Nibbe v Wong

[2025] NSWSC 685

Supreme Court

New South Wales

Medium Neutral Citation:

Nibbe v Wong [2025] NSWSC 685

Hearing dates:

10 and 11 June 2025

Date of orders:

30 June 2025

Decision date:

30 June 2025

Jurisdiction:

Equity

Before:

Hmelnitsky J

Decision:

Summons dismissed with costs

Catchwords:

SUCCESSION — Family provision — Limitation period — Where claim brought almost two years after the expiry of limitation period — Whether sufficient cause shown to ‘otherwise order’

SUCCESSION — Family provision — Claim by alleged de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether eligible person — Whether in a de facto relationship pursuant to s 21C of the Interpretation Act 1987 (NSW) — Whether couple ‘living together’

SUCCESSION — Family provision — Notional estate — Restrictions on out of time or additional applications — Where estate already fully distributed — Whether ‘special circumstances’

Legislation Cited:

Interpretation Act 1987 (NSW) s 21C

Succession Act 2006 (NSW) ss 57, 58, 59, 79, 90, 93

Cases Cited:

Fairbairn v Radecki (2022) 275 CLR 400; [2022] HCA 18

NSW Trustee and Guardian v Payne [2024] NSWSC 1371

Pethers v Pethers [2025] NSWSC 389

Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

Stone v Stone [2016] NSWSC 605

Taylor v Farrugia [2009] NSWSC 801

Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641

Yesilhat v Calokerinos [2021] NSWCA 110

Category:

Principal judgment

Parties:

Hasso Nibbe (Plaintiff)
Christine Mei Lee Wong in her capacity as executor of the estate of the late Elvina Mei Yi Wong (Defendant)

Representation:

Counsel:
D Parish (Plaintiff)
M Pringle (Defendant)

Solicitors:
Lion Legal (Plaintiff)
Vision Legal (Defendant)

File Number(s):

2024/95999

Publication restriction:

Nil

JUDGMENT

1. These proceedings concern the estate of the late Elvina Mei Yi Wong, who died at the age of 59 on 5 May 2021. The plaintiff is Mr Hasso Nibbe, with whom the deceased was in a close relationship for about 20 years prior to her death. The defendant is the deceased’s sister, Ms Christine Mei Lee Wong, who is the executor of the deceased’s estate.

2. The plaintiff seeks an order for further provision pursuant to s 59 of the Succession Act 2006 (NSW). There are several issues in dispute, at least three of which may be described as threshold issues.

3. The first concerns an extension of time. The proceedings were commenced on 13 March 2024, almost two years after the expiry of the limitation period for proceedings under Chapter 3 of the Succession Act. As such, the plaintiff must demonstrate sufficient cause for the Court to ‘otherwise order’ to permit the proceedings to be commenced out of time pursuant to s 58 of the Succession Act. The defendant does not consent to the application being brought out of time.

4. The second concerns the plaintiff’s eligibility to bring a claim under Chapter 3 of the Succession Act at all. Although they were undoubtedly a couple who shared a close relationship for many years, the plaintiff and deceased were not married and never lived together in any colloquial understanding of that expression. They owned and maintained separate houses and they were entirely independent of one another financially. The plaintiff contends that he and the deceased were living in a de facto relationship within the meaning of s 57(1)(b) of the Succession Act at the time of her death. If the plaintiff does not succeed on this issue, the summons must be dismissed.

5. On the assumption that the plaintiff is successful on these first two issues, it will be necessary to determine whether any order for further provision should be made and, if so, in what amount. However, at that point the third bright-line issue emerges. Because the estate was fully administered during the 2021 calendar year in circumstances where the defendant had given the prescribed notice and where she had no notice of the plaintiff’s intention to bring a claim, the plaintiff seeks an order pursuant to s 79 of the Succession Act designating property that has been distributed as notional estate. However, s 90 provides that the Court must not make such an order in a case such as this except where ‘other special circumstances’ are demonstrated. Although this issue arises later in the analysis and so may not quite so naturally be described as a threshold issue, it remains the fact that the plaintiff cannot succeed unless he can demonstrate that there are other special circumstances that warrant the making of a notional estate order in relation to property of the estate that has already been dealt with under the will.

Factual background

The deceased and her estate

6. The deceased was born in Hong Kong in 1961. She is survived by her mother, two brothers and a sister. Her two brothers still live in Hong Kong but the deceased, her sister and their mother moved to Australia at some point. Her father died in 2019.

7. The evidence does not disclose much about the deceased’s life prior to meeting the plaintiff.

8. At the time she met the plaintiff in 2001, the deceased owned an apartment in Penshurst. After winning some money in a Lotto syndicate in 2010, she paid off the mortgage on the Penshurst property which she later sold. She then purchased an apartment in South Hurstville. At some point, she sold this property and purchased another across the road which she continued to own until she died. I will refer to this last-mentioned apartment as the South Hurstville property. The plaintiff paid the initial holding deposit for the South Hurstville property but he did not say how much this was or whether the deceased ever repaid it. The purchase price for the South Hurstville property was about $750,000. The deceased took out a mortgage of about $350,000 to partly finance the purchase.

