Empire Contracting Pty Ltd ATF Empire Contracting Trust v Gov

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Empire Contracting Pty Ltd ATF Empire Contracting Trust v Gov [2021] NSWPIC 254
APPLICANT:	Empire Contracting Pty Ltd ATF Empire Contracting Trust
FIRST RESPONDENT:	Kim Y Gov
SECOND RESPONDENT:	Ly Hong Thai
THIRD RESPONDENT:	Ly Tang Thai
FOURTH RESPONDENT:	Khyhai Thai
FIFTH RESPONDENT:	Anastasia Vong
SIXTH RESPONDENT:	Aaron Vong
SEVENTH RESPONDENT:	Sieng Kim
EIGHTH RESPONDENT:	Peou Sok
NINTH RESPONDENT:	Moy Sok
TENTH RESPONDENT:	Meng Thay
MEMBER:	Catherine McDonald
DATE OF DETERMINATION:	20 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Death benefit claim; apportionment of the death benefit between nine alleged dependants in Australia and overseas; interest; Held- order for apportionment made.
DETMERINATIONS MADE:	1. The name of the applicant is amended to read Empire Contracting Pty Ltd ATF Empire Contracting Trust. 2. Pursuant to s 29 of the Workers Compensation Act 1987, I apportion that the death benefit of $816,850 payable under s 25 of the Act is apportioned as follows: a. Kim Y Gov – 80%; b. Ly Hong Thai – 2.5%; c. Ly Tang Thai – 2.5%; d. Khyhai Thai – 2.5%; e. Anastasia Vong – 2.5%; f. Sieng Kim – 2.5%; g. Peou Sok – 2.5%; h. Muoy Sok – 2.5%; and i. Meng Thai – 2.5%. 3. I order that interest at the rate of 3% on $816,850 is payable from 20 January 2021 to date and that it be apportioned in the same way as the death benefit.

STATEMENT OF REASONS

BACKGROUND

Ngeap Thay was employed by Empire Contracting Pty Ltd as trustee for the Empire Contracting Trust (Empire) when he died in the course of his employment on 9 January 2020.
There is no dispute that the death benefit of $816,850 under s 25 of the Workers Compensation Act 1987 (the 1987 Act) is payable to his dependants. The questions to be determined in these proceedings are the identity of those dependants and the extent of their dependency.
The dependants fall into three groups. Ms Gov was Ngeap Thai’s wife and her daughter Anastasia was part of the same household. Her son Aaron does not make a claim.
Ly Hong Thai, Ly Tang Thai and Khyhai Thai are Ngeap Thai’s adult children and live in Cambodia.
Sieng Kim is Ngeap Thai’s mother and Peou Sok, Muoy Sok and Meng Thai are his siblings. They also all live in Cambodia.
Based on my understanding of how the family members refer to each other, I have referred to Ngeap Thai and other family members by their given names where possible. No disrespect is intended.
The employer is named as Empire Contracting Pty Ltd ATD Contracting Trust which is, on the evidence of its director, incorrect. The name of the applicant should be amended.

PROCEDURE BEFORE THE COMMISSION

The complexity of the matter required a number of telephone conferences. A delegate of the Registrar held a telephone conference on 9 October 2020 and made directions for service of replies by those respondents who were then parties. She made directions requiring that other siblings be notified about the proceedings. A further telephone conference was listed for 10 November 2020 when Meng was joined to the proceedings and orders made for the service of any evidence by Aaron.
The matter was listed for a long telephone conference before me on 9 December 2020. At that time I made directions for service of statements which complied with the Workers Compensation Commission Rules, most relevantly from Kim and Anastasia, whose evidence at that time was insufficient to allow the determination of the matter. I directed that evidence was to be filed before a further telephone conference. The solicitors for Sieng Kim, Peou and Muoy each sought that directions for production be issued. I granted leave to issue two directions for production only being to Vina Money Transfer and the Department of Housing. I did not grant leave to issue a series of directions which either sought to disprove matters which were not in issue or the credit of witnesses whose credit could not be in issue or which constituted fishing as described in Associated Dominions Assurance Society Pty Ltd v John Fairfax and Sons Pty Ltd[1] in that directions were sought to ascertain whether or not certain documents exist.
[1] (1955) 72 WN (NSW) 250, 254.
At a further telephone conference on 12 February 2021, directions were made for the service of further evidence. Because of the proliferation of evidence, each party was directed to file a summary detailing their relationship to Ngeap and the basis of their claim for dependency, the evidence relied on and the date from which they contended interest should run before the conciliation conference and arbitration hearing.
The matter was fixed for conciliation conference and arbitration hearing by telephone on 8 April 2021 with some of the participants located in Cambodia.
The appearances of counsel were as follows:

Empire Mr Barnes

Kim Y Gov (first respondent) Mr Gaitanis

Ly Hong Thai (second respondent) Mr Hickey

Ly Tang Thai (third respondent) Ms Compton

Khyhai Thai (fourth respondent) Mr Nesbeth

Anastasia Vong (fifth respondent) Mr Morgan

Aaron Vong (sixth respondent) No appearance

Sieng Kim (seventh respondent) Ms Goodman

Peou Sok (eighth respondent) Mr R Stanton

Mouy Sok (ninth respondent) Ms Grotte

Meng Thai (tenth respondent) Mr Trainor

Because of language and location issues, the matter was fixed for a full day and the substantial part of that day was taken up in conciliation. There was considerable delay because only one interpreter was available.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

When it became clear that the matter would not in fact resolve on 8 April, I directed that the parties file and serve written submissions. Submissions were to be filed in chief by each party on the same date and in reply on the same date.
Mr Barnes told me that Empire did not wish to file submissions except possibly in reply. No submissions were filed on behalf of Empire.
Some of the submissions were filed late – in particular those of Ly Hong and Ly Tang. In order to do justice between a large number of competing claimants, many of whom are overseas, I consider it appropriate to take account of all of the submissions received.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents filed on 11 September 2020;
(b) Replies for the first to fifth and seventh to tenth respondents;

(c) Empire’s Application to Admit Late Documents dated 6 November 2020;

(d) Kim’s Applications to Admit Late Documents dated 29 October 2020 and 11 February 2021;

(e) Ly Hong’s Applications to Admit Late Documents dated 5 November 2020, 29 March 2021 and 9 April 2021;

(f) Ly Tang’s Applications to Admit Late Documents dated 9 November 2020, 17 March 2021 and 19 March 2021;

(g) Khyhai’s Application to Admit Late Documents dated 6 November 2020;

(h) Anastasia’s Application to Admit Late Documents dated 9 December 2020;

(i) Sieng Kim’s Applications to Admit Late Documents dated 2 February 2021 and 16 June 2021, and

(j) Peou’s Application to Admit Late Documents dated 6 November 2020.

The above list does not set out those Applications to Admit Late Documents which attached submissions.
There was no oral evidence.
On 29 January 2020, Empire’s insurer wrote to Kim and said that it accepted liability to pay compensation to Ngeap’s dependants. A claim form was completed on 3 February 2020. A further email from the case manager said that liability was accepted on 2 April 2020. At that time the task of identifying potential dependants and arranging separate representation was underway. The final respondent was joined to the proceedings in December 2020.

Empire Contracting Pty Ltd

David George, one of the directors of Empire prepared a statement dated 18 February 2020. The company undertakes the removal of asbestos and other hazardous material from buildings.
Mr George said that Ngeap commenced employment on 11 December 2017. He died at a site in Wollongong when he fell though asbestos roof sheeting to the ground.
He said that he was aware that Ngeap was not living with his “former wife” at the time of the incident. Mr George said he was also aware that Ngeap had suffered a stroke at home on 24 August 2019 and was away from work for seven weeks. He returned to work without health issues, though may have had follow up medical appointments.
The Application filed for Empire contains a marriage certificate between Ngeap and Kim and brief statutory declarations from Ly Hong, Ly Tang and Khyhai, indicating their intention to claim and attaching a copy of the photograph page of their passport. Khyhai’s passport nominates Peou as the person to contact in an emergency.
The Application contained short statutory declarations from Kim and Anastasia. It contains Ngeap’s death certificate which sets out the names of his children.

