Cases and authorities

CRIMINAL LAW - appeal and new trial - appeal against conviction persons constituting jury - juror making prohibited inquiry about a matter relevant to the trial - mandatory discharge of juror for misconduct - examination of juror to determine if misconduct occurred - failure of judge to follow statutory provisions

CRIMINAL LAW – Appeal against conviction and sentence – grounds of appeal – (1) Conviction unreasonable or unsupported by evidence – (2) Wrong interlocutory decisions – (3) Substantial miscarriage of justice – Appeal dismissed – CRIMINAL LAW – Evidence – Issues raised on appeal – Evidence sought to be admitted by the appellant as character and tendency evidence was determined by the trial judge to be evidence going to issues of credit – trial judge decision to admit certain evidence put forward by the prosecution as relationship evidence rather than tendency evidence – whether trial judge ought to have made a section 136 (Evidence Act 1995) ruling in relation to evidence about the credibility of the victim – whether trial judge ought to have imposed a section 136 (Evidence Act 1995) limitation on sexual experience evidence – application for leave to recall witnesses for further cross-examination – CRIMINAL LAW – Particular offences – offences against the person – acts intended to cause or causing danger to life or bodily harm or serious injury – wounding with intent to murder – CRIMINAL LAW – Criminal liability and capacity – defence matters – non-insane automatism – interaction of onus of proof and presumptions of mental capacity and that an action is willed – significance of psychiatric evidence in displacing presumptions [86]-[93] – APPEAL – test for appellate reversal of discretionary decision of practice and procedure no different to test for any other discretionary decision, but satisfaction of the test often harder as a matter of fact [217] – EVIDENCE – tendency evidence – proper procedure for deciding admissibility of tendency evidence [224] – difference between tendency evidence and relationship or context evidence – CRIMINAL LAW – procedure – whether a “prescribed sexual offence” within Criminal Procedure Act 1986 must involve activities that themselves have a sexual component [265]-[277] – effect of a “prescribed sexual offence” being tried with other charges [278] – STATUTES – Acts of Parliament – interpretation – role of definition section – meaning of “except in so far as the context or subject-matter requires” [272]-[276] – EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – reasons for judgment in other cases – whether admissible under s65(3) [295]-[300] – whether statements in them are first-hand hearsay [299]-[300] – whether admissible under s65(8)(b) [301]-[303] – whether admissible as a public document under s157 [304]-[314] – whether “judgment” in s157 includes reasons for judgment [306] – EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – first-hand hearsay – onus of proof of unavailability of the person who made the previous representation [341] – form in which evidence of the previous representation can be given by the person who saw, heard or otherwise perceived the representation being made [343] – EVIDENCE – admissibility under the Evidence Act 1995 – what constitutes “evidence of reputation” under s73 [353]-[354]

CRIMINAL LAW – particular offences – drug offences – conspiracy to traffic marketable quantity of controlled drug (heroin and methamphetamine) – conspiracy to money launder - CRIMINAL LAW – Crown appeal – asserted manifest inadequacy – no error of principle or fact – whether sentence unreasonable or plainly unjust – nature of offence – conspiracy – comparable sentencing of other individuals involved in syndicate – role of offenders – no error in assessment by sentencing judge – parity principles not available to increase sentence – Crown appeal dismissed - CRIMINAL LAW – sentence – sentencing procedure – sentencing statistics – applicable range of sentences – consideration of comparable offences – comparable sentences under Commonwealth law – comparable sentences under state law – appropriate basis for comparison

APPEAL – civil – evidence – whether conclusion supported by evidence - APPEAL – civil – fact finding – competing evidence – lay opinion – how plaintiff became attached to culpable taxi – situation at taxi rank immediately before incident - EVIDENCE – proof – circumstantial evidence – competing inferences – whether driver most likely to have proceeded to taxi rank rather than by-passed it – each inference of equal probability - EVIDENCE – proof – onus – onus on Nominal Defendant to establish taxi was culpable taxi - EVIDENCE – proof – standard of proof – civil – application of Briginshaw standard - TORTS – negligence – contributory negligence – motor accident - TORTS – negligence – liability – motor accident – whether taxi was culpable taxi

