Carragher v Crook [2009] NSWSC 191

New South Wales Supreme Court

CITATION : Carragher v Crook [2009] NSWSC 191

HEARING DATE(S) : 23/03/2009, 24/03/2009

JUDGMENT DATE : 25 March 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 25 March 2009

DECISION : Paragraph 86

CATCHWORDS : Family Provision. Application by stepdaughter. Whether she was part of household and partly dependent. Order made for provision. - Costs. Whether costs should be capped due to small legacy and uplift factor.

PARTIES : Judith Anne Carragher v Joyce Mary Crook

FILE NUMBER(S) : SC 1829/2008

COUNSEL : Mr PE Cullen for plaintiff Mr M Gorrick for defendant

SOLICITORS : Alfotern Solicitors for plaintiff Wilkinson Throsby & Edwards for defendant

- 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 25 MARCH 2009

1829/08 JUDITH ANNE CARRAGHER v JOYCE MARY CROOK - ESTATE OF THE LATE RAYMOND MATTHEW McINERNEY

JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Raymond Matthew McInerney who died on 1 January 2008 aged 94 years. He was survived by his two children by his first wife and the plaintiff, who was the daughter of the deceased's second wife, Violet Carragher. Violet had predeceased the deceased some years earlier in 1991. 2 According to the plaintiff, she was part of the deceased's household and dependent upon him. The last will of the deceased 3 The first will of the deceased was made in 1983 and in it he left his property to his second wife and in case she did not survive him, then for his children and his stepchildren equally. 4 His last will was made on 2 October 1991 just after his second wife Violet died on 21 September 1991. In that will he left the whole of his estate to his two daughters of his first marriage, Joyce Mary Cook and Valerie Joan Sangster. Estate of the deceased 5 The estate consists of an un-registered car worth $1,000 and a house at Mittagong. That was valued in June 2008 by a Mr Davies at $300,000. Subsequently the defendant obtained an appraisal in February 2009 at a sum of $229,000. Mr Davies also gave evidence that in his view the market had not decreased but had increased to $315,000. Having regard to the lack of cross-examination I will accept the valuation of $300,000. The debts of the estate are as follows: