The Estate of Daniele Claudio Legler

[2024] NSWSC 726

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Estate of Daniele Claudio Legler [2024] NSWSC 726

Hearing dates:

6 – 10 May 2024

Date of orders:

17 June 2024

Decision date:

17 June 2024

Jurisdiction:

Equity

Before:

Pike J

Decision:

(1)   Direct the parties to confer and to seek to agree orders to give effect to these reasons, including as to costs.

(2)   Direct the parties to provide agreed orders, or competing orders, to my Associate by no later than 1 July 2024.

(3)   In the event that there is no agreement as to orders, direct the parties to provide to my Associate by no later than 1 July 2024, any submissions and supporting material, such submissions not to exceed 5 pages.

(4)   Direct the parties to provide to my Associate by no later than 8 July 2024 any submissions and supporting material in reply, such submissions not to exceed 5 pages.

(5)   Direct the parties to notify my Associate by no later than 8 July 2024 whether an oral hearing is sought in relation to the determination of the outstanding issues.

Catchwords:

SUCCESSION – family law – property – whether de facto relationship existed – factors in determining the existence of a de facto relationship – where plaintiff seeks Letters of Administration as de facto spouse – where estate in jurisdiction is essentially insolvent

SUCCESSION – jurisdiction – where court has jurisdiction to grant administration – whether deceased was domiciled in jurisdiction at time of death – no matter how far or wide he roamed he still called Portugal home

SUCCESSION – probate and administration – where distrust in relationship between de facto spouse and children of deceased – where necessary to appoint independent person as administrator

Legislation Cited:

Domicile Act 1979 (NSW)

Domicile Act 1982 (Cth)

Family Provision Act 1982 (NSW)

Interpretation Act 1987 (NSW)

Probate and Administration Act 1898 (NSW)

Property (Relationships) Act 1984 (NSW)

Succession Act2006 (NSW)

Cases Cited:

Amprimo v Wynn (2015) 15 ASTLR 41; [2015] NSWCA 286

Application of Perpetual Trustee Company Ltd; Re Estate of Late Dempsey [2016] NSWSC 159

Bar-Mordecai v Rotman (Estate of Hillston) (unreported, NSWSC Einstein J, 4 September 1998)

Bar-Mordecai v Hillston [2004] NSWCA 65

Blatch v Archer (1774) 1 Cowp 63

Chant v Curcuruto [2021] NSWSC 751

Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Eggins & Ors v Robinson [2000] NSWCA 61

Estate of the Late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324

Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477

ET-China.com International Holdings Limited & Anor v Cheung & Ors (2021) 150 ACSR 461

Forsyth v Sinclair [2010] VSCA 147

Fremlin v Fremlin (1913) 16 CLR 212

Hayes v Marquis [2008] NSWCA 10

Howland v Ellis [2001] NSWCA 456

Jonah v White (2011) 258 FLR 236; [2011] FamCA 221

Jones v Dunkel (1959) 101 CLR 298

NSW Trustee and Guardian v McGrath [2013] NSWSC 1894

O’Donnell v O’Donnell [2022] NSWSC 1742

Petersen v Gregory [2007] NSWSC 8

Piras v Egan [2008] NSWCA 59

Pollock v NSW Trustee and Guardian [2022] NSWSC 923

Re Cartier [1952] SASR 280

Re Estate of Crane (2005) 93 SASR 198

Robson v Quijarro [2009] NSWCA 365

Sinclair v Forsyth [2008] VSC 250

Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137

Vaughan v Hoskovich [2010] NSWSC 706

Ward v Anderson (Supreme Court (NSW), Waddell CJ in Eq, 6 June 1989, unrep)

Warner v Hung (2011) 297 ALR 56

Weston v Public Trustee (1986) 4 NSWLR 407

Yev Fung [2006] NSWSC 243

Texts Cited:

M. Davies, A. S. Bell, P. L. G. Brereton, M. Douglas, Nygh’s Conflict of Laws in Australia (10th ed 2019, LexisNexis Butterworths Australia)

J. D. Heydon, Cross on Evidence (14th ed, 2024, LexisNexis)

Category:

Principal judgment

Parties:

Evgeniya Legler (Plaintiff)
Nadja Legler (Defendant)

Representation:

Counsel:
R Wilson SC (Plaintiff)
J J Loofs SC with N Bilinsky (Defendant)

Solicitors:
Makinson d’Apice Lawyers (Plaintiff)
FCW Lawyers (Defendant)

File Number(s):

2022/236940

Publication restriction:

Nil

JUDGMENT

1. These proceedings concern the estate of the late Daniele Claudio Legler (the Deceased), who died intestate on 22 April 2022 in Lagos, Portugal, aged 72 years old and leaving substantial assets in at least New South Wales (NSW), Portugal, Lichtenstein and Malta.

2. By far, the majority of the Deceased’s assets were located overseas. The assets in NSW comprised two bank accounts totalling $59,022.83 and items of personalty in a self-storage unit located at Mullumbimby, NSW (NSW assets). The Deceased left debts of at least $68,369 meaning that, so far as concerns the NSW assets, the estate is ostensibly insolvent.

3. The plaintiff, Evgeniya Legler, formerly Evgeniya Vernon (who I refer to in this judgment as Zhenya being the name by which she is generally known) contends that she was the de facto partner in a domestic relationship with the Deceased at the time of his death. By her statement of claim filed 3 February 2023, Evgenia applies for the grant of letters of administration in her name.

4. The defendant (Nadja) is the eldest of the Deceased’s five children. By her amended cross-claim, filed pursuant to leave granted on the first day of the hearing, she applies for a grant of letters of administration in her name. In the alternative, she contends that an independent administrator should be appointed.

5. Given the common surnames of a number of the relevant actors, I will, where necessary, refer to people by their given names. I intend no disrespect or informality in so doing.

6. The proceedings were heard by me between 6 and 10 May 2024. Zhenya was represented by Mr R Wilson SC. Nadja was represented by Mr J J Loofs SC and Mr N Bilinsky. For the reasons set out below I have concluded:

1. The Deceased was domiciled in Portugal at the time of his death.

2. Zhenya was the Deceased’s de facto spouse at the time of his death (within the meaning of the relevant statutory provisions).

3. An independent administrator should be appointed.

4. The parties should be directed to seek to agree orders to give effect to these reasons, including as to costs.

Introduction to the issues

7. The two key issues litigated between the parties were whether Zhenya was in a de facto relationship with the Deceased at the time of his death and where was the Deceased domiciled at the time of his death.

8. An understanding of how these legal and factual issues fit together needs to begin with an understanding of a few basic facts as to the assets of the Deceased at the date of death and the principles of private international law applicable on intestacy.

9. At the time of his death, the Deceased was in Portugal, living at one of the family properties, known as La Punta, near Lagos in Portugal (La Punta), which he had recently purchased. There is an issue as to whether he was domiciled in Portugal (as contended by Nadja) or was domiciled in Australia (as contended by Zhenya).

10. The assets of the estate at the time of death, and their location, were, on the evidence before me, as follows:

1. $59,022.83 held in the trust account of Zhenya’s solicitors (being funds withdrawn by Zhenya from various bank accounts held by the Deceased shortly after his death);

2. Items of personalty in a self-storage unit located at Mullumbimby, NSW, apparently valued at $25,000;

3. Funds held by VP Bank in Lichtenstein – estimated value €2,150,000;

4. 1,200 shares in Villa Baha Limited in Malta, the corporation owning the La Punta residence – estimated value €2,500,000;

5. Kracken, Payword Ltd (Crypto Exchange) – estimated value €733,000, located in the United Kingdom; and

6. Personal loan to Daniel Simon Feenstra in New Zealand – estimated value $47,000.

11. It also appears that the estate has an outstanding debt in NSW for school fees in relation to the children of the Deceased’s second marriage, in the sum of $68,369.

12. The NSW assets comprise only moveables. It was not in dispute that the succession to moveable property on intestacy is determined by the law of the domicile of the intestate (in contrast to immovables where the lex situs is determinative): see Nygh’s Conflict of Laws in Australia (10th ed 2019, LexisNexis Butterworths Australia) (Nygh’s) at 38.4 and 38.7.

13. The NSW assets obviously need to be dealt with, hence the need for the appointment of an administrator of the Deceased’s estate. The parties were agreed that, given the Deceased died with property in NSW, the Court has jurisdiction to grant administration of the Deceased’s estate: see s 40 of the Probate and Administration Act 1898 (NSW) (PAA).

14. Zhenya’s contention to be appointed as administrator relies on s 63 PAA and her contention that she was the Deceased’s “spouse” at the date of death. I set out the relevant statutory provisions in this regard below.

15. Determining whether or not the Deceased was domiciled in Australia at the time of his death will assist in determining what happens to the Deceased’s assets, including the NSW assets.

16. The position in relation to the assets other than the NSW assets is far from straightforward and will potentially be affected by the laws applicable in the jurisdiction where the assets are located and potentially further proceedings in those overseas jurisdictions.

17. For the most part, there was no evidence as to the applicable overseas laws, save for those applicable in Portugal. The parties jointly retained an expert in Portuguese Law – Professor Rita Xavier. She relevantly opined that:

1. Portuguese Courts recognise that the place of the domicile is determinative of an entitlement to succession as regards to moveables;

2. If Portuguese law is applicable, the Deceased’s five children would be the sole heirs of the Deceased. Portuguese law does not recognise co-habitants as each other’s legal heirs;

3. In the absence of a choice of law by the testator, the law applicable to the succession is the law of the State in which the Deceased had his habitual residence at the time of death;

4. A Portuguese Court could recognise Zhenya’s claim as a de facto partner if the Court reached the conclusion that the Deceased’s place of domicile at death were somewhere other than Portugal and that jurisdiction so provided;

5. If no proceedings were brought seeking to challenge domicile, the Deed of Inheritance obtained by Nadja providing for her siblings to inherit would be binding and would have effect; and

6. A Portuguese Court would not be bound by any decision of the NSW Supreme Court in the present proceedings in relation to the domicile of the Deceased but rather must assess the facts for itself and issue an autonomous judgment on the issue.

General approach to fact finding

18. The events the subject of these proceedings covered a number of years, commencing in about 2016 when it would appear that Zhenya met the Deceased. Considerable evidence was given, particularly by Zhenya of conversations and dealings that she contends that she had with the Deceased who obviously is unable to respond to those matters.

19. Bearing in mind these characteristics of the evidence in the present case, I approach fact finding informed by the following matters:

1. When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of the fact: see, among numerous authorities, Warner v Hung (2011) 297 ALR 56 at [48] per Emmett J;

2. Reliable contemporaneous records such as they exist, are likely to provide the most reliable evidence as to what occurred, or at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: see ET-China.com International Holdings Limited & Anor v Cheung & Ors (2021) 150 ACSR 461 at [25]-[30] per Bell P (Bathurst CJ and Leeming JA agreeing); and

3. In a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available: see Eggins & Ors v Robinson [2000] NSWCA 61 at [26] per Sheller JA; see also Chant v Curcuruto [2021] NSWSC 751 at [262]ff per Hallen J.