PROCEDURE – courts and judges generally – whether proceedings incompetent – question can be brought for determination by the Court only by a person who has standing to raise that question – a bankrupt does not have standing where the rights necessary to bring the proceedings have vested in Official Trustee – applications for leave to appeal, for extension of time in which to seek leave to appeal, for review of interlocutory decision made in proceedings seeking leave to appeal, to admit further evidence in the foregoing applications, and for an injunction restraining dealings with certain real estate all dismissed as incompetent – BANKRUPTCY – Administration of property – effect of bankruptcy on antecedent transactions – effect of bankruptcy on applicant’s right to bring an action – actions commenced by a person who becomes a bankrupt are stayed however bankrupt may continue action commenced prior to bankruptcy in relation to personal injury or wrong done to him/her – right to recover damages in relation to personal injury or wrong done to the bankrupt exempt from property divisible amongst creditors – found that such a cause of action will vest in bankrupt only if damages are estimated by immediate reference to pain felt by the bankrupt without reference to his rights of property – present claim for “pain and suffering” alleged to have arisen from loss of property through wrongful action of others and is thus a property right that would have vested in the Official Trustee – BANKRUPTCY – Administration of property – effect of bankruptcy on antecedent transactions – effect of bankruptcy on applicant’s right to bring an action – right of appeal against a judgment imposing a liability on person who thereafter became a bankrupt is not so vested in Official Trustee – however found that bankrupt does not have standing where judgment debt itself provable in bankruptcy – BANKRUPTCY – Discharge of bankrupt – discharge by effluxion of time – effect of discharge – discharge of bankrupt from bankruptcy does not cause any assets that have vested in the Official Trustee to revert to the bankrupt – following her release from bankruptcy, the applicant still lacks the capacity to bring proceedings to vindicate rights relating to or arising from any equitable interest in her property as at the time she became bankrupt or to recover any debt that may have been owing to her at the time she became bankrupt – BANKRUPTCY – Official Trustee – capacity of the Official Trustee to correct errors in its orders, where the orders were consent orders that have now been entered – relief available to a bankrupts when trustee declines to exercise his power to sue or to appeal is to apply to Court seeking an order requiring Trustee to appeal or allow the bankrupt to use the Trustee’s name – EQUITY – equitable remedies – injunctions – interlocutory injunctions – injunctions to preserve status quo in relation to property pending determination of rights – Where all relevant proceedings are or would be incompetent, there is no serious question to be tried that would justify the issue of the injunction sought

PAY ROLL TAX - Grouping - De-grouping - PAY ROLL TAX - De-grouping - Criterion - Satisfaction of Commissioner - Court not entitled to substitute its opinion - TAXATION STATE - Appeal to Supreme Court - Taxation Administration Act s 97 - Appeal in right and proper sense - appellant must establish error - Court not entitled to substitute its opinion

MORTGAGES - whether forged - whether any debt secured - whether innocent party obtained any benefit from funds advanced - CONTRACTS - whether mortgage originator liable for breach in failing to detect fraud - DECEIT - liability of fraudster - whether property held on trust for fraudster by innocent party

VOIR DIRE - inability of defendants to cross examine adequately due to 14 year lapse of time and lack of recollection - McIntyre reliant for facts on B Young, co-director of Stoneglow Pty Ltd (not being called) and P Hammond (similarly affected by lapse of time and lack of recollection) - admission of report of 23 December 1996 containing previous representations unfairly prejudicial - non-compliance with UCPR 31.17 - 29 - provisions apply to any expert report, in substance, sought to be relied on - not appropriate to otherwise order under UCPR 31.23(3) or to give leave under UCPR 31.28(3) where s 135 applied to report and previous representations

EVIDENCE of LB Anthony - cross-examination on credit - application of credibility rule - leave refused to adduce previous representations going only to the credit of the witness

DEFAMATION - imputations - objections as to capacity and form - no question of principle

CORPORATIONS - arrangements and reconstructions - Part 5.1 schemes of arrangements - method of counting votes for creditors schemes and members schemes - whether creditor can vote part of debt in favour and part against - held: no - a creditor who purports to do so must be regarded as having not voted - whether member can vote part of shareholding in favour and part against - held: yes - but the fact that some votes are negative means that the resolution was not "passed by" that member

MISLEADING OR DECEPTIVE CONDUCT - whether representations were made - whether representations were false - whether the plaintiffs relied upon the representations - whether the plaintiffs are able to recover amounts paid in reliance on representations - CONRACT - alternative claim not necessary for decision where written contract did not reflect purchase price of shares - whether written contract reflected agreement reached - whether defendants entitled to recover damages for breach of contract on cross-claim

