that Tony is an eligible person and that there are factors warranting the bringing of this application, the primary question for determination is whether ‘adequate provision for the proper maintenance, education or advancement in life of the [plaintiff] has not been made by the will of the deceased person’: s 59(1)(c). This is the first stage of inquiry described by Mason CJ and Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 208-210. It is only where the Court is satisfied that adequate provision has not been made, that the power to make an order for provision out of the estate is enlivened: s 59(2). At this juncture, the second stage of inquiry requires the Court, in the exercise of its discretion, to fashion an appropriate order for provision out of the estate.

71. The application of s 59(1)(c) has been described as a ‘multifaceted evaluative task’ (Angius v Angius [2025] NSWCA 113 at [25], citing Henry J in Lalic v Lalic [2022] NSWSC 31). It cannot simply be approached by looking to the claimant’s financial needs: Sgro v Thompson [2017] NSWCA 326 at [68]-[74]. Other relevant considerations may include all of the matters identified in s 60(2). In determining the question of whether adequate provision was not made and what form of order to make, I particularly note what was said by Bell P, Leeming and Payne JJA in Bassett v Bassett [2021] NSWCA 320 at [78]-[87].

Adequate provision

72. I am satisfied that Youssef did not make adequate provision for Tony. The particular matters that inform that conclusion are as follows.

73. First, it is appropriate to consider the overall nature of the relationship between Tony and Youssef: ss 60(2)(a), (k). Tony was heavily dependent on Youssef, including financially, well into his adulthood. He only moved out of the family home at the age of 45 in 2010 when asked to do so. Until they had a falling out, they had a close familial relationship. Tony saw him as a father figure and Youssef acted as such right up until 2010. Although they did not speak much from that time onward, this is not a circumstance that presumptively disentitles an applicant: Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641 at [73]. It is necessary to consider the circumstances surrounding the cooling of their relations: Underwood v Gaudron [2014] NSWSC 1055 at [231(b)] (Hallen J). Here, the circumstances show that their relations cooled because Youssef came to see Tony as being aligned with David and Louis, who he felt had betrayed him. I do not consider that this is a matter that relieved Youssef of the testamentary obligation that arose by reason of their pre-2010 relationship, including the promise made to Tony in 2002 about the Lanhams Road property.

74. Secondly, Tony is not financially well off: s 60(2)(d); see also the discussion of Tony’s financial circumstances at [44]-[54] above. He now has sporadic income as a massage therapist, but he is at a stage in life where his financial position is unlikely to improve. His health is generally poor.

75. Thirdly, the size of the estate is significant: s 60(2)(c). This is a case in which the estate can very comfortably afford to make some provision for the plaintiff without imperilling the specific legacies. Only Andrew, as residuary beneficiary, and perhaps by extension Yvonne, would be financially impacted by the making of a family provision order, but not in a way that would cause them any material financial discomfort: ss 60(2)(b), (d). In Tarbes v Taleb [2023] NSWSC 565 at [227], Meek J said that in the case of large estates, the Court is sometimes ‘free to make a more liberal assessment of what is proper provision in the sense that competition for limited resources is much reduced or eliminated and unqualified by competing claims’. Even bearing in mind the caution that is sometimes expressed about that general proposition (as to which, see for example McLaughlin AsJ in Lumb v McMillan [2007] NSWSC 386 at [26]) this is a case where a relatively greater degree of liberality is warranted. Andrew will still stand to inherit property worth several tens of millions of dollars. It was not submitted that the Caithness Crescent property would need to be sold in order to make provision for Tony even at the upper range of what he is seeking, meaning Yvonne’s right to reside in that property will remain unaffected.

76. In taking the size of the estate into account, I recognise that Andrew assisted his father to manage his financial affairs at around the time of his bankruptcy. I accept his evidence that he did work that helped to ensure his father could emerge from bankruptcy with his assets more or less intact. I recognise that Andrew’s inheritance at least to some extent reflects the fact that Youssef appreciated his efforts in that regard. However, I do not consider that Youssef’s moral obligation to Andrew is so strong that it should be allowed to stand in the way of Tony’s claim.

77. Fourthly, as already mentioned, the value of the estate must in part be seen as family wealth, in that Youssef (who did not work after 1979) owed his own financial security in part to the financial sacrifices made by his younger siblings, including Tony: s 60(2)(h). Tony made a significant contribution to this wealth in the 1987 to 1998 years when he worked at the takeaway business. Andrew accepted that at least two of the properties acquired in 1989 were acquired with ‘excess money… from the shop’. In my view, that is true in relation to all three properties, including the O’Connell Street property.

