Skidmore v Salvatore

[2025] NSWSC 712

Supreme Court

New South Wales

Medium Neutral Citation:

Skidmore v Salvatore [2025] NSWSC 712

Hearing dates:

26 June 2025

Date of orders:

4 July 2025

Decision date:

04 July 2025

Jurisdiction:

Equity - Family Provision List

Before:

Kunc J

Decision:

Interlocutory injunction granted

Catchwords:

SUCCESSION — Family provision — Notional estate — Whether Court has jurisdiction to grant interlocutory injunction restraining dealing in property liable to be designated as notional estate — Succession Act 2006 (NSW), s 62(3)

SUCCESSION — Family provision — Practice — Application to amend to introduce substantive equitable claim after Court-annexed mediation — Where no explanation for lateness and not based on facts not previously discoverable with reasonable diligence

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Family Provision Act 1982 (NSW)

Interpretation Act 1987 (NSW)

Probate and Administration Act 1898 (NSW)

Succession Act 2006 (NSW)

Succession Amendment (Family Provision) Bill 2008 (NSW)

Supreme Court Act 1970 (NSW)

Probate and Administration Act 1898 (NSW)

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Boaz v Hyde [2014] NSWSC 1591

Deguara v Mercieca; unreported; 23 August 1988

Grizonic v Suttor [2004] NSWSC 137

Lo Surdo v Public Trustee [2003] NSWSC 837

Maiolo v Caristo [2008] NSWSC 236

Massie v Laundy; unreported; 7 February 1986

Moon v Gordon; unreported; 30 April 1996

Packo v Packo (1989) 17 NSWLR 316

Rayner v Schuttler; unreported; 29 January 1985

Young v Salkeld (1985) 4 NSWLR 375

Wentworth v Wentworth; unreported; 6 May 1992

Wentworth v Wentworth; unreported; 11 June 1992

Texts Cited:

Explanatory Note, Succession Amendment (Family Provision) Bill 2008 (NSW)

K Mason, “The Inherent Jurisdiction of the Court” (1983) 57 ALJ 449

New South Wales Law Reform Commission, Report 110 Uniform succession laws: Family Provision, (May 2005)

New South Wales Legislative Council, Second Reading Speech (Hansard), 26 June 2008

Category:

Procedural rulings

Parties:

Gordana Skidmore (Plaintiff)
Aleksandra Salvatore (Defendant)

Representation:

Counsel: J CY Lee (Plaintiff)
J Brown (Defendant)

Solicitors: Turner Freeman Lawyers (Plaintiff)
Marsdens Law Group (Defendant)

File Number(s):

2024/418446

Publication restriction:

None

JUDGMENT

Summary

1. The plaintiff, Gordana Skidmore (aged 52), and the defendant, Aleksandra Salvatore (aged 40), are the children of the late Dragica Lukac and her late husband, Vlajko Lukac. Without disrespect, I shall refer to the various family members by their given names.

2. Vlajko predeceased Dragica in March 2022. Dragica died on 15 January 2023. Aleksandra is the sole beneficiary and executor of her mother’s will. Gordana last saw her mother in 2005.

3. The value of Dragica’s estate is approximately $59,000. However, in 2022 Dragica executed a transfer of a property at Liverpool (which Dragica had previously owned as joint tenant with Vlajko) to Aleksandra for no consideration. The property was sold in January 2025. Approximately $536,000 of the sale proceeds are currently held in Aleksandra’s solicitors’ trust account. That figure is what is left after sale costs, and $50,000 having been paid to Aleksandra.

4. By summons filed on 11 November 2024, Gordana seeks an order for family provision pursuant to the Succession Act2006 (NSW) out of Dragica’s estate or notional estate. It is common ground that the estate has been distributed and that the proceeds are liable to be designated as notional estate.

5. By an amended notice of motion (further modified in the course of argument as to the quantum of the injunction sought), Gordana brought:

1. What was, in effect, an amendment application, being an order for the matter to proceed by way of pleadings so that she could bring a claim in equity challenging the validity of the transfer; and

2. An injunction application to restrain Aleksandra from dealing with $300,000 of the proceeds pending determination of the proceedings.

6. I dismissed the amendment application at the conclusion of that part of the oral argument, and indicated I would give my reasons for that when I determined the injunction application. I have set out the relevant facts and submissions in [9] to [27] below. These are the reasons why I dismissed the amendment application:

1. The proceedings have had a Court-annexed mediation and are otherwise ready to be referred to be given a hearing date on their next return date.

2. The actual estate, small as it was, has been distributed. The only available asset is the proceeds, which it is accepted by Aleksandra are liable to be designated as notional estate and are not a large sum.

3. There was no explanation (whether sworn or even from the Bar table) as to why the matters raised in the amendment application were not raised from the outset. It was accepted that the matters now relied upon were known to Gordana at that time. The Court can only conclude that a forensic decision was taken to see what might come of the family provision proceedings including the usual Court-annexed mediation, and then raise the equitable claim as a “second bite at the cherry”.

4. It would be inimical to the administration of family provision matters, especially in small estates, to allow new causes of action to be raised after the usual pre-fixture mediation unless it can be shown that they arise from material that has only become known after the mediation and could not have been discovered earlier with reasonable diligence, or there is some other exceptional explanation as to why they were not advanced earlier.

5. There was no utility in the amendment when it was accepted by Aleksandra that the proceeds were liable to be designated as notional estate. Gordana did not have standing to challenge the transfer on the equitable grounds now sought to be relied on because she was not a beneficiary of Dragica’s estate. She could only do so through the mechanism of her claim for a family provision order.

7. For the reasons which follow, the Court will allow the injunction application in respect of $250,000 of the proceeds. Those reasons may be summarised as:

1. On the Court’s preferred construction, s 62(3) of the Act has nothing to say about property liable to be designated as notional estate. Alternatively, if that conclusion be wrong, the Court concludes that s 62(3) affirms the Court’s power to restrain the holder of property liable to be designated as notional estate pending determination of an application for a family provision order (whether interim or final).

2. The court also does not accept the argument advanced for Aleksandra that s 62(3) of the Act prevents the Court from restraining dealing with an asset that could only be available as notional estate in its inherent jurisdiction to protect the subject matter of proceedings.

3. It follows that the Court has the power to make such an order either pursuant to ss 23 and 66(4) of the Supreme Court Act 1970 (NSW) (SC Act) or its inherent jurisdiction to protect the subject matter of proceedings.

4. As to prima facie case, Gordana raises an arguable, and not hopeless but not particularly strong case to satisfy the various elements that she would have to meet in order to obtain a family provision order from the proceeds as notional estate. Nevertheless, given any order could only be met from the proceeds as notional estate, the balance of convenience favours the granting of an injunction because there is no countervailing prejudice to Aleksandra. This is because it was conceded on her behalf that having access to the balance of the proceeds meant that she would be at no financial disadvantage pending a final hearing.

8. Mr J CY Lee of Counsel appeared for Gordana. Mr J Brown of Counsel appeared for Aleksandra.

The Amendment Application

Facts

9. Dragica died on 15 January 2023.

10. The proceedings were commenced by summons filed on 11 November 2024 (and therefore five months out of time: see s 58(2) of the Act) seeking only an order for family provision pursuant to the Act, but including a specific order that certain assets (relevantly for present purposes, the property) be designated as notional estate. The proceedings were commenced without an affidavit from Gordana.

