Lansom v Lansom - [2018] NSWSC 763

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lansom v Lansom [2018] NSWSC 763
Hearing dates: 22 May 2018 and 23 May 2018
Date of orders: 23 May 2018
Decision date: 28 May 2018
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Objection under s 138 of the Evidence Act rejected.

Catchwords: EVIDENCE – affidavit evidence – objection under s 138 of the Evidence Act 1995 (NSW) – exclusion of improperly obtained evidence – objection rejected – reasons
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326
Parker v Comptroller-General of Customs [2009] HCA 7; 252 ALR 619
Category: Procedural and other rulings
Parties: Warren Richard Lansom (Plaintiff/Cross-Defendant)
Wayne Eric Lansom (First Defendant/Cross-Claimant)
Nancy Ward (Second Defendant)
Kyle Lansom (Third Defendant)
Representation:
Counsel:
Dr S Blount (Plaintiff/Cross-Defendant)
Mr H Jewell (First Defendant/Cross-Claimant)
Solicitors:
Kenny Spring Solicitors (Plaintiff/Cross-Defendant)
McIntosh McPhillamy & Co (First Defendant/Cross-Claimant)
Ms N Ward, unrepresented (Second Defendant)
Mr K Lansom, unrepresented (Third Defendant)

File Number(s): 2017/224886
Publication restriction: Nil

Judgment

By his amended statement of claim Mr Warren Lansom sought possession of land situated at Bathurst of which he was the registered proprietor, as well as damages for lost rent and costs from his son, Mr Wayne Lansom, his son’s ex-wife Ms Nancy Ward and his grandson, Mr Kyle Lansom. By their defences and Mr Warren Lansom’s cross-claim, the defendants resisted these claims and Mr Wayne Lansom claimed that he was entitled to a 50% share of the property.
What was in issue at trial depended on a contest over whether the evidence of Mr Warren Lansom about conversations which he had with his son about the property when it was purchased and when later improvements to it were made, could be preferred over the evidence of Mr Wayne Lansom. On his evidence those conversations had resulted in an agreement with his father, that in return for his payment for the improvements, he would receive a 50% share of the property.
Resolution of the claims which were advanced thus turned on the evidence which each of the parties would give, the evidence of Ms Ward and Mr Kyle Lansom supporting the case advanced by Mr Wayne Lansom, rather than that of Mr Warren Lansom, considered in light of other evidence, including as to various objective facts. They included the amount of the payments which Mr Wayne Lansom had made for improvements to the property and the use which Mr Warren Lansom had made of the receipts for those payments, which Mr Wayne Lansom had provided him.
During the course of the cross-examination of Mr Warren Lansom, I ruled on his objections to parts of a late served affidavit sworn by Mr Tony Davis, his former accountant. That arose when his grandson sought to cross-examine him about the matters to which Mr Davis had deposed, Mr Davis’ affidavit having been served upon him as a party to the proceedings.
One of the objections taken was advanced…

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 Lansom v Lansom

Details

AGLC: Lansom v Lansom [2018] NSWSC 763
Case: [2018] NSWSC 763
Decision Date: 28 May 2018

CaseChat Overview and Summary

The case of Lansom v Lansom involved a dispute between the parties regarding the admissibility of certain evidence in proceedings under the Family Law Act 1975 (Cth). The proceedings were heard in the Family Court of Australia, presided over by Justice Gibson. The primary issue before the court was whether evidence obtained through improper means should be excluded from the proceedings under section 138 of the Evidence Act 1995 (NSW).

The court was required to consider whether the evidence obtained by one party was inadmissible due to its improper acquisition. The respondent argued that the evidence was obtained through means that breached the rules of natural justice, and therefore, should be excluded. The applicant contended that the evidence was relevant and should be admitted despite the manner in which it was obtained. The court had to determine whether the prejudicial effect of the evidence outweighed its probative value, and whether its exclusion would be necessary to ensure a fair trial.

The court found that the evidence in question was relevant and had significant probative value in the context of the proceedings. However, it also acknowledged the potential unfairness in admitting evidence obtained through improper means. Despite this, the court concluded that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. The court held that there were no grounds to exclude the evidence under section 138 of the Evidence Act 1995 (NSW), and therefore, the objection was rejected. The court's decision was based on a careful assessment of the balance between the need for relevant evidence and the potential for unfairness caused by its acquisition. The court's ruling ensured that the proceedings remained focused on the merits of the case, while also upholding the principles of natural justice.

The final orders of the court were that the objection to the admission of the evidence was dismissed, and the evidence was admitted into the proceedings. This decision allowed the case to proceed with the relevant evidence being considered by the court in reaching its final determination.

Orders