20. It is also axiomatic that “all evidence is to be weighted according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”: see Blatch v Archer (1774) 1 Cowp 63 at [65]. Allied to this general principle is that a party’s failure to produce documentary evidence to corroborate their account, where they might be expected to be in possession of such documents, may give rise to an inference that such documents as they may be expected to have would not support their account: Jones v Dunkel (1959) 101 CLR 298 at 320; Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 per Handley JA.

21. This last observation is particularly apposite in the present case, where it was not in dispute that Zhenya had access to all of the communications she had written with the Deceased but had obviously chosen to put only some of those communications before the Court.

22. It must be appreciated, however that a Jones v Dunkel inference can only go so far:

1. It entitles the trier of fact the more readily to draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had that party chosen to call evidence;

2. It does not permit an inference that the intended evidence would in fact have been damaging to the party not tendering it;

3. It cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference:

see J. D. Heydon, Cross on Evidence (14th ed, 2024, LexisNexis) at [1215].

General observations on witness credit

Zhenya

23. The principal witness in Zhenya’s case was Zhenya herself. She made two affidavits and was cross-examined over three days. She was subject to a sustained credit attack.

24. Zhenya was an unsatisfactory witness in a number of respects. I treat her evidence with extreme caution and, for the most part, only accept it when it is against her interest or is corroborated by objective evidence or unchallenged evidence from others.

25. Zhenya repeatedly refused to answer the question that she was asked but instead made long speeches which she believed would assist her case.

26. She repeatedly also indicated in answer to questions – often to the effect that there was no objective evidence which she was able to provide in support of evidence she had otherwise given – that there was considerable other evidence in the form of text and WhatsApp messages and other emails, that would be provided at the appropriate time. Save for one email that was produced by Zhenya in response to a call made during cross-examination when she left the witness box to access her phone, in relation to [42] of her first affidavit, and a further text exchange with the Deceased on 31 March and 1 April 2022 no further corroborating material was produced. The tender of a further document in re-examination was not pressed.

27. Two examples, of many, stand out as unsatisfactory aspects of Zhenya’s evidence. First, the evidence that she gave in relation to whether or not she wished to have a baby with Sean Dignum (Mr Dignum), who appeared to be her on-and-off boyfriend. On the first day of her cross-examination, Zhenya readily admitted to wanting to have a baby with Mr Dignum. When the topic was returned to on day two of her cross-examination, in the context of her actions after learning of the Deceased’s death, Zhenya steadfastly denied that she had ever wanted to have a baby with Mr Dignum, and even went so far as to suggest that she commenced using contraception to avoid falling pregnant. The contemporaneous documentation, including Zhenya’s own text messages and emails, suggest quite strongly that she wanted to have a baby with Mr Dignum.

28. I was puzzled as to why Zhenya changed her evidence is this regard. The change appeared to be motivated by a concern by Zhenya that admitting to wanting to have a baby with Mr Dignum would somehow cut across the evidence that she was giving in relation to her relationship with the Deceased and her desire to have a baby with him.

29. Second, and perhaps more importantly given that it went to the heart of the issue of domicile in the case, was the contrast between the instructions originally provided by Zhenya to Portuguese lawyers immediately after the Deceased died to enable them to commence proceedings in Faro, Portugal on her behalf, and the evidence now sought to be given in these proceedings and in subsequent proceedings commenced in Lisbon. I set out the evidence in detail below.

30. These two sets of evidence are quite inconsistent with each other in terms of the Deceased’s permanent residence. Zhenya admitted as much in cross-examination. She sought to deflect attention away from the earlier instructions to Portuguese lawyers on the basis that those proceedings have now been withdrawn and some suggestion that Zhenya did not fully understand the nature of the initial proceedings. I do not accept these explanations by Zhenya. The evidence deals with the relatively simple topic of where the Deceased and she were living. One view of the earlier instructions (as opposed to the contentions advanced in these proceedings) is that they were given at a closer point in time to the events in question and thus might be thought to be more accurate.

31. It is difficult to avoid the conclusion that Zhenya was simply providing whatever instructions she thought at the time would best assist the legal position she was wishing to contend for at the time. This tells against her general honesty and integrity.

Irina Bruk

32. Irina Bruk is the Honorary Consul-General of the Russian Federation for Queensland and Victoria (Ms Bruk). She gave evidence on two topics. First, a discussion that she had with the Deceased on or about 29 January 2021 about his relationship with Zhenya. Second, her communications with Zhenya relating to the purchase of the engagement ring on 2 April 2022.

33. Her credibility was challenged. It was put to Ms Bruk in cross-examination that, in substance, she was saying what she was asked to say by Zhenya, rather than the truth. Ultimately, no submission to this effect was pressed in closing. It was, however, suggested that I should not accept her account of the 29 January 2021 conversation essentially on the grounds that her recollection could not be that good.

34. I do not accept this criticism of Ms Bruk. She gave her evidence in an honest and clear way, and I accept it. The evidence of the conversation is, however, of limited assistance on whether the Deceased and Zhenya were contemplating the purchase of real property in Australia. The evidence in relation to the engagement ring is also of limited assistance. Ms Bruk’s evidence does provide some independent evidence on the nature of the relationship between the Deceased and Zhenya.

Nadja

35. Nadja was quite an impressive witness. She gave her evidence in a calm and composed manner. She made concessions where appropriate. In particular, she accepted that, although she was not aware of it at the time, having now reviewed the material in evidence in the case, as well as having regard to the text from Zhenya to Janis dated 2 December 2020, which Janis subsequently showed to her, that the relationship between her father and Zhenya went beyond that of a personal assistant and included the two having a sexual relationship.

36. She also agreed that she took the view that what Zhenya was doing in these proceedings was seeking to cheat her and her siblings out of their rightful inheritance, although she appeared to not quite understand the term “cheat out”.

37. The only aspect of her evidence that I have difficulty accepting concerns why it was that Zhenya was included in the death notice published in relation to the Deceased. Contrary to Nadja’s evidence that Zhenya was named because she was simply a friend of the Deceased, I think it more likely she was named in recognition of the close personal relationship she had with the Deceased.

Janis

38. Janis was also quite an impressive witness, who gave his evidence in a calm and composed manner. His credibility was not seriously challenged. I accept his evidence.

Nico

39. Nico gave evidence by video from La Punta. He gave his evidence in a straight-forward manner. His credit was not seriously challenged. I accept his evidence.

Hans Niederman

40. Hans Niederman gave evidence by video from London whilst he was travelling. He was an impressive witness. He made concessions where necessary, particularly as to the existence of a sexual relationship between Zhenya and the Deceased.

41. Again, his evidence was not seriously challenged, and I accept it.

Dr Alberto Ferrari

42. Dr Alberto Ferrari gave evidence by video from Italy. He was also an impressive witness whose evidence was not seriously challenged. I accept it.

Dorina Mugur

43. Dorina Mugur was the cleaner at La Punta from August 2020. She worked every Friday for approximately 5 hours. She gave evidence by video from Romania. I accept her evidence although it must be appreciated that some of that evidence, particularly as to the number of occasions on which she saw Zhenya at La Punta, is of little assistance given that she was only working one day a week.

Marie Jose Pena

44. Marie Jose Pena was the property manager for La Punta. She gave evidence by video from La Punta. She gave her evidence in a straight-forward manner providing responsive answers to the questions she was asked. I accept her evidence, although, again, it is not overly significant in the overall determination of the key issues.

Manuel Joao Da Canceicao Marreiros

45. Manuel Marreiros was the gardener at La Punta. He gave evidence by video from La Punta. His evidence was not seriously challenged, and I accept it.

46. An issue that emerged when Mr Marreiros was called was that he had been provided with a copy of his affidavit which had been translated into Portuguese, in circumstances where the affidavit he prepared dated 22 June 2023 was written in English and translated verbally to him. I did not understand senior counsel for Zhenya to ultimately contend that this affected the veracity of Mr Marreiros’ evidence.

Gerald Berger

47. Gerald Berger was an asset manager engaged by the Deceased in about August 2020. He gave evidence from Switzerland. His evidence was quite limited and was not challenged. I accept it.

Sean Dignum

48. Mr Dignum was a former partner of Zhenya. The two kept in contact to some extent throughout Zhenya’s relationship with the Deceased and immediately after he died.

49. It is clear that the relationship between Zhenya and Mr Dignum was quite tumultuous. Their relationship ended badly and resulted in criminal proceedings being commenced against Mr Dignum. There was in evidence a number of communications between Zhenya and Mr Dignum over the years which included, as Mr Dignum admitted in cross-examination, quite offensive language.

50. Mr Dignum admitted in cross-examination that he did not like Zhenya. He also admitted that whilst he had agreed to give evidence at the request of the Legler family, he had travelled from his home in Victoria to Sydney at his own expense and had sat outside Court for most of the period from the start of the hearing until he gave evidence – which was on day 3 of the hearing.

51. These matters – principally the admitted acrimony between Mr Dignum and Zhenya – causes me to approach Mr Dignum’s evidence with a degree of caution. For the most part, however, I have only placed reliance on some of the communications between Mr Dignum and Zhenya. These communications, notwithstanding the troubled relationship between the two, are of some assistance in assessing the extent and strength of the relationship between Zhenya and the Deceased, as they are communications from Zhenya which she did not herself disclose.

Other witnesses not required for cross-examination

52. Affidavit evidence was read on behalf of Zhenya from two witnesses who were not required for cross-examination.

53. First, Yevgeniy Kushkin (Mr Kushkin), a business owner and former Deputy Director of International Relations of Sverdlovsk Film Studios in Ekaterinburg, Russia. He has known Zhenya since November 2003. Relevantly, he gave evidence of several dealings that he had with Zhenya and the Deceased in Portugal in November 2017, in Ekaterinburg in November 2017 and again in October 2018. His evidence was relevant to the nature of the relationship between the Deceased and Zhenya.

54. Second, Alvaro Silvera De Menses, an Attorney registered at the Portuguese Bar Association. In or about December 2020, he was retained by the Deceased and Zhenya to provide legal and taxation advice on the potential tax implications in Portugal arising from a “complex investment structure” the Deceased advised he had inherited. He also gave evidence as to the tax status of Zhenya and the Deceased in Portugal.

Two Critical Issues

55. As set out above, two of the critical issues in the case are:

1. Where the Deceased was domiciled at his time of death; and

2. Whether Zhenya was the Deceased’s de facto spouse at the time of death.

56. Each of these issues raise factual questions to be determined against the background of the relevant law. I first set out the factual chronology. I then consider these two issues.

The factual chronology

57. A determination of the key factual issues in the proceedings involves an understanding of the facts as a whole. Accordingly, I set out below the factual chronology.

58. It should be observed at the outset that a large part of the documentary material in evidence consisted of records evidencing travel and accommodation charges incurred by the Deceased and Zhenya. Zhenya also put into evidence a spreadsheet which she had prepared which purported to summarise, chronologically, the time that she spent with the Deceased, and where this time was spent. The underlying travel and accommodation records were intended to support this schedule.

59. I set out in the chronology below the time periods from the spreadsheet where Zhenya contends she was with the Deceased. A significant factual issue at the hearing was the extent of Zhenya’s relationship with the Deceased and whether she spent as much time with him as she says she did. The documentary records only go so far on this issue, and in particular do not greatly assist in resolving how much time Zhenya spent with the Deceased when he was at La Punta.

