Guo v Gao [2021] NSWSC 1059

Supreme Court New South Wales

Medium Neutral Citation: Guo v Gao [2021] NSWSC 1059 Hearing dates: 19 August 2021 Date of orders: 24 August 2021 Decision date: 24 August 2021 Jurisdiction: Equity Before: Hallen J Decision: See Paragraph [135]-[137] Catchwords: PRACTICE AND PROCEDURE - Determination of separate question - Whether declaration should be made that person who has been missing for over 20 years, upon presumption of death, is no longer alive SUCCESSION – Probate and administration – Where missing person last seen in April 2001 – Extensive searches and enquiries conducted in an attempt to locate missing person, including by NSW Police, which attempts unsuccessful – Where missing person has not been located – No evidence that missing person is alive or dead – No contact with persons with whom the missing person would have been likely to communicate, including family members, being her daughter, her siblings, her parents, her husband, and her former husband, the father of the daughter - Whether presumption of death may be relied upon to make declaration that the missing person is not alive Legislation Cited: Civil Procedure Act 2005 (NSW) s 56 Probate and Administration Act 1898 (NSW) ss 40A, 40B Real Property Act 1900 (NSW) s 45D Succession Act 2006 (NSW) Ch 3 Uniform Civil Procedure Rules 2005 (NSW) r 28 Cases Cited: Allman & Co v M'Cabe [1911] 2 Irish R. 398 Application by Walsh & Anor (Estate of Robert Charles Walsh (deceased)) [2020] NSWSC 976 Axon v Axon (1937) 59 CLR 395; [1937] HCA 80 Chard v Chard [1956] P 259 Combis & Staatz as joint and several liquidators of RB Hospitality Holdings Pty Ltd (in liq) v Lee [2020] NSWSC 960 Elaraby & Ors v Minister for Immigration & Anor [2018] FCCA 1101 Estate of Howard (1996) NSWLR 409 In re Margarete Maria White [2001] TASSC 7 In the Estate of Peter Dale Hills [2009] SASC 176 Loretta Craig v Anthony Johnson [2020] NSWSC 430 M'Mahon v M'Elroy (1869) 5 IR Eq 1 Prudential Assurance Co v Edmonds (1877) 2 App. Cas. 487 Re Curran [2010] VSC 455 Re Estate of Howard (1996) 39 NSWLR 409 Southwell v Bennett [2010] NSWSC 1372 Sydney Local Health District v Macquarie International Health Clinic Pty Ltd [2020] NSWCA 274 The Estate of Alan Bruce Beeby [2020] NSWSC 1512 Watson v England (1844) 60 ER 266; 14 Sim 28 Texts Cited: Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Lawbook Co) Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice: New South Wales (LexisNexis Butterworths) R A Sundberg, Griffith's Probate Law and Practice in Victoria (3rd ed, 1983, Lawbook Co) Category: Principal judgment Parties: Sijia Guo (Plaintiff) Yong Wei Gao (Defendant) Representation: Counsel: T J Morahan (Plaintiff) K Morrissey (Defendant)