APPEAL – civil – statutory appeal – whether appellant aggrieved by decision of Deputy President on point of law – s 353, Workplace Injury Management and Workers Compensation Act 1998 (NSW) - WORKERS COMPENSATION – whether injury sustained "in the course of employment" – conduct of worker – vehicle provided by employer – employee injured driving home from employer's Christmas party – employee driving in contravention of orders given by employer and under the influence of alcohol – s 14(1), Workers Compensation Act 1987 (NSW) - WORKERS COMPENSATION –"arising out of or in the course of employment" – s 4, s 14(2), Workers Compensation Act 1987 (NSW) - WORKERS COMPENSATION – conduct of worker – whether employee's actions "for the purposes of and in connection with the employer's trade or business" – s 14(1), Workers Compensation Act 1987 (NSW) - WORKERS COMPENSATION – whether employment a substantial contributing factor to the injury – s 9A, Workers Compensation Act 1987 (NSW) - WORDS AND PHRASES – "in the course of employment", "for the purposes of and in connection with the employer's trade or business"

PRACTICE AND PROCEDURE – Determination of separate questions – Where there is a commonality of witnesses between the determination of the proposed separate questions and the other issues in the proceedings – Where issues of credibility of common witnesses are likely to be relevant – Whether a determination of the proposed separate questions will facilitate the just quick and cheap resolution of the proceedings.

CRIMINAL LAW - bail - murder - whether exceptional circumstances exist

CRIMINAL LAW – particular offences – offences against the person – sexual offences – sexual intercourse without consent – aggravated sexual intercourse without consent – circumstance of aggravation - CRIMINAL LAW – appeal against conviction – amendment of indictment during trial – deletion of circumstance of aggravation – otherwise no new offence charged – statutory alternative – no deficit in indictment – whether amendment of indictment required appellant to be re-arraigned – no error established - CRIMINAL LAW – leave to appeal against sentence – whether sentence manifestly excessive – general sentencing considerations – no error established

CRIMINAL LAW - appeal against conviction and sentence - giving false evidence - perverting the course of justice - falsifying community service order time sheets - whether conduct as particularised on CAN constituted breach of s 319 of Crimes Act - delay between date of commission of offences and service of CANs - whether sentencing judge failed to give adequate reasons

CRIMINAL LAW - appeal against severity of sentence - commercial supply of ecstasy - relevance of evidence of good character - youth - good prospects of rehabilitation - whether error in assessment of objective seriousness of offence - whether error in approach to standard non-parole period - sentence manifestly excessive

CRIMINAL LAW – particular offences – offences against the person – aggravated robbery with wounding - CRIMINAL LAW – appeal against sentence – delay between offence and sentence – applicant subject to sentence imposed in Local Court in respect of other offence – period of custody previously served not taken into account – successful appeal to District Court after further sentence imposed – appellant re-sentenced – impact of re-sentence on commencement date – accumulation of sentences – offender a child at the time of offending – relevant sentencing factor – appeal allowed, applicant re-sentenced - CRIMINAL LAW – appeal against severity of sentence – failure to take into account relevant circumstances – voluntary disclosure of offence – entitlement to application of principles stated in R v Ellis – entitlement to application of principles stated in R v Fernando – steps taken by offender towards rehabilitation – greater reduction in sentence warranted

CRIMINAL LAW - sentence - Crown appeal - agreement to supply large commercial quantity of ecstasy - error in fact finding by sentencing judge - error in assessment of role of offender and objective seriousness of offence - extent of combined discount for plea and assistance - whether excessive weight given to subjective features - whether sentence manifestly inadequate

CRIMINAL LAW - appeal against severity of sentence - commercial supply of ecstasy - whether error in treatment of previous convictions - whether error in assessment of rehabilitation prospects - youth - whether a mitigating factor that drugs supplied to undercover police officer - error in assessment of role of offender - error in assessment of objective seriousness of offence - adequacy of reasons relating to aggravating and mitigating factors taken into account - totality principle - less severe sentence warranted

CRIMINAL LAW - leave to appeal sentence - whether discount given for assistance was too low compared with discount allowed for co-offender - whether there was an error in the assessment of discount to which the applicant was entitled for her assistance - no error established - whether sentence is manifestly excessive - not established - leave to appeal granted - appeal dismissed

