Cases and authorities

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Orders for costs of appeal and underlying proceedings — Where notice of motion not filed within 14 days of judgment being entered but notice given to Court and parties of that application — Whether Court can dispense with requirement to file and serve notice of motion — No basis to vary costs order

ENVIRONMENT AND PLANNING – Development consent for the adaptive reuse of existing commercial building – judicial review – building exceeds height standard – whether consent authority satisfied of cl 4.6 of Willoughby Local Environment Plan 2012 before granting development consent – whether consent authority satisfied building had active street frontage – whether development for permissible use of shop top housing – whether consent authority failed to consider if land is contaminated LIMITATION OF ACTIONS – Whether proceedings time-barred – time limit of three months after public notice in accordance with regulations published – earlier notifications not notices in accordance with regulations

BUILDING AND CONSTRUCTION – payment claim – validity – claim for payment due under construction contract – whether claim must be “for construction work” – purpose of claim to recover an amount obtained by respondents through recourse to bank guarantees provided by claimant – defence asserted in payment schedule – whether issue to be determined by adjudicator or Court

CRIME – appeals – appeal against conviction – applicant convicted of assault occasioning actual bodily harm against stepson – acquitted of common assault – whether verdict unreasonable having regard to the evidence CRIME – appeals – appeal against conviction – aggravated sexual intercourse without consent against twelve-year-old stepdaughter – evidence of particular long-standing sexual arrangement between applicant and wife – evidence that applicant knew his wife was not home at the time of offending – whether sufficient evidence to establish an honest subjective belief – whether any such belief could be reasonably held – whether failure to leave the defence of honest and reasonable mistake of fact caused a miscarriage of justice

CRIME – sentence – three guilty pleas – accessory after the fact to murder, participate in a criminal group, proceeds of crime – where offender had known links to Comanchero Outlaw Motorcycle Gang (OMCG) – subject murder connected to ongoing feud between the OMCG and a family Organised Crime Network – two unknown shooters – offender responsible for affixing cloned number plates and positioning three getaway cars – murder unknown to him at the time – mid-range objective seriousness – offender later provided access to underground carpark to hide getaway car until it was subsequently removed and destroyed – by this time offender knew shooters had murdered the deceased – shooters not yet apprehended – low end of mid-range – over $500,000 found in offender’s possession – offender was collecting and counting cash for OMCG – objective seriousness high in the mid-range – psychological report details childhood characterised by domestic and sexual violence – PTSD, persistent depressive disorder and various drug use disorder diagnoses – offender’s account to the psychologist somewhat incomplete – limited criminal record – finding of remorse – good prospects of rehabilitation and low risk of reoffending – offender remained drug free in custody – general deterrence and retribution substantial considerations – special circumstances found given offender’s pre-custody drug addiction – aggregate sentence imposed SENTENCING – plea of guilty – where offender offered to plead to accessory after the fact, participate in criminal group and proceeds of crime before committal – where Crown rejected and later accepted such an offer – complicated history given multiple changes to the indictment – offender entitled to 25% discount to accessory offence under s 25E(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – where criminal group charge was originally certified as an alternative to murder – appears on indictment ex-officio – exception in s 25D(3)(a) and (4) disentitles offender to 25% discount – facts and evidence establishing criminal group charge same as those contained in the brief of evidence – 10% discount – where three separate proceeds of crime offences totalling $561,450 were originally charged – no provision in Division 1A for where an offender offers to plead offer is rejected then accepted after committal – lacuna in Division 1A – inconsistent with EAPG system – offender entitled to 10% discount under s 25D(2)(b)(i) – pleas and agreed statement of facts otherwise demonstrate willingness to facilitate the course of justice

PRIVATE INTERNATIONAL LAW – jurisdiction –exclusive foreign jurisdiction clause – whether strong reasons to set exclusive foreign jurisdiction clause aside – where crane purchased from Netherlands and delivered to Australia

CORPORATIONS — where plaintiff sought order for supplementary disclosure to scheme shareholders – whether orders sought should be made.