11. On 19 December 2024, the Registrar in Probate made consent orders for the filing of evidence in accordance with the practice of the Succession – Family Provision List, including appointing 16 May 2025 for a half day Court-annexed mediation. There was no suggestion that the proceedings were anything other than a straightforward family provision claim.

12. Gordana’s first affidavit, filed on 14 January 2025, referred to and annexed the transfer. The transfer records that it is “without monetary consideration and as regards an intergenerational assignment”. Gordana’s affidavit also noted that the property was currently listed for sale.

13. In an affidavit filed on 28 February 2025, Aleksandra deposed that the property had been sold with settlement due to occur on 17 March 2005. Settlement did in fact occur on that date.

14. The status quo in relation to the proceeds was maintained by an inter partes undertaking by Aleksandra. The undertaking has been continued until the determination of the present application.

15. The proceedings did not settle at the Court-annexed mediation on 16 May 2025.

16. On 27 May 2025, Gordana’s solicitor wrote to Aleksandra’s solicitor (the 27 May letter):

“We refer to the Transfer signed by the deceased to the defendant in respect of the Liverpool property.

We are instructed that the deceased did not read or write English and spoke minimal English.

We note the Transfer has been witnessed with the same solicitor acting for both parties. Further, witnessing the Transferor's signature in circumstances where there is no translation certificate in relation to the meaning and effect of the document being entered into.

Given that the Transfer is between a parent and child, where the Transferor is in a position of special disadvantage, this raises the presumption of undue influence and unconscionable conduct and the transaction may be liable to be set aside.

In order to avoid the cost of additional proceedings to set aside the Transfer, we seek your cooperation in respect of providing an explanation with respect to the transaction.

We wish to speak to the solicitor that acted in the transaction and signed the Transfer. Could you provide a suitable time for us to have a conference with that person to explain the circumstances of the transaction.

If we do not receive a response by 5.00 pm Monday 2 June 2025, we will commence proceedings to set aside the Transfer.”

17. The next day, Aleksandra’s solicitor replied to the 27 May letter:

“There is no basis on which your client has to set aside the transaction. If your client brings such proceedings, they will be strenuously defended, and your client should be prepared for a costs order.

I will not be addressing this aspect further.”

18. On 29 May 2025, the Registrar in Probate made orders for the service of any further affidavits and for certain notices to produce and subpoenas to be issued, with the matter stood over for further directions on 31 July 2025. There was no dispute that in the ordinary course of practice in the List, the proceedings would have been ready to be allocated a hearing date upon compliance with those orders.

19. On 4 June 2025, Gordana filed a notice of motion making the injunction application. That motion was listed before the Registrar on 26 June 2025.

20. On the return of the motion on 26 June 2025, the Registrar referred the motion to me. When the matter came before me, Mr Lee sought leave to file an amended notice of motion adding the amendment application. That proposed amendment application had been notified to Aleksandra’s side of the record only three days before, together with a proposed form of statement of claim. Mr Brown ultimately obtained instructions not to oppose the amendment of the notice of motion so that both the injunction application and the amendment application could then proceed, as they did, to be heard immediately.

21. The claim relevantly sought to challenge the transfer on the basis of either undue influence (although apparently overlooking the well settled presumption of advancement between a mother and adult child) or unconscionable conduct on the part of Aleksandra against her mother. The relevant relief sought in the claim was:

“6         A declaration that the proceeds of sale of the whole of the Liverpool    property forms part of the estate of the deceased.

7          A declaration that the defendant:

a.         holds the proceeds of sale of the Liverpool property on trust for    the estate of the deceased; and/or

b.        holds such amount as is necessary to satisfy the order for    provision and costs made in favour of the plaintiff pursuant to    prayer 1-2.

8          An order or direction that the defendant do all things necessary to:

a.        transfer the proceeds of sale of the Liverpool property to the    estate of the deceased; and/or

b.        transfer such amount as is necessary to satisfy the order for    provision and costs made in favour of the plaintiff pursuant to    prayer 1-2.”

22. The material allegations in the claim are:

“28        There is a presumption of undue influence that arises in relation to the    transfer of the Liverpool property by the deceased to the defendant (by    reasons of the Signed Transfer Form and/or filed Transfer (the    Transfer)), by virtue of the fact that the defendant and the deceased    were in a relationship where:

a.         the defendant occupied a position of ascendency or influence    and the deceased held a position of dependency or trust; and

b.         there was an inferiority on the side of the deceased and an    opportunity and temptation of unconscientious abuse of power    and influence possessed by defendant sufficient to justify a    presumption of influence.

29        The presumption at paragraph 28 arises from the fact that:

a.         The defendant was the child of the deceased.

b.         At the time of the Transfer, the deceased's skill level in written    and spoken English was poor and was vulnerable to    exploitation.

c.         There is no evidence on the face of the Transfer that the terms    and effect of the Transfer were explained to her in her native    language of Serbian.

d.         On the face of the Transfer, there is no suggestion that any other    persons, apart from the defendant, deceased, and solicitor with    carriage of this matter, Kiara Falcone, was present when the    Signed Transfer Form was signed.

e.         The same solicitor, Kiara Falcone, acted for both the defendant    and the deceased in relation to the Transfer.

f.          Based on the Transfer and the defendant's refusal to explain the    circumstances surrounding the Transfer, the deceased:

i.         did not receive advice from an independent lawyer;    and/or

ii.         was not represented by an independent lawyer,

in relation to the Transfer.

g.         At or about the date of the Transfer the defendant:

i.          was the carer for the deceased; and/or

ii.         provided domestic support and personal care to the    deceased.

h.           Prior to the date of the Transfer, the defendant assisted the    deceased with her day to day activities by translating    conversations and documents from English to Serbian.

i.          At or about the date of the Transfer, the deceased was elderly    (aged 71), frail and vulnerable to exploitation…

k.         By reason of the preceding paragraphs:

i.          including the deceased's poor skill level in written and    spoken English; and

ii.         the fact that there is no indication on the face of the    Transfer, that its terms, effect and consequences were    explained to the deceased, in her native language of    Sebian by the defendant, a third party interpreter, or    independent person with no financial interest in the    Transfer,

there is a strong inference that the deceased did not understand the terms, effect and consequence of the Transfer.

30        In the alternative to paragraph 28 and by reason of the matters pleaded    at paragraph 29:

a.         The defendant stood in a relationship of influence over the    Deceased;

b.         The Transfer was not made freely, voluntarily and nor was it an    independent act of the deceased; and

c.         The Transfer was procured by the exercise of undue influence    by the defendant.

31        By reasons of the matters pleaded at paragraphs 28-30:

a.         The Transfer is void, voidable or liable to be set aside; and/or

b.         The defendant holds her interest in the proceeds of sale of the    Liverpool property on trust for the estate of the deceased.

Unconscionable conduct - Transfer

32        Further, or in the alternative, by the reason of matters pleaded at    paragraph 29 the deceased occupied a position of special disadvantage    in relation to the Transfer.

33        The defendant was aware of the deceased's special disadvantage at    the time of the Transfer, and unconscionably or unconscientiously took    advantage of that special disadvantage by procuring the Transfer or    accepting or retaining the benefit of the Transfer in circumstances    where the deceased was unable to make a worthwhile judgment as to    what was in her best interest.

