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Guo v Gao

Guo v Gao

Case [2021] NSWSC 1059 24 August 2021

Presumption of Death

Declaration of Death

Probate and Administration

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Guo v Gao [2021] NSWSC 1059
Hearing dates: 19 August 2021
Date of orders: 24 August 2021
Decision date: 24 August 2021
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraph [135]-[137]

Catchwords:
PRACTICE AND PROCEDURE - Determination of separate question - Whether declaration should be made that person who has been missing for over 20 years, upon presumption of death, is no longer alive
SUCCESSION – Probate and administration – Where missing person last seen in April 2001 – Extensive searches and enquiries conducted in an attempt to locate missing person, including by NSW Police, which attempts unsuccessful – Where missing person has not been located – No evidence that missing person is alive or dead – No contact with persons with whom the missing person would have been likely to communicate, including family members, being her daughter, her siblings, her parents, her husband, and her former husband, the father of the daughter - Whether presumption of death may be relied upon to make declaration that the missing person is not alive

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 56
Probate and Administration Act 1898 (NSW) ss 40A, 40B
Real Property Act 1900 (NSW) s 45D
Succession Act 2006 (NSW) Ch 3
Uniform Civil Procedure Rules 2005 (NSW) r 28

Cases Cited:
Allman & Co v M’Cabe [1911] 2 Irish R. 398
Application by Walsh & Anor (Estate of Robert Charles Walsh (deceased)) [2020] NSWSC 976
Axon v Axon (1937) 59 CLR 395; [1937] HCA 80
Chard v Chard [1956] P 259
Combis & Staatz as joint and several liquidators of RB Hospitality Holdings Pty Ltd (in liq) v Lee [2020] NSWSC 960
Elaraby & Ors v Minister for Immigration & Anor [2018] FCCA 1101
Estate of Howard (1996) NSWLR 409
In re Margarete Maria White [2001] TASSC 7
In the Estate of Peter Dale Hills [2009] SASC 176
Loretta Craig v Anthony Johnson [2020] NSWSC 430
M'Mahon v M'Elroy (1869) 5 IR Eq 1
Prudential Assurance Co v Edmonds (1877) 2 App. Cas. 487
Re Curran [2010] VSC 455
Re Estate of Howard (1996) 39 NSWLR 409
Southwell v Bennett [2010] NSWSC 1372
Sydney Local Health District v Macquarie International Health Clinic Pty Ltd [2020] NSWCA 274
The Estate of Alan Bruce Beeby [2020] NSWSC 1512
Watson v England (1844) 60 ER 266; 14 Sim 28

Texts Cited:
Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Lawbook Co)
Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice: New South Wales (LexisNexis Butterworths)
R A Sundberg, Griffith’s Probate Law and Practice in Victoria (3rd ed, 1983, Lawbook Co)

Category: Principal judgment
Parties: Sijia Guo (Plaintiff)
Yong Wei Gao (Defendant)
Representation:
Counsel:
T J Morahan (Plaintiff)
K Morrissey (Defendant)
Solicitors:
Chen Shan Lawyers (Plaintiffs)
GHS Legal (Defendant)

File Number(s): 2019/306478
Publication restriction: Nil

Judgment

Introduction

People disappear - maybe as a result of a tragedy,…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Guo v Gao

Details

AGLC: Guo v Gao [2021] NSWSC 1059
Case: [2021] NSWSC 1059
Decision Date: 24 August 2021

CaseChat Overview and Summary

In the matter of Guo v Gao, the court was asked to determine whether a declaration could be made that a person who has been missing for over 20 years, upon the presumption of death, is no longer alive. The dispute arose from the prolonged absence of a person last seen in April 2001. Extensive searches and enquiries were conducted in an attempt to locate the missing person, including by the NSW Police, but all attempts were unsuccessful. There was no evidence that the missing person was alive or dead, and no contact had been made with persons with whom the missing person would have been likely to communicate, including family members, her daughter, her siblings, her parents, her husband, and her former husband, the father of her daughter.

The court was required to decide whether the presumption of death could be relied upon to make a declaration that the missing person was no longer alive. The key issue was whether, in the absence of any evidence of the missing person's current status, it was appropriate to presume death and declare the person deceased. The court had to consider the principles of presumption of death and the standard of proof required in such cases.

The court concluded that it was appropriate to make a declaration of presumed death in this case. It found that the missing person had been absent for over 20 years, with no evidence of their current status or any contact with persons with whom they would have been likely to communicate. The court determined that the presumption of death could be relied upon, and the missing person was declared deceased. This decision was based on the extensive efforts made to locate the missing person, the absence of any evidence of their survival, and the length of time that had elapsed since their disappearance.

The court made a declaration that the missing person was presumed to be deceased as of the date of the determination. This decision provided clarity and finality to the status of the missing person and allowed for the administration of their estate to proceed accordingly. The court's reasoning was based on the principles of presumption of death and the lack of any evidence to suggest that the missing person was alive.

Orders