Chester v Cowin (No 2) [2025] NSWSC 74

Chester v Cowin (No 2) [2025] NSWSC 74

Provision for the first, fourth and fifth plaintiffs by granting a right to occupy the property until both youngest children finish high school, subject to payment of an occupation fee of one-third of market rent and responsibility for outgoings, is appropriate; detailed terms for repair, maintenance, and inspection are necessary to preserve the asset and interests of all. Immediate forfeiture of right to occupy for any breach is inappropriate—termination should follow a three-month continuous default. Costs should not be backdated and each party should bear their own, as rejection of the Calderbank offer was not found to be unreasonable given outcome intricacies.

Parties
First Plaintiff: Geraldine Ann Chester; Second Plaintiff: Matthew Wilson; Third Plaintiff: Mitchell Wilson; Fourth Plaintiff: CW (by his tutor Geraldine Ann Chester); Fifth Plaintiff: TW (by her tutor Geraldine Ann Chester); Defendant: Penelope Jayne Cowin
Jurisdiction
Australia
Judgment Date
17 February 2025
Procedural Posture
Family Provision / Succession Proceeding / Post Principal Judgment; Consequential Orders and Costs
Outcome
Orders made for provision by granting right to occupy property on specified terms; orders for administration and sale post-occupation; each party bears own costs.
Legal Topics
Family Provision, Right to Occupy Property, Costs (party/party, Indemnity), Offers of Compromise (calderbank), Estate Administration
Equity Succession Law Family Provision Right to Occupy Property Costs (party/party, Indemnity) Offers of Compromise (calderbank) Estate Administration

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Parties

Geraldine Ann Chester

First Plaintiff

Matthew Wilson

Second Plaintiff

Mitchell Wilson

Third Plaintiff

CW (by his tutor Geraldine Ann Chester)

Fourth Plaintiff

TW (by her tutor Geraldine Ann Chester)

Fifth Plaintiff

Penelope Jayne Cowin

Defendant

Procedural Posture

Family Provision / Succession Proceeding / Post Principal Judgment; Consequential Orders and Costs

Legal Issues

  1. 1 Terms for right to occupy property for family provision beneficiaries
  2. 2 Calculation and commencement of occupation fee
  3. 3 Whether refusal of Calderbank offer was unreasonable as to costs

Ratio Decidendi

Provision for the first, fourth and fifth plaintiffs by granting a right to occupy the property until both youngest children finish high school, subject to payment of an occupation fee of one-third of market rent and responsibility for outgoings, is appropriate; detailed terms for repair, maintenance, and inspection are necessary to preserve the asset and interests of all. Immediate forfeiture of right to occupy for any breach is inappropriate—termination should follow a three-month continuous default. Costs should not be backdated and each party should bear their own, as rejection of the Calderbank offer was not found to be unreasonable given outcome intricacies.

Court Disposition

Orders made for provision by granting right to occupy property on specified terms; orders for administration and sale post-occupation; each party bears own costs.

Orders

  • Defendant appointed as administrator of the estate of Malcolm Chester.
  • Formal requirements for administrator dispensed with under Probate and Administration Act 1898 (NSW).