Brown v New South Wales Trustee and Guardian [2012] NSWCA 431

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Brown v New South Wales Trustee and Guardian [2012] NSWCA 431 Hearing dates: 13 September 2012 Decision date: 18 December 2012 Before: Campbell JA at [1] Bergin CJ in Eq at [114] Sackville AJA at [115] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: SUCCESSION - where person entitled to assert equitable defence in protection of disputed property has died intestate while under the protection of the NSW Trustee and Guardian - estate bona vacantia - administrator of deceased estate able to assert defence available to deceased in his lifetime - whether Crown entitled to bona vacantia property can enforce a defence belonging to intestate deceased - whether Crown takes title as successor or by statute - question not necessary to resolve where disputed property held at all relevant times by administrator of deceased estate

EVIDENCE - onus of proof - balance of probabilities - party bearing the onus must present enough evidence to enable the court to feel actual persuasion that a particular fact is so - where asserted fact is supported by only one piece of evidence - evidence sufficient on its own to support finding of relevant intention - whether a sufficient basis in surrounding circumstances to overcome evidence