CRIMINAL LAW - leave to appeal sentence - whether sentencing judge failed to apply Guideline judgment R v Whyte and if so whether head sentence was calculated from wrong starting point - no error established - whether sentence imposed was manifestly excessive - not established - leave to appeal granted - appeal dismissed

CRIMINAL LAW - leave to appeal against sentence - whether error in assessment of the role of the applicant in this offence - no error established - whether there was failure to give an appropriate discount for assistance to authorities and the plea of guilty - no error established - whether sentence imposed for Count 1 was too severe - not established - leave to appeal granted - appeal dismissed

Criminal Law - Sentencing - Appeal - Court of Criminal Appeal may create disparity between co-offenders - Departure from prior decisions - Large commercial quantity of cannabis plants - Utilitarian value of plea - What is earliest possible opportunity for plea - Need for finding as to objective seriousness - Sentences manifestly inadequate

CRIMINAL LAW - appeal against severity of sentence - commercial supply of ecstasy - consideration of material in psychological report when offender gave evidence affirming the truth of the history provided - error in assessment of remorse - whether error in assessment of rehabilitation prospects - whether error in treatment of previous convictions - whether a mitigating factor that drugs supplied to undercover police officer - totality principle - excessive accumulation of sentences - sentence manifestly excessive

CRIMINAL LAW - appeal against severity of sentence - commercial supply of ecstasy - whether error in relation to maximum penalty - consideration of material in psychological report when offender gave evidence affirming the truth of the history provided - obvious contradictions between agreed facts and matters in report - no error in judge rejecting version in report - totality principle - excessive accumulation of sentences - sentence manifestly excessive

COSTS – orders – vary orders application to – notice of motion

PROCEDURE – Costs – Application for leave to appeal – Events subsequent to first instance decision mean that appeal in substance concerned costs – Offer by applicants to the effect that each party be left bearing its own costs – Not accepted by respondents – Application and appeal successful – Appropriate orders as to costs.

EQUITY – Estoppel by conduct – Proprietary estoppel – Husband leaves property to widow who dies and leaves property to all seven children equally – Youngest son claims proprietary estoppel in relation to approximately one third portion of estate based on assurances and encouragement of father – whether proprietary estoppel exists in circumstances where the appellant claims that there was an oral representation by appellant's father that land would be given to appellant if he lived there and renovated cottage on the land and where the appellant claims he has relied and acted on the representation – not sufficient for appellant only to establish claim against appellant's father and it is necessary also to establish claim against the testatrix – lack of evidence concerning representation by Testatrix in relation to her testamentary intentions or of son’s reliance on the representation – appeal against trial judge’s finding concerning proprietary estoppel rejected – PROCEDURE – Appeal – Powers of court – Application to receive further evidence in support of proprietary estoppel claim – Consideration of “special grounds” in s75A Supreme Court Act 1970 – consideration of tests in Akins v National Australia Bank (1994) 34 NSWLR 155 – Whether failure of solicitor to act upon instructions of client constitutes special grounds – In determining whether litigant has exercised “reasonable diligence” for the purpose of an application to admit further evidence on appeal, the litigant has the actions and inactions of his legal representative attributed to him – Appellant found not to have satisfied conditions in Akins – Reception of further evidence forbidden by s79A(8) – Consideration of additional discretionary reasons for rejection of application to receive further evidence – SUCCESSION – Family provision and maintenance – whether application governed by Family Provision Act 1982 or Chapter 3 Succession Act 2006 – time as at which to decide jurisdiction and quantum – principles upon which relief granted – appeal relating to failure of trial judge to find jurisdiction – process for calculating adequate provision, as amongst seven children of deceased – consideration of circumstances of each child – Principles governing appellate review of trial judge’s decision concerning jurisdictional question – no error in the determination of appellant's claim under the Family Provision Act – WORDS AND PHRASES – “special grounds” – SUCCESSION – family provision and maintenance – extent of judge’s obligation to give effect to “the totality of the relationship between the applicant and the deceased” – PROCEDURE – appeal – from decision reviewable only on House v R grounds – availability of ground of appeal that judge “failed to give proper weight” to a relevant factor – SUCCESSION – family provision and maintenance – relevance to jurisdiction of applicant’s (a) drug-taking (b) illegal conduct (c) money consuming habit – relevance to quantum of applicant’s (a) drug-taking, (b) illegal conduct (c) money consuming habit