COSTS – appeal from costs Review Panel – ordered costs after a three-day hearing before Rees J – whether the Review Panel paid adequate regard to the s 172 of the Legal Profession Uniform Law (NSW) 2014 in respect of the requirement of proportionality

COSTS — application by plaintiff for lump sum costs order and indemnity costs — factors relevant to the court’s discretion when quantifying costs — contractual entitlement to indemnity costs — unreasonable conduct in opposing winding up application — HELD — gross sum costs awarded on indemnity basis

EQUITY — remedies — constructive trust — failed joint endeavour — declaration that joint endeavour property held on trust for sale and division of proceeds — form of declaration — indemnity against capital gains tax liabilities — appointment of independent trustee to effect sale — vesting order —former joint endeavour participants remaining in occupation — mode of sale — trustee’s responsibilities and discretions

CRIME – appeals – appeal against conviction – miscarriage of justice – directions to jury – tendency evidence – where tendency alleged was constituted by charged and uncharged acts – where no objection to directions raised at trial – whether jury should have been directed that tendency evidence comprised of the complainant’s own allegations could not be used as tendency evidence for the very same count or for any of the counts concerning that complainant – whether jury should have been directed that lack of satisfaction of any of the counts at the tendency stage would mean that a not guilty verdict should be returned in relation to that count – whether circumstances warranted a direction pursuant to s 161A(3) of the Criminal Procedure Act 1986 (NSW) CRIME – appeals – appeal against conviction – miscarriage of justice – directions to jury – complaint evidence – whether jury should have been directed that complaint evidence could only be used for its credit purpose and not for its truth purpose – where no objection to directions raised at trial – where no limitation placed on use of complaint evidence pursuant to s 136 of the Evidence Act 1995 (NSW) CRIME – appeals – appeal against sentence – manifest excess – where Applicant sentenced in relation to 34 counts which varied in duration and seriousness and related to a wide range of vulnerable victims

CRIME – Appeals – appeal against sentence – where total effective sentence of 29 months ordered – where combined period of custodial sentence and recognizance release order exceeded 3 years – whether sentencing judge erred having regard to the proper construction of Crimes Act 1914 (Cth), s 19AC CRIME – Appeals – appeal against sentence –impact of any period of custody on the applicant’s rehabilitation – where custodial sentence imposed – whether the sentencing judge erred having regard to Crimes Act 1914 (Cth), s 16A(2AAA) CRIME – Appeals – appeal against sentence – whether manifest excess

CRIME – appeals – appeal against sentence – two charge sets comprising seven counts – assault occasioning actual bodily harm, sexual intercourse and record an intimate image without consent – influence witness, aggravated detain and intentionally choke – where applicant reported traumatic childhood characterised by domestic and sexual violence – where applicant diagnosed with drug use disorders, PTSD and anti-social and borderline personality traits – whether sentencing judge failed to consider mental health and Bugmy factors – where sentencing judge reduced moral culpability by reason of Bugmy factors – where sentencing judge made a finding of special circumstances – ex tempore judgment – sentencing judge is not obliged to refer to every part of a psychological report – no submission about a causal connection between mental health and the offending was made – sentencing judge did not err by giving weight to general and specific deterrence given the applicant’s criminal record – no error – ground rejected CRIME – appeals – appeal against sentence – where parties had previously agreed to film their sexual activity – where parties’ sexual relationship involved dominating and degrading behaviour – applicant filmed sexual activity whilst the complainant was unconscious – whether sentencing judge erred in finding of objective seriousness – whether nature of the parties’ sexual relationship ought to have reduced objective seriousness – sentencing judge’s findings of fact accorded entirely with agreed statement of facts – agreement to film sexual activity did not extend to sexual intercourse whilst the complaint was unconscious – sentencing judge did not err by finding that the sexual intercourse was accompanied by degrading and violent acts – determination open to his Honour – ground rejected CRIME – appeals – appeal against sentence – manifest excess – where applicant contends indicative sentences for sexual intercourse without consent were excessive – challenge can only be made to the aggregate sentence – indicative sentences open to sentencing judge – comparable cases of limited utility given number of offences and seriousness of present offending – offending involved serious domestic violence over a six month period – sentence not plainly unjust – ground rejected – sentence appeal dismissed