9. In about 2017, the deceased bought a property in Minto. To complete that purchase, she borrowed $150,000 from her brother, Kin Wai Wong (who was also occasionally referred to in the evidence as Wai), and her mother. In February 2021 in the course of getting her affairs in order prior to her death, the deceased sold this property. Also in this context, she said to the defendant: ‘you must repay the money I borrowed from Kin and mother’.

10. According to the plaintiff, the deceased also owned an apartment in Hong Kong worth about $1,000,000 and another investment property in South Hurstville worth about $800,000 which he believed to be subject to a mortgage of about $350,000. There was otherwise no reference to these assets in the evidence and their existence was not a matter about which the defendant was cross-examined. I will proceed on the basis that the deceased’s estate did not include those properties.

11. The deceased was diagnosed with ovarian cancer in 2020. She underwent chemotherapy for about six months during which time she had several extended hospital stays, however her condition then deteriorated drastically. She spent the final period of her life in palliative care.

12. As already mentioned, the deceased took steps to get her affairs in order before she died. She sold her investment property in Minto. She withdrew funds from superannuation. She made a will on 17 April 2021 which appointed the defendant as executor and sole beneficiary. She had earlier had a discussion with the defendant about how she would like her estate to be divided. I will refer to this discussion later in my reasons. Although her planned distribution was not reflected in her will, the defendant honoured her sister’s testamentary wishes, despite being the sole beneficiary under the will.

13. The deceased died at midday on 5 May 2021.

14. Probate was granted on 25 August 2021. The inventory of property identified the following assets and their estimated gross values:

DESCRIPTION	VALUE
Derwent Street, South Hurstville property	$700,000
Motor Vehicle (Hyundai 2017)	$10,000
HSBC account ending 5118	$417,816.13
HSBC account ending 5135	$266,607.33
HSBC account ending 0294	$139.98
CBA account ending 0730	$140,277.61
CBA account ending 5758	$41.78
Telstra shares	$7,800.00
TOTAL	$1,542,682.83

15. There was some uncertainty about the HSBC account ending #5135. In cross-examination, the defendant said that the balance of that account was the amount owing on the South Hurstville property. This makes the account sound like a loan account. On the other hand, the defendant said that the loan was paid out by the time she came to administer the estate because the deceased had apparently organized with the bank to pay the mortgage out before she died.

16. The position seems to be that the estate had real property (being the South Hurstville property) with a value of $700,000, a car worth $10,000, Telstra shares worth about $7,800 and cash deposits totalling $558,275.50. These are the asset values after the mortgage over the South Hurstville property was discharged.

17. On 2 September 2021, the defendant gave notice of her intention to distribute the estate. Based on her understanding of the deceased’s wishes and despite being solely entitled to the whole of the deceased’s estate, the defendant distributed the estate as follows:

NAME OF BENEFICIARY/ASSIGNEE	VALUE
Christine Mei Lee Wong (Sister; Defendant)	$750,685.00
Tristin Sik Hung Wong (Brother in Law - Defendant’s Husband)	$36,185.00
Kin Wai Wong (Brother)	$136,185.00
Kin Hung Wong (Brother)	$36,185.00
Po Kuen Tang (Mother)	$82,185.00
Rebecca Sze Wing Wong (Niece - Daughter of Defendant)	$36,185.00
Benjamin Chor Hin Wong (Nephew - Son of Defendant)	$36,185.00
Suk Yin Ho (Sister in law - wife of Kin Wai Wong)	$36,185.00
Eunice Wong (Niece - Daughter of Kin Wai Wong)	$36,185.00
Hasso Nibbe (Plaintiff)	$36,185.00
Donation to CanCare Centre	$10,000.00
Donation to Riverwood Baptist Church	$10,000.00
TOTAL	$1,242,350.00

18. The reference in the first line to the amount of $750,685.00 describes the transfer of the South Hurstville property with an assumed value of $700,000, plus $50,685.00 in cash. Title to the South Hurstville property was transmitted to the defendant on 21 September 2021.

19. The estate also incurred funeral expenses and some other minor expenses, all of which were paid out of available cash prior to the distributions and payments described above.

The plaintiff

20. The plaintiff was born in Graz, Austria, in 1944 but grew up in Munich. At the age of 22 he moved to New Zealand where he lived for four years. He moved to Australia on 1 September 1970 and has lived here ever since.

21. On 1 December 1989, the plaintiff married Fiona Lawrance. They had one child, Sophia Nibbe, who was born in 1990. The plaintiff and his wife separated in 1995 and later divorced. However, they remain good friends and are in regular contact.

22. The plaintiff had a long and successful career at the University of Sydney where he held key workshop managerial positions in the Department of Aerospace Mechanical and Mechatronics Engineering. At the time he retired he held the position of Chief Technical Officer. In that role he was nominated as the first non-academic peer of the university. The university also acknowledged his achievements as an Aerospace pioneer with a plaque.

23. The plaintiff and the deceased were introduced by a mutual friend in 2001, when she was 38 years old and he was 57. They began seeing one another on 4 May of that year and celebrated their anniversary on that day thereafter.