Kim Gov

Kim signed a statutory declaration on 1 April 2020. She said that she is 51 years old. She was born in Cambodia and came to Australia in 1989. She has lived at the address in Cabramatta West since 1994.
Kim said that she met and formed a relationship with Ngeap in 2011 and they married in December 2012. She was aware that he had three children, Ly Hong, Ly Tang and Ky Hai but said that he had little if any contact with them and, to her knowledge, they were not dependent for financial or other support at the date of his death.
Kim said that she worked on one day a week as a sole trader at a stall at Fairfield Markets from which she made about $150 per week. She ceased that work when Ngeap died. She described the small savings in a joint bank account and said that her husband earned about $1,600 per week. She said that he recovered from a stroke in 2019 and was in good health at the date of his death.
Kim said that Ngeap paid for all of the household living expenses and set out a summary of those expenses. Anastasia also lived in the house.
With respect to Ngeap’s siblings, Kim said that his eldest brother Meng lived in Cambodia as did another brother, Chhour Ang Thay. His brother Chung lives in Sydney. Kim named three sisters, Sok Pea, Sok Mouy and Sok Pov who live in Cambodia. She also named Kim Seang, without stating a relationship. Kim said that to her knowledge, none of those relatives were dependent on Ngeap.
Kim attached some financial documents to her Reply, including photographs, a statement in respect of a personal loan in the name of Ngeap for the period 1 July 2019 to 31 December 2019, her marriage certificate with Ngeap, a letter from the Coroner’s Court acknowledging her as senior next of kin and receipts from the Salvation and Cambodian Cultural Association of NSW Inc in respect of Ngeap’s funeral .
Kim made another statutory declaration on 14 July 2020 in which she responded to Mr George’s statement (see below) that Ngeap Thai was separated, she said that her husband did live away from home for a time because her son Aaron, who has a mental health disability, would disrupt her husband’s sleep which impacted on his ability to get up early for work. Kim said that she spent up to six nights a week with her husband in other accommodation. When Ngeap became ill in 2019, he moved back to the house at Cabramatta West where he lived with her and Anastasia.
On 1 October 2020 Kim made statutory declaration setting out her current financial position. She said that she has had to employ a handyman to undertake work around her home. She said that she and her husband had often talked about purchasing the house in which they lived.
Kim attached a number of photographs to her Reply but they are not captioned. They appear to include formal wedding photographs and other photographs of the same two people in various locations. She also attached a bank statement for an account held jointly with Ngeap “Thay” for the period 1 July 2019 to 31 December 2019 and a statement in respect of a personal loan in Ngeap’s name for the period 1 July 2019 to 31 December 2019.
A pre-filling report for Ngeap’s 2020 tax return showed that his gross earnings to the date of his death were $40,027. A payslip showed his final pay including payment of allowances was $7,868.18. The payslip showed year to date net earnings of $38,098.16.
In her Application to Admit Late Documents dated 29 October 2020, Kim relied on a statement from Mary Gynn dated 29 October 2020. Ms Gynn lived next door to Ngeap and Kim, saw them on a daily basis and often spoke to them. She saw Ngeap working in the yard and on the house and working on the family cars.
Kim provided a further statement dated 29 October 2020 responding to the evidence of some of the other family members. Much of the content of the statement is gratuitous and unhelpful. Relevantly she said that Ngeap did not always work full time hours and spent time after work at his local RSL club, as reflected in his bank statements. She said she would have noticed large amounts missing from the household budget and “was only aware of money that my late husband transferred for one-off occasions such as the custom of sending a small ‘red envelope or lucky money’ gift during Lunar New Year.”
Dr Soukao Ly provided a letter dated 8 October 2020 in which he said that Kim and Ngeap were well known to him and often presented together for consultations. Dr Ly said that Kim cared for Ngeap at home after he suffered a minor stroke in 2019, and accompanied him to medical appointments. He expressed the view that Kim and Ngeap has a genuine relationship as husband and wife.

Kim filed an Application to Admit Late Documents on 11 February 2021. She provided a further statement and a series of financial and other documents. She attached statements from a joint Commonwealth Bank account for the period from 2013 to 2020. Ngeap’s wages were deposited into the account and on the day the rent was due, Kim took cash to the post office to pay the rent. She attached a series of rent receipts. She said that she and her husband both made withdrawals from the joint account for living expenses. She attached the statement of her own bank account from 2013 to 2020 and said that she would deposit amounts into the joint account when the balance fell low, as did Anastasia.
Kim also attached Ngeap’s tax returns from 2021 to 2020, car insurance policies and rent accounts. She said that non-essential improvements to a Department of Housing property are paid for by the tenant and that Ngeap built a carport. She attached copies of transfers showing she sent money to Ngeap in Cambodia and his immigration application. She noted that the address in Siem Reap in that application was not the same as his adult children. She attached a document listing the date Ngeap was granted permanent residency in in Australia in April 2016.
The first of the bank statements for the joint account commenced on 1 July 2013 and was said to be Statement 3, suggesting the account was opened some time earlier. Each statement covers a six month period and shows the receipt of Ngeap’s salary and the payment of some living expenses by direct debit. The first deposit labelled “salary” was on 7 August 2013.
In the early years of the period, the statements show many withdrawals of $200, $300, $500 and $1,000, often with multiple withdrawals in the same day (see for example 2 October 2013). On 3 January 2015 $15,000 was withdrawn. From about 2015, the statements show frequent withdrawals made at registered clubs, often several on the same day or on consecutive days. To take a series of examples only from the records, there are several withdrawals commencing on 7 October 2017 at “Mounties, Mt Prit” and a series between 16 and 18 November. In 2017 the bank statements show a series of withdrawals of $200 at the same place – three on 22 December, four on 25 December and 2 on 26 December. On 25 December 2018 there is a series of three withdrawals of $200 at “Cabramatta Bowling B CAB.” The pattern continues throughout the bank records, though ceased for a period in August 2019. There are no similar withdrawals after Ngeap’s death.
In 2016, there were a number of purchases at a hardware store and regular payments to Toyota Finance commenced.
Kim’s earnings disclosed in her tax documents were minimal.
Ngeap’s tax returns show the following gross and taxable income (and net income where the details are available):

Gross Taxable Net

2014 $ 62,630 $55,650 Not disclosed

2015 $ 35,405 $32,830 Not disclosed

2016 $ 73,882 $70,714 Not disclosed

2017 $ 73,005 $58,787 $46,959

2018 $ 68,882 $59,591 $47,485

2019 $107,980 $94,024 $69,858

2020 $ 42,002 $34,636 $31,515

International Money Transfer forms dated 17 May 2012, 27 August 2012 and 28 September 2012 show that two sums of USD 500 and one of USD 1,200 sent by Kim to Ngeap at the address in Slakram Quarter, Siem Reap where Seing Kim, Peou Sok and Muoy Sok live.
Ngeap’s Application for Migration to Australia by Partner was completed after he arrived in Australia and is stamped as being received on 15 January 2013. He said that he read and spoke English “not at all.” It named several of his siblings but only his son, in the section which asked about children. The document named a former partner, Kol Thida Luos, and said that the relationship ended in 1998.
An earlier application was dated 23 April 2012 and revealed that Ngeap and Kim met on 3 March 2012 by telephone, began a relationship 24 days later and made the decision to marry on 19 April 2012. His current residential address was that of his mother and sisters. It also only named Khyhai under “your children”.
Kim completed an application for sponsorship on the same date and noted her occupation as “bakery staff.” A Department of Immigration and Citizenship tax invoice/receipt dated 30 May 2012 for USD 2120 appears with the application.

Ly Hong Thai

Ly Hong signed a statutory declaration in English on 13 March 2020 and it is attached to the Application. She said that she was born in 1989 in Siem Reap where she lives. She said that she is Ngeap’s daughter but did not name her mother. She said that she was not employed and was dependent on Ngeap “either partially or totally for financial or any other support” at the date of his death. A copy of the signature page of her passport is attached.
The only document attached to Ly Hong Thai’s reply was a statement from Hai Ha Money Transfer with respect to money transferred by Chung starting with two transfers to Ngeap in 2012 and ending in 2018. In summary, the statement shows a series of payments in US dollars and that Chung sent Ngeap $10,500 in 2012. A series of payment was made to Ang Chhour between 2012 and 2014. Payments were also made to others who do not appear to be relevant to these proceedings. Chung sent Peou $700 in 2013, $5,000 in 2015, $4,600 in 2016, $7,000 and 45,977,000 Vietnamese dong and $1,300 in 2018. He also sent $11,490 to Bunchhay Yun in 2017.
Ly Hong’s birth certificate was translated and certified. Her date of birth is consistent with her passport. It names her father as Chhour Ngiep but his date of birth as 1 October 1960, not the date in December 1964 accepted in these proceedings as Ngeap Thai’s date of birth. Though she was born in 1989, her birth was registered in 2005.

Ly Hong prepared a statement dated 5 November 2020. She said that her father looked after her and her siblings after their mother died in 2004, living in a house with, and owned by, her maternal grandmother who is still alive. Her father worked as a tourist bus driver. Ly Hong Thai’s husband moved into the house when they married in 2007 and he did not work consistently. They had two children and divorced in 2012 about six months before her father moved to Australia. Her father paid the household expenses for the whole family.
Ly Hong said that her father told her and her siblings “it was a fake marriage so he could move to Australia”. Her father told her that he would send money to his children and his mother. She said:
“I received money from my father for the first time about 5-6 months after he left Cambodia in 2012. After that he regularly sent money by money transfer or by my uncle Chung coming to Cambodia, usually about 3 times a year, sometimes if my siblings or I needed some extra money, we would ring him and ask for extra money and he would send it over.

Each time, I would receive a call from the aunty, Peou Sok that my father had sent money, and I would travel to Phnom Penh , 6 hours by bus to get the money from my aunty. My aunty lives with my father's mother. Each time, when I saw my aunty she would give me a packet with money. The first few times my father would ring and say how the money would be split 30% to me , 30% to my sister and 40% to my
brother. After about 3 times he said just always split it like that. My father sent different amounts each time, but on average we received about $AUD15,000 each year to be split among the 3 of us.”

Ly Hong remarried in 2018. She said that her father told her that he still wanted to help with her children’s education. She set out her family’s living expenses.
Ly Hong relied on a statement from Chung dated 26 March 2021, in which he explained the different spellings of the family’s names. He said
“My family's surname in the Cambodia is written in the Tieu Chow language
and is spelt is Chhour. …
The Vietnamese translation of our family surname was Thay. …
To the best of my knowledge Ly Hong, Ly Tang and Khy Hai are the children of Ngeap Thay. That issue has never been questioned in my family. I have helped my deceased brother to send money to his three children, Ly Hong, Ly Tang and Khy Hai since he has been in Australia.
I attach a note that Kim Gov signed after the funeral confirming she has given a ring and clothing of my deceased brother to his 3 children. She signed this when she handed the belongings to Ly Hong, Ly Tang and Khy Hai.”
A further Application to Admit Late Documents attached a translation of a statement from Chhim Loeun, previously provided as a handwritten document in Khmer. Ms Louen said that she had lived in Thmey village “on the right side adjacent to Grandma Chhai Kruy.” She said that from her observation, Ngeap lived at the premises “taking care of his three children.” She saw him undertaking repairs at the property and he bought goods in her shop. He lived there until he went to Australia.
A translation of a note dated 10 February 2020 was also provided, signed by Ms Gov and Khyhai to say that the adult children received a ring and a suitcase of his clothing.