72. Fifthly, the circumstances in which the O’Connell Street property was sold are significant: s 60(2)(n). Tony deferred to Youssef in allowing the property – which was in his name – to be sold on the promise that he would have the benefit of the Lanhams Road property. This property, which was by that point registered in the name ‘Tony Salim’, was sold in 2021 by Youssef after he had formally changed his name to ‘Tony Salim’. Tony saw none of the proceeds.

What order should be made?

79. Each of the matters at [73]-[78] to which I have just referred is a consideration that may be taken into account by reason of s 60 of the Succession Act. These same considerations also assist in determining the appropriate amount of provision.

80. One matter that particularly informs the question of the appropriate amount of provision is connected to the matter referred to in paragraph [78]. The purchase and later sale of the O’Connell Street property occurred in the context of explicit statements by Youssef as to the benefits that Tony could expect to receive from what was, in substance, the family’s wealth earned through the family takeaway business. It is appropriate to have regard to the promises made by the deceased in determining what is adequate provision: s 60(2)(j). This is especially so where the claimant relied to such statements to his or her detriment: Alexander v Jansson [2010] NSWCA 176; (2010) 6 ASTLR 432 at [18] (Brereton J). Here, Youssef promised Tony that he would have the benefit of the Lanhams Road property if he relinquished his interest in the O’Connell Street property. Tony relied on this promise in allowing Youssef to sell the O’Connell Street property and keep the proceeds.

81. Senior counsel for Tony submitted that the proceeds of sale of the Lanhams Road property should serve as a benchmark for the amount of adequate provision for Tony. I agree. However, that is not the only matter I take into account on this question. I also take into account Tony’s financial and other needs, which would generally be met by assuring him accommodation near his brothers and sisters. As was submitted on his behalf, Tony’s main need is for accommodation. The evidence shows that modest residential properties in the area in which Tony wishes to live, namely near his family, are worth in the range of $1,000,000 to $1,500,000. It is, I think, reasonable that someone in Tony’s position – who did not move out of the family home until his mid-forties – would wish to continue to live near his brothers and sisters.

82. Counsel for Andrew pointed out that the amount of provision sought by Tony exceeds the amount that would ordinarily be considered appropriate for a claim by an adult child. I was referred to the general principles concerning adult children in family provision claims which Hallen J outlined in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [473]. At [473(b)], his Honour said:

“…The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation…”

83. There is some force in the defendant’s submission, but I do not consider these to be ‘ordinary circumstances’. Here, Tony was significantly dependent on Youssef not only as a child, but as a teenager and adult. He did not move out of his home and achieve anything approaching independence until he was 45 years old. Even then, he moved in with another brother for about 10 years. Youssef, for his part, strongly promoted himself as the patriarch who would ensure that is younger siblings were provided for. I have already found that that was exactly what he was doing when he caused the O’Connell Street property to be acquired in Tony’s name in 1989. The reason why Tony does not now have that property is because he agreed for it to be sold in 2002 in order to benefit Youssef. In fact, Youssef used the proceeds of sale to improve a property that now forms part of the estate. His 2002 promise to give Tony the benefit of the Lanhams Road property was simply broken.

84. Counsel for Andrew also pointed out that the provision sought by Tony exceeds the legacies for other members of Youssef’s household, including his three daughters, his widow, Yvonne, and his brother, Sayed. Although it is appropriate to have regard to the testator’s intentions in determining an appropriate amount of provision, I have not found Youssef’s will to be terribly informative on that issue in in this case. Sayed suffers from a disability and appears to have been heavily dependent on Youssef for most if not all of his life. Youssef recognised a testamentary obligation towards him, but only in the amount of $50,000. Yvonne, his wife, received an extremely small legacy coupled with a right to continue to live at the Caithness Crescent property, despite having what would seem to be a very strong claim on Youssef’s testamentary bounty. Youssef’s daughters each received legacies of $1 million, whereas Andrew is to receive residue worth tens of millions of dollars. It is not at all clear why Youssef saw fit to divide his estate in this way. The fact that the will appears to fall so far short of recognising Youssef’s testamentary obligations towards his widow and that it divides the estate so unevenly between his children causes me to exercise caution in taking guidance from the overall scheme of the will in determining an appropriate amount of provision for Tony.

85. In my view, proper provision in this case is an amount that will allow Tony to acquire a modest residential property of the kind described in the evidence, including an amount for conveyancing costs and transfer duty. It is appropriate to make an order for further provision in the sum of $1,450,000. This will be sufficient for Tony to acquire a property near his brothers and sisters within the range identified in the evidence, including an amount for conveyancing costs and transfer duty.

ORDERS

86. The orders will be as follows:

1. Order pursuant to s 59 of the Succession Act 2006 (NSW) that the plaintiff 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.

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Decision last updated: 08 October 2025