24. The plaintiff and the deceased were clearly very fond of one another. They had much in common and spent a lot of time together. They socialized with friends and attended parties and functions together. The deceased accompanied him to university functions, including his farewell in 2005. They enjoyed going to the opera, the symphony and other arts events. They played golf together. They regularly took long walks around Blackwattle Bay and had long conversations. They discussed their families, friends and the future. They enjoyed one another’s company enormously. They were a good match.

25. In 2002, the plaintiff spent Christmas with the deceased to the consternation of his daughter, who was then 12 years old and who at that point was living with her mother in Queensland. From that time onwards, the plaintiff spent every second Christmas with his ex-wife and their daughter and every other Christmas with the deceased.

26. They also enjoyed travelling together. They went to Melbourne several times, as well as to Perth, Adelaide and Cairns. In 2008 they took a four-week trip to Finland and Germany, with a stopover in China. They stayed with the plaintiff’s relatives in Germany. In 2011 they travelled to New Zealand for two weeks. In 2013 they took a two-month tour around Europe, visiting France, Italy, Austria and Hungary. They paid their own airfares but the plaintiff paid for their other travel expenses.

27. The plaintiff and the deceased were a committed and loving couple. There was no direct evidence that their relationship was sexual, although there was an air of intimacy about the way they communicated with and related to one another, as evidenced by numerous WhatsApp messages, cards and photos. Counsel for the plaintiff submitted that I could infer that ‘there was something in the nature of a physical relationship’ between them. I am prepared to draw that limited inference, but in circumstances where the plaintiff himself said nothing directly about this matter and where the precise nature of their relationship is a matter in dispute, it is not a fact on which I am prepared to attach much weight.

28. The plaintiff and the deceased owned, maintained and lived in their own separate homes. As the plaintiff put it, they ‘alternated staying over at each other’s places on the weekends’. The plaintiff lived and continues to live in his own home in Glebe, which he has owned for about 45 years. The deceased lived in her own apartment, most recently the South Hurstville property. There was no suggestion in the evidence that the deceased kept any personal items at the plaintiff’s house. The plaintiff denied that he did not leave personal items such as a toothbrush and underwear at the South Hurstville property, but that is as far as the evidence went.

29. In cross examination and re-examination, the plaintiff was asked about his own testamentary intentions. He said that he had made a will in the 1970s and then made a further will only after the deceased had died. Naturally enough, he did not mention the deceased in either of these wills. He did however say that he told his daughter, Sophia, at some point before May 2021 that if he were to die, she should organise to give $300,000 to the deceased.

The plaintiff’s financial circumstances

30. The plaintiff owns his own home which is currently worth about $2,000,000. As at the date of the hearing he had savings of about $368,000 plus shares with a value of about $118,000. He owns a car. He has no liabilities of any significance.

31. Although not explained in any of his affidavits, he receives three separate pensions. His main pension is from his employment at the University of Sydney and is currently $2,235.98 per fortnight. He also receives small pensions from his employment in Germany and New Zealand. These fluctuate with exchange rates but currently come to about $300 per month, combined.

32. The plaintiff has been generous towards his daughter. In the past 2 years or so he has assisted her with the purchase of property in Melbourne. He has also paid her HECS debt of around $64,000, although he says that she is going to pay him back. His contributions over this period have totalled just over $100,000.

33. The evidence included an ‘estimate for repairs and improvements’ to the Glebe property. The quoted works include a new roof, new windows, complete renovation of the kitchen, laundry and both bathrooms and various other matters. The total amount of the quote was $334,207 including GST. The evidence does not allow me to draw any conclusion about which of these works can be described as essential, nor about how long the property has been in a state of disrepair.

34. The plaintiff is comfortably able to meet his regular monthly expenditure requirements. In the time in which these proceedings have been on foot, the plaintiff has additionally made generous gifts to his daughter (as already described) and has also increased his savings. I note however that over this same period the value of his shares has decreased somewhat.

35. The plaintiff also gave evidence about his delay in bringing these proceedings. I will deal with this evidence below in the context of considering the question that arises under s 58.

The deceased’s testamentary intentions

36. Both parties gave evidence about discussions they had with the deceased about her testamentary intentions.

37. Shortly before she died, the plaintiff and the deceased had the following discussion:

“[Deceased]: ‘I want to transfer my unit (referring to the South Hurstville property) to you. But it has a mortgage of about $270,000 and you will need to deal with that.’

[Plaintiff]: ‘Thank you, I don’t know what to say. I will speak with the bank and see what needs to be done.’”

38. The deceased’s proposal involved the plaintiff acquiring the South Hurstville property subject to a mortgage of about $270,000. The plaintiff then sought and obtained approval to borrow $350,000 in connection with this proposed transaction.

39. The plaintiff also said that he and the deceased ‘made promises to each other that we would always take care of each other both financially and personally.’ I will say more about this evidence when I come to consider the question of whether and to what extent the deceased should have made provision for the plaintiff.

40. The defendant also spoke with the deceased about her testamentary intentions. The principal discussion occurred on 10 April 2021 when she, her brother Kin Wai Wong and the plaintiff were also present. The defendant gave the following evidence about this discussion:

“[Deceased]: ‘I have heard from the doctors that there was no more curative treatment for me. I wish to make a will and meet the church Pastor. We missed the appointment weeks ago with the solicitor. Can you make the appointments for me?’

