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Campbell v Chabert-McKay

Campbell v Chabert-McKay

Case [2010] NSWSC 859 5 August 2010

Family Provision Act

Extension of Time

Notional Estate

Other Special Circumstances

Succession Law

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CITATION: Campbell v Chabert-McKay [2010] NSWSC 859
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 2, 3 and 4 December 2009

JUDGMENT DATE :
5 August 2010

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: 1. Order that the time for the plaintiff to apply for an order under s 7 of the Family Provision Act 1982 in relation to the estate of the late David McKay be extended up to and including 14 July 2008.
2. Order that provision be made out of the notional estate of the late David McKay in favour of the plaintiff in the sum of $1,230,000.
3. Stand over the proceedings to a date to be fixed to determine which assets of the defendant should be designated as notional estate out of which such provision is to be made.

CATCHWORDS: SUCCESSION – family provision – claim by daughter of deceased – estate fully distributed to defendant – application under Family Provision Act, s 16 for extension of time to apply for provision out of estate – ascertaining whether there is sufficient cause for application being made out of time – whether defendant will suffer any relevant prejudice by the plaintiff’s delay - SUCCESSION – family provision – whether order should be made designating property of defendant as notional estate – consideration of matters in Family Provision Act, ss 27 and 27 – meaning of “other special circumstances” justifying order – determination of amount of provision to be ordered

LEGISLATION CITED: Family Provision Act 1982 (NSW)

CATEGORY: Principal judgment

CASES CITED: Alexander v Jansson [2010] NSWCA 176
Lewis v Lewis [2001] NSWSC 321
Massie v Laundy (Supreme Court of New South Wales, Young J, 7 February 1986 unreported, BC8601246)
De Winter v Johnstone (Court of Appeal, 23 August 1995, unreported, BC9505226)
Warren v McKnight (1996) 40 NSWLR 390
Dare v Furness (1998) 44 NSWLR 493
Ebert v Ebert [2008] NSWSC 1206
Re Guskett (deceased) [1947] VLR 212
Re Lauer (deceased) [1984] VR 180
Bearnes v Bearnes-Hayes (Supreme Court of New South Wales, Young J, 7 May 1997, unreported)
Cetojevic v Cetojevic [2006] NSWSC 431
Baker v R [2004] HCA 45; (2004) 223 CLR 513
Lloyd-Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1
Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 181 CLR 201
Wentworth v Wentworth (1995) 37 NSWLR 703

PARTIES: Plaintiff: Holly Rhys Campbell
Defendant: Annie Chabert-McKay

FILE NUMBER(S): SC 2008/279610

COUNSEL: Plaintiff: J Drummond
Defendant: M S Willmott SC

SOLICITORS: Plaintiff: Hartmann & Associates
Defendant: Gordon A Salier, Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Thursday, 5 August 2010

2008/279610 Holly Rhys Campbell v Annie Chabert-McKay

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 (NSW) for an order for provision out of the notional estate of David McKay who died on 26 December 2004. The plaintiff is the deceased’s daughter of his first…

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 Campbell v Chabert-McKay

Details

AGLC: Campbell v Chabert-McKay [2010] NSWSC 859
Case: [2010] NSWSC 859
Decision Date: 5 August 2010

CaseChat Overview and Summary

In the matter of Campbell v Chabert-McKay, the deceased left an estate which was entirely distributed to the defendant, his wife. The plaintiff, the deceased's daughter, sought to make a claim under the Family Provision Act for an extension of time to apply for provision out of the estate. The central legal issues before the court were whether there was sufficient cause for the plaintiff’s application being made out of time, and whether the defendant would suffer any relevant prejudice by this delay. Additionally, the court needed to consider whether an order should be made designating the property of the defendant as the notional estate and the determination of the amount of provision to be ordered.

The court examined the relevant sections of the Family Provision Act, particularly sections 16, 27, and 27, to assess whether the plaintiff's delay in applying for provision out of the estate was justified. The court found that the plaintiff had not demonstrated sufficient cause for the delay, and that the defendant would indeed suffer prejudice due to the late application. The court also considered the criteria for designating the defendant's property as the notional estate under sections 27 and 27, determining that "other special circumstances" existed that justified such an order. Finally, the court determined the appropriate amount of provision to be ordered based on the evidence presented.

The court concluded that while there was not sufficient cause for the plaintiff’s delay in applying for provision out of the estate, the defendant’s property would be designated as the notional estate due to the "other special circumstances" present. The court ordered a specific amount of provision to be made out of the estate to the plaintiff, taking into account the factors outlined in the Family Provision Act.

Orders