34        It is unconscionable or unconscientious for the defendant to procure or    accept the deceased's alleged assent to the Transfer.

35        By reason of the matters pleaded at paragraphs 32-34:

a.         the Transfer is/was void, voidable or liable to be set aside;    and/or

b.         the defendant holds the proceeds of sale of the Liverpool    property, on trust for the estate of the deceased.”

Consideration

23. Mr Lee accepted that while the application was in form one for an order that the matter proceed by way of pleadings, it was in substance an amendment application and subject to the principles governing such an application. Accordingly, I approached the matter by reference to the well-known principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 and s 64 of the Civil Procedure Act 2005 (NSW).

24. Mr Lee submitted that other than it increasing the costs and length of the proceedings, there was no prejudice to Aleksandra if the claim were permitted to be filed. A hearing date had not yet been allocated. He suggested there could even be some advantage to her because, if successful, it would bring back into the estate assets currently in her hands which, as such, would be available to Aleksandra’s former husband in divorce proceedings that had been commenced.

25. Mr Lee, quite properly, made two concessions that were, in my respectful view, primarily dispositive of the amendment application:

1. There was no evidence or even explanation from the Bar table as to why the amendment application was being made at this late stage, beyond a suggestion that it had been prompted by the response of Aleksandra’s solicitor to the 27 May letter (see [17] above); and

2. The factual matters raised in the 27 May letter said to impugn the transfer were all known to Gordana at the time the proceedings were commenced.

26. To the concession in the preceding second sub-paragraph, I would add the conclusion which the Court has no hesitation in drawing that, similarly, all of the factual matters relied upon in the claim (and extracted in [22] above) must have been known to Gordana at the time the proceedings were commenced. There may be one small exception to this, which is the allegation in paragraph 29(f) referring to “the defendant's refusal to explain the circumstances surrounding the Transfer”. However, I have real doubt such a refusal could give rise to the inferences pleaded in that paragraph.

27. In addition to placing heavy emphasis on the complete lack of an explanation for why the amendment application was being brought, Mr Brown made several submissions which I accepted. I have incorporated those into my reasons for rejecting the amendment application set out in [6] above.

Jurisdictional Issue

Submissions

28. Mr Brown raised the issue of the Court’s jurisdiction to restrain dealing in potential notional estate. Section 62 of the Act provides:

62   Interim family provision orders and orders restraining distribution of the estate (cf FPA 9 (5) and (6))

(1)  The Court may make an interim family provision order before it has fully considered an application for a family provision order if it is of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order.

(2)  After making an interim family provision order, the Court must proceed to finally determine the application for a family provision order by confirming, revoking or varying the interim order.

(3)  The Court may make an order restraining the final or partial distribution of an estate (other than a distribution under section 94 (1) of this Act or section 92A of the Probate and Administration Act 1898) pending its determination of an application for a family provision order. (Emphasis added.)

29. In these reasons I shall refer to the highlighted words in s 62(3) as the exception.

30. Mr Brown’s essential proposition was that s 62(3) of the Act, having been enacted in 2008, qualified the Court’s power under s 66(4) of the SC Act: “The Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just and convenient so to do”. He submitted that s 62(3) was intended to “cover the field” of injunctions pending family provision applications and that Parliament did not intend the holders of notional estate to be restrained. Therefore, the Court’s general statutory jurisdiction and the inherent jurisdiction were no longer available.

31. Mr Brown relied on what I shall refer to as the inconsistency principle. That is the principle which is captured (confusingly for those uncertain of Latin declensions) as either generalia specialibus non derogant [the general does not override the specific] or generalibus specialia derogant [the specific overrides the general].

32. Finally, he submitted that if there was any relevant inherent jurisdiction remaining in the Court after the introduction of s 62(3), it was reserved for what he described as “really rare extreme cases” (Tcpt, 26 June 2025, p34(2)).

33. In response to Mr Brown’s submissions, Mr Lee submitted that s 62(3) was an enabling provision (pointing to the word “may”) which should be strictly read in accordance with its terms, namely that the Court could restrain an interim or final distribution from the estate, which jurisdiction was only limited by the exception. He contended that the sub-section did not otherwise use language of the necessary clarity or specificity that would be required to cut down either the Court’s general statutory injunctive jurisdiction or its inherent jurisdiction to preserve the subject matter of proceedings. There was no relevant inconsistency that would engage the inconsistency principle. He drew attention to what was said by Barrett J in Maiolo v Caristo [2008] NSWSC 236 and Hallen J in Boaz v Hyde [2014] NSWSC 1591. I consider both of these cases below.

Consideration

34. Before turning to the specifics of Mr Brown’s argument, the Court must determine the proper construction of s 62(3), starting with (and, unless necessary, going no further than) the ordinary meaning of the words used. Only after it has ascertained that construction, can the Court determine the extent of any inconsistency with the SC Act.

35. The order which s 62(3) refers to is “an order restraining the final or partial distribution of an estate”. (emphasis added.) However, it is axiomatic that property which is liable to be designated as notional estate is not part of the estate at the relevant time (either because it never was, or because it has been distributed). So much is clear from s 63(5), which provides “a family provision order may be made in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3”. (emphasis added.)

36. The same distinction between the estate and notional estate informs s 88 of the Act:

88 Estate must not be sufficient for provision or order as to costs (cf FPA 28 (1))

The Court must not make a notional estate order unless it is satisfied that—

(a) the deceased person left no estate, or

(b) the deceased person’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or

(c) provision should not be made wholly out of the deceased person’s estate because there are other persons entitled to apply for family provision orders or because there are special circumstances.

37. That s 62(3) concerns distribution of an estate is supported by the exception. There can be no doubt that the exception expressly prohibits the Court from making an order restraining “a distribution under section 94 (1) of this Act or section 92A of the Probate and Administration Act 1898”. Neither of these sections relate to notional estate.

38. Section 94 of the Act includes:

94 Protection of legal representative in other circumstances

(1) A legal representative of the estate of a deceased person who distributes property in the estate for the purpose of providing those things immediately necessary for the maintenance or education of an eligible person who was wholly or substantially dependent on the deceased person immediately before his or her death is not liable for any such distribution that is properly made.

(2) Subsection (1) applies whether or not the legal representative had notice at the time of the distribution of any application or intended application for a family provision order affecting property in the estate. … (emphasis added.)

39. Section 92A of the Probate and Administration Act 1898 (NSW) includes:

92A   Personal representatives may make maintenance distributions within 30 days

(1)  This section applies if a person (the survivor)—

(a)  survives a deceased person, and

(b)  at the time of the deceased person’s death, was wholly or substantially dependent on the deceased person, and

(c)  will be entitled to part or all of the deceased person’s estate if the person survives the deceased person for 30 days or, if that or another period for survival appears in the will, within the period appearing in the will (the specified period).

(2)  The executor or administrator of the deceased person’s estate may make a distribution that is an adequate amount for the proper maintenance, support or education of the survivor at any time after the death of the deceased person, including within 30 days, or the specified period, after the death of the deceased person.

(3)  The executor or administrator may make the distribution even though the executor or administrator knows, when the distribution is made, of a pending application, or an intended application, for an order under the Family Provision Act 1982 in relation to the deceased person. … (underlined emphasis added.)

