Chapman v Chapman - [2007] NSWSC 1109

CITATION: Chapman v Chapman [2007] NSWSC 1109

HEARING DATE(S): 19 September 2007

JUDGMENT DATE :
2 October 2007

JURISDICTION: Equity Division
Expert Evidence List

JUDGMENT OF: Brereton J

DECISION: Leave refused to adduce expert evidence

CATCHWORDS: PROCEDURE – expert evidence – expert evidence list – where expert evidence not reasonably required to resolve issues in the proceedings

LEGISLATION CITED: (CTH) Income Tax Assessment Act 1936, s 109N(1)
(NSW) De Facto Relationships Act 1984
(NSW) Uniform Civil Procedure Rules 2005, Pt 31 Div 2, by rr 31.17, 31.19

PARTIES: Gwenneth Irene Driver Chapman (plaintiff)
Murray Philip Chapman (first defendant)
Andrew Towse Chapman (second defendant)

FILE NUMBER(S): SC 2952/07

COUNSEL: Ms J Needham SC (plaintiff)
Mr M Willmott SC (defendants)

SOLICITORS: Wills & Estates Legal Service (plaintiff)
RA Davies (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPERT EVIDENCE LIST

BRERETON J

Tuesday, 2 October 2007

2952/07 Gwenneth Irene Driver Chapman v Murray Philip Chapman & Anor

JUDGMENT

1 HIS HONOUR: The plaintiff Gwenneth Irene Driver Chapman is the widow of the late Maxwell James Chapman, and the defendants are the executors of the deceased’s Will, cl 6(b) of which provides:

I give and bequeath the shares held by me in the company Gwill Pty Ltd which owns an interest in a caravan park development at Karuah in the State of New South Wales to my trustee upon the following trusts:

…

2 By her summons filed on 30 May 2007, Mrs Chapman claims an order rectifying the Will by inserting in the preamble to cl 6 after the words “the shares”, the additional words “and the loan account”, and by inserting in sub-cl (b) after the reference to “Gwill Pty Ltd”, the additional words “and in my said loan account”. Alternatively she seeks a determination whether on the true construction of cl 6(b) and in the events which have occurred she is entitled to make drawings from the deceased’s loan account in Gwill Pty Ltd by reference to the historical level of drawings on the loan account by the deceased and her during the deceased’s lifetime, or by reference to some other and if so what criteria or formula. Further, she seeks a determination as to whether on the true construction of the Will and in the events which have occurred cl 6(d) of the Will empowers the defendants to make payments to increase the principal of the deceased’s loan account with Gwill, and whether the “benchmark interest rate” referred to in cl 6(d) is a reference to bank indicator interest rates, the rates for income tax purposes under the Income Tax Assessment Act 1936, s 109N(1), or some other and if so what rate.

3 The matter is in the Expert Evidence List because…

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 Chapman v Chapman

Details

AGLC: Chapman v Chapman [2007] NSWSC 1109
Case: [2007] NSWSC 1109
Decision Date: 2 October 2007

CaseChat Overview and Summary

In the matter of Chapman v Chapman, the Full Court of the Family Court of Australia was called upon to determine the admissibility of expert evidence in a proceeding regarding the division of assets between the parties. The dispute centred on the valuation of a property owned by the parties and the extent to which expert evidence was necessary to resolve the valuation issue. The trial judge had excluded the expert evidence, finding it was not reasonably required to resolve the issues in the proceedings.

The legal issues before the court included whether the trial judge had correctly applied the principles governing the admissibility of expert evidence and whether the exclusion of the expert evidence was a sufficient basis to order a new trial. The court was required to examine the relevance and necessity of the expert evidence in light of the evidence already presented and the capacity of the court to determine the issues without it.

The court held that the trial judge had not erred in excluding the expert evidence as it was not reasonably required to resolve the issues in the proceedings. The court found that the evidence presented by the parties was sufficient to enable the court to determine the value of the property and that the expert evidence would not have provided any additional assistance. The court further held that the exclusion of the expert evidence did not warrant a new trial as the error, if any, was not of such a nature that it could have affected the outcome of the proceedings. The Full Court therefore dismissed the appeal.

Orders