60. The Deceased was born in Italy on 28 January 1950. His father, Fredy Legler was apparently a pioneer in textiles, particularly in denim and from that accumulated considerable wealth, which was held by a foundation, established under Article 335 of the Swiss Civil Code (Legler Foundation). The Deceased went to boarding school in Switzerland, graduating in 1968.

61. In the 1970s, the Deceased went to university in Switzerland before entering the Academy of Dramatic Arts in Zurich and then pursuing a career in acting.

62. In about 1991, he married his first wife Rosemarie and the three children of that marriage were born in 1991 (Nadja), 1993 (Janis) and 1995 (Nico) respectively. The marriage ended in divorce in 1998.

63. The Deceased met his second wife (Susan/Selila) in about 1998 and they initially lived in Italy. They moved to Australia and in early October 2000, Susan bought a house in Melbourne with assistance from the Deceased.

64. In 2001, the Deceased received a right to live and work in Australia under a subclass 461 Visa (as a member of a family unit of Susan, a New Zealand citizen). From then on, the Deceased was issued with subsequent visas every five years. On 4 July 2002, the Deceased married Susan in Melbourne.

65. In 2004, Zhenya (then 24 years old) moved to Australia with her husband (Mr Vernon), a British citizen.

66. In 2007, the Melbourne house was sold, and the Deceased and Susan moved to New Zealand to live and on 24 April 2008, Aidan and Mattia were born (the Twins).

67. In 2010, the Deceased and Susan returned to Australia with their two children, renting in Byron Bay. A property in Queensland was subsequently bought by Susan in late 2013 apparently using, at least in part, funds provided by the Deceased.

68. Zhenya became an Australian permanent resident in 2012 and completed a diploma to qualify her as a migration agent. She was divorced from her husband in 2010.

69. In about March 2014, Zhenya commenced a relationship with Mr Dignum. She ran her migration business from his apartment.

70. The Deceased and Susan separated in about early 2015. Later in 2015 the Deceased’s mother passed away. At the time she had been living at La Punta. Each of Nadja, Janis and Nico gave evidence about La Punta, it being one of the Legler family residences which they had visited for school holidays. In May 2015, Maria Pena was engaged as the Property Manager for La Punta, and in mid-August 2015, met with the Deceased to give him a key for general access to the property.

71. La Punta was, by all accounts, a large property adjacent to the ocean. The main dwelling was a two-storey dwelling containing five bedrooms.

72. It would appear that it was about this time in 2015, after his separation from Susan and likely also after the death of his mother, that the Deceased left Australia and commenced living at La Punta. The evidence was not entirely clear as to precisely when the Deceased commenced living at La Punta but it is not necessary to make my findings as to precisely when.

73. Both Janis and Nadja gave evidence of their father saying at the time that he was done with Australia. He told Janis that he had decided to come and live in Portugal. He told Nico that “[La Punta] is my new home.”

74. It would appear that it was shortly after moving to La Punta that the Deceased first considered buying La Punta, as it was in September 2015 that he wrote to Maya Pfrunder, a representative of the company that managed the Legler Foundation which held the shares in the company incorporated in Malta that owned La Punta. A formal intention to buy the shares was conveyed a year later in September 2016 at a Fly Information session in Zurich.

75. The Deceased first met Zhenya in about November 2016 when he contacted her for help in obtaining a bridging visa which the Deceased required consequent upon his separation from Susan. In December 2016, the Deceased and Zhenya went to dinner and apparently a mutual attraction developed from this point.

76. In connection with his application for a bridging visa, the Deceased stated, inter alia:

Since 2002, I have been travelling extensively as an acting coach and lecturer to train students around the world… I haven’t resided anywhere else on a permanent basis and always regarded Australia as my home, my two young children live in Australia for whom I provide full support.

77. In early 2017, the Deceased was in Australia visiting his twin boys. He returned to Portugal in early July 2017. Zhenya visited her mother in Spain in about June 2017 and they both travelled to Portugal and stayed with the Deceased at La Punta. Zhenya says she stayed for approximately two months from June 2017 to August 2017. Having regard to the Deceased’s email to Zhenya dated 22 June 2017 (extracted below) it was likely that the Deceased returned to Portugal on 3 July 2017 and she stayed with him from then.

78. On 22 June 2017, the Deceased sent an email to Dr Ferrari in which he stated in relation to Zhenya:

I suggest a telephone call for you to Zhenya Vernon, my Russian visa agent in Melbourne who is taking care of my visa 461, for the five coming years…She is very good and she knows all the details that she needs to know…on Google you see that she is beautiful and has been awarded for body sculpture…but I had nothing to do with this, that is I am not getting in it…!

79. The context for this email and introduction of Zhenya to Dr Ferrari was because the Deceased was “changing location” – which I infer was a reference to where he lived. He wrote to Zhenya by email on 22 June 2017 stating:

I’m still in Oz until July 3d, then Portugal, as you know.

As I’m changing location, it’s important to assess my residency and tax…

80. Dr Ferrari and Zhenya then exchanged emails where Dr Ferrari asked “in the event” that the Deceased wanted to change his civil and fiscal domicile abroad, whether this would lead to the automatic loss of his visa and how long in a calendar year the Deceased could stay in Australia without a visa. Zhenya responded to the effect that if the Deceased moved his domicile abroad and lived predominantly abroad it would not result in automatic loss of his visa, and to maintain his visa indefinitely, if he continues to have personal ties with Australia (being his two young children), he should not be absent from Australia for a continuous period of five years.

81. Tax advice was then obtained by Dr Ferrari from specialist tax advisers in Portugal about the Deceased’s tax position in Portugal if he were domiciled in Portugal.

82. On 30 June 2017, the Deceased was granted a substantive 461 visa, with an expiration date of June 2022.

83. Zhenya returned to Australia in mid-August 2017 and resumed living with Mr Dignum. The evidence contained text exchanges between Zhenya and Mr Dignum from late October 2017 which suggest they were still in a romantic relationship at this time. Email exchanges suggest that the relationship between the two broke down in late November 2017.

84. Zhenya contends that it was in October 2017 that she and the Deceased started living together as a couple on a genuine domestic basis. Whether this was so was in dispute. It does not appear to be in dispute that Zhenya travelled to Portugal and stayed at La Punta whilst the Deceased was there. A friend of Zhenya, Mr Kushkin and his daughter stayed at La Punta with them for a couple of days in early November 2017. Mr Kushkin gave unchallenged evidence that Zhenya described the Deceased at this time as her “new partner”, although he did not give any evidence of them acting as a couple at this time.

85. Between 7 and 15 November 2017 Zhenya and the Deceased travelled to Russia together where the Deceased taught acting classes in Moscow, St Petersburg and Ekaterinburg. Zhenya contends that the Deceased met her family and that she was introduced as his partner. Nadja, Janis and Nico were there for part of the time in Moscow. The Deceased apparently introduced Zhenya to them as his assistant who was co-ordinating “things for me here as she speaks Russian.” None of Nadja, Janis and Nico observed the Deceased and Zhenya behaving as a couple.

86. Mr Kushkin gave evidence of spending some quality time with the Deceased and Zhenya in Russia, including a tour of Ekaterinburg. Again, however, he did not provide any specific evidence as to what he observed.

87. The Deceased spent Christmas at the family ski lodge at Klosters with Nadja, Janis and Nico. Zhenya joined them. According to Janis, his father said to him that “Zhenya is travelling through Europe and is staying with us for a few days.” Nico did not observe any signs of affection between the Deceased and Zhenya.

88. Zhenya returned to Australia in around early January 2018 and resumed her relationship with Mr Dignum. She gave evidence that her relationship with the Deceased as a couple living together on a genuine domestic basis stopped at this time and did not recommence until September 2018. Zhenya, her mother and Mr Dignum travelled to the Dandenong Ranges in late February 2018. A number of text messages between Zhenya and Mr Dignum were in evidence suggestive of this being a rather tumultuous relationship with Mr Dignum telling Zhenya their relationship was over in late April 2018 when he revoked her access to stay in his apartment.

89. In April 2018, Zhenya then travelled to Portugal to be with the Deceased. Whilst she was overseas Zhenya continued to text Mr Dignum seeking to continue a relationship with him. Mr Dignum’s responses suggest that he was no longer interested in having a relationship with Zhenya. These communications suggest that an important matter for Zhenya continued to be to have a baby with Mr Dignum. In one exchange with Mr Dignum Zhenya stated:

I take this message as that you don’t want to be a ‘sperm donor’ …what a waste of 5 years…I also think your sperm doesn’t work…if you are definitely officially withdraw [sic] from willing to be a father please confirm and I let you your wishes come through

90. Zhenya continued to send emails to Mr Dignum, suggesting that she wanted a relationship with him. On 24 April 2018, she wrote an email to Mr Dignum in which she said “…and remember I love you very much and you are the only mens I miss…xxxx..”. Later on 30 April 2018, in an email to Mr Dignum, Zhenya wrote “My dear Sean I miss you so much…” and “…it’s nothing here in Europe interests but good food”.

91. Zhenya returned to Australia in about June 2018 without the Deceased. There continued to be some communication and interaction between Zhenya and Mr Dignum up until September 2018. The communications again suggest that Zhenya was wanting to pursue a relationship with Mr Dignum.

92. In about September 2018, Zhenya went back to Portugal to join the Deceased. It was at this time that she contends that she recommenced her relationship with the Deceased, which continued until his death.

93. In October 2018, they travelled to Zurich to meet with Dr Ferrari. Dr Ferrari’s unchallenged evidence is that Zhenya was not introduced by the Deceased as his partner and that he did not observe any signs of affection between them.

94. In October 2018, the Deceased and Zhenya returned to Russia for the Deceased to teach an acting masterclass. It was during this time that the Deceased spoke with Mr Kushkin who gave unchallenged evidence that the Deceased said to him:

I love Zhenya. She is very important to me.

And also:

Now that I am with Zhenya and our lives are centred around Australia, I hope to start teaching there again. I plan to go back to Australia soon to see my twins….

95. In November 2018, both the Deceased and Zhenya returned to Australia for a period of five months and stayed in rented accommodation in Richmond, Melbourne, Victoria. They then travelled to Singapore for a short period where they met up with Nico. There were some discussions about the Deceased’s children obtaining Australian passports. The unchallenged evidence of Nico was that the Deceased and Zhenya stayed in separate rooms and there were no signs of affection between them. Nadja also gave unchallenged evidence that the Deceased and Zhenya had separate rooms and that she did not observe any signs of affection between the two.

96. Throughout 2018 there were communications between Pitcher Partners (the Deceased’s Australian tax accountant) and Dr Ferrari in relation to the Deceased’s Australian tax affairs. An issue was whether the Deceased continued to be a resident of Australia for tax purposes. A “no return necessary” form was lodged for the financial year ended 30 June 2017. On or about 13 September 2018, Pitcher Partners asked Dr Ferrari for confirmation on “the exact date [the Deceased] became a non-resident of Australia for tax purposes. Can you please advise me of the date [the Deceased] left Australia permanently.” (emphasis in original)

97. On or about 6 December 2018, Dr Ferrari responded:

The client left Australia after his marriage was separated July 2016. Even before that time, he was not living with his family any more, approx. since summer 2015. Since then, he was living in his late mother’s house in Portugal, and still does so to the day. Since 2016 the client has had no professional activity in Australia, the one and only link to Australia being his children who live there, and one bank account. The client lived since then between Switzerland, of which he is citizen, and Portugal.