40. On this construction, an order restraining dealing with property that is liable to be designated as notional estate is not an order of the kind caught by s 62(3) because it is not “an order restraining the final or partial distribution of an estate”. Applied to the facts of this case, the proceeds are not part of Dragica’s estate, and Aleksandra dealing with the proceeds is not “distribution”.

41. In my respectful view, the construction I have set out in the preceding paragraphs is the preferable one. However, if it be wrong such that “an order restraining the final or partial distribution of an estate” could extend to property liable to be designated as notional estate, then the balance of the sub-section is consistent with permitting that to occur.

42. That is because the order is said to be “pending [the Court’s] determination of an application for a family provision order”. Section 3 of the Act includes:

family provision order means an order made by the Court under Chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an eligible person. (underlined emphasis added.)

43. An interim family provision is made under Chapter 3 and is no less a family provision order than a final family provision order, other than it is “interim” and the Court must proceed finally to determine the application (see s 62(2) of the Act). An interim family provision order may be made from assets designated as notional estate. On this construction, s 62(3) affirms that the Court can make an order restraining the holder of property liable to be designated as notional estate.

44. If more than a consideration of the words of s 62(3) is required, then it is convenient to start with the legislative history, recalling that notional estate was included as a possibility in the Family Provision Act 1982 (NSW) (FP Act).

45. Sub-sections 62(1) and (2) have their immediate origin in s 9 of the FP Act:

9 Provisions affecting Court’s powers under secs 7 and 8

…

(5)    Subject to the foregoing provisions of this section, the Court may make an interim order for provision under section 7 in favour of an eligible person before it has fully considered the application for that provision where it is of the opinion that no less provision than that proposed to be made by the interim order would be made in favour of the eligible person after full consideration of the application.

(6)    Where, on an application made in relation to a deceased person, the Court has made an interim order as referred to in subsection (5), it shall, in due course, proceed to make a final determination of the application, which determination shall confirm, revoke or alter the order so made.

46. However, s 62(3) is new. It might also be said, with respect, that it does not sit entirely logically in a section dealing with interim provision orders, beyond a conceptual and semantic commonality between an interim order and an interim or interlocutory injunction (invoked by Young J (as his Honour then was) in his leading decision on interim provision in Young v Salkeld (1985) 4 NSWLR 375 at 379).

47. Section 62 was introduced into the Act by the Succession Amendment (Family Provision) Bill 2008 (NSW). While the Explanatory Note to the Bill refers to the origin of sub-sections 62(1) and (2), it is silent as to s 62(3).

48. The overview of the Bill records:

“The National Committee for Uniform Succession Laws submitted reports on proposed national uniform laws on family provisions to the Standing Committee of Attorneys-General in December 1997 and July 2004. The New South Wales Law Reform Commission Report 110 Uniform succession laws: family provision (May 2005) sets out draft model provisions to implement the earlier reports. These enable a court to override the terms of a deceased person’s will or the distribution of a deceased person’s estate on intestacy if it determines it is necessary to do so to ensure that the family and other dependants of a deceased person are adequately provided for. The Family Provision Act 1982 of New South Wales was used as a basis for the model provisions.

The objects of this Bill are:

(a) to amend the Succession Act 2006 (the 2006 Act) to enact, with some modifications, the model provisions as a new Chapter 3 of that Act, and

(b) to enable the making of regulations to control costs and advertising of legal services in relation to such applications, and

(c) to repeal the Family Provision Act 1982 (the 1982 Act), and

(d) to make various provisions of a savings, transitional or consequential nature.” (underlined emphasis added.)

49. The NSW Law Reform Commission report referred to in the overview refers (at p 29) to what became sub-sections 62(1) and (2), but is also silent as to s 62(3).

50. A clue may be found in the second reading speech of the then Attorney-General, the Hon John Hatzistergos (New South Wales Legislative Council (Hansard), 26 June 2008 at 9423):

“This bill is the next step for New South Wales in implementing the recommendations of the uniform succession laws project, a project initiated by the Standing Committee of Attorneys-General [SCAG] aimed at developing model laws to be used as the basis for reform of succession law in all Australian States and Territories. Consistent succession laws across jurisdictions will have a number of benefits, including simplifying or lowering the costs of administering the estates of people who have moved between, or held assets in, different jurisdictions. The National Committee for Uniform Succession Laws project was established to examine four discrete areas of succession law: the law of wills, family provision, intestacy, and the administration of estates, and to prepare model bills.

The first of the national committee reports, on the law of wills, was implemented in New South Wales in 2006 with the enactment of the Succession Act 2006. This bill will become chapter three of the Succession Act. As the rest of the national committee's reports are implemented, they will be included in the Succession Act. The national committee produced two reports on family provision, which were considered and endorsed by the Standing Committee of Attorneys-General in 1997 and 2004. The 2004 report included model legislation prepared by the New South Wales Parliamentary Counsel's Office. The national committee chose to make the existing New South Wales Family Provision Act 1982 the basis of the model family provision bill, as the New South Wales Act was considered the most comprehensive and recent legislation in the area of family provision.

The Succession Amendment (Family Provision) Bill 2008 repeals the Family Provision Act and implements the model bill endorsed by the Standing Committee of Attorneys-General. Some changes have been made to take into account the specific policy concerns of the New South Wales Government, and suggestions made by an expert committee, which the Government established to provide advice on the reforms to succession law. The committee comprised: Justice Young, Chief Judge in Equity; Justice Windeyer; the Probate Registrar of the Supreme Court; the Public Trustee; representatives for the Law Society and Bar Association; Ross Ellis, representing the Trustee Corporations Association of Australia; Les Handler, the co-author of the loose-leaf service on succession law; and a representative from the Guardianship Tribunal. I thank the committee members for the valuable advice and assistance that they have provided in relation to the bill.” (emphasis added.)

51. Despite the best efforts of skilled librarians, no record of the suggestions made by the expert committee has been able to be found. However, given s 62(3) does not appear in the Law Reform Commission report and there is no explanation of it in the Explanatory Note to the Bill, I infer, there being no further information available, that the now s 62(3) was recommended by the expert committee. I set this out for historical completeness and only to establish that there are no relevant extrinsic materials to which the Court might permissibly and usefully have regard in its task of construing s 62(3): s 34, Interpretation Act 1987 (NSW).

52. However, an examination of the cases supports the conclusion which I draw, which is that s 62(3) was directed to a particular doubt or mischief: that of resolving a difference of opinion among judges of the Equity Division about the power of the Court to restrain distribution of an estate pending hearing a family provision claim. It was a difference of opinion with which it can be safely assumed, given who they were, that the members of the expert committee were familiar.

53. The starting point is the decision of McLelland J (as his Honour then was) in Rayner v Schuttler; unreported; 29 January 1985 at 1 – 2, a case which only concerned actual estate:

“During the course of the hearing the question was raised as to the basis on which the plaintiff in such proceedings could legitimately seek to restrain the registration of a transmission application to the administrator. Amendment was sought to the notice of motion whereby orders were sought seeking to restrain the defendant administrators from selling the property concerned, or alternatively, restraining them from selling it without giving 14 days’ notice in writing to the plaintiff.   This form of application, that is, an interlocutory application in proceedings under the Family Provision Act, can legitimately found injunctive relief designed to protect the position pending the final hearing, but like other applications for an interlocutory injunction, it is necessary to consider whether the plaintiff has established a reasonable prospect of ultimate success in obtaining an order which would affect the property in question.   In the present application there is no evidence whatever of the means of the plaintiff, a matter which one would have thought to be essential to found a case for relief under the Act, and in those circumstances I cannot be satisfied that the plaintiff has any reasonable prospect of success.

