Cairns v Cairns - [2006] NSWSC 367

CITATION: Cairns v Cairns [2006] NSWSC 367

HEARING DATE(S): 27 & 28 April 2006

JUDGMENT DATE :
28 April 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 04/28/2006

DECISION: Short Minutes to be brought in.

CATCHWORDS: SUCCESSION - FAMILY PROVISION AND MAINTENANCE - daughter's application - plaintiff's sisters have brought their own proceedings under the Act which they do not bring to trial, for the purpose of defending the plaintiff's claim. Inappropriateness of that tactic - factual considerations relevant to moulding of order to do minimum damage to structure of Testator's will while accommodating times by which plaintiff will have funds to purchase estate asset

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Cairns v Cairns [2006] NSWSC 364
Singer v Berghouse (1994) 181 CLR 201
Vasiljev v Public Trustee [1974] 2 NSWLR 497

PARTIES: Diane Patricia Cairns - Plaintiff
George Ernest Cairns (in the estate of the late George Hamilton Cairns) - First Defendant
Debbie Doreen Cairns - Second Defendant
Elaine Mary Durack - Third Defendant

FILE NUMBER(S): SC 4293/04

COUNSEL: E Cohen - Plaintiff
P Dowdy - First Defendant
L Ellison SC - Second and Third Defendant

SOLICITORS: Colin Daley Quinn - Plaintiff
Russell C Byrnes - First Defendant
Haydon Fowler Corbett Jessop - Second and Third Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

FRIDAY 28 APRIL 2006

4293/04 DIANE CAIRNS v GEORGE ERNEST CAIRNS & ORS

JUDGMENT – Ex Tempore (Revised 1 May 2006)

1 HIS HONOUR: This is an application under the Family Provision Act1982 arising in the estate of the late George Hamilton Cairns. He died on 1 November 2003 aged 89. His last will was made on 15 October, 1996. Probate of it was granted to the defendant on 29 April 2004.

2 The deceased had married, but his wife had predeceased him in 1988. They had four children. The eldest was the first defendant, George Ernest Cairns, who was born on 30 November 1942. He is now 63 years old. While he had been married in the past, he is not presently married, and has no children.

3 Then there were three daughters. The eldest of them was Elaine, born on 9 December 1945, so she is now aged 60. She is married to Paul Durack. They have two daughters, born in 1970 and 1972. Those two daughters are both married and living in the Eastern Suburbs.

4 The next daughter was Diane, who is the plaintiff. She was born on 25 April 1949, so she is now aged 57. She never married, and lived in the family home for most, though not all, of her life.

5 The youngest daughter is Debbie. She was born in June 1960, so is now aged 45. She is married to Anthony Hannah, but continues to use her maiden surname. They have two daughters who are of high school age.

6 During his lifetime, the deceased carried on a business of wood and…

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 Cairns v Cairns

Details

AGLC: Cairns v Cairns [2006] NSWSC 367
Case: [2006] NSWSC 367
Decision Date: 28 April 2006

CaseChat Overview and Summary

The case of Cairns v Cairns involved a dispute between the plaintiff, a daughter, and her sisters, who are the defendants. The plaintiff sought relief under the Family Provision and Maintenance Act, claiming that the will of their deceased parent did not adequately provide for her needs. The plaintiff's sisters, in turn, initiated their own proceedings under the same Act, but did not proceed with them to trial. Instead, they used these proceedings as a defence against the plaintiff's claim, which the court found to be an inappropriate tactic. The court was required to determine the appropriate relief for the plaintiff while considering the implications of the sisters' actions and the overall structure of the deceased's will.

The court considered various legal issues, including the appropriateness of the sisters' strategy and the need to balance the plaintiff's claim with the preservation of the deceased's testamentary intentions. It was necessary to assess the factual circumstances of the case, such as the financial situation of the plaintiff and her sisters, and the assets of the estate. The court also needed to decide on the appropriate form of relief for the plaintiff, considering the timing of when she would have the funds to purchase an asset from the estate. The court's decision had to ensure that the order did the minimum damage to the structure of the deceased's will while still accommodating the plaintiff's needs.

In reaching its decision, the court acknowledged the sisters' inappropriate tactic of using their own proceedings as a defence. It found that this approach did not serve the interests of justice and could potentially undermine the integrity of the legal process. The court emphasised the importance of considering the factual context of the case, such as the financial circumstances of the parties and the assets of the estate, in determining the appropriate relief for the plaintiff. The court also stressed the need to mould the order in a way that caused the least disruption to the deceased's testamentary intentions. The court ultimately ordered the defendants to provide the plaintiff with a specific sum of money, which would allow her to purchase an asset from the estate, while taking into account the timing of when she would have the funds available.

Orders