Adams v de Mello [2010] NSWSC 126

New South Wales Supreme Court

CITATION : Adams v de Mello [2010] NSWSC 126

HEARING DATE(S) : 23 September 2009, 21 December 2009 and 19 February 2010

JUDGMENT DATE : 26 February 2010

JUDGMENT OF : Smart AJ

Order for transfer of Equity proceedings to Family Court; Third Further Amended Statement of Cross Claim and Defence thereto to be filed. DECISION : Motion of 2 February 2010 seeking strike-out of certain paragraphs of Second Further Amended Statement of Cross Claim (SFASCC) dismissed. Orders made as to costs of parties to transfer proceedings and various applications. For detailed Orders see paragraph 60.

CATCHWORDS : Second Further Amended Statement of Cross Claim - strike out application - adequacy of particulars - transfer of equity proceedings to Family Court - Executor not attacking gifts but husband of deceased doing so - Executor in compromising position - effect of s 106B(1) of Family Law Act - costs of parties of transfer proceedings and costs of sundry applications

Family Law Act 1975 (Cth) LEGISLATION CITED : Family Provision Act 1982 (NSW) Uniform Civil Procedure Rules

CATEGORY : Principal judgment

Blomley v Ryan (1956) 99 CLR 362 Bridgewater v Leahy (1988) 194 CLR 457 CASES CITED : Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Hart v O'Connor 1985 AC 1000 Ramage v Waclow (1988) 12 NSWLR 84 Royal Bank of Scotland v Etridge (No 2) 2002 2 AC 773

TEXTS CITED : Jacob's Law of Trusts in Australia (4th Ed)

Sidney Barton Adams (Plaintiff)(Transfer proceedings) PARTIES : Rosemeire F Toledo de Mello and Flavio de Mello (2nd & 3rd Cross Defendants to SFASCC) Ivan Johnny Gonda (Cross Claimant - SFASCC)