Ly Tang Thai

Ly Tang signed a statutory declaration in English on 13 March 2020. She said that she was born in 1987 in Thmey Village in Siem Riep where she lives. She said that she is Ngeap’s daughter. She said that she was employed as a shop assistant and was dependent on Ngeap “either partially or totally for financial or any other support” at the date of his death. A copy of the signature page of her passport is attached.
Ly Tang prepared a statement dated 6 November 2020. She said that she married in 2012 and has a son aged seven. She lived with her parents and siblings until her mother died in about 2003 or 2004 then continued to live with her father and siblings until her father moved to Australia. She also continues to live in the house that she lived in with her father and siblings. She operates a small street stall and earns about $7 Australian a day. Her husband works as a tree lopper. Ly Tang said that in Cambodian culture a father will provide money to his children even when they are adults and that there would be a sense of shame if he did not do so.
Ly Tang said that her father sent her money three times a year through her uncle Chung. He sent about $15,000 each year by transfer to her aunt Peou who would give the money to her or her sister. Each of the sisters received about $4,500 per year. She spoke to her father at various intervals between weekly and monthly.
Ly Tang said that her father told her that the marriage to Kim was not genuine and that he paid Ms Gov $60,000 to marry him so that he could move to Australia and earn money to support his family in Cambodia. He told her he did not live with Kim and that he mainly lived with her uncle Chung.
Ly Tang said that she also made urgent requests for money on three or four occasions between 2012 and 2020.
A further statement by Ly Tang is dated 16 March 2021 in which she set out her income and expenditure and her aspirations. She said that her father’s ashes are currently at a temple in Cambodia.

Khyhai Thai

Khyhai also signed a statutory declaration on 13 March 2020 in identical form to those of Ly Hong and Ly Tang. He said that he was born in 1990 and is a student. The page from his passport nominated Peou as the person to contact in an emergency.
Khyhai prepared a more detailed statement dated 4 November 2020. He has lived alone in Sombour village since August 2020 and before that lived with his sisters at Thmey village. He said he was close to his father as a child and his father took him everywhere. Later they continued to do things together and his father taught him simple car repairs. His father lived with him and his sisters until he moved to Australia. Ngeap said he was moving to Australia to earn money to support Khyhai and his sisters.
After Ngeap moved to Australia he telephoned Ly Tang three or four times a month and she put her phone on speaker so that the siblings could speak to their father. Their father described life in Australia which was different and said that earning money and life generally was difficult.
Khyhai said that he opened a bank account at a bank in Phnom Penh so his father could deposit money in it but it was too far to go from Siem Reap to Phnom Penh to access the account so he closed it in 2014. After the account was closed he received money every three to four months, which Ly Tang collected from their aunt Peou in Phnom Penh. Khyhai received about AUD 2,000 every three or four months and last received money in late 2019.
Khyhai has never worked. He finished school in 2012 and spent two years learning to fix mobile phones. From 2015 to 2018 he studied marketing at a university in Siem Reap and completed three years of a four year degree. He stopped studying in 2018 when his father was sick for four to five months and stopped sending money. His father sent money again after he recovered and returned to work.
In August 2020, Khyhai moved to the house of his maternal uncle to look after his vegetables and fish pond. Before August 2020, Khyhai’s only source of income was his father but since August 2020, his uncle has given him pocket money of USD 20 to 40 per month. He dropped his mobile phone in water and cannot afford to replace it. He had to sell his motorbike because he could not afford to maintain it. He would like to complete his degree and open a small business and he would like to buy a motor bike. He said it is difficult for him to find employment without qualifications.

Anastasia Vong

Anastasia signed a statutory declaration on 17 March 2020. She said that she is aged 24 and lives at the house in Cabramatta West. She said that Ngeap lived there at the time of his death and treated her as his own daughter. She said that Ngeap paid rent and household bills and for groceries. He did general maintenance and yard work on the premises and helped Anastasia maintain her car and pay for car insurance. She said:

“I did not observe any of my step-father's Cambodia-residing adult children from his previous relationship ask any questions to my mother, Kim Y Gov, about their father at the funeral. I recall asking my mother if they asked her about my step-father and his life before he passed. My mother said they did not. I recall at the time thinking that this was strange.”

Anastasia signed another statutory declaration on 1 October 2020 in which she said that her step-father had provided support to her by driving her to various places and paying for meals when the family went out. She said that she saw him build a carport at the house at Cabramatta West. To clarify her previous statement, she said that her step-father had assisted to pay her car insurance by providing cash when she was short of money. He helped her to maintain her car, including by changing the oil.
Anastasia prepared a further statutory declaration dated 9 December 2020. She referred to Ngeap Thai throughout as her step-father. Anastasia said that he and Ms Gov lived in the house at Cabramatta West except for a period when he “briefly” moved to Sadlier because of arguments between him and Aaron. Her mother often stayed there and Anastasia went for dinner. Ngeap moved back to Cabramatta West after his stroke when he was not working.
Anastasia said she saw Chung on only two occasions after her mother and Ngeap married – once when he came to the house at Cabramatta West to speak to Ngeap and when he came to pay his respects after Ngeap’s accident.
Anastasia said that Ngeap spent time at home when he was not working though sometimes went to the local RSL. She considered his relationship with her mother genuine. She attached photographs taken in 2016 when she and her mother went with Ngeap “to purchase his new car.”
She did not give any evidence about her own work or earnings or the extent of any support she receives from her father.

Aaron Vong

Mr Georgatos, the solicitor acting for Kim and Anastasia, signed a statutory declaration on 18 March 2020 about unsuccessful attempts to contact Aaron. On 20 November 2020, Aaron prepared a statutory declaration stating that he currently resided in Wellington Correctional Centre and that he was not dependent on Ngeap at the date of his death.
Perry Peralta, the solicitor with day to day conduct of the proceedings on behalf of Empire made a statement on 6 November 2020 with respect to his efforts to contact Aaron. He said that he had spoken to Savin Vong, Aaron’s father, who said that his son was likely to be incarcerated for at least a year and that he is difficult to communicate meaningfully with because of his psychological disability. Aaron’s father said that Aaron was hospitalised in 2015 and had been in and out of hospital since. He lived with his father and for a time with his mother and Ngeap but Aaron did not get along with Ngeap and returned to live with his father. Aaron visited the house at Cabramatta West from time to time to see his mother.

Sieng Kim

Sieng Kim is Ngeap’s mother. She did not sign a statement but relied on the evidence of Peou and Chung.
An unsigned statutory declaration was interpreted to her on 1 October 2020 and is attached to a statement by Bonna Thei. Sieng Kim said:
“My late son had supported me financially for many years prior to his death. He would have continued to support me financially had he not fatally injured. Ngeap gave me money via various means. Money had been delivered to my daughter, Peou who then gave some to me, and some were used for my other expenses such as groceries, clothes, going out, and medical needs. My other son, Chung who lives in Australia came to visit me in Cambodia a couple times annually. Chung would give me a substantial amount of money of about USD 8,000 and I handed the money to my daughter, Peou each time to pay for my living expenses. Chung said they were from him, and from Ngeap.”
Singe Kim’s solicitor made a claim for interest on 20 January 2021, claiming interest from 3 February 2020 when the claim form was lodged. Empire’s solicitor said in an email dated 20 January 2021 that it opposed the claim for interest because full particulars had not yet been provided.