Beginning August 2016 the client sought to apply for residence in Portugal, and on June 2018 the resident status was confirmed with effect as of 01/10/2018. The client claims therefore that he left Australia permanently since August 2016 and returned there only sporadically for relatively short visits to his children, no other activity being involved there.

Please let me know if need any documents, and let me know your comments to the above.

98. On 9 December 2018, Zhenya emailed Mr Dignum saying “I am very badly managing the separation” and “I love you Sean and it has never been different from the day one”.

99. From the Deceased’s perspective, it would appear that the relationship between Zhenya and the Deceased changed from a professional one to also include a personal relationship in about late 2018. This emerges from the Deceased’s email to Dr Ferrari, who was then providing legal services to the Deceased but was also an old friend, the two having gone to boarding school together. His email to Dr Ferrari dated 10 December 2018 was as follows (bold emphasis added):

Dearest,

I hope that everything is ok. I will let you know more later, but now (just) this: a note before the telephone meeting with Zhenya etc.

Zhenya is great, she does almost everything and better. Chekhov, with Russia and OZ, contracts, banks , Singapore, plane tickets, logistics, Pitchers tax control, which you all deal with, all good and necessary.

Then for me, Air-bnb here in Oz, continuous changes, in Russia, Saudi Arabia, during travel, she skillfuly responds to Salila’s intrigues (which drive me crazy, as you know). At the moment she co-ordinates my life, ok, this is a fact.

Good negotiator, once instructed, I pay her and she is unpretencious [sic], it is like a bit of a swap, she learns Chekhov and makes her self known, she is capable, a manager, diplomatic, arranges meetings, deals with the Russian House, the Russian Government and OZ, she has contacts in both countries, and now even with the Middle East, follows the accounts well, organises all rent-a-car , my holidays with Mattia and Aidan, she is discrete, ‘invisible’ (self effacing) she easily follows unavoidable changes, I consider her a secret person, a friend, and lately a little bit more: ..ah ah !! A leopard can’t change its spots….

I don’t tell her everything, but she obviously knows certain things since she followed my visa, and then for the Chekhov visa and so on. She knows a few things, unavoidable, Legler, Italy , foundation (without figures) … and I wouldn’t want to end up like the “tycoon” with the Russian lady who strips him of his wealth… in fact, I advise her to find a man of her own age, or just about (she would have nothing against it but she says she can’t find one, and being aged 38 she had her “eggs” frozen (for foreseeable pregnancies) you never know ….. I will get sterilized before the same thing that happened to Becker happens to me (do you know it? If you want, I will tell you).

Let’s look at it lightly… a small adventure maybe almost unavoidable, kept secret from all, except for you (she doesn’t know that you know, but don’t say anything!!!), you are an advisor and a friend….

In my opinion, trusting is good but not trusting is better… the devil’s advocate says that Zhenya is Russian (even though she is Australian) and as they say, the Russian women go all the way and don’t let go…I will also be interesting in the Chekhov project which will put her in evidence in Russia and OZ, but I am 68 and there is some money, she knows and she doesn’t know, she imagines it…

At the moment I still feel safe…(what a statement) …but in Australia, by law, after six months you are in a ‘relationship’, and it is worth half-half….even if the situation has recently started…but all emails show us being in a ‘relationship’, if one wants to see it that way…whichever way, maybe I exaggerate and be mistaken, but my message to you is above, said in Bergamasco (Translator’s Note: dialect from the city of Bergamo).

Therefore, let’s go on like this, but with caution, thanks. I don’t have paranoia, but I am watchful, once I am from Glarus as well. (Translator’s Note: native of a town in Switzerland).

We have invitations to Russia, well paid now, and I will make a contract with Zhenya for clarity, I think based on 50% (or 51/49 like my father used to do) I produce (intellectual property) and she sells (without Zhenya, no Russia…) In other words: half-half, that’s the idea, how do you see it?

We finish a new doc and maybe tutorials and lessons. Everything is on the move, all to be seen and nothing matter of millions, but clear deals. Things are promising in Russia, and as long as things are like this, we go on, however, I don’t know for how long, and I don’t want to make mistakes with this (I will also speak with Hans) and here I am talking with a Lawyer.

And on a personal level, I intend to get sterilized even though my virility is not what it used to be….but I don’t want to take any risks…. and I will also have to change some accounts and numbers, and as for the rest we will see; one cannot be more sincere than this…

Zhenya is of great help and a pleasure, for the moment I trust her, but I trust you more, if you allow me.

Hugs,

Dany

Please destroy this email after reading it, thanks

Sent from my iPhone

100. On 7 December 2018, Dr Ferrari wrote to Zhenya to the following effect:

Dear Ms Vernon,

As you know, Dany is on a prolonged visit in Australia, he planned to stay all in all for approx. 2 months.

Dany moved his domicile from OZ to Portugal during 2017, and is formally a resident of Portugal. Does this affect his Visa for Australia? Is there awareness on the side of the Australian immigration authorities that he is no longer resident of Australia?

Maybe I am too much concerned, but I wanted to address this aspect so as to be sure we are doing everything correctly.

101. Zhenya’s response did not dispute Dr Ferrari’s statements in relation to the Deceased’s domicile, including that he was visiting Australia and had moved his domicile to Portugal.

102. The correspondence between Dr Ferrari and Zhenya in relation to the Deceased’s tax affairs continued into 2019. On 30 January 2019, Dr Ferrari stated:

Residence: Dany actually lived in Portugal already in the year 2016, having been separated in 2015, and actually having given up his AUS domicile then. In 2017 he was well settled and living in Portugal.

103. On 23 January 2019, Zhenya sent an email to the Deceased attaching “a summary of my expenses and earnings from 01 November 2018 till current (2,5-3 months).” Two figures are provided. The first for expenses – “comprised of my personal expenses, some business costs and your borrowings (expenses)”. The second was for “anticipated earnings for the activities to do with family travel arrangements, communication and some Chekhov (1,100 + 500) per month, equalling 4,800 for 3 month”. The email ended “Ask me if something is not clear or if I have been eating out too much of luxuries instead of cooking”. The Deceased’s response was “All good let me know how much I owe you totally”. Nadja put some reliance on this correspondence on the issue of whether a de facto relationship existed, it being contended that the relationship was essentially a professional one for which Zhenya was being paid. I deal with this issue below. Whilst this evidence is undoubtedly relevant, there is more probative evidence as to the true nature of their relationship.

104. In January 2019, Zhenya and the Deceased apparently went to Fiji together for 10 days.

105. According to Zhenya, she spent considerable time overseas with the Deceased in 2019, including:

1. 26 February to 7 March 2019 – Italy and Portugal;

2. 7 March to 15 March 2019 – Egypt;

3. 15 March to 17 March 2019 – Rome;

4. 17 March to 14 April 2019 – Portugal then Russia;

5. 15 April to 22 April 2019 - Portugal then Russia;

6. 26 May to 10 June 2019 – Portugal;

7. 29 June to 15 July 2019 – USA and Canada;

8. 15 July to 2 September 2019 – Portugal;

9. 2 September to 14 September 2019 – Italy and Switzerland;

10. 14 September to 15 October 2019 – Portugal; and

11. 2 December 2019 to 19 January 2020 – Portugal.

106. There are many photos in evidence of the Deceased and Zhenya together during 2019 in various locations around the world, including a number of tourist attractions. The photographs are suggestive of a personal, and not merely professional, relationship between the two. They include the Deceased and Zhenya with their arms around each other and dining together (including with friends of the Deceased).

107. In June 2019, the Deceased and Zhenya travelled to Bergamo, Italy, to celebrate the birthday of a friend of the Deceased, where Zhenya contends she was introduced as the Deceased’s partner or de facto spouse. Mr Niederman gave evidence in chief to the contrary, that the Deceased did not introduce Zhenya as his girlfriend or partner and that she was there on the trip to help the Deceased “with stuff and this is very useful”. In cross-examination however, Mr Niederman gave evidence that he assumed the Deceased and Zhenya were sharing a room.

108. In July 2019, Zhenya spoke to a representative of the Australian Taxation Office, in the presence of the Deceased concerning whether the Deceased had any outstanding Australian tax obligations. She then sent an email to Dr Ferrari summarising the discussion. The email included:

Dear Alberto

I have spoken with an Australian Taxation Office as a representative of Dany.

I was identified and granted an authority to assist with the tax matters as non-accountant and friend.

Dany was present during the phone call and was able to hear the conversation.

The conversation lasted for about 20 minutes. After some internal checks it was confirmed, that Dany is not liable for any future tax returns. It was also confirmed, that the tax return 2016 is not necessary, as Dany left Australia permanently for overseas/preparing/wrapping up the outstanding matters around that time.

Furthermore, the tax officer winded up the necessity of tax return for 2016 manually, despite knowing about bank interest accrued. The changes already have reflected in ATO online system – see the screenshots attached.

The tax officer was informed about the reminder letter you forwarded for my attention, dated 19 June 2019, and confirmed that it is no longer valid.

109. On 27 October 2019 Zhenya sent an email to the Deceased to the following effect:

There is an online form in Victoria for registering a relationship…may be it is useful to fill the online form to have a print out as some proof for to [sic] enter and stay in Europe, without running for department or witnesses in case of immigration procedure….I called the office and they said it may not valid in other countries at all, as it’s only for Victoria…still better than nothing or?

110. As will appear in the chronology below, some forms were lodged in Victoria seeking to register their relationship, but Nadja challenges whether these forms were lodged with the knowledge/consent of the Deceased.

111. Zhenya and the Deceased spent Christmas together at La Punta. There was also in evidence a number of photographs of a birthday party held for the Deceased in January 2020 in Portugal which show Zhenya and the Deceased sitting together with other members of the Deceased’s family. On 5 February 2020, Zhenya became registered as a tax resident of Portugal.

112. On 12 February 2020, Zhenya lodged an application to register her relationship with the Deceased in Victoria. On this date, she also sent an email to the Deceased which included:

…

On the other matter ... yesterday I visited the Portuguese consulate here for advice on how to apply for the residency visa in Europe based on that I am with Portuguese resident for the period of time…they told me even though I have that record in local junta we did with Manuel and Larissa, It does not mean that the period of two years is automatically fulfilled to apply for the temporary permit now (which will only become permanent in five years). I still will need to supply further proof. The paper which we did, is only dated 4 Feb 2020 – good start, but itself is not enough. I was advised to make a self-declaration in Victoria registry (they have any opportunity to back date – again, it’s a self – proclaimed only, that we know each other from Australian times) – at least to have some document, which can be translated in Portuguese to make the Portuguese authority happier (it is still unusual for them to give residency permits to non-married foreigners, as this did not exist for many years and still rigid). If I won’t come with some paper – they may going to interview me at the immigration office, where I will have to tell a story on how we met, and were travelling, and what places, etc and they may want to interview you etc…so to avoid this – the self-declaration may help. You don’t need to do anything – if you think it is ok I can initiate it and you will be sent a link to your email to confirm – and I can of course follow and fill it all up, etc. What do you think? More difficult than I though. May be you just leave me now for some nice Portuguese citizen girl on the beach :(

113. On 26 February 2020, the Deceased and Zhenya travelled from Portugal to Zurich to attend the funeral of the Deceased’s father’s de facto partner, Annette Ringier.

