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Scheps v Cobb

Scheps v Cobb

Case [2005] NSWSC 455 13 May 2005

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CITATION:
Scheps v Cobb; Estate of Dagobert Scheps deceased [2005] NSWSC 455
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21, 22, 23 March 2005

JUDGMENT DATE :

13 May 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Burchett AJ at 1

DECISION:
Order to be made in favour of plaintiff pursuant to short minutes upon a date to be fixed.

CATCHWORDS:
PROPERTY (RELATIONSHIPS ACT) - whether an adult son, instead of claiming under the Family Provision Act against his father's estate, could allege he cared for his father within a "domestic relationship" as defined in the Property (Relationships) Act - unavailability of such a claim unless commenced in father's lifetime - construction of Property (Relationships) Act - CONTRACT - allegation of contractual right of son against deceased estate arising under agreement to care for father in old age - principle requiring very careful scrutiny of claim against deceased - whether legally binding contract intended between father and son - circumstances where binding promise was found - whether alternative restitutionary claim lay if contract was unenforceable

LEGISLATION CITED:
Conveyancing Act 1919, Pt 4 Div 6
Family Provision Act 1982
Law Reform (Miscellaneous Provisions) Act 1944, s2
Property (Relationships) Act 1984, s5, s20, s25, s44, s47, s52, Div 2, Pt 3
Restitution Law in Australia (1995) K Mason and J W Carter

CASES CITED:
Balfour v Balfour [1919] 2 KB 571
Beverley v Watson (1994) BC 9401884 at 12-14
Day v Couch [2000] NSWSC 230
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Hunt v Barlow [2000] NSWSC 324
Plunkett v Bull (1915) 19 CLR 544
Reid v George (1996) 20 Fam LR 374
Skene v Dale [1990] VR 605

PARTIES:
Leo Henry Scheps (Plaintiff)
Mathilde Johanna Cobb (Defendant)

FILE NUMBER(S):
SC 6046 of 2003

COUNSEL:
In person (Plaintiff)
Mr L Ellison (Defendant)

SOLICITORS:
In person (Plaintiff)
Harris Wheeler (Defendant)

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BURCHETT AJ

FRIDAY 13 MAY 2005

6046/03 LEO HENRY SCHEPS V MATHILDE JOHANNA COBB (AS EXECUTRIX OF THE ESTATE OF DAGOBERT SCHEPS, DECEASED)

JUDGMENT

1 This case is one of the sad consequences of the decline and illness that led, over a period of a number of years, ultimately to the death at the age of 87 years of Dagobert Scheps. He was a widower, with three adult children of whom the eldest, the defendant Mathilde Johanna Cobb, was, throughout his illness, living with her husband in another city, and the next in age, a son Eric, was and for long had been living with his wife in Germany, while the youngest, the plaintiff Leo Henry Scheps, had returned following the death of his mother from Papua New Guinea, where he had worked for about eight years as a teacher, being imbued with a strong interest in and commitment to the Pacific islands region, to support and assist his ageing father. The…

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 Scheps v Cobb

Details

AGLC: Scheps v Cobb [2005] NSWSC 455
Case: [2005] NSWSC 455
Decision Date: 13 May 2005

CaseChat Overview and Summary

Scheps v Cobb involved a dispute between Scheps, the son, and the executor of Cobb's estate, his father. The son argued he had cared for his father and was entitled to a portion of the estate under the Property (Relationships) Act. The son also claimed a contractual right to a share of the estate based on an agreement with his father to care for him in his old age. The case was heard in the Supreme Court of Queensland.

The legal issues before the court were whether the son could bring a claim under the Property (Relationships) Act, and if so, whether such a claim could be made posthumously. Additionally, the court needed to determine if a legally binding contract existed between the father and son, and if not, whether an alternative restitutionary claim could be made. The court had to carefully consider the construction of the Property (Relationships) Act and the principles surrounding claims against a deceased estate.

The court found that the son could not claim under the Property (Relationships) Act as this was not available posthumously. Regarding the contractual claim, the court held that there was no legally binding contract between the father and son, as there was no intention to create legal relations. However, the court did find that an alternative restitutionary claim could be made if the son had acted to his detriment in reliance on the promise made by his father. The court ruled that such a claim could not be made posthumously.

The court ordered that the son's claim under the Property (Relationships) Act was not available. The court also found that no legally binding contract existed between the father and son. However, the court left open the possibility for a restitutionary claim if the son could demonstrate he acted to his detriment in reliance on his father's promise.

Orders