Cabban v Cabban [2010] NSWSC 1433

New South Wales Supreme Court

CITATION : Cabban v Cabban [2010] NSWSC 1433 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 25/11/10

JUDGMENT DATE : 13 December 2010

JURISDICTION : Equity

JUDGMENT OF : Macready AsJ at 1

DECISION : Parties to bring in short minutes.

CATCHWORDS : Family Provision. Claim for provision by infant children. Consideration of their needs on a short term and long term basis in the context of a small estate. Small amount ordered. Plaintiffs' costs capped.

PARTIES : Chloe Cabban & Emily Hay by their tutor Kathleen Joyce Hay v Cameron Cabban

FILE NUMBER(S) : SC 2010/000

COUNSEL : Mr D Liebhold for plaintiffs Mr MJ Heath for defendant

SOLICITORS : Andrew John Fleming for plaintiff BHM Lawyers for defendant

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

Associate Justice Macready

Monday 13 December 2010

No 2010/00093359 CHLOE ANN CABBAN & EMILY KATE HAY BY THEIR TUTOR KATHLEEN JOYCE HAY v CAMERON CABBAN JUDGMENT

1 This is an application under the Succession Act 2006 ('the Act') in respect of the estate of the late, Rebecca Anne Hay, who died intestate on 20 April 2009, aged 30. 2 The deceased was survived by her husband, Cameron Cabban, the defendant in the proceedings and their two children, Chloe Ann Cabban and Emily Kate Hay, aged 5 and 3 years respectively. Chloe and Emily are the plaintiffs. Their tutor Kathleen Joyce Hay is their grandmother and the deceased's mother. 3 Although the deceased and Cameron Cabban had separated, Cameron would be entitled to the deceased's estate. Estate 4 At the date of death the deceased was co-owner as joint tenants with the defendant of a property at Spring Creek Road, Wamban. The property passed by survivorship to Cameron Cabban. The deceased had superannuation entitlements of some $59,788.51 and a mortgage insurance policy which she held jointly with the Cameron Cabban as co-debtor under their mortgage over the Spring Creek Road property. There was also some personal property including motor vehicles, none of which are of great value. History 5 The deceased, Rebecca Anne Hay was born in August 1978. She and Cameron Cabban were married in September 2002. The first plaintiff, Chloe was born in June 2005. In July 2006, Rebecca and Cameron separated. In December 2006, the second plaintiff Emily Kate Hay was born. 6 Rebecca and Cameron took no steps to dissolve the marriage and after the separation the deceased had custody of her daughters and her daughter also had access to Cameron. Rebecca and Cameron had informal discussions about a property settlement that did not result in a binding agreement. The parties had in fact put the matrimonial home at Spring Street on the market not long after they separated. 7 The discussions about a property settlement were to the effect that Rebecca would have 70 per cent and Cameron 30 per cent of the proceeds of sale. This was on the expectation that Rebecca would have the care of her daughters. 8 On 18 April 2009, Rebecca had a motorbike accident and she died at Canberra Hospital on 20 April 2009. 9 There was one serious purchaser interested Spring Creek Road and it sold shortly after Rebecca's death for $539,713.31. After payment of agent's commission and discharge of the mortgage, the net proceeds were $364,264.40. The deceased's mortgage insurer subsequently paid a total amount of $63,342.21. 10 The insurance policy was life insurance, which was to be applied to reduce the mortgage. The value of the total insurance payment in respect of Rebecca's death was $62,135.15, which is being held by the solicitors for the estate. I will return to the details of the insurance later. 11 In late 2008, Cameron commenced a relationship with Shannon Bill, a registered nurse. 12 Cameron applied the whole of the net proceeds of the sale of Spring Creek Road to purchase a property at Noggarula Drive, Congo for $620,000. Cameron purchased the Noggarula Drive property with his de facto spouse, Shannon Bill. Shannon advanced $62,000 and Cameron and Shannon hold that property as tenants in common in the proportions of 75 per cent to Cameron and 25 per cent to Shannon. 13 Shannon Bill has three children ranging in age from 5 years to 13 years. At the time of the hearing she was expecting another child with Cameron. 14 At the time of the deceased's motorcycle accident, Chloe and Emily were in Cameron's custody and he has had custody of them after Rebecca's death. Therefore at present Cameron and Shannon have five children in their family with another child expected shortly. From time to time, Kathleen Hay, the children's grandmother has access to Chloe and Emily. 15 Fortunately, Cameron and Shannon are young. Shannon is 36 years of age and is a registered nurse. Cameron is an electrical contractor and the same age as Shannon. Shannon is not working at the present time as she is caring for their large family. 16 The house at Noggarula Drive has three bedrooms and they are in the process of extending the home to create six bedrooms. Eligibility 17 The plaintiffs are eligible persons. 18 In Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-210, the High Court has set out the two stage approach which is also applicable to applications under the Succession Act 2006.