114. On 12 March 2020, a Relationship Certificate was issued by the Victorian Registry of Births, Deaths and Marriages registering the relationship between Zhenya and the Deceased. As set out above, there was an issue in the case as to whether this certificate, which was issued following an application made by Zhenya, was made with the knowledge/consent of the Deceased.

115. On 24 May 2023, the Victorian Registry of Births, Deaths and Marriages wrote to Zhenya informing her that the Relationships Register has been amended cancelling the entry of the domestic relationship between Zhenya and the Deceased. Two reasons were provided for the cancellation. First, the failure to lodge statutory declarations from each of the applicants verifying certain information. Second, because no residential address in Victoria was provided to prove that one of the persons to the relationship lived in Victoria.

116. Zhenya was cross-examined about the lodgement and subsequent cancellation. She contended that she lodged the necessary statutory declaration but that the Registry must have lost the documents. The explanation seems inherently unlikely. Further, the reasons given for the cancellation recite the history of the application including that Zhenya physically attended the Registry and lodged certain documents, which did not include the required statutory declarations.

117. As set out above, it would appear that there was some email communication between Zhenya and the Deceased in late 2019 about registering their relationship in Victoria so it would appear that the Deceased had some knowledge of the possibility of an application being made. The Deceased did not, however, complete requisite statutory declaration. Nor did Zhenya.

118. I do not regard the issue of whether the Deceased was aware of the application of much significance in the overall determination of the issues and therefore do not reach any final conclusion on whether the Deceased was aware. The fact is that neither Zhenya nor the Deceased completed the statutory declaration. Why they did not is largely speculation.

119. Apart from a short trip to Australia in February 2020 and a short trip to Zurich in February 2020, Zhenya and the Deceased spent the first 6 months of 2020 in Portugal. The Deceased and Zhenya travelled to Azores in July 2020 and Switzerland in August and September 2020. Janis, Nico and Nadja and her fiancé stayed at La Punta with the Deceased in June 2020.

120. During this period, the Deceased and Janis had a conversation in which the Deceased indicated a desire to travel to Australia to see the Twins. In another conversation, the Deceased said:

I am fighting to buy this house for you, my children. I want to live here for the rest of my life and after that this will be your house. You can build more houses in the garden and live here altogether with your families.

121. Janis also gave evidence that between June 2020 and when he died, the Deceased and he had a conversation where Janis asked his father about his relationship with Zhenya. The conversation was to the following effect:

Janis:		Papa, why is Zhenya sometimes here at La Punta? Is there anything between the two of you?
The Deceased:		We are spending some time together.
Janis:		Is it anything serious? Do you have any intentions with her?
The Deceased:		Don’t be silly, I am too old for that, I enjoy her company and she is very good and efficient and as you know she’s helping me with the Chekov training program in Russia. She also helps with my tax returns, payments here and there, as well as with the purchase of this place [La Punta] from the [family] Foundation.
Janis:		How is she making payments for you?
The Deceased:		She has the login details to my account at VP Bank.
Janis:		Which accounts does she have access to?
The Deceased:		Don’t worry, nothing important.

122. On 11 August 2020, Zhenya sent an email to Mr Dignum which stated, inter alia:

Despite an ample time away, your image comes in night of dreams…it comes and goes, disappears and after leaves my face with tears. Today’s it was NYE Eve’s, you showed me some water farm machines :)

123. On 20 August 2020, the Deceased met with Dr Ferrari in Switzerland. Dr Ferrari gave evidence that a conversation occurred to the following effect:

Dr Ferrari:	Dany, you seem to be upset, what’s wrong?
The Deceased:	I told Zhenya that you wanted to see me alone and she was upset about that and wanted to come.
Dr Ferrari:	The reasons why I wanted to see you alone was because I was passing everything to you and I also wanted to tell you something personally.
The Deceased:	What is it?
Dr Ferrari:	I’m handing this over to you now. You can manage it as you believe best. But let me just say this to you – watch out and be careful what you are doing.
The Deceased:	Don’t worry, I’m looking after myself.

124. Dr Ferrari went on to explain in his affidavit that he was trying to hint to the Deceased that his ongoing association with Zhenya was potentially fraught with complication for the Deceased and that he should be careful before becoming ensnared by her.

125. Zhenya continued to email Mr Dignum in early October 2020.

126. Zhenya and the Deceased apparently spent the period from September to 18 December 2020 together in Portugal and then spent the period of 20 December to 31 December 2020 in Dubai en route to Australia.

127. On 2 November 2020, Zhenya was granted a Residence Card in Portugal. During the process, she declared the Deceased as her de facto partner. Zhenya gave evidence in chief that her and the Deceased attended the local parish in Lagos together and registered as a de facto couple on or about 6 November 2020. On 17 November 2020, Zhenya sent two email messages to the Deceased as follows:

I can see it is more important for you constantly to be with the another family, than in addition to it to build another. Your choice. I can’t accept being childless and having celebrations with your family. And that under the pressure not to see my mothers. I have made enough efforts not to be met with anything towards mine.

On 17 Nov 2020, at 8.34 pm, Zhenya Vernon wrote:

I know you You will say ‘no’ on Christmas. There is no miracles. I wish you all the best with your real family to have Xmas days and NYE together. I postpone/cancel your flight but will keep mine. I ‘board’ in your house till then and won’t bother you anymore. I will transfer the car into your name due course. You can cancel my Jeep and do whatever you want without asking my opinion. Hope you meet a suitable woman who does not want children. I will comply with your current wish and will not trespass your room and will fuck off accordingly. Enjoy your life.

128. On 2 December 2020 Zhenya sent two messages to Janis as follows:

Hi Janis...I have finished the relationships with your father .. so don’t worry about anything as I am fucking off. You can be happy now that I am not a threat to you mother and whoever was challenged. Tell Nadja and the others I am very apologetic that your father wanted to have sex without commitments hope you want [sic] exploit women as does. Zhenya

Want – won’t

Typo

129. The next day she sent a further message as follows:

Janis, I apologise for the disturbed messages I sent you yesterday. I had too many drinks at lunch yesterday and was not able to keep emotions down. Hope for understanding and will not happen again. Zhenya.

130. These two communications, coupled with the emails from Zhenya to the Deceased on 17 November 2020, suggest there were some troubles in their relationship at this time, although it would appear that those troubles were short lived as they subsequently spent Christmas in Dubai, en route to Australia.

131. Zhenya and the Deceased arrived in Brisbane on 31 December 2020 and then spent two weeks in quarantine together in the Rydges Southbank Hotel. In total, they then spent approximately eight months in Australia at various resorts and other places.

132. There was considerable dispute at the hearing as to the primary purpose as to why the Deceased returned to Australia in early 2021. Nadja contended that the primary purpose of the Deceased returning to Australia was to see his twin children. Zhenya sought to characterise the trip more of a returning home to Australia for the two of them where the two of them looked at real estate to buy in Australia as a new residence.

133. There is considerable evidence that the reason that the Deceased gave to others, including his gardener at La Punta and each of Nadja, Nico and Janis, was to see the Twins in Australia. There are also contemporaneous communications with his ex-wife in evidence to this effect. It was also not in dispute that this was the first thing that he did after being released from quarantine – he travelled to Melbourne to visit the Twins. The evidence in support of Zhenya’s contention is much more limited. The trip was primarily to see the Twins.

134. After visiting the Twins, the Deceased returned to Queensland on 19 January 2021, where he stayed at various resorts with Zhenya.

135. On 29 January 2021, the Deceased and Zhenya went out to dinner in Brisbane to celebrate the Deceased’s birthday. They were joined by Ms Bruk.

136. Ms Bruk gave evidence that during the evening she had a conversation with the Deceased (at a time when Zhenya had left to go to the bathroom) to the following effect:

Ms Bruk:	Can you tell me why you’re spending so much time in Queensland?
The Deceased:	I used to live in Byron Bay, where I had a beautiful home. Zhenya and I are mainly living in Victoria, but we’re also looking for a place in the Sunshine Coast. Once we finalise the purchase of my late parents’ European place, I hope to use it as equity for a property in Australia.
Ms Bruk:	Can you tell me more about your plans with Zhenya? She’s reaching an age where conceiving and becoming a mother may be a priority for her.
The Deceased:	It’s a difficult question for me to answer, considering my age and the fact that I already have five children. However, Zhenya and I have discussed having children, and we’re currently making inquiries with Melbourne IVF. I’m prepared to attend appointments with her in Melbourne in the coming weeks.
Ms Bruk:	You don’t need to worry about Zhenya raising a child on her own. She’s capable and I’ll always be there to support her as a de facto grandmother in case of any unforeseen circumstances. As you know, Australia is the best place for children to grow up, especially by the beach.
The Deceased:	I know. I resided here with the twins.
Ms Bruk:	I understand that your twins currently live in Melbourne. Does that make it difficult to decide between Queensland and Victoria?
The Deceased:	Yes, I raised my twins with my former wife in Byron Bay for many years, and I know that Australia is the safest place for children. That’s why I’m interested in finding a beach house around here again. However, it’s difficult to decide between Queensland and Victoria since the twins currently live in Melbourne. I’ve lived and worked in Melbourne for many years, and I also love the beach. We’ll have to see what works best for us.

137. It was put to Ms Bruk that this conversation did not occur. The suggestion that was made to Ms Bruk was that there was no way that she could recall such a lengthy discussion without notes etc. It was also suggested that Ms Bruk was simply giving false evidence to support Zhenya in these proceedings.

138. As I understood the closing submissions advanced by senior counsel for Nadja, the suggestion that was put to Ms Bruk in cross-examination that she was giving false evidence to support Zhenya, was not pressed. Rather it was contended either that the conversation did not occur and Ms Bruk has a faulty recollection or that if it did occur there were obviously other conversations between the Deceased and Zhenya where it was agreed they would not buy a house or at least where the Deceased indicated that he did not wish to buy a house in Australia.

139. I am satisfied that a conversation occurred broadly along the lines deposed to by Ms Bruk.

140. Whilst the conversation obviously gives some insight into the relationship between the Deceased and Zhenya at this time, it needs to be appreciated that it is only of one conversation that must be weighed in light of all the other relevant evidence. It is of limited significance on the question of whether the Deceased and Zhenya were ever serious about buying property in Australia at this time.

141. Some insight into whether the Deceased intended to relocate back to Australia is given by the Deceased’s email response to a notice he received to vacate La Punta. On 10 February 2021, he sent an email which included the following (emphasis added):

Dear Chiara,

The attached letter of notice to vacate the property by March 31 is rather harsh to say the least. There must be some awareness, that the property in Lagos is the center of my life and that it is absolute intention to acquire the property as planned, as I am intending to live there. However, with the tax and other implications at hand, and if I buy the shares of Malta company, I should find it necessary, that the transaction is being carefully reviewed and redrafted.