Peou Sok

Peou is Ngeap’s sister. She was born in 1988 and I note she is much younger than her siblings. In her Reply she provided a copy of the household’s Residence Book dated 23 November 2009 and translated on 10 January 2020 which showed that at that date, the head of the family was Sieng Kim and the other members of the family were Ngeap, Chhou Ieng , Muoy and Peou.
Peou signed a statutory declaration on 4 October 2020. She said that it is “part of our culture that we support our family. In particular anyone who can go overseas has an obligation to send money to support their family in Cambodia.” She said that her mother is wheelchair bound and her sister is intellectually impaired. Her household was supported by her brothers and “Ngeap had provided a lot more than Chung since he had migrated to Australia.”
Peou worked as a teacher teaching Mandarin until the school closed due to the pandemic and she works infrequently as a waitress. She said:
“Ngeap had Informed me, and I believe that he had worked long hours in Australia to earn money to send back home to support our mother, Mouy and I. He also helped out his children who live in Cambodia. Ngeap also told me due to his long hour work he didn't have time to go and send money back to us, he had given his money to our brother Chung to do the money transfer to us. He would then call me to inform me that the money would be on its way and how much it was. USD were sent to us as they were more popular than AUD in Cambodia.
On average Ngeap sent us about USD10,000 per annum. Money had been sent to us via various means, either by money exchange people, or by those who lived in Cambodia and had children studying in Sydney. Ngeap paid their children and they gave us USD. Mostly money would be sent to me, or sometimes to other siblings. Ngeap would then call us to tell us how he wanted the money to be divided. About every 3 months he told me to give his children about USD700, which was in addition to the sum he gave us. In addition to these sums, he had sent additional money when out mother had to be hospitalised for medical treatment. Every time she was hospitalised in Cambodia it would cost at least USD500. I recalled in about 2017 he, had sent me Vietnamese currency of an equivalent USD2,500 to pay for our mother's medical treatment in Vietnam as the treatment was not readily available where we lived.
Ngeap also gave money to my brother Chung to take to us when Chung went back home. Chung visited us about twice a year. Whenever Chung visited us, he would give my mother between USD5,000 to USD8,000. He told us these moneys were from him and Ngeap. My mother then handed the money to me.”
Peou said that she and Ngeap were close and had regular phone contact. He confided that his relationship with Kim was not genuine and he paid board and lodging during the time he lived in her house.
Peou signed a statutory declaration on 4 November 2020 in which she said that Ngeap lived with her, her mother Sieng Kim and her sister, Muoy until he moved to Australia in 2012. Peou said that Ngeap married in about 1986 or 1987 and moved out. He moved back when he and his wife divorced. She said that his children lived at the house for a time after their mother died and then returned to live with their maternal grandmother. While Ngeap lived with the family, he was the major breadwinner. He worked as a tourist bus driver.
Peou said that Kim travelled to Cambodia to meet Ngeap in early 2012 for a few days and returned in late 2012 when they became engaged. On the eve of the engagement, Ngeap told his mother and sisters, in front of Kim, that the marriage was not genuine and that he had agreed to pay Kim $60,000 AUD to sponsor him to Australia – half on his arrival in Australia and half when he obtained permanent residency. Peou “believed” that he borrowed the money from their eldest brother. Shortly after the engagement, Ngeap moved to Australia and married Kim.
Peou said that one of the important reasons her brother “left us” was that he could make more money in Australia. She said that after he came to Australia “I do not know how much money he earned but he sent us money to support us as he promised before he left.” She said that her brother Chung was better off than Ngeap Thai and he supported the family for a long time. Chung did not usually send money by “money exchange” but provided cash when he visited Cambodia twice a year and he “told us the money was from him and Ngeap.”
Peou said that she had seen the photographs attached to Kim’s reply and that she believed the photographs were taken for the purpose of showing them to the Australian Immigration Department.
Peou said that her mother requires medical treatment and she set out the costs of the treatment which requires her to travel from Siem Riep where they live to Phnom Penh, six to seven hours away. Her sister Muoy is intellectually impaired but she is able to cook and help with domestic chores.
Peou’s reply also included a fact sheet published by the Department of Family and Community Services dated 1 June 2020 entitled “Tenant’s rights and responsibilities.” The document is relied on because it states that the Department “arranges for appropriate repairs and maintenance during your tenancy” and requires the tenant to notify when repairs are required. The document also states that the tenant must clean and maintain the home, including the gardens to a reasonable standard.

Muoy Sok

A reply was prepared on behalf of Muoy and I was told that Chung sought to act as her tutor, though no formal application was made. The reply also attached a copy of the 2009 Residence Book.
The reply included statutory declarations from Ngeap’s older sisters Keo So Kang, also known as Thai Sok Kheng, and Thay Phea Kheng. They said they are 67 and 63 years old respectively, that they were not dependent on Ngeap at the date of his death and do not wish to make a claim.

Chung Thai

Chung is Ngeap’s older brother. He prepared a statutory declaration dated 5 November 2020 which appears in the replies filed for Peou, Muoy and Meng. He said that he has three brothers and five sisters. He came to Australia in 1997 as a refugee and worked in bread shops until he started his own bakery 15 years ago. He said he was not dependent on Ngeap.
Chung said that he wished to be appointed as the tutor for his sister Muoy Sok who is intellectually impaired, though she was never “diagnosed”.
He said that “from the time I came to Australia” he sent money home to his sisters, Muoy and Peou and his mother. He said that it is “part of our culture that we support our family” and that anyone who can go overseas has an obligation to support family in Cambodia. He said that he also helped Ngeap in his early years in Australia. In the last 10 years he travelled to Cambodia twice a year and “gave my mother money for her maintenance and support.”
Chung said that Kim worked in his bread shop in 2012. His evidence about Kim’s travel to Cambodia was consistent with that of Peou. Chung said that when Ngeap arrived in Australia he lived with Chung and his family, sometimes working in the bakery. He said that Ngeap did not accept payment for work but received money “as a brother” and sent a lot of it home to Cambodia. After about seven months, Ngeap went to live with Kim because the Department of Immigration would come to check if the marriage was genuine. He paid Kim rent because her rent increased when he lived there and she told him they must open a joint bank account. He said his brother was afraid of Kim “telling immigration to send him back to Cambodia.”
Chung said that his brother lived with Kim until 2016 when he was granted permanent residency but “I do not know the addresses of where he stayed at after he moved out as he came to visit me to pass me money to send back to Cambodia.” He said that he visited Ngeap after his stroke in 2019 at a granny flat that he was staying at in Sadlier. Ngeap stayed at his house when he went to Cambodia in December 2019 and on the day of his return to Sydney on 9 January, he was informed that Ngeap had died.

Chung said:
“Since Ngeap has been in Australia my brother had asked me to transfer money to his children, our mother and sisters (Muoy & Peou) regularly. Ngeap and I were close. He always asked me to transfer the money because he worked long and during business hours. I am self-employed and can take time off anytime I want, and the exchange money people would give me a better rate as I had used their service before. When he lived with me, he just gave me cash to send home. When he moved out, he gave me they money in cash at my house, usually late at night when he had finished work or on weekends. Money had to be transferred on weekdays or it would be delayed. Sometimes my wife, …, went and did the transfer. As I had supported our family back home substantially for a long time, Ngeap just wanted to share such burden with me
I did not have to use the money exchange when giving my mother and sisters money as I usually give them cash when I go back to Cambodia in April and December every year unless there was an urgent need for money. After Ngeap came to Australia in 2012, I used Hai Ha Money transfer to send back money on Ngeap’s behalf until 2018 then I used Vina Money Transfer. I asked Hai Ha and they provided a statement but Vina refused to provide me with a statement. Sometimes the money was not transferred like this. Sometimes money was transferred by giving money to a friend in Australia and their family in Cambodia gave the equivalent money over there.”

Chung said that on one occasion in about 2017 he helped Ngeap transfer about USD12,000 to his daughter who was about to give birth “and there were house renovations.” That money was sent to his brother-in-law, Bunchay Yun, to pass on because his sister Peou was away. He said:

“I didn’t have to use money transfer to send money home for·Ngeap in about April and December as I would go to Cambodia around such times and gave them cash on Ngeap’s behalf. I did not know how the money from Ngeap was split as Ngeap would contact Peou and gave her instructions in relation to his money. I usually left my mother, and sisters around USD8,000 - 10,000, some monies were from Ngeap, and the rest was mine.”

Chung said that the family’s eldest brother Meng gave Ngeap a loan of USD 30,000 as cash to help him migrate and settle in to Australia. Chung did not think much of the loan was repaid and said Meng was relying on eventual repayment.

Meng Thai

Meng is aged 70 and is Ngeap’s older brother. He operated a rice mill and an ice factory until 2015. He said:

“I am the eldest of my siblings. There are currently seven of us. In Cambodian society it is common practice for people to provide assistance, including financial assistance to their siblings throughout their lifetimes. In this regard, being the eldest I was the first of my siblings to start working after which I made payments of money, initially to my parents, but latterly, to the individual siblings. Based on the assumption that I would be the first to retire, the expectation would be that after I ceased to work, I would, so far as they could receive financial support from my younger siblings. In this regard, it is important to remember that in Cambodia there is no financial assistance provided by the government such as pensions for the elderly, or for the cost of medical expenses.

During the course of my working life, I made numerous payments to various of my siblings. By way of example in about 2012, while I was still operating the two factories the deceased asked for US$30,000.00 as he wished to settle in Australia and needed the money do so. I gave it to him. Importantly, this was not a loans in that there was no written record of exchange and no expectation of repayment nor any interest.”

He said:

“After the deceased left for Australia, I remained in contact with him by phone. Invariably during these calls, the deceased would ask as to my health and I would tell him. During these discussions I would tell him that the cost of medication for my high blood pressure placed considerable financial stress on met and also that I was unable to pay for the cost of surgery that would remove the cataracts. On several of these conversations the deceased indicated that he would pay for the surgery when and if he could.”

Meng said that many Cambodians of his age do not trust Cambodian currency or banks and use US dollars and keep their savings at home. He said that Ngeap arranged for USD 2,000 to be paid when the factories closed. The money was paid as cash though a friend who travelled from Australia to Cambodia.
He said:
“Accordingly, at the time he passed away I expected that that the deceased would provide me with money to provide support for my medical conditions and also to help me survive generally. I base this on the fact of my cultural heritage, the fact that he had made a payment prior to his death and the fact that he had made such payments to other siblings.”

Other siblings

Jasmine Ang, the solicitor for Peou, the eighth respondent, made a statement dated 6 November 2020 in which she said that she had contacted her client to obtain contact details for her siblings Meng, Chung, Chhour Ang, Thai Hong Kheng, Thai Sok Kheng, Thai Pear Kheng. Ms Ang said that she was informed by Ann Parnell, the seventh respondent’s solicitor who speaks Khmer, that Thai Hong Kheng who lives in Vietnam did not receive any support from her brother and did not wish to make a claim.

Chhour Ang provided a statutory declaration dated 30 October 2020 in which he said that he was Ngeap’s younger brother. He has lived in Myanmar since 2013 and “[p]rior to moving to Myanmar, I was staying with my mother Sieng Kim and two sisters Mouy Sok and Peou Sok in Cambodia.” He is employed and said he was not dependent on Ngeap for financial or any other support at the date of his death.