DAMAGES – employment contract – breach – failure of employer to review salary – failure of employer to set objectives and review performance for payment of bonus – loss of commercial opportunity or chance – loss of opportunity to increase remuneration – loss of opportunity to be paid a bonus – assessment of value requires proper understanding of content of obligations and entitlements under the contract – opportunity or chance to be measured by the probabilities and possibilities - DAMAGES – award – reduction in damages – ex gratia payment – sufficient connection to the contractual claim to be taken into account – overriding principle of compensation - CONTRACT – employment contract – breach – implied terms of good faith, trust and confidence – contract provided for review of remuneration and for employer to set performance objectives relevant to bonus payments – discretion of employer to decide whether performance bonus paid – discretion to be understood against the proper scope and content of the contract

ENVIRONMENT AND PLANNING – acquisition of land – compensation – valuation – market value – whether highly unlikely that Council would approve subdivision of acquired land into two allotments – whether primary judge failed to disregard any decrease in value of land compulsorily acquired caused by proposal to carry out relevant public purpose – whether primary judge erred in law with respect to analysis of relevant zoning – whether primary judge’s error vitiated decision

SUPERANNUATION - Review of decisions, and related matters - claim for total and permanent disablement benefit made on 9 March 2006 accepted on 12 November 2010 just days before trial - from when should interest run - whether following Finch v Telstra Super Pty Ltd [2010] HCA 36l - (2010) 84 ALJR 726 entitled to equitable compensation for breach of fiduciary duty for failure to exercise due diligence - whether entitled to recover loss or damage under the Superannuation Industry (Supervision) Act 1993 (Cth), s 55(3) for breach of implied covenant under s 52(2)(b) to exercise due diligence - whether should be read down - whether exoneration provision in s 310(1) applies to a corporate trustee - whether would apply to gross lack of diligence

CORPORATIONS - winding up by the court - liquidators - liquidator's remuneration determined by a registrar of the court - application by sole contributory for review of the registrar's decision - review sought only as to decision that there should be no order as to costs - approach to review of exercise of registrar's discretion - no basis for intervention shown - CORPORATIONS - liquidators - inquiry into liquidator's conduct - whether court should order - various complaints about liquidator's conduct - no basis to order inquiry shown

PROCEDURE - judgment and orders - notice of motion seeking to stay judgment, pending the determination of an appeal - stay granted - security for costs - costs - various departures from the general rule - whether costs were wasted costs - orders sought under section 99 of the Civil Procedure Act 1995 - orders not made

PROCEDURE - judgments and orders - amending, varying and setting aside - setting aside decision of Registrar dismissing motion seeking stay of writ of execution - further motion - order seeking stay of execution of writ of possession and leave to file a cross claim - delay - no reasonable explanation for the delay - s 70 of the Consumer Credit Code - bona fides - orders sought refused - costs

APPEAL – from Local Court – civil claim - expert retained to provide determination of fair market remuneration for strata plan caretaker - determination not provided – proceedings commenced to recover professional fees paid to expert on basis of total failure of consideration – error of law – whether Magistrate misdirected himself in law – total failure of consideration – restitution – whether order for return of money on basis of total failure of consideration is a type of restitution – whether principles of unjust enrichment relevant to total failure of consideration – whether denial of procedural fairness – appeal allowed.

ADMINISTRATIVE LAW - judicial review - grounds of review - whether claims assessor adhered to s 126 of the Motor Accidents Compensation Act 1999 - jurisdictional error - failure to give adequate reasons for decision - denial of procedural fairness - refusal of adjournment and denial of opportunity to put a case on causation - claims assessor's certificate and determination be set aside - application to be remitted to Principal Claims Assessor for allocation to different claims assessor for determination - costs

PROCEDURE - costs - where company administrators, as first defendants, serve affidavits but do not seek to be heard at trial - defence left in hands of second defendant - first defendants' affidavits not read - plaintiff unsuccessful - whether first defendants should be awarded costs - whether any such costs should exclude costs of affidavits not read

DEFAMATION - application to extend the one year limitation period for commencing defamation action proscribed by s 14B of the Limitation Act 1969 - power to grant extension conferred by s 56A of the Act - construction of the reasonableness test in ss (2) - construction of the power to grant an extension “up to a period of 3 years” - establishing when publication occurs in the context of online blogging