LAND LAW – Indigenous land rights – Indigenous person charged under State law with possessing abalone without licence or permit – Section 211 of the Native Title Act 1993 (Cth) – Immunity from application of restrictive laws requiring licence or permit – Meaning of carrying on activity for the purpose of satisfying personal, domestic or non-commercial communal needs – Meaning of fishing, gathering or a cultural or spiritual activity EVIDENCE – Burden of proof – Criminal proceedings – Burden and standard of proof of a defendant who invokes s 211 – Statutory exception to general rule – Legislative intent for immunity to be capable of practical and ready exercise by native title holders – Legal burden on person seeking to make out claim against native title holder JUDGMENTS AND ORDERS – Court of Appeal – Decision of intermediate appellate court of another State interpreting Commonwealth legislation – Principles as to departing from such a decision – Whether previous decision of South Australian Court of Appeal plainly wrong

CRIME – appeals – appeal against conviction – attempt to possess marketable quantity of border controlled drug – where appellant attempted to gain possession of consignment sent from the Republic of South Africa – parcel interior lined with cocaine – consignee name slightly different from that of the appellant – addressed to apartment block resided in by the appellant but different unit number – earlier uncharged consignment sent from the Republic of South Africa using same altered name and incorrect unit number admitted as coincidence evidence – whether miscarriage of justice occasioned by decision to admit coincidence evidence – where proceedings commenced prior to statutory test being amended – whether probative value “substantially outweighs” prejudicial effect – evidence correctly admitted – appeal dismissed

CIVIL PROCEDURE – cross-vesting – transfer to other Supreme Court – by consent – weighing of respective benefits and disadvantages – interests of justice – appropriate forum – proceedings transferred COSTS – party/party – exception to general rule that costs follow the event – order reflects a substantial capitulation by one party – costs thrown away order made

CIVIL PROCEDURE – release of funds paid into Court

CIVIL PROCEDURE – Application under s 76 of Civil Procedure Act 2005 (NSW) for approval of settlement with defendants – settlement for the benefit of the protected persons – consent orders made

BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Building and Construction Industry Security of Payment Act 1999 (NSW), s 19, s 21, s 22 BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Whether jurisdictional error to fail to consider documents provided to the Adjudicator — Where those documents include report produced relying on material subject to ‘without prejudice’ communications BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Whether jurisdictional error for Adjudicator to rely on grounds allegedly not advanced by either party

JUDGMENTS – significance of plaintiff who settles with one defendant and characterises payment as going to costs – meaning and scope of rule against double recovery – significance of plaintiff settling with and releasing a defendant after judgment has been entered – nature of defendants’ liability after entry of judgment COSTS – gross sum costs order – costs of long and complex trial and appeal – whether materials sufficient to permit making of gross sum costs order – whether costs associated with after-the-event insurance were disbursements or expenses – significance of costs being necessary, reasonable, and brought about by application for security for costs by ultimately unsuccessful respondents – whether and how costs should be discounted for various matters

CRIMINAL LAW – evidence – murder trial – evidence by audio-visual link – application by prosecutor for AVL direction in respect of eleven witnesses – four witnesses the subject of consent by accused – application opposed in respect of seven of the eleven witnesses – mixed reasons offered as to inconvenience for witnesses – assessment of reliability necessary – not in the interests of the administration of justice for witnesses to give evidence from locations other than the courtroom

CONTRACTS – Construction – Context – where the parties entered into four separate oral contracts – whether the contracts provided for the transfer of ownership of four cars – where transaction documents indicated that a security interest in the vehicles was required – whether trial judge’s construction of contract was uncommercial CORPORATIONS – Contracts – financial statements – s 1305(1) Corporations Act 2001 (Cth) – whether information within financial statements held significant probative value in determining the terms of a contract – where signatory to financial statements not a party to proceedings

CORPORATIONS – winding up – liquidators and receivers of trust assets – remuneration – application for approval of remuneration – whether remuneration claimed by provisional liquidators is proportionate to complexities of the matter.

