Sadiq v NSW Trustee and Guardian

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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…

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Details
Case
[2016] NSWCA 62
Decision Date

CaseChat Overview and Summary

The plaintiff, Sadiq, appealed to the New South Wales Court of Appeal against a decision of the primary judge who had dismissed her claim that she was the de facto partner of the deceased for many years. The primary judge had found that the evidence presented by the plaintiff was in conflict with the evidence of neighbours and social workers, and that there was a paucity of documentary evidence and inconsistencies within the plaintiff's case.

The central legal issue before the Court of Appeal was whether the primary judge had made any appellable error in rejecting the plaintiff's claim of de facto partnership. This required the Court to consider whether the primary judge's findings of fact were reasonably open on the evidence, and whether the legal principles governing the determination of de facto relationships had been correctly applied.

The Court of Appeal found no appellable error in the primary judge's decision. Their Honours noted that the primary judge had carefully considered the conflicting evidence, including the plaintiff's testimony, the testimony of neighbours and social workers, and the limited documentary evidence. The Court agreed with the primary judge's assessment that there were significant inconsistencies in the plaintiff's case and that the evidence did not establish the requisite degree of cohabitation and commitment to constitute a de facto relationship for the purposes of the relevant legislation.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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