Haider v Quresha [2006] NSWSC 1038

New South Wales Supreme Court

CITATION : Haider v Quresha [2006] NSWSC 1038

HEARING DATE(S) : 03/10/06 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 10/03/2006

DECISION : Hearing vacated until after workers' compensation proceedings finalised.

CATCHWORDS : FAMILY PROVISION AND MAINTENANCE - Practice - Applicant for provision under Family Provision Act 1982 seeking compensation for deceased's death under Workers' Compensation Act - Intention to appeal against finding that she not entitled - Application to vacate hearing until after workers' compensation proceedings finalised - Opposed by applicant - Whether can make provision to be adjusted for receipt of workers' compensation without knowing the amount of the compensation

LEGISLATION CITED : Family Provision Act 1982 Workers' Compensation Act 1987

PARTIES : Tahira Haider - Plaintiff Ghulam Rabbani Adib Quresha - Defendant

FILE NUMBER(S) : SC 1401/06

COUNSEL : Mr D Baran - Plaintiff Mr C Harris SC - Defendant

SOLICITORS : Buttar Caldwell & Co - Plaintiff Dominic Stamfords - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

TUESDAY 3 OCTOBER 2006

1401/06 TAHIRA HAIDER V GHULAM RABBANI ADIB QURESHA EX TEMPORE JUDGMENT 1 This is one of two proceedings that are to be heard together. In it the plaintiff, Tahira Haider, seeks an order under the Family Provision Act 1982 as the widow of the deceased. The other proceeding is in the Probate List. The parents of the deceased by their special attorney, Ghulam Rabbani Adib Quresha, seek administration of his estate. That is opposed by Ms Haider who claims she was the wife of the deceased at the time of his death. The parents claim that she was divorced from the deceased. On this issue, I am informed that Pakistani lawyers have been retained on both sides and will be required in Australia for cross-examination. 2 The difficulty with respect to these proceedings is that a determination has been made by the Workers' Compensation Tribunal that Ms Haider is not entitled to compensation with respect to the death of the deceased. The parents are also applicants in the Workers' Compensation Tribunal proceedings. Ms Haider intends to lodge an appeal against the decision of the Tribunal. 3 The parents have brought an application that these proceedings be vacated to a date to be fixed after the ultimate determination of Ms Haider's claim for compensation before the Workers' Compensation Tribunal. 4 That application is opposed on the basis that Ms Haider is in need of funds and the matter should be dealt with expeditiously. She is young and it is submitted that in ordinary circumstances, either as the widow or a former wife of the deceased, she would be entitled to the whole of the estate or to a large portion of it under the Family Provision Act 1982. 5 Ms Haider points to the Family Provision Act 1982, s 11(1)(a)(vi) which enables the Court to order provision out of the estate or notional estate of the deceased in any other manner that the Court thinks fit. It was submitted that the Court could make an order that provided for future adjustment of any provision if Ms Haider received an amount of workers' compensation. 6 It does not seem to me, however, that I can make an order for provision out of the estate of the deceased that is to be adjusted for any amount awarded under the Workers' Compensation Act 1987 without knowing the quantum of that amount. Notwithstanding that a postponement of these proceedings may cause hardship to Ms Haider, it does seem to me that I must have some knowledge of the amount of workers' compensation to which Ms Haider is entitled in order to determine between the interests of the parents and the wife or former wife of the deceased. 7 For those reasons I am of the view that the application to vacate these proceedings to a date to be fixed after determination of Ms Haider's claim for compensation must succeed. 8 I order that the hearing of the proceedings be vacated to a date to be fixed after the determination of the plaintiff's claim for compensation under the Workers' Compensation Act 1987. I stand the matter over before the Registrar at 9.30 am on Tuesday 12 December 2006. I grant all parties liberty to apply on 24 hours' notice. I reserve costs.