CORPORATIONS — winding up — just and equitable ground — where the relationship between members of the corporation has irretrievably broken down — appointment of liquidators with consent — COSTS — indemnity costs — conduct of defendants not unreasonable — HELD — costs ordered on ordinary basis

CRIME – charge of murder – defence of mental health impairment – judge alone trial – parties agree defence of mental health impairment established – evidence by forensic psychiatrists – s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – special verdict – orders under s 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – consequential orders – victims impact statement

COSTS – application to vary costs order – UCPR, r 36.16(3A) – whether basis for variation made out

EQUITY – equitable remedies – specific delivery of chattels – specific delivery of rare and unique items – war medals in the possession of the deceased not disposed of specifically by his will – the applicant who is entitled to the residue of the deceased’s estate, requests delivery of the war medals to her by the respondent, the executor of the estate – the respondent refuses to deliver the war medals claiming that they were gifted to him by the deceased during the deceased’s lifetime – whether the deceased gifted the war medals to the respondent – whether the war medals form part of the residue of the deceased’s estate.

NEGLIGENCE — professional negligence — advice about settlement and cost consequences — breach — causation

CRIME – appeals – appeal against sentence – initial suspended sentence in the Drug Court of New South Wales – where Drug Court Program terminated due to further offending – whether final sentence affected by errors relating to parity, totality and delay – whether sentence manifestly excessive – appeal dismissed

CRIME – appeal – appeal against conviction – unreasonable verdict – murder – accessory before the fact – where Crown case was that the applicant and his brother had procured the assault on the deceased – where the jury’s advantage in having seen and heard the evidence was “slight” – circumstantial case – question as to whether the Crown has excluded any inference consistent with innocence that was reasonably open – combined effect of the evidence to be considered – capacity of the evidence to prove the particularised acts of assistance – finding of doubt as to the guilt of the applicant – leave to appeal granted – appeal allowed – verdict of acquittal entered

CRIME – appeals – failure to leave to the jury alternative verdict of manslaughter based on excessive self-defence in s 421 Crimes Act 1900 (NSW) – whether failure caused a miscarriage of justice – where applicant pleaded guilty to manslaughter and not guilty to murder in front of the jury – applicant convicted of murder as part of a joint or extended joint criminal enterprise – where no expert evidence proving which of the accused committed the act causing death – whether evidence capable of supporting an alternative verdict of manslaughter – whether evidence capable of supporting formation of a tacit agreement to act in concerted self-defence – whether failure to leave excessive self-defence caused substantial miscarriage of justice CRIME – appeals – statutory interpretation – excessive self-defence – meaning of “force that involves the infliction of death” in s 421 Crimes Act 1900 (NSW) – whether something less than a direct causal connection is required to raise the partial defence – whether distinction between the use of force that involves the infliction of death and force that causes death

EQUITY – Fiduciary duties – Where Cross-Claimant company gives authority to Second Cross-Defendant to be a signatory on its bank account and he signs cheques in favour of himself, his wife and a company associated with him in circumstances where no money is owed and the Company derives no benefit from the payments – Cross-Claimant claims the amount of the payments from the Second Cross-Defendant and also the other recipients on the basis of knowing participation in his breach of trust – HELD: He had fiduciary duties to the company not to do this and is liable to compensate the company for its loss – Requisite knowledge on the part of the other recipients not established.

CRIMINAL LAW – murder trial – application to adduce evidence (in various forms) regarding the 1997/1998 pregnancy and early 1998 termination of pregnancy – evidence relevant

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

CORPORATIONS — Scheme of arrangement — Application for approval of supplementary disclosure in respect of financial results and following other communications to shareholders.

