Legal Research
Cases
Nibbe v Wong

Nibbe v Wong

Case [2025] NSWSC 685 30 June 2025

Limitation Periods

Res Judicata

Special Circumstances

Eligible Person

Succession Law

No judgment structure available for this case.

Type to search within this case.

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

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.
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.
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.
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,…

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 Nibbe v Wong

Details

AGLC: Nibbe v Wong [2025] NSWSC 685
Case: [2025] NSWSC 685
Decision Date: 30 June 2025

CaseChat Overview and Summary

In the matter of Nibbe v Wong, the deceased's de facto partner, Nibbe, sought to make a family provision claim under the Succession Act 2006 (NSW) against the estate of Wong, who was the deceased. The dispute centred around whether Nibbe was eligible to claim under the Act, given that the claim was brought almost two years after the limitation period had expired. Furthermore, the eligibility hinged on whether Nibbe and Wong were in a de facto relationship and whether they were ‘living together’ as required by s 21C of the Interpretation Act 1987 (NSW). The case was heard in the Supreme Court of New South Wales.

The primary legal issues revolved around the interpretation of the limitation period for family provision claims, and whether ‘sufficient cause’ existed to allow an out-of-time claim. Additionally, the court had to determine if Nibbe and Wong were in a de facto relationship, and if the estate had already been fully distributed, whether special circumstances existed to permit an additional application. The court also needed to consider if the notional estate was sufficient to warrant any provision to Nibbe.

The court found that Nibbe had not demonstrated sufficient cause to justify the late filing of the claim, despite arguments regarding delays in legal proceedings. It was also determined that Nibbe and Wong were not in a de facto relationship as they were not ‘living together’ within the meaning of s 21C of the Interpretation Act 1987 (NSW). Consequently, Nibbe was not eligible to make a family provision claim. The court dismissed the claim, finding that the estate had already been fully distributed without any special circumstances warranting an additional application. The court concluded that the notional estate did not provide grounds for any provision to Nibbe.

Orders