[Defendant]: ‘Yes, will do.’

[Deceased]: ‘Sis, will you be the executor?’

[Defendant]: ‘Sure!’

[Deceased]: ‘I have decided on the distribution of my estate. I have some jewelleries such as my watches to give to Christine, Amy and Rebecca. I will do that when I get home. I have some shares I will cash the shares except the Telstra shares.’

The Deceased turned to the plaintiff and said in English:

‘Hasso, I am giving you my 2,000 Telstra shares as I know you own some. I will check with my super fund asap about withdrawal procedures.’

(at the time of her death there was 2600 Telstra Shares)

[Defendant]: A medical certificate may be helpful with the application for early discharge. Let's check with the doctors.

[Deceased]: I want to give back to mum her savings of $46,000 kept in my account. Wai, I want to give you back $100,000 for your contributions to my investments. But I haven't had a chance to go to the bank process an international transfer in Hong Kong dollars to you. it looks like I won't be able to do so before you fly back to Hong Kong.

[Deceased’s brother]: ‘Don't worry about it now. No rush with this at all. Just focus on getting yourself comfortable.’

[Deceased]: ‘Christine, make sure you give $100,000 to Wai from my estates on top of his share of my estates.’

[Defendant]: ‘OK I am noting it down.’

[Deceased]: ‘I want to divide the remaining cash into 10 equal portions to give to Christine, Tristin, Rebecca, Ben, mum, Wai, Amy, Eunice, Hung and Hasso. Not much in each share though. Christine you will take over my apartment and car. There is still a mortgage home loan of about $280k. Mum is considering moving to the apartment to live closer to you and she doesn't have to climb the front stairs at her villa.’”

41. The note to which this evidence refers broadly corroborates this discussion, save that it also includes an entry as follows:

“?Hasso to buy Derwent St 20% off market value say $750”.

42. The reference to Derwent St was a reference to the South Hurstville property. It is not clear whether the figure referred to was ‘$750’ or some other figure. There was no cross examination or other evidence about this note. One available inference is that both the plaintiff and the defendant were referring to the same discussion, being the one evidenced by this note, and that the plaintiff is mistaken in his recollection about what the deceased was proposing, which was a sale at 20% off the market value rather than a gift subject to the existing mortgage. Neither party asked me to draw any inference as to what was actually said about a sale on these terms, but the existence of this note does cause me to doubt the reliability of the plaintiff’s evidence about what the deceased said to him concerning the South Hurstville property in the discussion which he recounts. In saying this, I do not mean that I do not believe she said it as the plaintiff recalls. I mean that I doubt it represented her final statement of testamentary intention concerning the South Hurstville property or that she intended what she said to the plaintiff to be a binding promise.

43. I also note that the parcel of Telstra shares was in fact transferred to the plaintiff. The share transfer form was executed by the deceased on 1 May 2021, a few days prior to her death, but the shares were not actually transferred until 13 January 2022. The reason for this delay was not explained but nothing turns on it. It follows that the plaintiff received the sum of $36,185 plus 2,600 Telstra shares worth about $10,868.40 from the plaintiff’s estate.

The issues in dispute

44. I have already described the main issues in dispute at paragraphs [3] to [6]. Although the main threshold issue is whether to make an order allowing the proceedings to be commenced out of time under s 58, the parties submitted that I should consider the other issues first. This was no doubt because one of the matters that the Court should consider in exercising the power under s 58 concerns the strength of the plaintiff’s substantive case. In Taylor v Farrugia [2009] NSWSC 801, Brereton J (as his Honour then was) said at [14]:

“The principles relating to the grants of extensions of time under section 16 are well-established. An applicant for such an extension must demonstrate that he or she has sufficient cause for not having made the application within time - that is to say, within the eighteen month period. So much is mandatory. This requires some explanation for the delay in making the application over that period. Other, discretionary, considerations include any further delay after that eighteen month period, and the sufficiency of any explanation for it; whether the extension of time would occasion prejudice to any beneficiary under the will; whether there is any unconscionable conduct on the part of the applicant (which is essentially concerned with deliberate decisions not to make an application, upon which the executor or a beneficiary has acted to their detriment); and the strength of the applicants case for relief under the Act [Re Guskett [1947] VLR 211; Massie v Laundy (New South Wales Supreme Court, Young J, 7 February 1986, unreported); Fancett v Ware (Supreme Court of New South Wales, Needham J, 3 June 1986, unreported); De Winter v Johnstone (Court of Appeal, 23 August 1995, unreported); Warren v McKnight (1996) 40 NSWLR 390, 394E)]. A mere change of mind on the part of an eligible person, who has decided not to make a claim – even if that change of mind is triggered by the success of a claim of another eligible person, or by another eligible person bringing a claim – is ordinarily not sufficient cause for granting an extension of time [Zirkler v McKinnon [2002] NSWSC 285; Foley v Foley [2008] NSWSC 233].”

45. These principles apply equally to applications under the Succession Act: see the helpful discussion of this matter by Meek J in Pethers v Pethers [2025] NSWSC 389 at [157] and following.

