Cobb v Cobb [2012] NSWSC 97

Supreme Court New South Wales

Medium Neutral Citation: Cobb v Cobb [2012] NSWSC 97 Hearing dates: 9 February 2012 Decision date: 20 February 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (a) Order that the time for making the Plaintiff's application be extended up to and including 22 September 2011, the date of the filing of the Summons. (b) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that in lieu of the provision made for her in the Will of the deceased, she is to receive the whole of the deceased's estate after payment of the liabilities, costs and expenses of sale of the Macksville property, as well as the legal costs and disbursements of the proceedings. (c) The Plaintiff's costs and disbursements assessed at $30,000 (inclusive of GST) to be paid out of the estate of the deceased. (d) The Defendant's costs and disbursements, calculated on the indemnity basis, and assessed at $11,565, to be paid out of the estate of the deceased. (e) Any subpoenaed material may be returned. (f) Note that the Plaintiff's solicitors will not seek, from the Plaintiff, any amount for costs and disbursements additional to the amount referred to in order (c) above. Catchwords: Family provision order under Chapter 3 of the Succession Act 2006 - Plaintiff spouse of deceased - Summons filed outside prescribed period - Whether to extend time for making application - Whether provision inadequate for maintenance and advancement in life of Plaintiff - Competing claims of grandchild and great-grandchildren Legislation Cited: Family Provision Act 1982 Succession Act 2006 Cases Cited: Burton v Moss [2010] NSWSC 163 Campbell v Chabert-McKay [2010] NSWSC 859 Cooper v Dungan (1976) 50 ALJR 539 Durham v Durham [2010] NSWSC 389 Foley v Ellis [2008] NSWCA 288 Gorton v Parks (1989) 17 NSWLR 1 John v John [2010] NSWSC 937 Luciano v Rosenblum (1985) 2 NSWLR 65 McKenzie v Topp [2004] VSC 90 O'Loughlin v O'Loughlin [2003] NSWCA 99 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Category: Principal judgment Parties: Yvonne Margaret Cobb (Plaintiff) Michelle Yvonne Margaret Cobb (Defendant) Representation: Mr R Wilson (Plaintiff) Ms E Glover (Defendant) Turnbull Hill Lawyers (Plaintiff) Marsdens Law Group (Defendant) File Number(s): 2011/311509