CORPORATIONS — winding up — competing measures to wind up company — where plaintiff creditor applied to have the defendant company wound up in insolvency for failure to comply with statutory demand — where subsequent resolution passed to voluntarily wind up the company and appoint applicant as liquidator — where applicant unaware of plaintiff’s application and undertook work in liquidation — liquidator applies for leave nunc pro tunc for the company to be wound up voluntarily — where plaintiff creditor supports present application — HELD — leave granted

CONTRACTS — parties — capacity — gift of real property CONTRACTS — unjust contracts — Contracts Review Act 1980 (NSW) — unjust EQUITY — unconscionable conduct — special disability or disadvantage — whether unconscientious advantage taken EQUITY — trusts and trustees — constructive trusts — imperfect gifts EQUITY — undue influence — relationships giving rise to presumption of undue influence

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Late amendment by the plaintiff on cause of action which succeeds and other causes of action would have failed – Whether the plaintiff should pay the defendants’ costs up to the date of the amendment – Plaintiff failed in respect of some travel costs – Whether the claim for those travel costs is separable such that an order should be made for the plaintiff to pay the defendants’ costs of that failed claim – Whether the proceedings should properly have been brought in the District Court and the plaintiff deprived of costs on that account – Whether the defendants should have the benefit of unaccepted Calderbank letters – Calculation of the quantum of the plaintiff’s claim

CORPORATIONS — Voluntary administration — Deed of company arrangement — Terminating deed of company arrangement under s 445D of the Corporations Act 2001 (Cth) — Where Deed disadvantageous to one creditor — Where Deed provided for third party releases — Whether deed of company arrangement an abuse of process of Pt 5.3A of the Corporations Act 2001 (Cth).

Client legal privilege – Whether privilege in legal advice lost by client giving evidence about state of mind concerning the issues about which the legal advice was given – Held: privilege lost.

FAMILY LAW AND CHILD WELFARE — Adoption of child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent to an adoption gives his or her sole “consent” — Whether a birth father’s consent is necessary for such an adoption — Whether s 30(1)(c) Adoption Act 2000 (NSW) (“Adoption Act”) creates a separate consent requirement independent of Pt 5 Div 1, including s 54(2), Adoption Act — Review of Law Reform Commission Report, legislative history, subsequent amendments of ss 30, 52, 54 Adoption Act — Held child’s sole consent is sufficient and there is no requirement for a birth father’s consent FAMILY LAW AND CHILD WELFARE — Consideration of dispensation with the requirement of notice to the birth father pursuant to s 54(3)(b) Adoption Act — The Adoption Act does not specify grounds which the Court must consider when determining whether to dispense with the requirement of notice pursuant to s 54(3)(b) — Consideration of matters relevant to dispensation with the requirement of notice FAMILY LAW AND CHILD WELFARE — Consideration of the provisions dealing with consideration of alternatives to adoption, being ss 8(2)(k), 29(c), 30(1)(d), 36, 90(3) and 106(2)(b) Adoption Act — Discussion of the provisions of ss 30(1)(d) and 90(3) in respect of adoption by a step parent and comment regarding the differences between those provisions FAMILY LAW AND CHILD WELFARE — Consideration of the nature of evidence on adoption applications and in particular the rationale for the particular form of evidence required from referees CONSENT — Consent conceptualised — Discussion of what is consent — Discussion of common characteristics regarding consent — Discussion of the consequences of consent — In adoption cases the consequences of consent are so significant and far-reaching that the law requires that it be filtered through a rigorous process to ensure that the consent is well-informed, well-considered and enduring — Discussion of the means by which that rigour is achieved by the Adoption Act PRACTICE — Practice Notes — Status and purpose discussed STATUTES — Construction — Discussion of principles of construction

CONTEMPT – Civil contempt – Breach of orders – Non-production – whether charges drafted with sufficient particularity to provide the Appellants with a fair hearing – whether findings of civil contempt proven beyond a reasonable doubt – whether documents existed or were in the custody, power or possession of the Appellants – whether primary judge erred in making findings that did not reflect the Statement of Charge – power of the Court to make any order which ought to have been made pursuant to s 75A(10) of the Supreme Court Act 1970 (NSW)

