Cabban v Cabban - [2010] NSWSC 1433

CITATION: Cabban v Cabban [2010] NSWSC 1433
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25/11/10

JUDGMENT DATE :
13 December 2010

JURISDICTION: Equity

JUDGMENT OF: Macready AsJ at 1

DECISION: Parties to bring in short minutes.

CATCHWORDS: Family Provision. Claim for provision by infant children. Consideration of their needs on a short term and long term basis in the context of a small estate. Small amount ordered. Plaintiffs' costs capped.

PARTIES: Chloe Cabban & Emily Hay by their tutor Kathleen Joyce Hay v Cameron Cabban

FILE NUMBER(S): SC 2010/000

COUNSEL: Mr D Liebhold for plaintiffs
Mr MJ Heath for defendant

SOLICITORS: Andrew John Fleming for plaintiff
BHM Lawyers for defendant

- 1-

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Monday 13 December 2010

No 2010/00093359 CHLOE ANN CABBAN & EMILY KATE HAY BY THEIR TUTOR KATHLEEN JOYCE HAY v CAMERON CABBAN

JUDGMENT

1 This is an application under the Succession Act 2006 (‘the Act’) in respect of the estate of the late, Rebecca Anne Hay, who died intestate on 20 April 2009, aged 30.

2 The deceased was survived by her husband, Cameron Cabban, the defendant in the proceedings and their two children, Chloe Ann Cabban and Emily Kate Hay, aged 5 and 3 years respectively. Chloe and Emily are the plaintiffs. Their tutor Kathleen Joyce Hay is their grandmother and the deceased’s mother.

3 Although the deceased and Cameron Cabban had separated, Cameron would be entitled to the deceased’s estate.

Estate

4 At the date of death the deceased was co-owner as joint tenants with the defendant of a property at Spring Creek Road, Wamban. The property passed by survivorship to Cameron Cabban. The deceased had superannuation entitlements of some $59,788.51 and a mortgage insurance policy which she held jointly with the Cameron Cabban as co-debtor under their mortgage over the Spring Creek Road property. There was also some personal property including motor vehicles, none of which are of great value.

History

5 The deceased, Rebecca Anne Hay was born in August 1978. She and Cameron Cabban were married in September 2002. The first plaintiff, Chloe was born in June 2005. In July 2006, Rebecca and Cameron separated. In December 2006, the second plaintiff Emily Kate Hay was born.

6 Rebecca and Cameron took no steps to dissolve the marriage and after the separation the deceased had custody of her daughters and her daughter also had access to Cameron. Rebecca and Cameron had informal discussions about a property settlement that did not result in a binding agreement. The parties had in fact put the matrimonial home at Spring Street on the market not long after they separated.

7 The discussions about a property settlement were to the effect that Rebecca would have 70 per cent and Cameron 30 per cent of the proceeds of sale. This was on the expectation that Rebecca would have the care of her daughters.

8…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cabban v Cabban

Details

AGLC: Cabban v Cabban [2010] NSWSC 1433
Case: [2010] NSWSC 1433
Decision Date: 13 December 2010

CaseChat Overview and Summary

The case of Cabban v Cabban involved the children of deceased parents seeking to enforce their claim for provision from their parents' estate. The estate was modest, and the plaintiffs, the infant children, sought to have their needs, both short and long term, considered by the court in the context of the limited resources available. The case was heard in the Supreme Court of Victoria.

The court was tasked with determining the appropriate amount of financial provision the children should receive from their parents' estate, considering the specific circumstances and the limited financial resources available. The court also had to assess the needs of the children, both immediate and future, in the context of the estate's size. The court further needed to decide whether the plaintiffs' costs should be capped, given the modest nature of the estate.

The court recognised the children's entitlement to financial support from their parents' estate but noted the limited resources available. It carefully considered the children's immediate and future needs, ultimately determining that a small amount of provision was appropriate. The court also concluded that capping the plaintiffs' costs was necessary due to the modest nature of the estate. The court ordered that the children receive a modest provision from the estate and that the plaintiffs' costs be capped.

The final orders of the court were that the children were to receive a specified amount from the estate and that the plaintiffs' costs were to be capped at a specified sum.

Orders