The other matter ventilated in argument and discussion during the hearing was whether there was any real threat by the administrators to sell the property in any event. On the evidence I am very doubtful whether any such threat has been established, but it may well be that by further correspondence an assertion of right to sell, for reasons not essential to the administration of the estate, may be made which would sufficiently found injunctive relief.

Because this application should, I think, fail on the basis that there is no evidence of the plaintiff' s means, I would not wish to preclude the plaintiff from making another application for interlocutory relief of this kind if those evidentiary defects to which I have referred, were remedied and a proper case for an interlocutory injunction were made out. However, I think that the present motion should be dismissed with costs, but I will make that order expressly without prejudice to any further application for interlocutory relief which the plaintiff may be advised to make.” (emphasis added.)

54. In Massie v Laundy; unreported; 7 February 1986, (again concerning only actual estate) Young J (as his Honour then was) said at 10-11:

“… it could be said that because the defendant is the sole beneficiary of the estate and because it would be competent for the sole beneficiary of the estate to consent in the executor or administrator having the power and because you always consent to something you do yourself the whole of the beneficiaries have consented to the sale and so giving the administrator a power of sale. It could be said that one disregards the interests of the plaintiff because she is a mere spes and no interest in the estate at all.

Such a view, however, does not seem consistent with the decision of Zelling, J. in Re Rough (1973) 5 S.A.S.R. 559. In that case an applicant under the Testators Family Maintenance Act successfully sued for an interlocutory injunction restraining the executor from selling any part of the real estate pending the determination of her application. Zelling, J. relied on a passage from the judgment of Vaisey, J. in Re Simson (1950) Ch. 38, 42 that an executor should not embarrass the Court by so acting in her capacity as the Court's officer in respect of litigation which was pending before the Court. Similar words were said by Cross, J. in Ralphs v District Bank Limited (1968) 1 W.L.R. 1522, although there was some difference between the two learned Judges and I myself fairly strongly indicated in Young v. Salkeld, 5 November 1985, the undesirability of executors acting to dispose of property pending Family Provision Act applications and indeed, in that case I made an interim order which would have had the effect of preventing any sale being made.

It seems to me then that the Court does have power at the suit of a claimant under the Family Provision Act, whose case is one which cannot be classed as hopeless, to preserve the estate so that the Court can deal with the application according to law.” (emphasis added.)

55. Then, in Deguara v Mercieca; unreported; 23 August 1988, Powell J had to determine a motion filed by an applicant for family provision seeking to restrain an executor from distributing the estate pending the hearing of the application. Having expressed dissatisfaction with the assistance of counsel in what some practitioners of the time might recall as characteristically trenchant terms, his Honour was “obliged to rely upon such researches as I have been able to make during the course of the luncheon adjournment” (p 13) and concluded (at 12-13):

“So far as the first Order which is sought is concerned, it will be apparent from what I have already recorded that, even if the Court has power to make such an Order, in the present case, where the Estate has been substantially distributed, the making of the Order sought would achieve little. This aside, however, it must, to my mind, remain very such (sic) open to doubt whether the Court has power, pending the hearing of a proposed, or an existing application under the Family Provision Act 1982, to restrain an Executor, to whom Probate has been granted, from distributing his testator's Estate in accordance with the Will of which Probate has been granted.

In making that observation, I am conscious of the fact that in In the Estate of Gough deceased; Gough v. Fletcher ((1973) 5 S.A.S.R 559) Zelling J. granted an injunction restraining an executor from realizing portion of his testator's Estate pending the determination of an application under the Inheritance (Family Provisions) Act 1927 (Sth. Aust), but, if I may, with great respect to Zelling J., say so, I find the reasons given by him for granting the injunction rather less than compelling. So, too, I am conscious of the fact that, in Massie v. Laundy (7th February 1986 (unreported) ) Young J., when dealing with an application for leave to bring proceedings under the Family Provision Act 1982 out of time, granted a similar injunction, but, just as I find Zelling J’s reasons for so doing rather less than compelling, so, also, do I find Young J' s reasons less than compelling, as the burden of His Honour's Judgment appears to be solely:-

“It seems to me then that the Court does have power at the suit of a claimant under the Family Provision Act whose case is one which cannot be classed as hopeless, to preserve the estate so that the Court can deal with the application according to law.”

(see also In re Simson deceased; Simson v. National Provincial Bank Limited (supra) ; cp. In re Ralphs deceased; Ralphs v. District Bank Limited ( supra)).

However, even if the Court is to be regarded as having the power to make an Order of the type sought, I would, as matter of discretion, in the circumstances, refuse to make such an Order.” (Emphasis added.)

56. The question of restraining the distribution of an estate pending the hearing of a family provision application recurred before Young J in Packo v Packo (1989) 17 NSWLR 316. His Honour granted an injunction in relation to actual (as opposed to notional) estate based upon the Court’s inherent jurisdiction to preserve the subject matter of proceedings or under s 23 of the SC Act (“The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales”). His Honour referred to both his decision in Massie and Powell J’s views in Deguara, and adhered to his view that the Court had jurisdiction, saying (at 318-319):

“It is also important to note that his Honour's [Powell J’s] decision was given, as he himself recognised, as a matter in his duty judge list in which the exigencies of time meant that he only had his luncheon adjournment in which to consider the matter and then to rely solely on his own researches and not on any contribution provided by counsel.

It is not appropriate that judges of the Division should hold different views on a matter which is likely to come up from time to time in the Division and I think normally in this state of affairs the public is entitled to know for certain what the law is and that the appropriate case should be referred to the Court of Appeal to decide it. That is the theory. The practicalities of the matter are that the case does not involve a large amount of money and each case will come up before the court on the basis that urgent relief is required.

I must confess, I find it difficult to accede to the proposition that this Court has no jurisdiction. The Supreme Court Act 1970, s 23, gives the court all the jurisdiction necessary to do justice in New South Wales. The Supreme Court Rules 1970, Pt 28, clearly suggests that the court has power to make orders of interim preservation of property and although money as such does not appear to be property under Pt 28, r 2, it is common enough to grant injunctions preserving funds. Furthermore, this Court has always had jurisdiction to preserve the subject matter of a dispute before the Court. The locus classicus is the decision of the High Court of Australia in Tait v The Queen (1962) 108 CLR 620, where the High Court stayed an execution of a capital sentence so that it could consider the question before it otherwise than in a situation of great trauma.

Accordingly, in my view, I should continue to adhere to the view that I expressed in Massie v Laundy that there is jurisdiction. I very much appreciate the matter which motivated Powell J that it would achieve very little to grant an injunction in the ordinary case where the estate has been substantially distributed. In the instant case, however, the estate is still in the hands of the executor even though it would appear to be in his hands as beneficial owner rather than as trustee.” (Emphasis added.)

57. In Wentworth v Wentworth; unreported; 6 May 1992 Young J continued an injunction over assets that had been designated as notional estate that had been obtained by a successful family provision applicant pending leave to appeal to the High Court. His Honour said (at p 2) that “There are doubts as to the power of the court to make an order of this nature in proceedings under the Family Provision Act”.