Vina Money Transfer/Moneygram

Sieng Kim filed documents produced under direction from Vina Money Transfer. The direction sought details of payments made by Chung from 8 August 2016 to date. The print out which was produced shows transfers made by Chung. The sum of USD 5,000 was sent to Bunchhay Yun on 31 August 2017. Five payments totalling USD 4,500 were made to Peou on 2 August 2018, 11 March 2019, 23 June 2019 and 11 August 2019.

Department of Housing

A bundle of documents produced under direction by the Department of Housing was relied on by several of the parties. The documents are not in any particular order. A number of forms detail Kim’s receipts from Centrelink and periods when she was employed – usually for low wages.
An Application for Additional Occupant form in respect of Anastasia was completed on 29 March 2012, stating that she moved in because her brother moved out. Another form was lodged in respect of Ngeap on 22 January 2013 and he was approved as an additional occupant on 13 March 2013.

A rent subsidy application dated 21 January 2013 shows Ngeap as a resident of the house and that he was not working. A file note dated 23 January 2013 says that Ngeap is not entitled to Centrelink payments because of his visa.
A further Application for Additional Occupant was completed in respect of Aaron on 3 December 2015, noting that the reason was his mental health. One page of a medical report from the Fairfield and Liverpool Mental Health Service about Aaron dated 11 May 2016 says that he is managed by the Early Psychosis Intervention Program since March 2015 and that he reported he had become unwell due to illicit drug use. He required “a highly assertive approach.” The document appears incomplete because it is not signed.
An incomplete application form stated that Aaron had moved out in December 2016 and Anastasia had moved back in on 29 February 2017. It named Ngeap as an occupant.
Employment Income Details forms were completed for Ngeap on 16 January 2015 and 10 May 2016 in respect of employment by MPK Asbestos and Demolition and pay slips from may 2016 are in the file. A letter from National Integrated Services Pty Limited confirms Ngeap’s employment for a two month period in late 2015. Employment income details were provided by National Insulation Pty Ltd an confirmed that Ngeap commenced employment on 22 November 2016.
Notices of termination for rent arrears were issued on 24 May 2012, 23 March 2015 and 22 December 2015. In respect of some of those occasions, the Department of Housing made applications to the Consumer Trader and Tenancy Tribunal. In 2016 proceedings were commenced in the NSW Civil and Administrative Tribunal (NCAT) against Kim to recover outstanding rent. Notice of termination for rent arrears was given on 2 May 2017. Notice of an order made on 13 June 2017 by NCAT with respect to rental arrears appears in the file.
A rent subsidy application dated 11 March 2015 notes the residents of the house as Kim, Ngeap and Anastasia. A further application dated 25 November 2016 (or possibly 2014) names the same occupants. An application on 17 May 2015 names Aaron instead of Anastasia, as does a further application dated 17 December 2015 and says that the application was made because “husband no working.”
A record of a client service visit dated 6 December 2016 is annotated “unauthorised mods photos”. It names Aaron as the tenant’s next of kin.
A letter dated 12 April 2017 showed that rent had been adjusted to market rent of $380 from November 2016 and that the rent account was in arrears. Anastasia was approved as an additional occupant on 13 April 2017.
A Client Service Visit checklist in dated 7 August 2018 noted that the occupants were Kim, Ngeap and Anastasia. Photographs showing some damage to walls were noted.
A further checklist dated 18 July 2019 noted the same occupants and recorded that the bathroom needs fixing. Other photographs appear to show a carport or shed at the premises.
The most recent document is an Income Confirmation Results statement showing payments made by Centrelink to Ms Gov in April 2020, including a bereavement allowance.

SUBMISSIONS

Kim Y Gov – first respondent

Mr Gaitanis of counsel prepared submissions for Kim. He said that the evidence showed that at the date of Ngeap’s death he was living with Kim at Cabramatta West and Anastasia was part of the household. Ngeap did not live there for a short period in 2019 when he had conflict with Aaron and the Department of Housing records support that contention.
Mr Gaitanis said that the evidence showed that the money transferred to Cambodia was transferred by Chung. He said that it was implausible that an “untrained immigrant labourer… was the source of provision and dependency for all of the claimants in Cambodia.”
Mr Gaitanis summarised Kim’s evidence and said that Ngeap was the breadwinner for the family. He and Kim shared a home (which is supported by the documents from the Department of Housing) and a bank account. The police went to the house at Cabramatta to inform Kim that Ngeap had died and the invoice for his funeral is addressed to her. A note from Ngeap’s son confirms that Kim had given some of Ngeap’s property to his son, confirming that she had possession of it.
Mr Gaitanis said that there was no documentary evidence to support the allegation that Ngeap had lived at Chung’s house when he came to Australia and after he gained permanent residency in 2016. The records from the Department of Housing are inconsistent with that statement as are the statements of the next door neighbour, Ms Gunn and Dr Ly and the evidence of Anastasia.
Mr Gaitanis said that I would not accept Chung’s evidence on the issue of Ngeap’s residence and that I would also not accept his evidence about the money transfers because I would not feel actual persuasion of the facts, referring to Briginshaw v Briginshaw[2].
[2] [1938] HCA 34.

Mr Gaitanis said that the claimants in Cambodia needed to prove the family relationship and dependency. He said that Kim did not admit the family relationships. He noted that there is a discrepancy about Ngeap’s name and date of birth on the translation of Ly Hong’s birth certificate and that only Khyhai was named by Ngeap in his application to move to Australia.
With respect to Ngeap’s residence before he left Cambodia, Mr Gaitanis noted that the address on the immigration forms was that of his mother and that was also the address to which Kim sent money in 2012.
Mr Gaitanis said that Chung told untruths in order to diminish Kim’s entitlements and procure benefits for his family. He said the evidence about the amount of money sent to Cambodia on behalf of Ngeap was implausible and that the bank records show that he relaxed by gambling in clubs, evidenced by the withdrawals at licensed clubs. There was evidence that he and Kim had difficulty paying their rent. Ngeap did not have the capacity to send USD 10,000 to 15,000 per year to Cambodia. Kim did concede that Ngeap made contact with his relatives on special occasions such as Lunar New Year when small gifts of lucky money may have been made. The only plausible explanation, Mr Gaitanis said, for the transfer of money was that it was the funds of Chung who was successful in business. He said that all or the vast majority of the amount should be apportioned to Kim.
Mr Gaitanis said that some interest should accrue from the date of death.

Submissions in reply

Mr Gaitanis prepared detailed submissions in reply to the submissions for each of the other respondents, much of which repeat statements made in chief. It is not necessary to set out the submissions in detail.
He noted the lack of source material for most of the contentions made by the family in Cambodia. He submitted that Sieng Kim, Peou and Mouy are still supported by Chung.

Ly Hong Thai – second respondent

Mr Hickey prepared submissions for Ly Hong. He said that it was necessary to evaluate the value of the contribution made by Ngeap to those in Cambodia and that a lesser monetary contribution may not reflect the injury to their dependency because the withdrawal of even a small monetary contribution may “mean the difference to survival or not.”
Mr Hickey said that 54% of the sum available should be apportioned Kim, 7% to each of the adult children, 1% to Anastasia, 5 % to Sieng Kim, 7% to Peou, 10% to Mouy and 2% to Meng.
Mr Hickey said that Ngeap’s net income of $80,000 in the 2019 tax year was consistent with his ability to make payments to family members in Cambodia and that his children were a lifetime concern. He noted that each of Ly Hong and Ly Tang said that the adult children received a total of $15,000 per year and the money transfer statement showed that Chung sent slightly less than $20,000 to Cambodia each year.
With respect to Anastasia, Mr Hickey said that her evidence was imprecise and did not address her future plans. He said that it was likely that any collateral benefit received from living in the same household as an adult was likely to be short-lived given her age and “imminent capacity for independence.”
Mr Hickey said that the amount apportioned to Sieng Kim should also be small because she has “reached life expectancy.” She received money with her daughters from Chung and Ngeap so that there was an overlap of the benefits with other family members. Mr Hickey summarised the evidence of Peou at length and said that Ngeap sent money as promised before he left and that the money brought by Chung was greater after Ngeap went to Australia. Mr Hickey stressed, when summarising the evidence of Peou and Chung, that Chung did not use the money exchange when sending money to the household of his mother and sisters. He acknowledged that there was no evidence about Muoy’s disability but noted that it was accepted by her family. He said that a greater proportion should be apportioned to Muoy than the other members of her household at 10%. He said that 2% should be apportioned to Meng.
Mr Hickey said that interest should run from 13 February 2020 when Ly Hong prepared her statutory declaration or the date on which the proceedings were commenced in the Commission or 30 September 2020 being the filing of her reply.

Ly Tang Thai – third respondent

Ms Compton provided submissions in chief and in reply on behalf of Ly Tang and sought leave to rely on them being late. Ly Tang essentially adopted the submissions of Ly Hong and Khyhai and noted that the apportionment sought in those submissions was substantially the same as that proposed on behalf of Kim.
Ms Compton noted that Ngeap was 55 at the date of his death and could have been expected to work another 21 years.
Ms Compton summarised the evidence and said that the overwhelming evidence of the Cambodian parties is that Ngeap lived with his adult children and supported them until he came to Australia. She said that there is no evidence to support Kim’s suggestion that they are landowners.
The factors which weighed in Ly Tang’s favour, Ms Compton submitted, were her low income and that of her family, the fact she has a young child, the Cambodian cultural expectation that family would be supported, the fact that she received money three times a year from her father and that they spoke regularly and the fact that she used the money he provided for household essentials.
Ms Compton said that an appropriate apportionment would be 67% to Ms Gov, 6% to each of Ngeap’s adult children and 3% to each of Anastasia, Sieng Kim and Ngeap’s siblings.