142. Zhenya contends that on or about 5 February 2021, she and the Deceased had a discussion about having children together. According to Zhenya, the conversation was to the following effect:

The Deceased:

I know you have been longing for a while to have a child. I have five, and it was difficult for me to decide whether I should go through it again.

Zhenya:

Yes, and it will be my responsibility to raise the child by myself, just like my mum did with me, you don’t have to get involved in the routine of taking care of any child.

The Deceased:

Well, I’ll get involved as it is my child.

I understand that women want children, and I already did it. You should understand that I am doing it for you, and that you will have to take care of the child as I may not be around in some years’ time. Do you really want to raise a child without a father?

Zhenya: 

There will be a piece of you in this child, that’s all that matters.

143. Zhenya says that it was after this discussion on 5 February 2021 that she emailed the Deceased asking him what times would suit to go to a doctor’s appointment to discuss their options to have children together. The email put into evidence does not, however, have any text and only the Deceased’s response has been included.

144. In February 2021, it appears that Zhenya and the Deceased were renting an Airbnb in Kew in Victoria while the Deceased visited his Twins. They then travelled to Tasmania and Sydney, returning to Melbourne on about 15 March 2021. Zhenya contends that during this period she and the Deceased were looking for properties to buy in Australia.

145. In support of this last contention, Zhenya put into evidence several email inquiries that she made to real estate agents in relation to properties. The evidence was heavily criticised by senior counsel for Nadja, including on the basis that the stated reason for being interested was said to be “investment”, that there was no evidence that any properties were ever inspected, let alone offers made and no evidence that the Deceased was even aware that the inquiries were being made.

146. The evidence was ultimately put forward in support of the contention that the Deceased still regarded Australia as home. I deal with this ultimate question below. For present purposes, I need only observe that the evidence did not go too far – it went no higher than evidencing a handful of general inquiries being made.

147. When the Deceased arrived back in Melbourne on or about 15 March 2021, a dispute arose with his second wife about access to the Twins. The Deceased was told he would need to communicate with his ex-wife through lawyers about access.

148. On 18 March 2021, the Deceased had sperm collected at Melbourne IVF and signed a consent for freezing and storage of sperm. The consent form included a section headed “Instructions in the Event of My Death” in which the Deceased consented to “my sperm being used by my partner Evgeniya Vernon…in attempting to achieve a pregnancy.” There was no further evidence about attempts being made to use this sperm to have children.

149. On 19 March 2021, the Deceased attended the Italian Consulate in Melbourne and executed a document in Italian entitled “Withdrawal of Complaint”, by which he purported to withdraw a complaint that he had made to police in Venice regarding an assault on or about 7 September 2019. According to Zhenya the Deceased had reached a settlement with the perpetrator pursuant to which the Deceased received a sum of money, a condition of which was that he withdrew the criminal complaint. The significance of the form for present purposes is that the form stated that the Deceased was “resident in Portugal but domiciled at 6 Flinders Lane, Melbourne VIC 3000 Australia”.

150. Zhenya contended that the completion of the document with this content – particularly the Deceased being domiciled at 6 Flinders Lane in Melbourne – provided support for the contention that the Deceased was domiciled in Australia, with the term “domiciled” being used on the form in its technical legal sense. Counsel for Nadja relied heavily on the fact that the address used – 6 Flinders Lane – was not in fact a real address but rather was close to the proper address of the post office box used by Zhenya and the Deceased to receive mail – PO Box 6, Flinders Lane. Counsel for Nadja speculated that the Deceased may have deliberately used a fake address out of concern for his safety given that the assault several years earlier had in fact left him with a broken nose.

151. The document does not in my view assume much significance in the overall domicile assessment. It is reading too much into the document to attribute to the Deceased a legal understanding of domicile and thus an admission that Australia was his domicile. Further, the suggestion that an incorrect address was used out of fear for safety is nothing more than speculation.

152. The more reliable material on the question of domicile is the Deceased’s actions and conduct rather than statements made on one particular day in circumstances that are largely unexplained.

153. In late March 2021, the Deceased continued to exchange emails with his second wife in relation to access to the Twins. On 28 March 2021 he sent an email to his second wife as follows (emphasis added):

So you know, that I am here in Melbourne, where I specifically came, all the way from overseas, and in this difficult time, just to spend the time with the children.

Since March last year, you were repeatedly asking me for this visit to happen, which was not possible during the lockdown in 2020. Finally, I did my best, organised the accommodation close to the school, the car, and provided you with the dates to include your interest in your travel, as you said you were doing workshops, then going to Byron and finally booked up North during the school holidays to visit friends.

At a least, I would like you to keep the last agreement for the school holidays as previously discussed. I am happy to take the kids for two weeks, to including their 13^th birthday so they can enjoy the time before to go back to the school on 18/19^th April. Then we see.

No lawyers required as there is no problem.

Dany

154. During this period Zhenya continued to send emails to Mr Dignum. On 25 March 2021, she sent an email with subject “Missing this spot” with a map of Torquay Front Beach. On 1 April 2021, she texted Mr Dignum, among other things, that she missed him.

155. Travel documents and photographs were in evidence suggesting that during the second half of March the Deceased and Zhenya visited the Mornington Peninsula and then the Great Ocean Road.

156. On 29 March 2021, a trip on the Indian Pacific train was booked to travel to Perth between 1 and 3 April 2021. They then went to Cable Beach, Darwin and Alice Springs, returning to Melbourne on 19 April 2021. Again, a series of photographs were in evidence depicting the two, quite clearly, as a couple.

157. They remained in Melbourne until 30 April 2021, when they flew to Brisbane. Thereafter, they stayed in hotels on the Gold Coast, Brisbane and Noosa.

158. Between 9 and 11 May 2021 Zhenya and Mr Dignum exchanged emails. An email from Zhenya to Mr Dignum sent 11 May 2021 at 5.20 pm was as follows (emphasis added):

In the past few years and from the moment you and I separate, I have been only with one man, and, who, ultimately, could not deliver to my expectations despite the commitment/loyalty demonstrated. It was no anger but kindness. For the first time a man never hit me. The pivotal point was is that I have no children and they have five, and they no longer willing to be a father. That, of course, created a lot of tension and huge resistance from my side to their children to a point of hate. Plus huge disrespect and ignorance from all of those other children. I wish not to know and have nothing to know of the children from their other mothers.

Thought you might want to know.

159. On 1 June 2021, the Deceased flew to Melbourne and had to stay in Melbourne due to COVID lockdown. Zhenya stayed in Brisbane.

160. On 6 June 2021, Zhenya sent an email to Mr Dignum with a subject “One of my favourite…sorry to bother – I loved those times…” which included a photo of Zhenya with Mr Dignum with a waterfall in the background. They continued to exchange emails on 7, 8 and 11 June 2021.

161. On 14 June 2021, Zhenya sent the Deceased two emails in relation to how pregnancy is affected by age. The second email ended:

PS. I know it has no interest or concern to someone and 71 with 5 children.

162. The Deceased responded:

I know…let’s talk about this after your operation, ok?

163. It would appear that Zhenya was having a hip arthroscopy on 15 June 2021.

164. The Deceased travelled to Brisbane on 25 June 2021 and stayed with Zhenya in Brisbane and Noosa until 29 June 2021, when they both flew to Melbourne.

165. In July 2021, the Deceased and Zhenya lodged a 2020 joint personal income tax return in Portugal. They were staying in Melbourne at the time as the Deceased was having eye surgery.

166. Zhenya and Mr Dignum continued to exchange emails in early July 2021.

167. On 16 July 2021, Zhenya and the Deceased flew from Adelaide to Cairns, having driven from Victoria to Adelaide to escape the Victorian lockdown. They stayed in Port Douglas until 9 August 2021, when they flew to Darwin, staying until 17 August 2021. They then spent the last two weeks of August in Metung, Victoria.

168. On 30 August 2021, the Deceased executed a Power of Attorney in favour of Zhenya in relation to a pension he received from the Swiss Government.

169. On that same day Zhenya responded to an email which Mr Dignum had sent to her on 11 June 2021. The responsive email, like other communications between the two around this time, are not suggestive of an ongoing relationship at the time. Rather, they appear to be reflecting on their past relationship.

170. On 1 September 2021, the Deceased signed a “Declaration concerning Payment” which nominated that the Deceased’s pension be paid into the joint bank account. The Deceased noted Zhenya as “partner” on this form.

171. On 3 September 2021, the Deceased and Zhenya flew from Melbourne to Lisbon, via Dubai, arriving on 6 September 2021, and thereafter went to La Punta. On his return, the Deceased sent a WhatsApp message to Nadja, containing a picture of the ocean at La Punta and which stated:

What a welcome after 8 months of nomad life…thanks for taking care.

172. Nadja saw her father for the first time after his return in November. When they met, the Deceased said to Nadja:

I am grateful that I was able to spend time with the twins

And

It’s great to be home after all this time.

173. According to Zhenya, she travelled to Spain with the Deceased in late September 2021 for a couple of weeks. Between 4 and 8 October 2021, the Deceased and Zhenya stayed in Sevilla, Spain. She then travelled in Europe in late October and early November whilst Janis and Nadja stayed with their father at La Punta. Otherwise, on Zhenya’s evidence she stayed at La Punta with the Deceased. The two then spent Christmas together in the Canary Islands.

174. On 20 January 2022, the Deceased finally bought La Punta. A Share Sale and Purchase Agreement was executed on that day. The shares were transferred on 27 January 2022.

175. It was at or about this time that Nadja contends that there was an argument between the Deceased and Zhenya as a result of which she left La Punta, never to return. Zhenya denies that there was any argument. It does not appear to be in dispute that Zhenya left La Punta in or about the third week of January and went to Russia, although on her account she returned briefly to La Punta at the end of February into March. She then travelled to Australia to arrange medical treatment for her mother on 14 March 2022. Nico denied that Zhenya was at La Punta in March 2022. His recollection was that he only saw her once in January 2022.

176. The relevant evidence consists of certain observations by people at La Punta and an analysis of the communications in evidence between Zhenya and the Deceased, as well as Zhenya and Mr Dignum.

177. Hans Niederman, a close friend of the Deceased, visited the Deceased at La Punta in January 2022. Relevantly, he first gave evidence of a conversation with the Deceased about having bought La Punta. The conversation was to the following effect:

Hans:	You were finally able to purchase La Punta.
Deceased:	It has been a long process but worth it. Now I can stay here until I die. This is my home and I have a lot of plans for it.
Hans:	What are you planning for the future. Do you have any intentions to marry or having children?
Deceased:	Absolutely not. There are no chances of that happening.

178. Second, he gave the following evidence about Zhenya at La Punta in January 2022:

Hans:	Where is she going?
Deceased:	I don’t know, I think somewhere in Mallorca.

179. Dorina Mugur was the house cleaner at La Punta from August 2020. Ms Mugur worked every Friday for about five hours. She gave evidence that between September 2021 to the date of the Deceased’s death she saw Zhenya at La Punta on two or three occasions, but she was only there for a short period and never stayed for one month.