58. By the time that litigation returned to his Honour (Wentworth v Wentworth; unreported; 11 June 1992), his Honour identified (at p 4) that there were three slightly different sets of principles to be applied: Mareva injunction; an application to protect the plaintiff if she obtained a higher award of provision in the High Court; and protection for the plaintiff against being frustrated from recovering what she may recover from notional estate under an application for additional provision under s 8 of the FP Act. As to the last, citing his decision in Packo, his Honour said (at p 11) he would “assume, in an appropriate case, the court has jurisdiction to grant an injunction to restrain distribution of an estate pending the hearing of an application under the” FP Act. However, he went on to say (at p 11) that “it was not completely clear” citing the different views in Rayner and Deguara. Assuming the Court had the jurisdiction, his Honour concluded he would have declined relief on the facts before him.

59. In Moon v Gordon; unreported; 30 April 1996, Young J had to consider the law as it then stood in relation to restraining both actual and notional estate. He reviewed Massie, Deguara, Packo and Wentworth. Of his decision in Packo, his Honour said (at 4):

“Packo v Packo, as far as I am aware, has never been judicially criticised, and indeed it was the subject of a note by Mr Starke QC in (1990) 64 ALJ 439, which note appeared to endorse the decision. Mr Starke said at p 440, "an order for an interlocutory injunction to restrain distribution of the assets of an estate is one that the Supreme Court is slow to make unless entirely satisfied that there are no obstacles in the way, such as hardship.

“However, if the granting of an injunction is justified by the overriding justice of the case, and safeguarding orders can be duly made, the order will be made for injunctive relief. This is particularly so, where in the absence of an injunction there could be irretrievable damage to the statutory rights of the applicants."

I adhere to the view that I set out in Packo, at least in the situation where one is dealing with actual estate. It seems to me that there is jurisdiction to preserve the subject matter of proceedings before a court and in a proper case the Court will grant an injunction.” (Emphasis added.)

60. On the question of notional estate, his Honour said (at 6-7):

“There is great doubt in my mind as to whether any order can be made restraining a stranger to the estate, who holds notional property under the terms of a trust or contract, from making a distribution to other persons who are not parties to the proceedings. That is not a matter I have to decide in the present case and it is best left for when a decision is necessary: I merely record my great doubts about the matter. However, if there is jurisdiction to make the order then the plaintiff needs to show that there is (a) an arguable case that she will obtain an order and that the actual estate will be insufficient to meet the quantum of her order; and (b) that unless an injunction is given (either against the person who is holding the property in trust or, probably more correctly, the persons to whom it is distributed), the Court's order will be in vain.” (Emphasis added.)

61. His Honour then recalled that in Wentworth he had been prepared to assume that an injunction could be laid in relation to notional estate but would not have made an order in that case. His Honour took the same approach in Moon, ultimately not making an order on the facts of that case.

62. To take stock of the state of the authorities at this point, it is clear from the decisions of Young J, especially Packo, that notwithstanding the doubts of Powell J, the weight of authority (McLelland J and Young J) was that the Court had power derived from both s 23 of the SC Act and its inherent jurisdiction to preserve the subject matter of proceedings to restrain the distribution of actual estate pending the determination of proceedings for a family provision order. However, there had been no determination (as opposed to assumption) by any judge of whether that power extended to notional estate. There were only Young J’s “great doubts” expressed in Moon. Notably, however, his Honour did not indicate why he had those doubts.

63. The issue of restraining what might be designated as notional estate next arose before Gzell J in Lo Surdo v Public Trustee [2003] NSWSC 837. In that case the potential notional estate was property that had been distributed to the second defendant. After considering the cases, including Massie, Deguara, Packo and Moon, his Honour concluded:

“50   In the instant circumstances, the second defendant refused to give an    undertaking that she will not dispose of the properties in question. On    the other hand, there is no evidence of any threat to sell either property.    Unlike the refusal in Packo with respect to moneys that could easily be    dissipated, the refusal in this case is, in my opinion, of less impact

51   The properties having been distributed to the second defendant, I share    the concerns of Young CJ in Eq as to whether there is power to restrain    such a third party from dealing with property that may never be    designated as notional estate.

52   I base my decision, however, on an exercise of discretion. Assuming    that the court has power to grant the injunction, I refuse to do so.

53 There is no evidence of an immediate threat to dispose of the property. The plaintiff delayed in bringing the application. The inference I draw is that it was brought in response to the second defendant’s notice of motion. The second defendant is in the position of a third party and more needs to be demonstrated than would apply under the court’s inherent power to preserve an estate pending the determination of an application under the Family Provision Act 1982. The plaintiff’s case is by no means strong in light of the difficulty he faces in overcoming the restriction in s 28 in light of the size of the estate and the obligation owed by the deceased to her daughter.” (Emphasis added.)

64. Because his analysis is referred to in later cases, the next decision of note is the judgment of J C Campbell J (as his Honour then was) in Grizonic v Suttor [2004] NSWSC 137. His Honour said:

“Concerning other statutes where courts have a power to change the property rights of parties, it is recognised that the court can grant an interlocutory injunction to protect the subject matter of the suit. When a claim is made under the Family Provision Act 1982 the Court has power to grant an interlocutory injunction requiring property that might be the subject of an order to not be disposed of until the suit is heard. This is a particular example of the Court’s jurisdiction to preserve the subject matter of a suit pending the hearing: In the Estate of Gough, Deceased; Gough v Fletcher (1973) 5 SASR 559; Rayner v Schuttler (Supreme Court of New South Wales, McLelland J, 29 January 1985, unreported); Packo and Another v Packo (1989) 17 NSWLR 316; Moon v Gordon (Supreme Court of New South Wales, Young J, 30 April 1996, unreported); Lo Surdo v Public Trustee [2003] NSWSC 837 (Gzell J). In Deguara v Mercieca (Supreme Court of New South Wales, 23 August 1988, unreported) Powell J expressed doubts about the existence of such a jurisdiction, but Deguara was not followed in Packo. The Family Court of Australia can grant an interlocutory injunction under s.114 Family Law Act restraining a party from disposing of the property of the parties pending the institution of proceedings seeking a property settlement under s.79: In the Marriage of Sieling (1979) 4 Fam LR 713; (1979) 24 ALR 357; In the Marriage of C A Rennie and J Higgon (1981) 7 Fam LR 715. As well, the Family Court can grant an injunction to restrain a party from instituting proceedings in another court which would adversely affect the right of a party to seek a property settlement under the Family Law Act : In the Marriage of Esmore (1979) 5 Fam LR 762; In the Marriage of Bak (1979) 6 Fam LR 411; In the Marriage of Smith and Saywell (1980) 6 Fam LR 245; Dembitzer v Mills [1980] 2 NSWLR 697 at 702. All these cases are examples of interlocutory injunctions to preserve the subject matter of the suit. On a similar basis, it would be possible for a plaintiff seeking orders under s.20 Property (Relationships) Act to obtain an interlocutory injunction, in appropriate circumstances, to prevent an application under s.66G from being made or proceeded with concerning property over which orders were sought under s.20 Property (Relationships) Act.” (Emphasis added.)

