Scheps v Cobb; Estate of Dagobert Scheps deceased [2005] NSWSC 455

New South Wales Supreme Court

Scheps v Cobb; Estate of Dagobert Scheps deceased [2005] NSWSC 455 CITATION : 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

Conveyancing Act 1919, Pt 4 Div 6 Family Provision Act 1982 LEGISLATION CITED : 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

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 CASES CITED : 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