Legal Research
Cases
Cahn v Kosmin

Cahn v Kosmin

Case [2022] NSWSC 751 8 June 2022

Family Provision

Substantial Inter Vivos Provision

Testamentary Provision

Financial Information

Succession Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Cahn v Kosmin [2022] NSWSC 751
Hearing dates: 18, 19 May 2022, last submissions 1 June 2022
Decision date: 08 June 2022
Jurisdiction: Equity
Before: Meek J
Decision:
Additional provision awarded. Parties to address on the question of costs.

Catchwords:
SUCCESSION — Family provision — applicant daughter — substantial inter vivos provision — resources depleted through bankruptcy — very substantial testamentary provision — obligation of applicant to provide accurate financial information — moderate additional provision awarded

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), s 136
Family Provision Act 1982 (NSW), s 9(2)
Succession Act 2006 (NSW), ss 60, 61
Uniform Civil Procedure Rules 2005 (NSW), r 7.8

Cases Cited:
Bassett v Bassett [2021] NSWCA 320
Bindoff v Trust Company (Australia) Ltd [2016] NSWSC 1100
Browne v Dunn (1893) 6 R 67
Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317
Georgopoulos v Tsiokanis [2022] NSWSC 563
Gorton v Park (1989) 17 NSWLR 1
Hinderry v Hinderry [2016] NSWSC 780
Jodell v Woods [2017] NSWSC 143
Limberger v Limberger [2021] NSWSC 474
Mitchell v Hamilton [2005] NSWSC 1097
Sammut v Kleemann [2012] NSWSC 1030
Smith v Johnson [2015] NSWCA 297; (2015) 14 ASTLR 175.
Strang v Steiner [2019] NSWCA 143
West v Mead [2003] NSWSC 161

Texts Cited:
Practice Note SC Eq 7

Category: Principal judgment
Parties: Tracy Faye Cahn (Plaintiff)
Gary Kosmin as executor of the estate of
Lilliane Sarah Cahn (First Defendant)
Stewart Cahn (Second Defendant)
Representation:
Counsel:
I E Davidson SC / P D Reynolds (Plaintiff)
B J Skinner (Second Defendant)
Solicitors:
P Williams and Company Lawyers (Plaintiff)
Kosmin & Associates (First Defendant)
Crompton + Walsh Pty Limited (Second Defendant)

File Number(s): 2021/37100

TABLE OF CONTENTS

Family details - paragraph 4
The deceased’s estate - paragraph 8
Costs - paragraph 68
The deceased’s Wills - paragraph 75
These proceedings - paragraph 93
Evidence - paragraph 101
Credit - paragraph 111
Early background details - paragraph 124
Some details regarding Tracy and Stewart - paragraph 135
Stewart’s business dealings - paragraph 148
Michael’s and Stewart’s business involvement - paragraph 177
Michael’s death - paragraph 209
Stewart’s financial difficulties - paragraph 220
Events leading up to the penultimate Will - paragraph 237
Events from the penultimate Will until Tracy’s bankruptcy - paragraph 262
Tracy’s bankruptcy and subsequent events - paragraph 295
Tracy’s financial position - paragraph 318
Tracy’s needs - paragraph 342
Tracy’s health - paragraph 346
Isabelle’s health - paragraph 350
Stewart’s financial position - paragraph 357
Stewart’s health - paragraph 374
Cross-examination of Tracy on various issues
Tracy’s health - paragraph 375
Tracy’s bankruptcy - paragraph 392
Tracy’s financial position and resources - paragraph 401
Tracy’s assets and the value of Tracy’s business - paragraph 403
Tracy’s income - paragraph 413
Absence of tax returns - paragraph 424
Costs of Isabelle’s education - paragraph 429
Tracy’s expenses generally - paragraph 454
Absence of the NAB “trust account” - paragraph 463

Cross…

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 Cahn v Kosmin

Details

AGLC: Cahn v Kosmin [2022] NSWSC 751
Case: [2022] NSWSC 751
Decision Date: 08 June 2022

CaseChat Overview and Summary

The applicant, Cahn, sought additional family provision from the estate of her deceased father, Kosmin. The father had made substantial inter vivos gifts to his daughter, and the estate was depleted due to the father’s bankruptcy. The father had also made a very substantial testamentary provision to the applicant. The central issue was whether the applicant was entitled to additional family provision given the substantial gifts already received and the father’s depleted resources. Another key issue was the applicant’s obligation to provide accurate financial information to the court.

The court considered the substantial inter vivos gifts made to the applicant and the father's depleted resources, which were significantly reduced due to bankruptcy. It acknowledged the very substantial testamentary provision made to the applicant. The court emphasised the importance of the applicant providing accurate financial information to the court, as this was crucial for the assessment of her needs and the father's ability to provide for her. The court concluded that while the applicant had already received substantial benefits, a moderate additional provision was warranted to meet her reasonable needs, considering the circumstances.

The court awarded the applicant a moderate additional provision from the estate, recognising the need to balance the applicant's reasonable needs against the substantial inter vivos and testamentary provisions already received. The court’s decision underscored the importance of accurate financial information in such assessments. The court highlighted that the applicant's obligation to provide truthful and complete financial information was critical in determining the appropriate outcome. The court’s ruling was focused on achieving a fair and reasonable outcome, taking into account all relevant factors, including the father's ability to provide for the applicant and the substantial gifts already made.

Orders