Sadiq v NSW Trustee and Guardian

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Sadiq v NSW Trustee and Guardian [2016] NSWCA 62
Hearing dates:	24 March 2016
Decision date:	07 April 2016
Before:	McColl JA at [1]; Leeming JA at [2]; Sackville AJA at [63]
Decision:	Appeal dismissed with costs.
Catchwords:	SUCCESSION – intestacy – claim that plaintiff was de facto partner of deceased for many years – claim not accepted by primary judge – conflict between evidence of plaintiff and evidence of neighbours and social workers – paucity of documentary evidence – inconsistencies in plaintiff’s case – no appellable error shown – appeal dismissed
Legislation Cited:	Succession Act 2006 (NSW), ch 3, s 111 Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Category:	Principal judgment
Parties:	Waleed Sadiq (Appellant) NSW Trustee and Guardian (Respondent)
Representation:	Counsel: Applicant in person RD Stewart (Respondent)   Solicitors: NSW Trustee and Guardian (Respondent)
File Number(s):	2015/192765
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2015] NSWSC 716 Date of Decision: 09 June 2015 Before: Hallen J File Number(s): 2014/174088

Judgment

1. McCOLL JA: I agree with Leeming JA.

2. LEEMING JA: Mr Waleed Sadiq appeals from the dismissal of proceedings brought by him and heard over three days by the primary judge (Hallen J) in 2015. His contention was that he was the de facto partner of the late Christina Olga Coombes at the time of her death. He sought orders that he was entitled to the whole of her intestate estate pursuant to s 111 of the Succession Act 2006 (NSW). Alternatively, he sought a family provision order out of the estate of the deceased pursuant to Ch 3 of the Succession Act. Having regard to the size of the estate, his appeal is as of right.

3. The primary judge gave elaborate reasons of 374 paragraphs promptly after the trial. His Honour did not say that he thought Mr Sadiq was deliberately giving false evidence. However, his Honour referred in uncontroversial terms to the onus which lay upon Mr Sadiq to make out his case, and the requirement that the Court feel an actual persuasion of the occurrence or existence of a fact before it could be found. His Honour identified aspects of Mr Sadiq’s case which were, in his view, unconvincing, and concluded that Mr Sadiq had not discharged the onus which he bore in respect of either of the cases he had advanced.

4. The Court’s task was and is made more difficult, both at trial and on appeal, by the fact that, although Mr Sadiq has in the past received some legal assistance, he chose to represent himself. Indeed, during a number of directions hearings before the trial, Mr Sadiq had been represented by counsel appearing pro bono. That counsel advised that his instructions had been withdrawn shortly before the hearing. Nevertheless, he attended the hearing and confirmed his willingness to appear for Mr Sadiq, pro bono, at the hearing. Mr…