46. It does not follow that it is always necessary to reach a final conclusion on the substance of all issues in dispute before addressing the s 58 question. In Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641 Basten JA said at [89]:

“There was thus clear evidence of prejudice resulting from the delay. That factor, added to the incomplete justification for the delay and lack of notice to the respondents, permitted the Court, unless satisfied on a preliminary consideration of a strong claim for a family provision order, to refuse to ‘otherwise order’ pursuant to s 58(2). On that basis, the application should have been dismissed without a full consideration of the circumstances of the claim.”

47. Notwithstanding the way the matter was argued, I do not propose to express final conclusions on the substantive issues in dispute. That is because, having heard all of the evidence and argument on the substantive issues as well as the s 58 question, I have reached the firm conclusion that the Court should not make an order extending the limitation period.

48. As I will explain, the plaintiff’s explanation for failing to bring the proceedings is both incomplete and weak. Even if an extension were granted, his claim on the substantive issues is also weak. Finally and perhaps most significantly, he has not demonstrated that there are ‘other special circumstances’ within the meaning of s 90 that would warrant the making of a notional estate order so long after the distribution of the estate, even if leave were granted and he were otherwise successful.

Should the Court otherwise order pursuant to s 58?

49. The period within which proceedings under Chapter 3 of the Succession Act should be brought is 12 months following death, unless the Court otherwise orders on sufficient cause being shown: s 58. The deceased died on 5 May 2021 and these proceedings were commenced on 13 March 2024. The plaintiff’s evidence about this delay was as follows.

50. First, the plaintiff said that he contracted COVID in 2021 and he was unwell for a period. However, the evidence shows that this occurred before the deceased died. I am not prepared to accept that any material delay can be attributed to the plaintiff contracting COVID in 2021.

51. Secondly, the plaintiff said that he fell into a depressive state after the deceased died, partly from the fact of her death and also from the tensions and uncertainty flowing from the then-current global COVID pandemic. However, almost three years transpired between the deceased’s death and the commencement of these proceedings. In that time, the plaintiff gave significant financial support to his daughter, travelled to Europe for to visit family (whilst on that trip, in mid-2022, his brother and sister in law died) and also consulted a solicitor about commencing personal injury proceedings in relation to a broken shoulder he suffered when he fell at a shopping centre in March 2023. The plaintiff says that the deaths of his brother and sister-in-law restarted his cycle of grief and mourning. Although I accept that the plaintiff has a tendency towards depression and anxiety and although this was not helped by his shoulder injury or the deaths of his brother and sister-in-law, the evidence does not demonstrate that he was incapacitated by his depression, anxiety and grief to the point where he was unable to speak with a lawyer about this claim. Whatever grief he was feeling did not prevent him from traveling to Europe or seeing a lawyer about his broken shoulder.

52. The plaintiff relied on a report from a clinical psychologist who consulted with him on a single occasion via an AV link in late 2024 for the purposes of his personal injury case. This report tends to confirm that the plaintiff is prone to depression and anxiety, but it tells me nothing about whether those tendencies can seriously be said to have prevented him from commencing these proceedings for a period of almost three years. If he had a treating psychologist or psychiatrist during the relevant period, there was no evidence of it.

53. Thirdly, the plaintiff points to his aforementioned shoulder injury that occurred outside the Broadway Shopping Centre car park in March 2023. After falling over a metal spring, the plaintiff was admitted to hospital with a broken collarbone. He also injured his knee and elbow. The plaintiff says he is still experiencing pain from these injuries and that they restricted his ability to leave the house. However, this incident occurred almost two years after the limitation period had expired. As already mentioned, neither this injury nor his other constraints prevented him from giving instructions to a solicitor about the injury within months of it occurring.

54. Fourthly, the plaintiff was diagnosed with prostate cancer in March 2021. He was at that stage aged 77 and received the diagnosis after months of consultations and testing that had commenced in 2020. He received the diagnosis before the deceased died. He commenced treatment in October 2022, which included four weeks of radiotherapy. His doctor declared him to be free of the cancer in March 2023, a full year before he commenced these proceedings.

55. Fifthly, in his 14 May 2024 affidavit the plaintiff said that one of the reasons for the delay was that his daughter Sophia was working in Fiji and:

“Hence it was not financially appropriate time to commence proceedings.”

56. He explained that he assisted her by paying her HECS debt and giving her a little over $20,000. He said of these circumstances:

“This left me with little accessible cash to cover legal costs.”

57. The precise period to which the plaintiff was referring in this evidence is unclear, but it seems to cover the period of about 12 months before he consulted a lawyer. It therefore covers the period from late 2022 to late 2023. In his 28 May 2025 affidavit, the plaintiff said that he was advised of his ability to bring this claim ‘between September and December 2023’. This was a reference to advice he received from his current solicitor, whom he consulted about his personal injury claim, which occurred almost a year after the expiry of the limitation period. In cross examination he admitted that he was aware of his ability to bring this claim before seeing this solicitor and that he had been thinking about doing so. He did not say for how long he had been considering it.

58. In relation to the delay, he also noted a myocardial infection in 2023 and an arrythmia for which he is being treated. He also noted that his brother Bodo passed away in March 2024, just before the proceedings were commenced.

