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 59

Hearing dates:

22 February 2016

Date of orders:

22 February 2016

Decision date:

22 February 2016

Before:

Emmett AJA

Decision:

Order that:

 

1. The notice of motion filed on 11 February 2016 be dismissed.

 2. The applicant on the motion pay the costs of the respondent on the motion.

Legislation Cited:

Succession Act 2006 (NSW)

Category:

Principal judgment

Parties:

Waleed Sadiq (Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Counsel:
Self represented (Applicant)
D Stewart (Respondent)

  Solicitors:
Self represented (Applicant)
New South Wales Trustee & Guardian (Respondent)

File Number(s):

2015/192765

Publication restriction:

n/a

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2015] NSWSC 716

Date of Decision:

9 June 2015

Before:

Hallen J

File Number(s):

2014/174088

Judgment – ex tempore

1. EMMETT AJA: By notice of motion filed on 11 February 2016, Mr Waleed Sadiq asks the Court to restrain the respondent, NSW Trustee and Guardian (the Trustee), from selling an asset of the estate of the late Christina Coombes (the Deceased), consisting of a property situated in Paddington NSW (the Paddington Property). Mr Sadiq seeks that relief in aid of his notice of appeal filed on 1 July 2015. By the notice of appeal, Mr Sadiq appeals from orders made on 9 June 2015 by a judge of the Equity Division (the primary judge), by which the primary judge ordered that proceedings commenced by Mr Sadiq against the Trustee be dismissed.

2. The dispute between Mr Sadiq and the Trustee concerns the nature of the relationship, if indeed there ever was one, between the Deceased, on the one hand, and Mr Sadiq, on the other. Mr Sadiq sought a declaration that he was the spouse of the Deceased at the date of her death. He also sought consequential relief in the event that such a declaration was made. Alternatively, he sought a family provision order under Ch 3 of the Succession Act 2006 (NSW) in relation to the estate of the Deceased on the basis that he is an eligible person in relation to the estate.

3. The Deceased died intestate without issue on 13 June 2013. She had no spouse, other than Mr Sadiq, if Mr Sadiq is able to establish that he was indeed her spouse as claimed by him. Under s 104 of the Succession Act, spouse is defined as a person who is married to an intestate immediately before the intestate’s death or who is a party to a domestic partnership with the intestate immediately before the intestate’s death. Under s 105 of the Succession Act, a party to a domestic relationship includes a party to a de-facto relationship that has been in existence for a continuous period of two years or has resulted in the birth of a child. It is not suggested that Mr Sadiq was ever married to the Deceased…