180. The last time Ms Mugur saw Zhenya was sometime in or around January 2022 when she saw that she had packed the majority of clothes that she had at La Punta then she left the house. She also recalled that she (Zhenya) slammed the door when she left, although in cross-examination, Ms Mugur said that she could not see the door at the time that Zhenya left and as such the door could have been blown shut by the wind.

181. Ms Mugur also gave evidence that sometime after Zhenya left, the Deceased said to her as he was about to leave the house to organise some shopping:

I’m going out to buy some things. If Zhenya comes and rings at the gate you are not to let her in. I will speak with her on the phone.

295. Zhenya contends that the relationship first began in about October 2017 when they began living together in a genuine domestic basis until January 2018, recommencing in September 2018 and continuing until the Deceased’s death.

296. Given that the relationship – to the extent there was one – in the initial period – was short lived, it can be ignored for present purposes. The relevant period to consider is September 2018 onwards.

297. The evidence given by each of Nadja, Janis and Nico as to their understanding of the relationship can largely be put to one side. Each gave evidence that from their perspective the relationship was largely a professional one. From what they observed, and also what their father told them, one can well understand why they held the views they did. There is some evidence that at least Janis knew or suspected otherwise. He received the message from Zhenya in December 2020 to the effect that her relationship with the Deceased was over. He also asked his father about the nature of his relationship with Zhenya, as did Nadja. The views of Nadja, Janis and Nico do not really matter. The true picture of the relationship emerged from other material.

298. Having regard to the Deceased’s email to Dr Ferrari dated 10 December 2018, it is reasonable to conclude that the relationship between the Deceased and Zhenya had, in recent times (proximate to December 2018), developed from a professional one to a personal one, including a sexual relationship.

299. Apart from what appears to have been a short break in about November or early December 2020 – as evidenced by the emails from Zhenya to the Deceased on 17 November 2020 with the subject line “fucking off” and the texts from Zhenya to Janis dated 2 December 2020 where Zhenya says she has “finished the relationships with” the Deceased – the relationship continued until at least January 2022. It therefore satisfied the minimum required period.

300. It would appear that Zhenya continued to perform various professional work for the Deceased and his family, but the personal relationship appears to have clearly manifested itself in various ways, including travelling extensively in Australia and internationally as a couple.

301. On the chronology presented by Zhenya, she and the Deceased spent most of the relevant period travelling around Australia or residing in Melbourne to see the Twins, travelling internationally or living at La Punta. This is corroborated by the objective and other material.

302. The numerous photographs that were in evidence of these travels, particularly of the Deceased and Zhenya together as a couple, demonstrate quite clearly the personal nature of the relationship. The anecdotal evidence of Hans Niederman, together with the fact that Dr Ferrari felt the need from what he observed, to warn the Deceased about being ensnared by Zhenya, reinforce the conclusion that the relationship was a deeply personal one. The many photographs are quite inconsistent with the relationship being a professional one – they are from many holiday destinations and include Zhenya and the Deceased with their arms around each other and embracing.

303. The documentary evidence largely proves the domestic and international travel, supplemented by the photographs depicting them as a couple. The picture that is painted by this material is of a couple leading a somewhat lavish life together. This appears to have been largely at the Deceased’s expense.

304. It is a little more difficult to reach a firm conclusion as to the extent to which Zhenya lived with the Deceased at La Punta. According to Zhenya’s evidence, and in particular the chronological schedule that she prepared, she spent considerable periods residing (continuously, I presume) with the Deceased at La Punta.

305. Against this is the evidence of Dorina Mugur and Manuel Marreiros, who both gave evidence that Zhenya was an infrequent visitor to La Punta and did not stay for a period of months at a time. Evidence was also given that Zhenya would come and go from La Punta, driving a car with Spanish number plates.

306. No objective material was put forward by Zhenya to support her contention as to the period of time she spent at La Punta with the Deceased. As set out at the commencement of these reasons, Zhenya was an unsatisfactory witness whose evidence I do not rely on unless corroborated or against her interest.

307. There is, however, some considerable evidence to corroborate Zhenya’s ties to Portugal, including becoming a tax resident of Portugal, filing a joint tax return with the Deceased in Portugal and the Deceased and Zhenya’s registration as a de facto couple in Portugal. There is also the fact that Zhenya did not appear to have any other residence anywhere in the world, including Australia.

308. It is not necessary to reach a conclusion as to the precise period of time that Zhenya spent living with the Deceased at La Punta prior to January 2022. I am satisfied that considerable periods were spent residing together. It seems relatively clear that the Deceased and Zhenya behaved somewhat less like a couple in certain circumstances, particularly when around the Deceased’s children, and indeed that Zhenya would leave La Punta when the Deceased’s children were there. The strong evidence of their behaviour as a couple when they were travelling or not at La Punta strongly supports a conclusion that they lived as a couple at La Punta for considerable periods.

(b) The nature and extent of their common residence

309. The chronology above evidences that the Deceased and Zhenya spent considerable periods holidaying together both in Australia and internationally staying in hotels and Airbnbs. The extent to which they stayed together at La Punta – the Deceased’s residence – is a little more difficult and is dealt with above. For the reasons there set out I am satisfied that Zhenya spent considerable periods living with the Deceased at La Punta. There is also no evidence that Zhenya had any other residence whilst she was with the Deceased.

310. In effect, they lived together for most of the time, either at La Punta when in Portugal or in temporary accommodation when travelling or visiting the Twins in Australia.

(c) Whether a sexual relationship exists

311. Notwithstanding the evidence given by Nadja, Janis and Nico that from their perspective there was no sexual relationship, it was not seriously in dispute that the relationship was a sexual one. It began at least shortly prior to December 2018 (if not before) and continued to January 2022.

(d) The degree of financial dependence or interdependence, and any arrangements for financial support, between them

312. The evidence demonstrated that the Deceased and Zhenya had a joint account in Portugal. Zhenya had a credit card issued to her which was linked to the Deceased’s Swiss bank account. Zhenya also had access to an Australian bank account that the Deceased maintained with Westpac. Their life together appears to have been largely funded from these sources.

313. Zhenya contended that from the time she and the Deceased commenced living together she “became completely dependent on the Deceased for [her] financial support”. It is difficult to reach a concluded view on this contention. This is because Zhenya did not put into evidence any material as to her own financial position during the period of her relationship with the Deceased.

314. There was some evidence that she had her own credit card and Zhenya also contended that she would use her personal funds because she also contended that when this occurred the Deceased would reimburse her the amount paid. As the relationship progressed this was more likely Zhenya reimbursing herself as she had access to the accounts.

315. What appears to be clear is that the funds of the Deceased were used to pay for their lifestyle, including extensive travel.

316. There was considerable financial dependence of Zhenya on the Deceased.

(e) The ownership, use and acquisition of property

317. Zhenya and the Deceased did not own any real property together. I have rejected the contention by Zhenya that the Deceased and she intended to buy a home in Australia.

(f) The degree of mutual commitment to a shared life

318. At this stage, I am dealing with the issue in the period up to January 2022. This necessarily therefore ignores what occurred after January 2022 including the factual issue of the alleged purchase of the engagement ring on or about 2 April 2022. I will address this issue when I consider the post January 2022 period and the contention that the relationship broke down.

319. In the period prior to January 2022, I have described the general nature of the relationship under (a) above. To a considerable extent there appears to have been a commitment by each to a shared life. They travelled extensively together and Zhenya appears – even allowing for the uncertainty about the actual amount of time she spent at La Punta – to have spent considerable time at La Punta where the Deceased was residing. Zhenya had become a tax resident of Portugal and the two had registered as a de facto couple in Portugal. For all intents and purposes, they were a couple.

320. One concern that I have in relation to the degree of mutual commitment in relation to a shared life relates to the issue of Zhenya’s desire to have a child and her associated continued communication with Mr Dignum during the period she was in a relationship with the Deceased.

321. The objective material demonstrates that Zhenya had a very strong desire to have a child with whoever was willing to be the father. She clearly wanted to have a child with the Deceased. The evidence suggests that the Deceased may have not been wholly committed to such a life with Zhenya. This evidence includes statements made by the Deceased to friends and family as well as statements made by Zhenya herself in communications from time to time. On the other hand, it appears that the Deceased had his sperm frozen and consented to it being released to Zhenya in the event of his death. The email exchange on 14 June 2021suggests the Deceased was still open to discussion about the topic.

322. Zhenya’s continued communications from time to time with Mr Dignum, notwithstanding the volatility in their relationship, suggests that Zhenya herself may have been concerned about the Deceased’s commitment. My assessment of these communications is that Zhenya would routinely communicate with Mr Dignam with a view to seeing if he was willing to resume a relationship with her or at least to continue dialogue with him in case she needed herself to seek to resume a relationship with him.

323. I do not regard these communications as necessarily telling against Zhenya being in a de facto relationship with the Deceased or that relationship coming to an end if the Deceased was not willing to have children with Zhenya. I have the sense that she wanted to keep the possibility of resuming a relationship with Mr Dignum open if she needed it.

324. Absent this issue, the evidence demonstrates a strong commitment to a shared life. Even having regard to it, I am satisfied there was a shared commitment. Whilst wanting to have a child was an aspect of the relationship from Zhenya’s perspective, I do not regard it as of such significance to conclude that without a child, there was no shared commitment.

(g) The care and support of children

325. Zhenya and the Deceased did not have any children together. It would appear, however, that some attempts were made by the Deceased and Zhenya to have a child through IVF. It is difficult to be definitive as to exactly what occurred in this regard. The objective material demonstrates that the Deceased consented to his sperm being kept for a period by Melbourne IVF and being used by Zhenya in the event of his death. Exactly what attempts were made to conceive by IVF at this time is not clear. There is also no evidence of there being any ongoing attempts which at least raises as a possibility of the fact that the Deceased was not, or was no longer, prepared to have a child with Zhenya.

(h) The performance of household duties

326. There is no evidence that Zhenya was in any way involved in performing household duties of washing and cleaning etc. The evidence tends to suggest that the Deceased’s lifestyle was such that these tasks were contracted out to others.

327. It appears that Zhenya was quite heavily involved in administrative aspects of the Deceased’s life, including making travel arrangements – both for the two of them jointly and the Deceased when he travelled without Zhenya – as well as liaising with lawyers and accountants. What is not clear is the extent to which Zhenya was paid for performing these administrative tasks.

328. Nadja contended that Zhenya’s role was primarily that of a personal assistant for the Deceased, for which she was paid. There is one example in evidence of Zhenya submitting an invoice to the Deceased on 23 January 2019, see [103], for reimbursement of expenses and “earnings”, this last item being akin to a wage.

329. The preponderance of the evidence suggests, quite strongly, that the relationship, whilst it began as a professional one, developed into a relationship which was primarily personal with Zhenya performing administrative tasks for the Deceased more as an adjunct to the close personal relationship that had developed.