59. This evidence, taken as a whole, provides only a partial explanation for the substantial delay in commencing these proceedings.

60. So far as concerns the 12 months following the deceased’s date of death (5 May 2021) the evidence shows that the plaintiff was grief-stricken and that he underwent four weeks of radiotherapy starting in October. Even accepting this evidence and his general tendency towards depression and anxiety his explanation for the failure to bring the claim within time is unpersuasive.

61. So far as concerns the period between May 2022 and March 2024, the evidence is even thinner. The matters with which he was preoccupied during this period cannot explain why he allowed almost two more years to pass without taking action. He accepted in cross examination that he knew he had an ability to bring a claim and had been giving thought to seeing solicitors about it. He did finally see solicitors by at least September 2023 in the context of seeking damages for a personal injury. There seems to have been no delay in seeing solicitors about that matter. Even then, however, these proceedings were not commenced for a further six months. There was no explanation at all as to why it took his solicitor six months to commence proceedings even though they would have known that the limitation period had already expired and that any further delay would have to be explained.

62. Finally, it is relevant that the plaintiff sees his own delay as being, at least in part, a function of the fact that he wanted to use his money to provide for his adult daughter rather than to commence these proceedings. This is a matter that weighs quite heavily against the making of an order extending time. The plaintiff was financially able to commence these proceedings at all relevant times. The fact that he chose to pay off his daughter’s HECS debt and otherwise assist her (a decision about which I do not intend to express any degree of reproach or disapproval whatsoever) rather than commence these proceedings is a matter that hinders rather than helps his application under s 58.

63. It is next appropriate to consider the merit of the plaintiff’s substantive claim. This includes a consideration of the strength of his claim to be an eligible person, the strength of his claim to an order for further provision under s 59 if he were to succeed on the first issue, and whether he can otherwise demonstrate the existence of special circumstances that would allow me to make the kind of notional estate order he seeks in any event.

Is the plaintiff an eligible person?

64. Section 57(1)(b) is as follows:

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

(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,

65. A note to the section states that the expression ‘De Facto Relationship’ is defined in s 21C of the Interpretation Act 1987 (NSW). That section provides:

(2) Meaning of “de facto relationship” For the purposes of any Act or instrument, a person is in a de facto relationship with another person if—

(a) they have a relationship as a couple living together, and

(b) they are not married to one another or related by family.

A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.

(3) Determination of “relationship as a couple” In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case—

(a) the duration of the relationship,

(b) the nature and extent of their common residence,

(c) whether a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.

66. Section 21C was introduced in 2010. As I explained in NSW Trustee and Guardian v Payne [2024] NSWSC 1371 at [12] to [16], the s 21C definition differs in a subtle but important way from the definition that formerly appeared in Property (Relationships) Act 1984 (NSW), which was the relevant definition for cases arising under the intestacy provisions of the Probate and Administration Act 1898 (NSW) and under the Succession Act. The difference is that since 2010 the question of whether two persons had a ‘relationship as a couple’ is identified in the legislation as distinct from the question of whether they were ‘living together’. The matters identified in subsection (3) of the definition relate to the former question, not the latter.

67. In Yesilhat v Calokerinos [2021] NSWCA 110 at [134], Brereton JA (with whom Bathurst CJ agreed) said that ‘living together’ is indispensable to the existence of a de facto relationship within the meaning of the Interpretation Act definition. His Honour explained that ‘living together’ is:

“…a concept which involves mutual living in a common residence, at least to some extent, though not necessarily exclusively or on a full-time basis. It is not essential to a finding of a de facto relationship that there be unbroken common residence, and it is not incompatible with the existence of a de facto relationship, as defined, that a party spend some nights each week elsewhere than in the ‘matrimonial home’. This is supported, in the case of a de facto relationship,by Interpretation Act, s 21C(3)(b), which in referring to ‘(b) the nature and extent of their common residence’, acknowledges that its nature and extent may vary. Many authorities, some of which are referred to below, acknowledge that continuous full-time cohabitation is not essential, although the reason for the absences will be relevant: thus absence for work travel, or leisure, will rarely if ever be inconsistent with ‘living together’, whereas absence because the person is maintaining another household might well be so, even if not invariably. However, some element of common residence is indispensable. As will appear, no authority holds that persons can ‘live together’ or be members of the same household if they do not, to some extent, have a common residence.”

68. The plaintiff particularly relied on what was said in Fairbairn v Radecki (2022) 275 CLR 400; [2022] HCA 18. In Fairbairn v Radecki, the Court was concerned with the definition of ‘de facto relationship’ in s 4AA of the Family Law Act 1975 (Cth). There was no question that the appellant and respondent had been in a de facto relationship. The issue was whether the relationship broke down when the appellant’s mental capacity declined and she moved into full time residential aged care. She argued that they ceased to be in a de facto relationship as soon as they stopped physically ‘living together’. This argument was rejected by all members of the Court.

69. At [33] the Court said:

“Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of ‘living together’. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.”

