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Reddie v Cornock

Reddie v Cornock

Case [2005] NSWSC 187 10 March 2005

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CITATION:
Reddie v Cornock [2005] NSWSC 187

HEARING DATE(S): 7, 8, 9 February 2005

JUDGMENT DATE :

10 March 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Young CJ in Eq

DECISION:
Widow takes whole estate except for $100,000 for the sons.

CATCHWORDS:
SUCCESSION [217]- What property passes by will- Asset bequeathed actually owned in partnership- Effect. SUCCESSION [273]- Administration- Business debt charged on matrimonial home- Effect of Locke King's Act. SUCCESSION [314]- FPA- Four claimants (ex-wife, two sons, widow)- Modest estate- Widow's claim to be preferred.

LEGISLATION CITED:
Conveyancing Act 1919, s 145
Family Provision Act 1982, ss 7, 9, 10

CASES CITED:
Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588
Barns v Barns (2003) 214 CLR 169
Calcino v Fletcher [1969] Qd R 8
Calverley v Green (1984) 155 CLR 242
Cameron v Hills (Needham J, 26.10.1989, unreported)
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Commissioner of Stamp Duties (Queensland) v Jolliffe (1920) 28 CLR 178
Connell v Bond Corp Pty Ltd (1992) WAR 352
Cope v Keene (1968) 118 CLR 1
Corin v Patton (1990) 169 CLR 540
Farquhar v Hadden (1871) LR 7 Ch App 1
Hardy v Lane (1994) 6 BPR 13,968
Hendry v The Perpetual Executors and Trustees Association of Australia Ltd (1961) 106 CLR 256
Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624
Hyhonie Holdings pty Ltd v Leroy [2004] NSWCA 72
In re Dicey [1956] Ch 357
In re Dicey; Julian v Dicey [1957] Ch 145
Kauter v Hilton (1953) 90 CLR 86
Luciano v Rosenblum (1985) 2 NSWLR 65
Murless v Franklin (1818) 1 Swans 13; 36 ER 278
Padbury v Clark (1850) 2 Mac & G 298; 42 ER 115
Re Holland [1907] 2 Ch 88
Re Keene (1967) 86 WN (Pt 1) (NSW) 317
Re Lamshed [1970] SASR 224
Rushton (Qld) Pty Ltd v Rushton (NSW) Pty Ltd [2003] 1 Qd R 320
Shaw v Lambert (Young J, 9.10.1987, unreported)
Wade v Harding (1987) 11 NSWLR 551
Watson v Ralph (1982) 148 CLR 646
Wilkinson v Dent (1871) 6 LR Ch App 339

PARTIES:
5565/03 Kerrie Maree Reddie (P)
Peter Berkeley Cornock (D)
5822/03 Cameron William Reddie (P)
Peter Berkeley Cornock (D)
5833/03 Matthew Douglas Reddie (P)
Peter Berkeley Cornock (D)
1808/04 Domenica Reddie (P)
Peter Berkeley Cornock (D)

FILE NUMBER(S):
SC 5565/03; 5822/03; 5833/03; 1808/04

COUNSEL:
5565/03 C Cominos (P)
R E Quickenden (D)
5822/03 B Sharpe (P)
R E Quickenden (D)
5833/03 B Sharpe (P)
R E Quickenden (D)
1808/04 D E Grieve QC and D M Coulton (P)
R E Quickenden (D)

SOLICITORS:
5565/03 Vizzone Ruggero & Associates (P)
Clive Smoker (D)
5822/03 Gary Cleary & Associates (P)
Clive Smoker (D)
5833/03
Gary Cleary & Associates (P)
Clive Smoker (D)
1808/04 Haylen McKenzie (P)
Clive Smoker (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 10 March 2005

5565/03 – REDDIE (KM) v CORNOCK
5822/03 –…

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 Reddie v Cornock

Details

AGLC: Reddie v Cornock [2005] NSWSC 187
Case: [2005] NSWSC 187
Decision Date: 10 March 2005

CaseChat Overview and Summary

The case of Reddie v Cornock involves a dispute over the ownership of a matrimonial home, with four claimants asserting interests in the estate. The claimants are the deceased's ex-wife, two sons, and widow. The central issue is the effect of a business debt on the matrimonial home and the application of the Family Provision Act 1969 (NSW). The dispute was heard by the Supreme Court of New South Wales.

The legal issues addressed by the court include the identification of the property that passes by the deceased's will, the effect of a business debt charged on the matrimonial home, and the application of the Family Provision Act. The court had to determine whether the deceased's business debt, which was charged against the matrimonial home, could be enforced against the estate. Additionally, the court needed to consider whether the widow's claim for provision under the Family Provision Act should be preferred over the other claimants.

The court found that the asset bequeathed in the will, which was actually owned in partnership, did pass by the will. Regarding the business debt, the court concluded that the charge on the matrimonial home could not be enforced against the estate due to the provisions of the Locke King's Act. The court then turned to the Family Provision Act, determining that the widow's claim should be preferred. The court found that the estate was modest and that the widow had made a substantial contribution to the deceased's welfare. The court ordered that the widow be provided for under the Family Provision Act.

The final orders of the court included that the widow's claim be preferred, and that appropriate provision be made from the estate to satisfy her claim under the Family Provision Act. The court also determined that the business debt could not be enforced against the estate and that the asset bequeathed in the will passed as intended.

Orders