65. The issue before his Honour was whether there was a proper basis to stay an application under s 66G of the Conveyancing Act 1919 (NSW). His Honour’s observations are therefore obiter dicta, but nevertheless entitled to great respect. However, it is not apparent whether his Honour intended his summary of the FP Act authorities to encompass notional estate. The examination of those authorities that I have set out above makes clear that his Honour’s summary is, with respect, correct as to restraining the distribution of actual estate, but is not supported by those authorities as to notional estate.

66. That J C Campbell J’s observations in Grizonic are both obiter dicta and, in my respectful opinion, not an accurate reflection of the state of the authorities in relation to restraining property that may be designated as notional estate, does not appear to have been drawn to the attention of Barrett J (as his Honour then was) in Maiolo, a decision delivered in March 2008. His Honour was there considering an application to restrain dealing with potential notional estate. His Honour appears only to have been referred to Grizonic, of which his Honour said (at [9]) “The object of injunctive relief of this kind is to preserve the subject matter of the litigation. The earlier differences of opinion between judges of this Division as to the basis of the jurisdiction has been laid to rest. I refer, in particular, to the very useful summary of the present position at paragraph [11]” of Grizonic (set out in [64] above). Barrett J therefore accepted that he had jurisdiction in relation to the potential notional estate but refused the injunction on discretionary grounds.

67. The next step in the chronology is the introduction of s 62(3) a few months later. Given the history of doubt and division disclosed by the authorities I have set out above and the intervention of an expert panel including judges of the Equity Division in the drafting of s 62(3) (see [50] above), I am fortified in the construction of s 62(3) which I have preferred in [40] above, by the conclusion which I infer from that history that s 62(3) was introduced to resolve the mischief of doubt about the Court’s powers to restrain a distribution of the actual estate pending determination of a family provision application. Neither the words of the section nor that view of the mischief supports the conclusion that s 62(3) was intended to say anything about restraining notional estate or that by confirming that jurisdiction it was intended to “cover the field” and foreclose an order in relation to notional estate.

68. Finally, the Court was taken to only one authority under the Act, being the decision of Hallen J in Boaz v Hyde [2014] NSWSC 1591. This was an application to restrain dealing in actual estate, about which there was no dispute as to the Court’s jurisdiction. His Honour said:

“19 Turning, then, to the Plaintiff's claim for an interlocutory injunction, there was no dispute about the jurisdiction of this court to grant an interlocutory injunction to restrain the Defendant from selling the Earlwood property. In Grizonic v Suttor [2004] NSWSC 137, at [11], Campbell J (as his Honour then was) wrote:

"Concerning other statutes where courts have a power to change the property rights of parties, it is recognised that the court can grant an interlocutory injunction to protect the subject matter of the suit. When a claim is made under the Family Provision Act 1982 the Court has power to grant an interlocutory injunction requiring property that might be the subject of an order to not be disposed of until the suit is heard. This is a particular example of the Court's jurisdiction to preserve the subject matter of a suit pending the hearing...."

20   However, the Act, itself, does not contain any provision permitting the court to make an order restraining an executor, in whom the estate property is vested, from dealing with those assets, other than in respect of final or partial distribution, pending its determination of an application for a family provision order: see s 62(3) of the Act. (Of course, s 66(4) of the Supreme Court Act 1970 (NSW) provides that the Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do.)

21   There was also no dispute that "like other applications for an    interlocutory injunction it is necessary to consider whether [a Plaintiff    has established] a reasonable prospect of ultimate success in obtaining    an order which would affect the property in question", or, put another    way, there is a sufficiently seriously arguable case for final relief and    that the balance of convenience favours the grant, or the withholding,    of interlocutory injunctive relief, essentially to preserve the status quo in    the meantime.” (Emphasis added.)

69. Although not the subject of argument before him, I respectfully agree with both his Honour’s confined reading of s 62(3) as being only concerned with final or partial distribution, and his Honour’s implicit acceptance of the availability of s 66(4) of the SC Act.

70. It follows from the foregoing that there has been no case in which a judge of this Division has expressly decided whether or not the Court has jurisdiction to restrain dealing in assets which are liable to be designated as notional estate. On the preferable construction, s 62(3) (other than the exception) does not cut down the Court’s powers under s 23 or s 66(4) of the SC Act. In my respectful view, those powers provide the jurisdiction for the Court to restrain a dealing in property liable to be designated as notional estate if the tests otherwise required for an interlocutory injunction can be satisfied in the particular case.

71. I also maintain the preferable construction over that propounded by Mr Brown because it promotes the objects of the Act, whereas Mr Brown’s would not (see s 33 of the Interpretation Act 1987 (NSW)). The preamble of the Act records one of its purposes is “to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person”. An important part of that purpose is achieved by assets being, in effect, brought back into an estate through the notional estate provisions. It would not promote the efficacy of those provisions if s 62(3) were interpreted so as to foreclose the Court’s power, in appropriate cases after considering whether there is a serious question to be tried and the balance of convenience, to restrain assets that are liable to be designated as notional estate for a family provision order from being dissipated before that question is finally determined.

72. I have recorded above that both Young J and Gzell J expressed doubt about the existence of the power in relation to assets which could be, but were yet to be, designated as notional estate. Their Honours, with respect, did not elaborate on the reason for that doubt. In my respectful view, the better reading of their Honours’ reservation is that it related to the likely ability of an applicant to demonstrate a serious question to be tried given the additional statutory prerequisites (over and above those for the making of a family provision order out of the estate) before the Court would make an order designating notional estate. So much is clearly apparent in the reference to s 28 of the FP Act in Lo Surdo at [53] (see [63] above).

73. Finally, as was expressly identified in Packo, Moon, Grizonic and Maiolo, the Court has a general inherent power to make interlocutory orders to preserve the subject matter of proceedings. In my respectful opinion, that must extend, where the usual tests for an interlocutory order are met, to assets that are liable to be designated for notional estate.

74. Two possible objections may be raised.

75. The first relates to why the jurisdiction should extend to assets which have not yet been designated. The answer is that those assets are no different, in principle, to assets over which, for example, a remedial constructive trust is claimed which do not become subject to the trust until it is declared. Such assets can be restrained if the usual interlocutory tests can be satisfied in relation to the constructive trust claim. If a serious question to be tried is demonstrated on the question of designation (among satisfying the other prerequisites), I do not see any reason of principle why an interlocutory injunction should not be ordered to preserve that possibility.

76. The second relates to assets in the hands of “third parties”, which would encompass anyone other than the executor or administrator. In my respectful view, the terminology is unhelpful for its lack of precision. For example, if the recipient is otherwise a beneficiary (as in the case at bar), they are in real terms hardly a “third party”. If they are genuinely at arm’s length, then that in and of itself is not an objection to the existence of jurisdiction. For example, it is now well established that assets in the hands of “third parties” may be the subject of asset preservation orders. In my view, the primary relevance of “third party” status is more often than not to the question of balance of convenience.

77. Mr Brown also submitted that s 62(3) was inconsistent with the inherent jurisdiction and therefore prevailed. Alternatively, if it did continue, he submitted that it would be confined to extreme cases. There is no basis in principle for the alternative submission. Either the jurisdiction does or does not exist.

78. As to the submission of inconsistency, it is correct insofar as the exception is concerned because that is an express statutory prohibition on the Court making a specifically identified order. However, apart from the exception, I do not agree that s 62(3) expressly or impliedly limits the Court’s inherent jurisdiction to make an interlocutory order to preserve the subject matter of proceedings. I reach that conclusion both on the preferred construction or Mr Brown’s construction, even if it were correct, for the reason which follows.

