Campbell v Chabert-McKay [2010] NSWSC 859

Campbell v Chabert-McKay [2010] NSWSC 859

The plaintiff established sufficient cause for the late application because she reasonably relied on the deceased's representation that she would receive Collingwood after the defendant's death, did not receive the will until April 2008, did not know of the 18 month limitation period, and then acted promptly; the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 August 2010
Procedural Posture
Application Under the Family Provision Act 1982 (nsw) for Provision Out of Notional Estate / Principal Judgment After Hearing; Extension of Time, Provision and Notional Estate Issues Determined, With Designation of Assets and Costs Stood Over
Outcome
Application allowed; time extended and provision ordered from notional estate, with designation of specific assets and costs stood over.
Legal Topics
['family Provision' 'extension of Time' 'notional Estate' 'prescribed Transaction' 'distributed Estate' 'adequate Provision for Proper Maintenance and Advancement in Life']
['succession' 'equity'] ['family Provision' 'extension of Time' 'notional Estate' 'prescribed Transaction' 'distributed Estate' 'adequate Provision for Proper Maintenance and Advancement in Life']

Source-derived case record

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Procedural Posture

Application Under the Family Provision Act 1982 (nsw) for Provision Out of Notional Estate / Principal Judgment After Hearing; Extension of Time, Provision and Notional Estate Issues Determined, With Designation of Assets and Costs Stood Over

Legal Issues

  1. 1 ['Whether the time for the plaintiff to apply for an order under s 7 of the Family Provision Act 1982 should be extended under s 16.' 'Whether property of the defendant should be designated as notional estate under s 23 or s 24 of the Family Provision Act 1982.' 'Whether other special circumstances existed under s 28(5)(d) to justify designating property as notional estate after an extension of time.' 'What amount of provision should be made for the plaintiff out of the notional estate.']

Ratio Decidendi

The plaintiff established sufficient cause for the late application because she reasonably relied on the deceased's representation that she would receive Collingwood after the defendant's death, did not receive the will until April 2008, did not know of the 18 month limitation period, and then acted promptly; the defendant suffered no relevant prejudice. The deceased's direction that $950,000 sale proceeds be paid to the defendant was a prescribed transaction, the estate had been fully distributed to the defendant, and the deceased's moral obligation to make adequate provision for the plaintiff was substantially greater than any moral obligation to make that transaction. The deceased's...

Court Disposition

Application allowed; time extended and provision ordered from notional estate, with designation of specific assets and costs stood over.

Orders

  • ['Order that the time for the plaintiff to apply for an order under s 7 of the Family Provision Act 1982 in relation to the estate of the late David McKay be extended up to and including 14 July 2008.' 'Order that provision be made out of the notional estate of the late David McKay in favour of the plaintiff in the...