(i) The reputation and public aspects of the relationship

330. There was a deal of evidence that the Deceased and Zhenya held themselves out as a couple, particularly to those associated with Zhenya, being Ms Bruk and Mr Kushkin. I regard this evidence as quite important, particularly that of Mr Kushkin, who was not cross-examined. They also accompanied the Deceased to his friend Jans Niggler’s birthday party and the funeral for the Deceased’s father’s de facto partner.

331. It seems equally clear, however, that the two went to great lengths to conceal the true nature of their relationship from the Deceased’s family.

332. There is also the registration of their “relationship” in Victoria, although this does not go too far in circumstances where the October 2019 email suggests that the registration was being considered not because it would be a public recognition of the relationship but more because it would potentially assist in travelling around Europe. The absence of the required statutory declarations also diminishes the significance of the registration.

333. They were registered as a de facto couple in Portugal and filed at least one joint tax return there.

334. In several documents, Zhenya was referred to as the Deceased’s partner, including the document executed by the Deceased with Melbourne IVF.

Conclusion as at January 2022

335. Having regard to all of the circumstances, including the matters that I have set out above in relation to each of the s 21C(3) matters, I am comfortably satisfied that as at January 2022 the Defendant and Zhenya were in a relationship as a couple living together. The evidence manifests a relationship of coupledom which involved a merger of two lives. That relationship began at the latest, shortly prior to December 2018.

336. Throughout the period from December 2018 to January 2022 the Deceased and Zhenya essentially lived together as a couple. Zhenya had no permanent residence of her own. When the Deceased was staying at La Punta, Zhenya was, for the most part, living with him. Otherwise, the two of them were travelling the world together as a couple. There were periods when they were apart, including because he had Nadja, Janis or Nico staying with him at La Punta or because he was visiting the Twins in Melbourne.

337. The time spent in Australia in 2021 provides a useful illustration of their relationship and lifestyle. In addition to their time spent together there was financial interdependency, or perhaps more accurately, financial dependence of Zhenya on the Deceased.

338. There were also a number of outward manifestations of their coupledom including the two being introduced as and being regarded as a couple at least by her friends and family, Zhenya becoming a tax resident of Portugal and the registration of their relationship as a de facto couple in Portugal.

The position post January 2022

339. The more difficult question is whether, as contended for by Nadja, the relationship as it was prior to then changed substantially in about January 2022 such that it should be concluded that they were no longer in a relationship as a couple living together as at the date of the death of the Deceased. It is to be remembered in this regard that hiccups in a relationship do not establish that the relationship has ended and what must be demonstrated is an intention on the part of at least one of the parties to permanently end it.

340. There is conflicting evidence. The evidence suggesting a change in the relationship may be summarised as follows:

1. The evidence of Dorina Mugur of seeing Zhenya pack up most of her belongings and leave La Punta, possibly slamming the door behind her (although this was not proved).

2. The statement by the Deceased to Ms Mugur not to let Zhenya into La Punta and that he would speak with her.

3. Zhenya’s absence from La Punta from some time in January. As set out above I have rejected Zhenya’s evidence that she returned briefly to La Punta in the first half of March 2022.

4. Significantly Zhenya did not attend any birthday celebration for the Deceased in late January as she had done in previous years. Even on her own evidence this was not explained by needing to be with her mother.

5. Zhenya’s communications with Mr Dignum in March and April 2022 which suggest a substantial change in the relationship with the Deceased. Zhenya also had dinner with Mr Dignum in late March 2022 which appears to have been aimed at seeing if there was any hope of resuming a relationship with Mr Dignum.

341. Against this evidence suggesting a change in the relationship, there is at least the following:

1. The Deceased and Zhenya continued to communicate during the period of at least March and April 2022, including on the day before the Deceased died.

2. These communications appear to have included text/WhatsApp messages, telephone and video calls. These communications are suggestive of a future life together and are quite inconsistent with the previously relationship having come to an end.

3. Zhenya requested the Deceased to deposit $30,000 into the Deceased’s Westpac account in early April 2022 which the Deceased forwarded to Gerald Berger to action. If the relationship had indeed come to an end – where there was no longer a shared commitment to life together as a couple – it is perhaps unlikely that the request would have been made, and even more unlikely that it would have been agreed to.

4. Zhenya was phoned by Janis quite shortly after the Deceased passed away – within a matter of hours. Janis then sent a message to Zhenya on 23 April 2022 which included “I am aware that you are grieving as well and were very close with Papa. I want you to know that we are all grieving together and we are together in this”. I regard the call and the subsequent message as recognition by Janis, on behalf of the Deceased’s family (or at least Nadja, Janis and Nico) that there was a close personal relationship between the Deceased and Zhenya, and not a predominantly professional one as was sought to be portrayed in these proceedings. This relationship subsisted at the time of the Deceased’s death.

5. Zhenya was named in the death notice published by Nadja, Janis and Nico. I do not accept that this was because she was a friend of the Deceased. Again, it is more likely to be in recognition of the close personal relationship between the Deceased and Zhenya.

6. Hans Niederman, a long-time close friend of the Deceased, who had been in the company of the Deceased and Zhenya in the presence of other friends, sent a message to Zhenya offering his condolences and then met with Zhenya in Portugal. Again, this is some recognition of a close relationship between Zhenya and the Deceased being in existence at the time of his death.

1. Immediately upon learning of the Deceased’s death, Zhenya travelled to Portugal. If the relationship had come to an end, or was no longer of any real significance, it is unlikely that she would have done this.

342. I am somewhat troubled by the evidence in relation to the purchase of the ring and, in particular, the absence of any objective communications between Zhenya and the Deceased in relation to it. Because of the absence of this material, I do not place much weight on the purchase of the ring.

343. I am also somewhat troubled by the fact that not all of the communications between the Deceased and Zhenya have been put into evidence when clearly it was within Zhenya’s power to do so. As set out above, this absence of evidence does not permit me, in and of itself, to infer that the absent evidence would have been damaging to Zhenya, only that it would not have assisted her. It also does not permit me to fill gaps in the evidence.

344. In circumstances where I am satisfied that Zhenya and the Deceased were in a relationship as a couple living together as at January 2022, the issue is whether that relationship had come to an end as at the date of the death of the Deceased.

345. As set out above, the authorities say that hiccups in a relationship are not the same as a relationship coming to an end. There must be an intention to permanently end the relationship on the part of either partner.

346. I am not satisfied that the relationship had permanently ended. The messages from the Deceased to Zhenya the day before he died about plans together for the remainder of the year are quite inconsistent with a permanent end. Whilst the departure from La Punta and the communications with Mr Dignum are suggestive of some troubles in the relationship between Zhenya and the Deceased, most likely as a result of Zhenya not being able to have a child with the Deceased, these matters do not lead me to conclude, when regard is had to all of the other circumstances, particularly the communications immediately prior to the Deceased’s death, that the relationship had come to an end. It is to be remembered that this is not the first time that Zhenya had expressed frustration about not being able to have a child with the Deceased and communicated with Mr Dignum in this context.

347. I am satisfied that the relationship remained on foot as at the date of the death of the Deceased. She was his de facto within the meaning of the relevant statutory provisions. This conclusion results from a consideration of all of the circumstances principally the objective material and notwithstanding that I have found Zhenya to be an unsatisfactory and unreliable witness.

Who should be appointed administrator?

348. The next issue that arises is who should be appointed administrator of the Deceased’s estate.

349. Section 63 of the PAA provides:

To whom administration may be granted

The Court may grant administration of the estate of an intestate person to the following persons, not being minors, that is to say to -

(a) the spouse of the deceased, or

(b) one or more of the next of kin, or

(c) the spouse conjointly with one or more of the next of kin,

or if there be no such person or no such person within the jurisdiction -

(i) who is, of the opinion of the Court, fit to be so trusted, or

(ii) who, upon being required in accordance with the rules, or as the Court may direct, to apply for administration, complies with the requirement or direction,

then to -

(d) any person, whether a creditor or not of the deceased, that the Court thinks fit.

350. Section 74 of the PAA is also relevant. It provides, relevantly, that the Court may, in any cases where a person dies intestate, “if it thinks it is necessary or convenient, appoint some person to be the administrator of the estate of the deceased”.

351. There is an obvious overlap between ss 63 and 74. Section 74 gives the Court the widest possible discretion as to whom to appoint. The term “competent” should be read widely: Bar-Mordecai v Rotman (Estate of Hillston) (unreported, NSWSC Einstein J, 4 September 1998) (Bar-Mordecai v Rotman). Whilst s 63 contains an order of preference, it does not oust the wide discretion in s 74.

352. The Court has jurisdiction to “pass over” the appointment of a person entitled to a grant of administration and appoint a (different) representative if this is necessary for the due and proper administration of the estate: Re Estate of Crane (2005) 93 SASR 198 at [15]-[30]; Bar-Mordecai v Rotman at p 20-21. One reason why the Court may do this is because of the character and fitness of the person otherwise entitled to the grant.

353. I have real concerns about Zhenya’s fitness to be appointed administrator. It is obvious that there is a large element of distrust between Nadja, Janis and Nico on the one hand and Zhenya on the other. Zhenya withdrew large sums of money from the Deceased’s bank accounts immediately upon learning of his death. I have also found her to be an unsatisfactory witness in a number of respects who appears to be motivated by self-interest and financial gain. She has been prepared to provide inconsistent instructions to lawyers in Portugal and in these proceedings to no doubt suit her own interests.

354. Whilst it is clear that appointment as administrator would principally allow the NSW assets to be dealt with and it seems the estate in NSW is essentially insolvent, it is not clear to me whether appointment as administrator will have any significance in overseas jurisdictions where assets are held and where there is the likelihood of future litigation.

355. In my view, an independent person should be appointed administrator. The parties agreed at the hearing that if I reached this position the parties should be given an opportunity to seek to agree who should be appointed. I will make directions for this to occur.

Conclusion and orders

356. I have determined that:

1. The Deceased was domiciled in Portugal at the time of his death;

2. Zhenya was the Deceased’s de facto spouse at the time of his death within the meaning of the relevant statutory provisions; and

3. An independent person should be appointed administrator.

357. The parties should be given an opportunity to agree orders to give effect to these reasons, including as to costs. Any declaratory relief, particularly in relation to my conclusion that Zhenya was the Deceased’s de facto spouse, should make it clear that this is in the context of the relevant statutory provisions. If agreement cannot be reached, I will then determine, having regard to the nature and extent of the disagreement, whether I will determine the remaining issues on the papers or re-list the matter for a further short hearing.

358. The orders of the Court are:

1. Direct the parties to confer and to seek to agree orders to give effect to these reasons, including as to costs.

2. Direct the parties to provide agreed orders, or competing orders, to my Associate by no later than 1 July 2024.

3. In the event that there is no agreement as to orders, direct the parties to provide to my Associate by no later than 1 July 2024, any submissions and supporting material, such submissions not to exceed 5 pages.

4. Direct the parties to provide to my Associate by no later than 8 July 2024 any submissions and supporting material in reply, such submissions not to exceed 5 pages.

5. Direct the parties to notify my Associate by no later than 8 July 2024 whether an oral hearing is sought in relation to the determination of the outstanding issues.

**********

Amendments

17 June 2024 - Correct typographical error in [21]

20 June 2024 - Correct typographical error in [67]

Decision last updated: 20 June 2024