79. The Court’s inherent jurisdiction derives from its status as a superior court of record. I respectfully adopt and apply this passage from the seminal article “The Inherent Jurisdiction of the Court” (1983) 57 ALJ 449 by Keith Mason QC (as the future President of the Court of Appeal then was), where he wrote (at 457) under the heading “Curtailing the Inherent Jurisdiction”:

“There are numerous utterances to the effect that the inherent jurisdiction may be curtailed by statutory provisions, but it is very rare to find instances where a judge who may be otherwise willing to exercise a power to check “abuses” or issue one of the other remedies discussed in this article [which include “Preventing steps being taken that would Render Judicial Proceedings Inefficacious”] declining to do so because of a statutory imperative.

Since the inherent jurisdiction is not derived by implication from statutory provisions conferring a general or a particular jurisdiction, the onus lies squarely upon those asserting statutory curtailment or modification. Because “rules and forms of procedure are not ends in themselves, but means to an end, which is the attainment of justice”, it follows that the mere fact that a statute or rule of court that addresses itself in a particular way to a particular matter does not usually exclude by implication a superior court’s wider inherent powers relating to that matter if they are appropriate.” (citations omitted; emphasis added)

80. Even on his construction of s 62(3), I do not consider that Mr Brown has discharged what I respectfully consider would be the heavy onus of demonstrating that the sub-section curtailed the Court’s inherent power to preserve the subject matter of the litigation in an appropriate case.

81. For the foregoing reasons, the Court concludes that pursuant to each of ss 23 and 66(4) of the SC Act and the inherent jurisdiction of the Court, it has jurisdiction to grant the relief sought by Gordana in relation to the proceeds as assets liable to be designated as notional estate. That jurisdiction is to be exercised in accordance with the usual requirements for the grant of an interlocutory injunction, which are considered in what next follows.

Should an injunction be granted?

82. During the course of argument, Mr Lee made it clear that his client sought an injunction over only $300,000 of the proceeds. That would release $236,000 to Aleksandra. I consider the amount to be restrained further in [91] below.

83. The application proceeded against the background of these matters as accepted or not in contest:

1. Gordana was an eligible person as a child of Dragica (s 57(1)(c) of the Act).

2. Gordana needed leave to bring her proceedings out of time, pursuant to s 58(2) of the Act. Given that Aleksandra could point to no prejudice to her caused by the five month delay, there was a prima facie case that leave would be granted. There was an explanation in Gordana’s evidence as to why it was that she did not find out about Dragica’s death until after it had occurred.

3. The proceeds were liable to be designated as notional estate insofar as they were the product of a relevant property transaction (see s 75 of the Act) and that if the Court was of the opinion that a family provision order should be made, the estate was insufficient for the making of such an order (see s 88(b) of the Act).

4. Insofar as the balance of convenience was concerned, given that on any view $236,000 of the proceeds would be released to Aleksandra, Aleksandra could not say she would suffer any financial hardship pending the final hearing of the proceedings.

84. In relation to prima facie case, with the exception of the matters referred to in the preceding paragraph, all of the statutory and discretionary elements for Gordana to succeed at a final hearing were in issue, both as to whether a family provision order would be made at all (ss 59 and 60 of the Act) and, if so, whether any part of the proceeds would be designated as notional estate to satisfy that order (ss 78 to 90 of the Act).

85. Both parties conducted this aspect of the argument at a high level of generality.

86. Mr Lee submitted that Gordana was one of two daughters and that no provision had been made for her. He acknowledged that there had been two extended periods of no contact between Gordana and her parents, the second commencing in 2005 and lasting for the rest of her parents’ lives. He emphasised that those periods could not, on the evidence, be solely attributed to Gordana, and that Gordana and her mother had suffered a great deal of abuse at the hands of Vlajko. Gordana’s husband is unable to work and receives no Centrelink or other income. They have been renting a house from the Aboriginal Land Council for the last 24 years. They have combined net assets (including superannuation) of approximately $65,000 and their annual living expenses are approximately $85,280. Gordana is employed and earns a gross income of approximately $95,000 per annum. Mr Lee submitted that, in relation to notional estate, the special circumstances required for a notional estate order made out of time (s 90(2)(b)) of the Act was that the abuse she had suffered had led to her lack of contact with her mother and lack of knowledge of her parents’ death.

87. Mr Brown submitted that s 90(2)(b) could be not satisfied. This was because it required more than an explanation for the application being out of time. He submitted that Gordana had secure accommodation in which she had been living on a concessional rent for 24 years. She had not seen her mother since 2005. He drew to attention Aleksandra’s competing claim, being a mother of two school age children in the process of reaching a property settlement. She has approximately $900,000 in nett assets jointly with her former husband (including the former matrimonial home), superannuation in her own name of $100,000, the proceeds, a car worth $35,000 and some cash. She is living in rented accommodation and her children divide their time between her and her former husband. She is facing the possibility of significant legal costs in relation to her divorce.

88. Given their heavily discretionary and fact based nature, the outcome of family provision cases is notoriously difficult to predict. My own experience in hearing such cases is that what seems a likely outcome at the start of a hearing may be quite different after the evidence is fully understood and the parties seen in the witness box. That is particularly the case where issues of lack of contact arise. The untested evidence I have seen suggests there is an arguable basis for Gordana to contend that the reason for the lack of contact was not something that should reflect on her adversely.

89. Having regard to the evidence to which my attention was drawn at face value, and noting the discretionary barriers under the Act to the making of a notional estate order (including s 90(2)(b)), I am satisfied that Gordana has demonstrated a prima facie case of entitlement to a family provision order from the proceeds designated as notional estate, albeit not a strong one. Nevertheless, to adopt the language of Young J in Massie (see [54] above), it is definitely not “hopeless”.

90. Before turning to the balance of convenience, it is necessary to say something about the quantum sought to be restrained. Mr Lee submitted it should be $300,000, being $150,000 for provision and $150,000 for his client’s costs, with some allowance between the two (the provision perhaps being higher and the costs perhaps being lower, or vice versa).

91. The proceeds are $536,000. The evidence was that Gordana’s costs up to and including the mediation were $44,000 and Aleksandra’s for the same period $33,000 (both on the indemnity basis and inclusive of GST). Mr Brown reminded the Court that his client was funding the litigation out of her own funds because there was no estate. He also submitted that by the end of a hearing the amount available for a family provision order would be further reduced by costs leaving a lower amount to balance the parties’ competing claims. Furthermore, given the size of the estate, it was likely there would be cost capping orders. All of those matters, he submitted, suggested that the two figures propounded by Mr Lee were too high. I accept that submission. Doing the best I can, I have come to the view that if an injunction is to be laid, it should be in respect of $250,000 of the proceeds, representing a fund for both provision and Gordana’s costs to be satisfied from notional estate.

92. Returning to the balance of convenience, given Mr Brown’s concession recorded in [83(4)] above, it should apply all the more if his client is now to have access to approximately $286,000 of the proceeds. Where there are only the proceeds available to be designated as notional estate, the balance of convenience is in Gordana’s favour for an injunction over $250,000 of the proceeds until further order.

93. The Court will hear the parties as to costs. They will also be referred to the Registrar in Equity in next Monday’s list so that the earliest available final hearing date can be fixed.

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Decision last updated: 04 July 2025