Khyhai Thai – fourth respondent

Mr Nesbeth prepared submissions on behalf of Khyhai and said there can be little doubt he was Ngeap’s son, being listed as such on the forms completed for the Department of Immigration. Mr Nesbeth noted that Kim acknowledged that Ngeap Thai had three adult children but her evidence suggested that she had little knowledge about them. He said there was no support in the evidence for her contention that Ngeap was estranged from them.
Mr Nesbeth said it appeared from the evidence that the family’s living arrangements in Cambodia may have been fluid. Peou said that Ngeap had lived with her and her mother and sister before coming to Australia. Chhour Ang said that he had lived with his mother and sisters before moving to Myanmar in 2013 but did not say that Ngeap lived in the same house.
Mr Nesbeth said that Khyhai relied on the statement by Chhim Louen who lived next door to “Grandma Chhai Kruy” where Ngeap lived with his children until he moved to Australia.
Mr Nesbeth summarised the evidence in Khyhai’s statement and said he is clearly of modest means. He said that the bank statements contain numerous ATM cash withdrawals, often after Ngeap’s salary was deposited. Some withdrawals were as high as $2,000 and it was plausible that Ngeap was giving his brother cash to send to Cambodia. He noted the evidence about cultural expectations that family members support those in a less fortunate position. Mr Nesbeth said Kim’s evidence that Ngeap did not send money to his children was improbable and that Kim may not have known about it.
While accepting that Kim is entitled to the highest percentage, Mr Nesbeth submitted that Ngeap’s children should be apportioned significantly more than his siblings. He proposed that 67% be apportioned to Ms Gov, 6% to each of the adult children and 3% to each of the other claimants.
Mr Nesbeth said that interest at the rate of 3% should be awarded from 3 February 2020, when the claim form was lodged, 10 September 2020 when Khyhai’s statutory declaration was lodged in the proceedings or 6 November 2020 when his detailed statement was served.

Anastasia Vong – fifth respondent

Anastasia sought only to rely on the outline of submissions prepared before the conciliation conference and submissions in reply. Mr Morgan of counsel prepared those submissions.
In the submissions dated 31 March 2021, Mr Morgan said that there were inconsistencies in the documents relied on by the Cambodian respondents and that the only explanation for the “wildly” differing names and dates of birth was offered by Chung who is not a party. He said that Kim, Ngeap and Anastasia formed a domestic unit. Ms Gov’s cohabitation with Ngeap Thai is supported by Anastasia, Ms Gynn and Dr Ly. Mr Morgan noted that the police came to the family home to inform Kim of Ngeap’s injury, she went to the hospital and Chung went to the house to pay his respects. Ms Gov also had possession of Ngeap’s effects and arranged his funeral.

Mr Morgan said that the allegations by Chung that the marriage was a sham should be seen against the background of significant financial benefit to his family.
Mr Morgan suggested that the apportionment to Anastasia should be minor and perhaps in the order of 10% of the sum payable.
In submissions in reply, Mr Morgan said that the submissions on behalf of Ly Hong, in particular, but also all of the Cambodian family proceed on the assumption that the asserted payments had been made. He said the glaring example of the unreliability of the evidence of the Cambodian family was the discrepancy about Ngeap’s residence before his marriage. The discrepancy on such a basic point calls into question the reliability of all other statements of fact.
Mr Morgan said there is no primary source evidence that money was ever sent to Cambodia. It is unlikely that $15,000 could have been sent every year when Ngeap’s net income averaged about $40,000. Kim said that living expenses amounted to $20,000 to $30,000 per year and the financial records show regular withdrawals at clubs and gaming venues. Mr Morgan said there is also no evidence that Chung transferred $15,000 per annum.
Mr Morgan said that there was no evidence that Ngeap supported Sieng Kim and Peou and that the evidence showed that Chung supported them. Despite the evidence of Peou that Chung did not send money by money exchange but provided cash in Cambodia, the evidence was that he regularly sent money to her.
The allegation that the marriage to Kim was a sham, Mr Morgan said, should be rejected as self-serving and self-interested and contrasted to Ms Gynn and Dr Ly. He said that Chung in essence asks the Commission to accept that he facilitated then actively maintained an immigration fraud on the Australian government yet also to accept his word that he was regularly taking funds from his brother to Cambodia.
Anastasia confirmed that Chung and his wife visited the house at Cabramatta West two days after Ngeap’s death bringing incense sticks to light at his memorial. Mr Morgan noted that Chung did not contradict that evidence.
Mr Morgan said that the death benefit should be apportioned to Kim with a modest allowance to the only other dependant who has proved an entitlement, Anastasia.

Sieng Kim –seventh respondent

Submissions on behalf of Sieng Kim were signed by Ms Goodman of counsel and Ms Parnell, the seventh respondent’s solicitor.
Sieng Kim submitted that the compensation should be apportioned equally between all of the respondents. She is now 88 years old and submitted that she was partially dependent on Ngeap because he sent her money from time to time through his brother, Chung. She said that the residence book from 2009 and the address nominated on the migration application showed that he lived with her before he moved to Australia. Sieng Kim is unwell and has been wheelchair bound since 2017. She requires medical treatment. She believed and expected that Ngeap would have continued to support her.
Sieng Kim’s submissions relied on Chung’s evidence with respect to the provision of money to her and said that even if Chung provided an amount greater than Ngeap, it should be accepted that Ngeap contributed.
With respect to Ngeap’s relationship with Kim, Sieng Kim said that I would accept the evidence of Mr George of Empire Contracting that they were separated and that this was supported by Kim’s bank account. She submitted that there appeared to be other bank accounts which had not been disclosed. She said that Kim’s evidence was inconsistent with “independent evidence” including a fact sheet from the Department of Housing stating that it would arrange all repairs and maintenance which was at odds with Kim’s statement that she had to hire a handyman since her husband’s death. The submissions said that photographs showed the house “in disrepair, and filthy.”
Sieng Kim submitted that the statement that Ngeap did not earn enough to send money to Cambodia was at odds with the earnings disclosed in the bank statements. She sought to highlight discrepancies in the evidence about the period when Ngeap moved out of the home because of differences with Aaron.
Sieng Kim submitted that Anastasia was not dependent on Ngeap.
The submissions made with respect to interest are limited and note that the claim was made on 3 February 2020 and particulars were provided on 25 January 2021. The appropriate rate was 4% above the cash rate and therefore 4.1%.
Ms Parnell prepared submissions in reply on behalf of Sieng Kim. She submitted that Ms Gov had obtained an unfair advantage by providing evidence and submissions late.
In the submissions in reply, Ms Parnell said that the evidence about when Ngeap moved out of the house at Cabramatta West was inadequate and that either she misled the Department of Housing about Aaron moving out of the house to live with his father in April 2017 or sought to mislead the Commission. Three photographs of damage to the property were taken in 2018 and “were not indicative of when damage to the property occurred.” She submitted that I would find that Kim was not a witness of truth.
Ms Parnell also submitted that I would accept the evidence of Mr George that Kim and Ngeap were separated and that Kim could have sought clarification from Empire Contracting but did not because of her “fear that the source of Mr George’s knowledge was the Deceased”. She submitted that I would accept Mr George’s evidence because Kim chose not to cross examine him.
Ms Parnell sought that I draw inferences from the records of the Commonwealth bank records that Ngeap’s net earnings were higher than alleged by Ms Gov because other amounts such as tax refunds had been credited to the account. Ms Parnell submitted that Kim made submissions without reference to the evidence and that I “must not pay attention” to her submissions about Ngeap’s earnings or his support of his relatives in Cambodia.

Peou Sok – eighth respondent

Peou Sok did not file submissions in addition to the summary filed in preparation for the conciliation conference. In those submissions, Mr Stanton said that Peou usually works as a Chinese teacher earning USD 200 per month but since the pandemic has worked infrequently as a waitress. She estimated that Ngeap sent about USD 10,000 per year to her household.

Mouy Sok – ninth respondent

Ms Grotte prepared submissions on behalf of Mouy. She summarised the law with respect to apportionment of the death benefit and the evidence with respect to Muoy.
Ms Grotte said that Ngeap lived with his mother and sisters in Cambodia so that Muoy was a member of the same household and was dependent on Ngeap before his death. Ngeap sent money to Cambodia with the assistance of their older brother Chung, consistent with the expectation that members of Cambodian families will support each other financially as well as in other ways. She said this was demonstrated by the fact that Chung assisted his brother to come to Australia to meet his employee, Kim so that his brother’s immigration status could be facilitated.
Ms Grotte said that I would accept the evidence of Chung about the transfer of money and that it can be accepted that some of Ngeap’s income was sent to Cambodia to support his mother and his sisters, in particular Muoy who cannot support herself. Ms Grotte said that she had a legitimate expectation that Ngeap would have continued to provide financial support to her “for at least the next 8 years while he was working.” Ms Grotte submitted that an appropriate apportionment was 15% because of Muoy’s special needs and that interest at 3% should be paid from the date of notification of the claim.
Ms Grotte prepared brief submissions in reply and said that the aspersions cast on the Cambodian members of the family should be rejected. She said that the submission made in reply on behalf of Kim that Chung has a significant stake in the proceedings because he will be discharged from his responsibility to send money overseas is outrageous and should be rejected. She said I would accept that Muoy was dependent on Ngeap at the date of his death.

