(a) The Defendant’s notice of motion for security for costs be dismissed.
(b) The Plaintiff’s costs of the notice of motion be the Plaintiff’s costs in the cause.
(c) There be no order as to the Defendant’s costs of the notice of motion, to the intent that he bear those costs personally.
(d) Stands the matter over for directions on 8 November 2021.
Catchwords:
CIVIL PROCEDURE – Interlocutory application by way of notice of motion – Claim by Plaintiff, a daughter of the deceased, for a family provision order – Application for security for costs by the Defendant, the spouse of the deceased – The Plaintiff not ordinarily resident in New South Wales but ordinarily resident in China – Plaintiff has no property in New South Wales or elsewhere – Whether competing factors in favour of not granting order for security – Security for costs not ordered
This is the second judgment in these proceedings, the first having been published bearing the medium neutral citation Guo v Gao [2021] NSWSC 1059. In the reasons for judgment, arising from the determination of a question separately from any other question and prior to the final hearing of the proceedings, the Court made a declaration that it was satisfied that Weihong Guo (to whom I shall refer in these reasons as “the deceased”), on presumption of death, was no longer alive and, amongst other findings, that she had made no Will. The Court also noted that the Plaintiff and the Defendant, were the only persons who are, or who may be, entitled to share the estate of the deceased under the operation of the rules of intestacy, and that each had consented to an independent administrator, Mark Peoples, a solicitor, being appointed to administer the estate of the deceased on intestacy. I shall refer to those proceedings as the presumption of death proceedings.
In the substantive proceedings, the Plaintiff, Sijia Guo, is the daughter of the deceased. The named Defendant is Yong Wei Gao, the husband of the deceased (but not the father of the Plaintiff). They were married to each…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Guo v Gao (No 2) [2021] NSWSC 1363
Case
[2021] NSWSC 1363
Decision Date
CaseChat Overview and Summary
The case of Guo v Gao (No 2) involves an interlocutory application by way of notice of motion. The plaintiff, a daughter of the deceased, sought a family provision order from the court. The defendant, the spouse of the deceased, applied for security for costs. The plaintiff was not ordinarily resident in New South Wales but resided in China, with no property in New South Wales or elsewhere. The legal issues before the court were whether the competing factors were sufficient to deny the defendant's application for security for costs.
The court considered various factors in reaching its decision. It noted the plaintiff's lack of residence in New South Wales and the absence of any property in the state. Additionally, the court recognised that the plaintiff's claim was based on her relationship with the deceased, and not on any property interest. These factors, according to the court, weighed against granting the defendant's application for security for costs. The court also observed that the plaintiff had demonstrated a willingness to participate in the proceedings and had provided evidence to support her claim. The court concluded that the application for security for costs should be dismissed, as the competing factors were sufficient to deny the defendant's request.
In summary, the court denied the defendant's application for security for costs in this case. The plaintiff's lack of residency and property in New South Wales, along with her commitment to participating in the proceedings, were significant factors in the court's decision. The court found that these considerations outweighed the defendant's need for financial protection against potential costs. The court's decision ensures that the plaintiff can proceed with her family provision order claim without the additional burden of providing security for costs.