PRACTICE AND PROCEDURE - strike-out application - claims for conspiracy and misfeasance in public office - whether reasonable cause of action disclosed - claims struck out - balance of strike-out application on pleading grounds - application refused

ADMINISTRATIVE LAW - private domestic tribunal - investigation and adjudication of alleged breaches of regulations - whether complainant entitled to observance of the rules of natural justice - issues of bias, procedural fairness

CRIMINAL LAW - sentencing after trial - money laundering (s.400.3(1) Criminal Code (Cth)) - dishonestly obtain gain from Commonwealth (s.135.1(1) Criminal Code (Cth)) - money laundering offence involved creation and misuse by Offender in 2004 and 2005 of sophisticated offshore structure - dishonest obtaining offence involved deception by Offender of accountants preparing tax returns in 2005 and 2006 - false return lodged in November 2006 - grossly understated capital gain on disposal of shares - loss to revenue of at least $1.9 million in capital gains tax - assessment of overlapping criminality - avoidance of double punishment - substantial aspects of criminality in each offence - need for substantial sentence for each offence - objectively serious offences - importance of general deterrence - partly cumulative sentences appropriate

CRIMINAL LAW – sentence – manslaughter – joint criminal enterprise – parity – relative culpability – youth just over 18 years of age

PROCEDURE – Supreme Court procedure – New South Wales – Order for interim payment of damages – Plaintiff a quadriplegic with need for constant care and specialised housing – Whether the court is satisfied, on the balance of probabilities and on the material before it on the application, that the plaintiff would obtain judgment at trial – Whether the plaintiff is required to establish an identified need for interim damages

FAMILY LAW AND CHILD WELFARE – Parens patriae jurisdiction of Supreme Court – final order by Children’s Court that child be placed in care of Minister – whether Minister should be directed to return the child to care of mother – whether “unacceptable risk” of harm to child. - PRACTICE AND PROCEDURE – Practice by some advocates of addressing Judges and witnesses with inappropriate familiarity – perceptions of prejudice to fair trial – practice to be discouraged.

PROFESSIONAL NEGLIGENCE – solicitor’s negligence – sale of commercial property by company on basis of a deferred part payment to a nominee company or alternatively option of units in new development – real estate securities accepted as security – development proposal failed – securities proved valueless - DUTY OF CARE OF VENDORS’ SOLICITORS – instructed to act for two companies (here referred to as company A and company B) - scope of retainer of firm of solicitors – duty to protect vendor’s interests – advice on need for valuation of securities and of amounts owing under mortgages on properties proposed as securities – solicitor’s failure to obtain informed instructions on inquiries necessary to verify securities – failure by solicitor to provide advice as to steps required to protect vendor - CAUSATION – notional question as to what vendor would have done if properly advised – company A as vendor alleged to have had a “no transaction” case on the basis that no transaction would have been entered into if given appropriate advice including on the lack of verification in relation to the proposed securities – nature of the evidence required on the issue of causation – evidence required to establish that question – state of mind of vendor - LIMITATION OF ACTION DEFENCE – time commenced to run from date of settlement not a later date when rights conferred under a trust exercised by nominee company – proceedings against solicitors who acted for the vendor company (company A) stated barred – failure to bring proceedings in name of company A as well as the proceedings brought by company B - ADVOCATES’ IMMUNITY DEFENCE - advocates immunity defence not available to the solicitors who acted for company B in proceedings concerning mortgages – priorities – and against first mortgagee of the property sold - as failure to bring proceedings by company A cannot be “work connected” with proceedings by company B concerning the abovementioned mortgages - APPORTIONMENT – under Civil Liability Act (s.35) – between solicitors who acted for company B in the abovementioned proceedings - and counsel who was briefed to advise and draft proceedings

EQUITY - Trusts and trustees - applications to the Court for advice - proceedings between trustees and beneficiaries or third parties - power in trust deed of discretionary trust for trustees to act by majority - agreement between trustees to distribute trust assets and wind up trust - majority of trustees seek orders against minority to enforce agreement - minority trustee obtains Trustee Act, s 63 judicial advice that he is entitled to defend the proceedings and to do so using trust assets - judicial advice obtained without notice to majority - majority refuse to authorise disbursement of trust funds - minority seeks orders for disbursement from trust - whether all trustees should be joined on Trustee Act, s 63 application for advice - whether majority can and should now be ordered to disburse funds - HELD - order for disbursement made - costs on present application reserved.