70. And at [39] their Honours said:

“The language of s 4AA of the Act and its reference to ‘living together’ requires no different approach to determining whether a relationship exists of the kind defined. ‘Living together’, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a ‘common residence’ to some ‘extent’ and of some ‘nature’. Such a construction is entirely denied by s 4AA(3).”

71. I do not read what was said in Fairbairn v Radecki as particularly supporting the plaintiff’s case. Even accepting that the expression ‘living together’ means ‘sharing life as a couple’ (which may or may not be entirely appropriate in the light of the language of s 21C), it is inescapable that in many if not most cases, it will be very difficult to demonstrate that a couple that never cohabited was ‘living together’ in the relevant sense.

72. There are, of course, cases in which couples who maintained separate homes were found to be in a de facto relationship. I reached exactly that conclusion in NSW Trustee and Guardian v Payne. However, that was a most unusual case. There, the two persons lived their lives entirely as a couple over a period of about 47 years. They spent significant periods in each other’s company, at one or other of their residences, almost every day for that whole period. They were mutually committed to supporting one another to a very high degree. They had a committed, intimate sexual relationship for almost half a century. Their lives were integrated in almost all respects.

73. The circumstances of the plaintiff and the deceased in this matter are rather different. Although they presented to the world as a couple when they socialised and travelled, there were numerous respects in which their lives were quite separate. They were completely independent financially. Neither ever seems to have looked to the other for any degree of financial support, either for present or future needs. Each was somewhat involved with the other’s family but only up to a point. The deceased did not describe the plaintiff to her sister as her partner, much less her de facto. She described him as her friend. The deceased was not invited to Fiji to celebrate the 30^th birthday of the plaintiff’s daughter. The deceased identified herself as single on official forms, at least to the extent that can be gleaned from the evidence. When the deceased was organising her affairs in April 2021 she may have mentioned giving the South Hurstville property to the plaintiff but, at the same time, she also suggested that he might buy it from her at a discount. She otherwise expressed the view that he should share in the residue of her estate on much the same basis as other members of her family. Even though she knew he was aging and had been diagnosed with prostate cancer and although she must have known that his house could use some repair, she did not consider that she should make any special provision for him in her statement of testamentary intentions.

74. I accept that they frequently stayed over at one another’s houses, but the evidence does not allow me to conclude that either of them ever treated the other’s house as their own to any degree. They were a couple who had their own homes; not a couple who shared two homes.

75. The circumstances I have set out in the preceding two paragraphs would probably lead me to conclude that the plaintiff and the deceased were not in a de facto relationship within the meaning of s 21C of the Interpretation Act as at May 2021 or at any other time. I do however accept that his case on this issue is arguable.

The plaintiff’s claim generally

76. Even if the plaintiff was an eligible person by reason of being in a de facto relationship with the deceased, I do not consider that he would have a strong case for further provision. In fact, he would have a distinctly weak case.

77. The plaintiff and the deceased met when the plaintiff was already in his late 50s and planning for retirement. He and the deceased were at that point – and thereafter remained – entirely financially independent. Even if it could be said that they were in a de facto relationship, it was one characterised by complete financial independence from one another. Furthermore, despite the obvious joy and emotional comfort which their relationship brought to the both of them, the deceased seems still to have considered herself to be single.

78. Unsurprisingly given what I have said about his financial independence, the plaintiff does not have financial needs of a kind that would tend towards the making of an order for further provision. He has a very good pension from the University and also receives about $300 per month from German and New Zealand pensions. His monthly income after tax is about $5,000. He is comfortably able to meet his regular expenses as well as provide generous assistance to his daughter.

79. He is 82 years old and owns his home. He has no liabilities. He has savings and shares. His current net asset position is about $2,500,000. The net asset position of the deceased’s estate, by contrast, was barely half that value.

80. Even if he were to demonstrate that he was the only person eligible to make a claim and even if the basis of that claim were that he was in a de facto relationship, it would not follow that the provision which the deceased made for him was inadequate. The authorities discussed by Brereton JA in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [98] and following describe the obligations of spouses in general terms. It does not follow from the fact that a relationship is a ‘de facto relationship’ that the adequacy of provision must be determined according to whether the deceased met his or her obligations as a spouse as described in Steinmetz v Shannon.

81. Here, the deceased did not acknowledge the plaintiff as a ‘surviving spouse’ to whom she owed the kinds of obligations discussed in Steinmetz v Shannon. This was so even though she turned her mind to the plaintiff when expressing her testamentary intentions on 10 April 2021. She did not mention him in her will. Given the way she and the plaintiff led their lives, I do not consider either of these facts to be at all surprising.

82. The plaintiff’s case is that the Court should order further provision in a sum between $300,000 and $400,000. Were it necessary to decide the question, it is unlikely that the Court would make an order of the kind he seeks.

Section 90

83. If I were to find that the plaintiff was in a de facto relationship with the deceased and if I were to find that it was otherwise appropriate to make an order for further provision, the fact that the estate has been fully administered means that it would be necessary to make a notional estate order under s 79 of the Succession Act.

84. The plaintiff submits that such an order would be appropriate and that the property to be designated as notional estate should be the South Hurstville property.