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Child sex offences – Sexual intercourse with child <10 – Procuring or grooming child for unlawful sexual activity – Where applicant was the complainant’s grandfather – Where offending occurred over a period of four years – Whether inconsistencies between complainant’s account and objective evidence were sufficient that jury should have had reasonable doubt as to applicant’s guilt

LEASES AND TENANCIES — Tenancies — Week to week tenancy — Plaintiffs, together with granddaughter and assistance cat, resided in studio apartment in hotel accommodation above public bar for several years on week to week tenancy — Hotel management gave first plaintiff a written notice to vacate the studio apartment in seven weeks’ time —Plaintiffs accepted that there was no notice to vacate required under the tenancy, nor was there a requirement of notice to leave — Plaintiffs accepted that neither the Residential Tenancies Act 2010 (NSW) nor the Boarding Houses Act 2012 (NSW) applied to the tenancy — Nonetheless, plaintiffs sought urgent interim order restraining enforcement of the notice to vacate, which required apartment to be vacated the following day HUMAN RIGHTS — Discrimination — Grounds — Age and disability discrimination — Second plaintiff was an 83-year-old grandmother suffering visual impairment and deafness, along with other “complex medical needs” — Plaintiffs claimed that notice to vacate studio apartment discriminated against second plaintiff in failing to consider her disabilities, age and assistance cat — Plaintiffs sought interim order pursuant to s 105 Anti-Discrimination Act 1977 (NSW) preserving status quo HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) — Whether Supreme Court has power to make an interim order under s 105 — Discussion of role of NCAT in regulatory scheme — Held power to make interim order under s 105 is given to NCAT and Supreme Court has no power to make such an order CIVIL PROCEDURE — Parties — Appropriate defendants — Whether defendants named by plaintiffs in summons are the appropriate defendants to the claim — No formal proof or evidence that named defendants were the registered proprietors of the hotel or otherwise the actual party with whom the plaintiffs have had an arrangement for occupation of the apartment — No indication that named defendants had any knowledge of the notice to vacate

CIVIL PROCEDURE — federal jurisdiction — special federal matters — Bankruptcy Act 1966 (Cth) — personal insolvency agreement — debtor a co-owner of five properties subject to orders appointing statutory trustee for sale — debtor assigns interest in three of the properties to PIA trustee — PIA trustee assigns debtor’s interest to purchasers — proceedings by purchasers against sale trustee and other co-owner to obtain registration — whether jurisdiction “in bankruptcy” CIVIL PROCEDURE — application for injunction in nature of stay of previously made orders creating statutory trust for sale pending appeal — prima facie case — failure to join necessary party — application to vary substantive orders —Woods v Sheriff of Queensland (1895) 6 QLJ 163 — discretion — balance of convenience — order for sale of property by trustee — application refused

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether there is a genuine dispute about the existence or amount of the debt — Whether the plaintiff’s construction of the contract is patently feeble and without merit.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

CORPORATIONS — winding up — failure to comply with statutory demand — presumption of insolvency — evidence as to defendant’s solvency filed at various times including day before hearing — plaintiff then sought leave to discontinue the substantive proceedings — COSTS — UCPR r 42.19 — plaintiff seeks departure from ordinary position in r 42.19 — question of costs not to be determined by conducting hypothetical hearing of the merits — outcome on merits not capable of prediction — parties acted reasonably in commencing and defending the proceedings — defendant seeks indemnity costs on basis of Calderbank offer — no basis for indemnity costs as Calderbank offer not made to plaintiff and could not be unreasonably declined — costs lie where they fall — HELD — no order as to costs

COSTS — party/party — bases of quantification — indemnity basis

SUCCESSION — Administration of estates — dispute in relation to whether money is owed to the estate of Nelly Mary Aston by the estate of Riley Davis Aston or vice versa – dispute has persisted throughout various attempts to pass estate accounts – Court has power under Uniform Civil Procedure Rule, 54.3 to grant relief on any question arising in the administration of an estate without general administration proceedings being commenced – dispute about debts owing to or by an estate could be determined in general administration proceedings – the need for finality in the estate administration favours the determination of the issue – whether a debt is owed to the estate or by the estate of Nelly Mary Aston.