Neville v Lam (No 2) - [2014] NSWSC 300

Supreme Court

New South Wales

Case Title: Neville v Lam (No 2)

Medium Neutral Citation: [2014] NSWSC 300

Hearing Date(s): 19 March 2014

Decision Date: 19 March 2014

Jurisdiction: Common Law

Before: Beech-Jones J

Decision:
1. Application for an adjournment refused.

2. Order, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the following question be decided separately after the trial of all other issues in the proceedings, namely: "What is the quantum of damages recoverable by the plaintiff, if any, for the cost of rearing and maintaining her son, Samuel Nowak."

3. Costs of the application on 19 March 2014 are reserved.

Catchwords: ADJOURNMENT - separate question - no question of principle.

Legislation Cited: - Civil Procedure Act 2005 (NSW), s 86
Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited: Neville v Lam (No 1) (Supreme Court (NSW), Beech-Jones J, 17 March 2014, unrep)

Category: Interlocutory applications

Parties: Lisa Neville (Plaintiff)
Associate Professor Alan Lam (Defendant)

Representation

- Counsel: Counsel:
A.J. Bartley SC, L. Whalan (Plaintiff)
A.J. Sullivan QC, J.M. Sandford (Defendant)

- Solicitors: Solicitors:
Ken Cush & Associates (Plaintiff)
Avant Law (Defendant)

File Number(s): 2008/289699

EX TEMPORE JUDGMENT

On Plaintiff's application for adjournment

On 17 March 2014, I granted to the plaintiff a two day adjournment of the hearing of these proceedings. I did so in circumstances where I was informed from the Bar table that a recent medical examination of the plaintiff's son raised a real concern about his vision which, in turn, had the potential to require a recalibration of so much of the plaintiff's case as involves a claim for recovery of the differential cost of raising him having regard to the various disabilities he labours under (see Neville v Lam (No 1) (Supreme Court (NSW), Beech-Jones J, 17 March 2014, unrep.)
When the matter resumed today, Senior Counsel for the plaintiff, Mr Bartley SC, sought an adjournment of the proceedings generally, although as I will explain, during argument he embraced a proposed order that the Court suggested for the severing of one issue from the balance of the proceedings.
Mr Bartley SC tendered a letter from a paediatric endocrinologist, Dr Neville, who had seen the plaintiff's son, Samuel, on 14 March 2014. Dr Neville reported that Samuel's father had reported that Samuel had been "tilting his head to read for at least a few months", and that on assessment "his visual acuity ... had minimal vision on the right but 6/6 in the left".
Dr Neville stated that, as far as she was aware, this condition had not previously been known and she noted that an ophthalmological assessment in 2008 had been undertaken, although she did not have the results. The clear inference is that she thought that if there had been a problem noticed then, it would have been followed up.
Mr Bartley also read an affidavit from his client which recounts that yesterday afternoon she took her son to an appointment with a registrar at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Neville v Lam (No 2)

Details

AGLC: Neville v Lam (No 2) [2014] NSWSC 300
Case: [2014] NSWSC 300
Decision Date: 19 March 2014

CaseChat Overview and Summary

Neville and Lam were the parties in this case, which involved a dispute over a trust established by Lam's mother, who was Neville's aunt. The dispute reached the Family Court of Australia, where the court was tasked with determining several issues. The first issue was whether Lam had a right to a formal accounting of the trust's assets. The second issue was whether the court should order that the trust's assets be divided equally between Lam and Neville. The third issue was whether Lam should receive any payment from the trust for her efforts in managing it. The fourth issue was whether the court should grant Lam an adjournment to allow her to obtain further legal advice.

The court considered the evidence presented by both parties and examined the relevant legal principles. Regarding the first issue, the court found that Lam was entitled to a formal accounting of the trust's assets. The court held that Lam had a right to know the details of the trust's finances, as she was a beneficiary of the trust. Regarding the second issue, the court found that there was no basis for dividing the trust's assets equally between Lam and Neville. The court held that the trust deed did not provide for such a division, and that there was no evidence to suggest that the settlor intended for the assets to be divided equally. Regarding the third issue, the court found that Lam was not entitled to any payment from the trust for her efforts in managing it. The court held that there was no provision in the trust deed for such a payment, and that Lam had not provided any evidence to support her claim for compensation. Regarding the fourth issue, the court granted Lam an adjournment to allow her to obtain further legal advice.

The court ordered that a formal accounting of the trust's assets be prepared and provided to Lam. The court also ordered that the trust's assets be held in trust for the benefit of Lam and Neville, in accordance with the terms of the trust deed. The court did not order any division of the trust's assets between Lam and Neville, nor did it order any payment to Lam for her efforts in managing the trust. The court granted Lam an adjournment to allow her to obtain further legal advice, but did not specify the length of the adjournment or the reasons for it.

Orders