85. Section 90 of the Succession Act provides that the Court must not make a notional estate order where the application is made later than 12 months after the date of death of the deceased unless:

(a) it is satisfied that—

(i) the property to be designated as notional estate is property that was the subject of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, and

(ii) the person who holds the property holds it as a result of the relevant property transaction or distribution as trustee only, and

(iii) the property is not vested in interest in any beneficiary under the trust, or

(b) it is satisfied that there are other special circumstances that justify the making of the notional estate order.

86. In Stone v Stone [2016] NSWSC 605, Brereton J said at [71]-[72]:

“[71] The use of the formula ‘special circumstances’ reflects an intention that judicial discretion not be confined by a list of relevant factors, by capturing circumstances of potential relevance which are so various as to defy precise definition. Circumstances are special if they are unusual, uncommon or exceptional in character, quality or degree; if they differ from the ordinary or the usual; or if they are particular or individual; but they need not be unique. Circumstances may be special by reason of their weight as well as their quality, and because of a combination of factors. The terms of s 90(2) indicate that property not vesting in interest, incapacity, and circumstances analogous thereto, may constitute special circumstances; but special circumstances are not limited to those suggested by the terms of the section or closely analogous to them. Factors that contribute to a decision to extend time under Family Provision Act, s 16, can also contribute to a finding of ‘special circumstances’, although more is required to establish special circumstances under Succession Act, s 90(2), than to justify an extension of time under Succession Act, s 58(2).

[72] Factors that have contributed to findings of special circumstances have included incapacity as a result of infancy, the fact that it was no fault of the applicant that application was not made within time, the strength on the merits of an applicant’s claim, the absence of prejudice (such as the fact that there has been no significant dealing with the notional estate in the meantime), and the belated falsification, after time for bringing an application for provision had expired, of a reasonable expectation that if fulfilled would have made an application unnecessary.”

87. The plaintiff’s submission as to the existence of other special circumstances was as follows:

“(a) There was no provision in the Will to make distributions in ’10 equal portions.’ This was based upon supposed instructions given on 10 April and 12 April 2021 but the Will was executed on 17 April 2021 ‘revoking all former wills and testamentary dispositions by me.’

(b) There is no evidence of prejudice or a change of position;

(c) There is no evidence that the defendant issued a prescribed notice to distribute property under s 93 of the Act; and

(d) There is no evidence that Mr Nibbe was fully aware of his position under the Will (he did not receive a copy until after the commencement of proceedings) or that the estate had been distributed.”

88. These matters do not demonstrate the existence of other special circumstances.

89. As to the matter in (a), I see nothing untoward about the way the deceased’s estate was distributed. All that happened was that the defendant, who was the sole beneficiary under the will, divided the estate in accordance with what she understood to be her sister’s dying wishes despite not being legally bound to do so.

90. As to (b), the absence of evidence of specific prejudice does not take matters very far at all. One gets a sense of the kinds of special circumstances which might be ‘other’ special circumstances from the statutory context. Paragraph (b) of s 90(2) envisions ‘special circumstances’ that are ‘other’ than the kind described in paragraph (a). Paragraph (a) describes a circumstance in which property has been distributed to a trustee and where the property has not vested in interest in any beneficiary. Here, by contrast, the property in question has been distributed to the defendant who held and used it as the absolute owner for a period of almost two and a half years before these proceedings were commenced. Furthermore, she kept the property in circumstances where she otherwise felt able to give effect to her sister’s wishes by distributing all of the available cash in the estate.

91. It is true that the defendant in her personal capacity could relinquish the South Hurstville property if ordered to do so. But it would involve evicting her daughter and her young family, who have been living there. I can accept that this prejudice is not insuperable. But the fact that any prejudice is not insuperable is not a sufficient basis to conclude that there are special circumstances to justify the making of the order in the first place.

92. As to (c), counsel for the defendant informed me that the prescribed notice was in fact issued on 2 September 2021. I note that the online registry confirms that the notice was issued. Even if the defendant had not served a notice under s 93 of the Succession Act, it would hardly matter in this case. The plaintiff knew the estate had been administered because he received a sum from the executor during the 2021 year, well before the expiry of the limitation period in May 2022.

93. As to (d), I do not consider that the plaintiff’s lack of knowledge of the will constitutes a special circumstance in this case, although there could well be a case where an executor’s refusal to show a will to a beneficiary contributed to the existence of special circumstances. In this case, however, the plaintiff knew by January 2022 that he had only received the 2,600 Telstra shares and the sum of $36,185 from the deceased’s estate. He did not say that he was waiting to see if more was coming and, although this was mooted as a possibility from the bar table, I do not accept it. There is no evidence that he corresponded with the defendant about the deceased’s estate at all, either in 2021 or at any other time prior to March 2024 when the summons was filed. If he was of the view that his share of the deceased’s estate was inadequate, he could have commenced proceedings even without seeing the will, which is what he eventually did anyway.

94. I therefore would not have considered the matters on which the plaintiff relies (or any other matters) as amounting to other special circumstances within the meaning of s 90 of the Succession Act.

Orders

95. In all of these circumstances, I do not consider this to be a case in which it is appropriate for the Court to make an order under s 58 for the proceedings to be commenced out of time.

96. The proceedings will be dismissed with costs.

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Decision last updated: 30 June 2025