Meng Thai – tenth respondent

Mr Trainor prepared submissions on behalf of Meng. He said the evidence showed that Ngeap had communicated an intention to assist Meng due to his infirmities and one payment of USD 2,000 was made. The evidence of all of the Cambodian respondents is that Ngeap provided support to them. To the extent that Kim’s evidence was different, Mr Trainor submitted I would find she was mistaken, as she was not privy to many of the conversations which took place in Cambodia.
Mr Trainor said that Ngeap was in his mid 50s when he died and was performing heavy, dirty work so that any ability to provide financial support was limited to 10 years. He said there was evidence that the marriage to Kim was a commercial arrangement. However, the submissions were prepared on the basis that she was wholly dependent and has the largest entitlement. The entitlement of the adult children in Cambodia would be based on them being partially dependent and would be equivalent.
He said that Anastasia was at most partially dependent on Ngeap and that she obtained some benefit from his support of her mother. Any apportionment to Anastasia must be in respect of the support provided uniquely to her and her entitlement would be less than the adult children in Cambodia.
Mr Trainor said that some care was required with respect to apportionment to Ngeap’s mother and sisters. He noted that money was paid to Peou to be disbursed as she saw fit and that Sieng Kim’s portion should be less than Muoy because of her age. Peou’s portion should be less than her sister and commensurate her mother. The entitlement of Meng should be less than Muoy but greater than their mother and Peou.
Mr Trainor cited TNT Group 4 v Halioris[3] (Halioris) to argue that a person can be dependent at the date of death even if the expectation was that support would be provided in the future. In Cambodian society the family relationship creates an expectation of support at various stages in life. Meng gave Ngeap USD 30,000 when the latter came to Australia without expecting repayment but assuming that his siblings would assist him when he ceased to work so far as they could.
[3] (1987)8 NSWLR 486.
Mr Trainor submitted that 70% of the death benefit should be apportioned to Kim, 4% to each of the adult children, Meng and Peou, 3% to Anastasia and Sieng Kim, 5% to Muoy. He submitted that interest should be payable from the date Meng’s reply was filed
In reply, Mr Trainor noted that the submissions in reply filed for Kim sought to attack the claims of each of the other respondents and said that he would only deal with those which relate to Meng. He said that Ngeap was remunerated consistently with the dangerous, dirty work he did and, like his brother Chung, sent money back to Cambodia when he could. The submissions in reply prepared for Kim are a trenchant attack on Chung but nothing in Meng’s case requires that Chung be accepted.
Mr Trainor said that Meng gave $30,000 to Ngeap but there is no evidence that it was to pay to Ms Gov for a sham marriage.
Mr Trainor said that if I found Meng to be dependent, it would be an error to apportion a nil amount by analogy to Kesen v Luke Singer Pty Ltd[4] where the Court of Appeal held that it was an error to reduce compensation under the former s 40 to nil where there was a finding of incapacity.
[4] (1989) 18 NSWLR 566, 567.
In response to the submissions by other respondents, Mr Trainor said that it is difficult to see how it was appropriate to apportion 10% to Anastasia as a “healthy, employed 30 year-old”.
With respect to Muoy, Mr Trainor said that whilst her need may be greater than some of the other respondents, the appropriate test was reasonable expectation, rather than need.

FINDINGS AND REASONS

General principles with respect to dependency and apportionment

Section 25 of the 1987 Act provides that the death benefit is to be “apportioned among any dependants who are wholly or partly dependent for support on the worker.”
The definition of dependant in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) reads:

“dependants of a worker means such of the members of the worker’s family as were wholly or in part dependent for support on the worker at the time of the worker’s death, or would but for the incapacity due to the injury have been so dependent, and includes—

(a) a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and
(b) a divorced spouse of the worker so dependent, and
…”

In Aafjes v Kearney[5] Gibbs J said:

“The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they exited at that date; ‘past events and future probabilities’ have to be considered.”
[5] [1976] HCA 5; 180 CLR 199.

In Wratten v Kirkpatrick[6], Egan AJ considered apportionment of the death benefit in respect of a son to whom the deceased worker was providing minimal support, noting that an obligation to support existed. His Honour said:

“The apportionment of the benefits involves the exercise of applying the law to the facts in each case. The exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle etc.”
[6] [1996] NSWCC 2; (1996) 15 NSWCCR 32.

In Halioris, McHugh JA said that “a person claiming dependency need not be in actual receipt of support at the date of death. It is enough that , as at that date, he or she had a reasonable expectation of support in the future.”

Several of the parties referred to Sadiq v NSW Trustee & Guardian[7] an application for a family provision order. Hallan J said:

“The Act contains no definition of the words ‘dependent on’. In general, the word ‘dependent’ connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.”
[7] [2015] NSWSC 716.

Ngeap Thai was 55 when he died. He worked as a labourer and I accept that the work of asbestos removal is heavy and dirty. It is probably unlikely that he would have worked beyond his mid 60s. His future working life was probably limited to eight to ten years. That estimate does not take account of any impact the pandemic may have had on his ability to maintain a job.
The apportionment is made more difficult by the way in which much of the evidence was prepared. Kim’s evidence is spread over a number of statements rather than providing a clear and chronological presentation of the facts.
The evidence of some of the witnesses focusses on discrediting the claims of others instead of setting out facts. Much important information – for example, the extent to which Anastasia works – was simply not provided.
Several of the parties who live in Cambodia said that there was a cultural expectation that those who move overseas will provide support to their family in Cambodia. There is no anthropological evidence in that regard. In particular, there is no evidence as to the custom from anyone who would not benefit from a finding as to its existence. I accept that for the family members in Cambodia, the wages earned in Australia would appear high.
However, Meng’s evidence is presented in a measured way. He said that it was a “common practice” and I accept that it reflects the way in which that cultural practice operates.

Despite the inconsistencies in their evidence, I accept that each of the family members in Cambodia had some expectation of support from Ngeap. Kim accepted that lucky envelopes were provided at Lunar New Year. There is no evidence as to the amount which was provided.
The submission made on behalf of Sieng Kim that the death benefit should be split equally has no basis in either the law or the evidence.
The submissions filed for the adult children and Meng Thai are in broad agreement as to the apportionment and that the percentage of the sum to be awarded to each.
Some of the submissions filed – particularly for Ms Gov and for Sieng Kim – lack the detachment that would be expected in submissions prepared by lawyers appearing for the parties. Some of the evidence prepared for those parties also contains gratuitous statements and commentary which has no place in evidence in the Commission.

Family relationship

The submissions filed for Kim and Anastasia raise questions as to whether those claiming to be Ngeap’s adult children were in fact his children. Mr Morgan submitted that Chung’s statement that the Ngeap was the father of the adult children to “the best of his knowledge” was equivocal. Those words could, however, be seen as the appropriate evidentiary form for describing his understanding. The submission is inconsistent with Kim’s evidence and the inclusion of the adult children on the death certificate.
I am satisfied that the adult children are Ngeap’s children. Both Kim and Chung accepted in the evidence that they are his children and property was given to them after his death.
The three lived in the same premises until Khyhai moved to his uncle’s house and each acknowledges that they are siblings.
Ly Hong’s birth certificate names her father as Chhour Ngeip and his date of birth is not the same as appears on other documents. Her birth was registered in 2005 which may explain some discrepancies in the description of events which occurred years before.
In his applications to migrate to Australia, Ngeap named only Khyhai as his child and did not name all of his siblings, omitting the two sisters who have not made a claim. The forms are in English and Part J of each form reveals that Ngeap had assistance completing them.
I accept the evidence in Chung’s statement dated 26 March 2021 about the family’s name. It is consistent with Ngeap’s younger brother being called Chhour Ang.

There is agreement that the other Cambodian respondents were Ngeap’s mother and siblings. I will consider the question of dependency on the basis that each claimant had a family relationship with Ngeap Thai.

The evidence of Chung and the family members in Cambodia – with the exception of Meng– is generally not supported by documentary evidence and contains numerous inconsistencies. For example, Chung said that he helped Ngeap send $12,000 to his daughter in 2017 when she gave birth. Neither Ly Hong nor Ly Tang said that they had a child at that time.

There is little evidence about Ngeap’s funeral which might otherwise have shed light on the relationships. Receipts held by Kim suggest that it took place in Australia but none of the adult children say they travelled to Australia and their evidence about their circumstances suggests that would be impossible. Ly Tang said Ngeap’s ashes are in Cambodia. Anastasia expressed surprise that none of them asked questions about his life in Australia at the funeral and Khyhai provided a receipt for some of his possessions. Neither Kim nor Anastasia said that they travelled to Cambodia for the funeral. The evidence does not assist with clarifying the family relationships.

Ngeap Thai’s residence in Cambodia

Having determined that each of the family members was a dependant, I turn to the extent of the dependency. Because Ngeap was working in Cambodia and therefore contributing to the household, his place of residence was relied on as relevant to the extent of the dependency of the others who lived there.
Seing Kim and her daughters relied on a Residence Book from 2009 to say that Ngeap lived with them before he came to Australia in 2012. Ngeap’s children said that he lived with them at their maternal grandmother’s house. Ly Hong said that her father looked after her and her siblings after her mother died in 2004.

Ly Hong provided a statement from a neighbour to support the claim that Ngeap lived with them but Chhim Loeun’s statement was not specific as to time. She said that she observed Ngeap looking after his children. That is likely to have been some time in the past because in 2012, Ly Hong was 23, Ly Tang was 25 and Khyhai was 22. Ly Hong married in 2007 and divorced in 2012, subsequently remarrying. Ly Tang married in 2012.
The evidence is equivocal about how Ngeap’s first relationship ended. His Australian marriage certificate says that he had not been validly married. He said on the immigration form that the relationship was a de facto relationship which ended in 1998. His adult children’s statements say that their mother died in about 2004 and say nothing about the end of the relationship other than that their father continued to live with them in their maternal grandmother’s house.
Peou said that Ngeap lived at his mother’s house after his divorce. Chhour Ang who lived there before he went to Myanmar in 2013 did not say anything about where Ngeap lived. Kim used Sieng Kim’s address when she sent money to Ngeap Thai during 2012.
It may be that Mr Nesbeth’s submission was correct – that the living arrangements were fluid. I consider it more likely that Ngeap lived at Sieng Kim’s house in the period immediately before he left Cambodia. He is therefore likely to have made some contribution to the support of that household and I accept that he did.

The relationship between Kim Gov and Ngeap Thai

Ms Grotte’s contention that Chung arranged for Ngeap to come to Australia to meet Kim is not supported by the evidence but it appears that Chung may have introduced them because Kim had worked in his bakery.
The evidence of members of the Cambodian family that the marriage was a sham is not supported by the evidence. Chung’s statement that Ngeap lived with him rather than Kim is an assertion only and inconsistent with documentary evidence.

Even if the marriage was arranged to permit Ngeap to come to Australia, the evidence supports the conclusion that he and Kim lived as a couple in Australia. They were legally married, Ngeap was approved as an occupant on Kim’s tenancy. A neighbour and the family doctor provided statements attesting to their observations of them as a couple, as does Anastasia.
Most relevantly, they operated a joint bank account into which Ngeap’s wages were paid and they were operating that account until Ngeap died.
Sieng Kim’s submissions in reply strenuously urged me to accept Mr George’s evidence that Ngeap and Kim were separated. Mr George’s evidence is no more than an understanding and is against the weight of the evidence that they remained a couple. In any event, a divorced spouse falls within the definition of dependant and so would a separated spouse, particularly when they share a bank account.
The documents from the Department of Housing are in random order and some pages are missing. They provide useful information as far as they go but the fact that some pages are missing means that conclusions can only be drawn from what is there. No inferences can be drawn from the fact that some information is not there.
The documents do show that Ngeap was an approved occupant of the property from 2013 and there is no record of him moving out. The medical report about Aaron suggests that his condition was volatile and, if he was visiting his mother, it is consistent that Ngeap may need to sleep somewhere else to be able to get up early for work or because he and Aaron did not get along.
The documents also show that Kim was frequently behind in her rent.
Kim and Anastasia said that Ngeap spent time at the local RSL. I accept the submissions of Mr Gaitanis and Mr Morgan that the bank statements from the joint account show frequent and significant withdrawals at registered clubs. The size and frequency of those withdrawals indicates that it was unlikely that Ngeap was sending much money to Cambodia. Whilst I agree with Mr Nesbeth’s submission that a withdrawal at a registered club does not necessarily mean that it was not merely a cash withdrawal, the multiple withdrawals on the same or consecutive days suggests otherwise.
The submissions made on behalf of Sieng Kim about Kim’s housekeeping are unhelpful. The inspection report and photographs in 2018 refer to unauthorised modifications at the property. The photographs which show a structure which looks like a shed are consistent with Kim’s evidence that Ngeap built a car port at the property.
Some of the Cambodian family members sought to discredit Kim by relying on a factsheet which says that repairs will be undertaken by the Department. The same document says that the tenant is responsible for garden maintenance. That is consistent with Kim’s statement that she has had to hire a handyman for some tasks which Ngeap would have done. I accept her evidence on that account.
I am satisfied that Kim was dependant on Ngeap. The bulk of the death benefit should be apportioned to her and the appropriate proportion is 80%.

Adult Children

Ngeap’s adult children said that he sent them a total of USD 15,000 each year from the time he left Cambodia. They said that Khyhai received a higher proportion than his sisters. Despite that, and for the reasons which follow, their entitlement should be considered together and should be equal.
There is nothing in the bank statements to support Khyhai’s statement that Ngeap sent money to a bank account until Khyhai closed it in 2014.
It is not possible to accept the evidence of the adult children as to the amount sent. Ngeap’s net income was, except for 2019, relatively modest. The sum the children allege was sent to them is roughly a third of his net income. There are no withdrawals from the joint bank account into which Ngeap’s wages were paid which could reflect those sums.
Ly Hong said that the money was collected from her aunt Peou in Phnom Penh which is difficult to reconcile with the fact that Peou also lives in Siem Reap. Ly Hong said that the funds were sent by money transfer but the evidence does not support the transfer of USD 15,000 per year to Peou whether for distribution to the adult children or not.
Peou said that the amount distributed to the adult children was USD 700 every three months, which is a total of less than USD 3,000 each year.
Other aspects of the evidence are difficult to reconcile. Khyhai said that he left university in 2018 when his father became unwell. That is a significant event and he would be likely to remember the year he stopped studying. The evidence of Kim, Anastasia, Ngeap’s employer, Mr George and Dr Ly is that he suffered a stroke in 2019.
I accept that the adult children might anticipate a level of support from their father who had moved to Australia and was earning higher wages than he would have earned in Cambodia. The apportionment of 6% each for which they contended reflects a higher level of dependency than is supported by the evidence. Their need is no greater than the other dependants in Cambodia.
While each of them has described how they would spend money to make their lives easier, it is unlikely that Ngeap was supporting them to the extent that those needs or desires would be met. Their evidence about the money they received while Ngeap was in Australia cannot be accepted. I consider that the estimate by Peou is more accurate than their own.
Assuming that support of that extent might continue for another eight to ten years, I consider that 2.5% of the total sum reflects the dependency of each of the adult children.

Anastasia Vong

Anastasia’s evidence is striking for what it omits. She is 24 years old and apparently employed though there is no evidence about what she does or what she earns. Kim said that Anastasia made contributions to the joint bank account from time to time which confirms her receipt of earnings. She owns a car which Ngeap helped her maintain but which she funded. She said that sometimes he assisted her with cash when she was short of money.
Other than those payments, Anastasia’s dependency was confined to the benefit of living in the household which Ngeap’s wages funded and dinners out.
Anastasia’s dependency may have continued for some years in terms of assistance with her car. I apportion 2.5% of the death benefit to her.

Sieng Kim, Peou Sok and Muoy Sok

The evidence as to the extent of the support said to have been provided by Ngeap to the household of his mother and sisters is at odds with the documentary evidence.
Chung said that he supported his mother and younger sisters, having sent money and given his mother money when he travelled to Cambodia. He had done so for many years.
Peou said that the level of support provided by Chung increased after Ngeap moved to Australia. There is no documentary evidence of money transfers made before 2012 so there is nothing to support that statement. The evidence supports the contention that Chung supported his mother and sisters, to supplement Peou’s earnings before the change in her employment occasioned by the pandemic.
The evidence of Ngeap’s earnings (other than in 2019) and deposits into the joint bank account does not support contribution of the magnitude that Chung and his family urged me to accept. Chung said that he gave his family USD 8,000 to 10,000 per year, some of which was from Ngeap, in addition to the money transfers. I consider it likely any contribution from Ngeap was modest but accept that it is likely he accepted a cultural obligation to provide some support.
I do not accept Chung’s evidence where it conflicts with that of other witnesses and the documentary evidence. The documents evidencing money transfers do not support the extent of the support he alleged that was provided.
Chung and Peou concede that Muoy’s intellectual disability was never diagnosed. There is no evidence to support the contention that her need may be greater than the other members of her family.
Sieng Kim has medical needs but they have existed for some years and her expenses have been met to date. There is no evidence those needs have increased. Those expenses and the need to travel for treatment suggests that her expectation of support from Ngeap was probably equivalent to her daughters.
Peou’s solicitors told the Commission that they were not instructed to file submissions so there is no assistance from those instructed by her as to what an appropriate apportionment would be.
I consider that an apportionment of 2.5% of the death benefit to each of Sieng Kim, Peou and Muoy reflects their dependency on Ngeap.
In the absence of a formal application that Chung be appointed as Muoy’s tutor, I have not made any order. If she is in fact unable to manage the amount apportioned to her then it would probably be more appropriate that it be undertaken by Peou.

Meng Thai

Meng’s dependency is limited to the future expectation that Ngeap would provide some assistance in his retirement and the funding of cataract surgery. He expected that because of the support that he had provided Ngeap.
I prefer his evidence that he had lent money to Ngeap to come to Australia to that of other family members who said that it was a loan to permit a payment to Kim and which required repayment. I accept Mr Trainor’s submission and Meng’s evidence that he did not expect repayment of a loan made to Ngeap. His evidence is more balanced and more credible than that of his siblings.

Empire	Mr Barnes
Kim Y Gov (first respondent)	Mr Gaitanis
Ly Hong Thai (second respondent)	Mr Hickey
Ly Tang Thai (third respondent)	Ms Compton
Khyhai Thai (fourth respondent)	Mr Nesbeth
Anastasia Vong (fifth respondent)	Mr Morgan
Aaron Vong (sixth respondent)	No appearance
Sieng Kim (seventh respondent)	Ms Goodman
Peou Sok (eighth respondent)	Mr R Stanton
Mouy Sok (ninth respondent)	Ms Grotte
Meng Thai (tenth respondent)	Mr Trainor

Gross	Taxable	Net
2014	$ 62,630	$55,650	Not disclosed
2015	$ 35,405	$32,830	Not disclosed
2016	$ 73,882	$70,714	Not disclosed
2017	$ 73,005	$58,787	$46,959
2018	$ 68,882	$59,591	$47,485
2019	$107,980	$94,024	$69,858
2020	$ 42,002	$34,636	$31,515

[2021] NSWPIC 254

20 July 2021