New South Wales
Court of Appeal
CITATION: Piras v Egan [2008] NSWCA 59 HEARING DATE(S): 11 February 2008
JUDGMENT DATE:
11 April 2008JUDGMENT OF: Giles JA at 1; Tobias JA at 5; Campbell JA at 6 DECISION: (1) Appeal dismissed.
(2) Appellant to pay the Respondents' costs of the appeal.CATCHWORDS: SUCCESSION - wills probate and administration - whether appellant entitled to entire estate of deceased - whether appellant was the de facto spouse of the intestate - s 61B(2) and s 32G(1) Wills, Probate and Administration Act 1898 - whether appellant and deceased lived together as a couple - s 4 Property (Relationships) Act 1984 - relationship between definition of ‘de facto relationship’ in s 4 Property (Relationships) Act and list of ‘circumstances’ in s 4 - claim in alternative for provision out of estate under s 7 Family Provision Act 1982 - whether appellant was in a “close personal relationship” with the deceased - s 5(1)(b) Property (Relationships) Act - whether appellant was an “eligible person” within s 6(1) Family Provision Act - whether appellant was a member of the household of which the deceased was a member - EVIDENCE - witnesses - where trial judge forms view that appellant’s unsupported word insufficient - whether trial judge’s view was inconsistent with incontrovertible facts - whether trial judge’s view was based on glaringly improbable evidence, or contrary to compelling inferences - whether trial judge misused his advantage of seeing or hearing witnesses - EVIDENCE - matters relating to proof - onus of proof - whether findings of trial judge were merely findings that appellant had failed to discharge an onus of proof - whether trial judge made positive findings - EVIDENCE - weight and sufficiency of evidence - whether trial judge gave insufficient weight to evidence of witnesses for appellant - EVIDENCE - witnesses - whether trial judge’s acceptance of evidence of witness A called for the respondents contravened rule in Browne v Dunn (1893) 6 R 67 - when that evidence alleged that witness B (earlier called for the appellant) had made a particular statement, witness B had given no evidence concerning the topic of that statement, and the allegation that he had made that statement had not been put to witness B in cross-examination - whether evidence of witness A gave rise to any imputation against witness B - PROCEDURE - whether failure of trial judge to inform parties that he proposed to accord to an item of evidence a significance concerning which no submissions had been made or invited amounted to a denial of natural justice - APPEAL - whether, assuming there had been a breach of natural justice, a new trial would be required - whether “substantial wrong or miscarriage” occasioned - Rule 51.53 Uniform Civil Procedure Rules - EVIDENCE - witnesses - credibility of witnesses - whether, once admitted, evidence of conviction can be used as tending to show a witness lacks credibility LEGISLATION CITED: Crimes Act 1900
Family Provision Act 1982
Property…
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- AGLC
- Piras v Egan [2008] NSWCA 59
- Case
- [2008] NSWCA 59
- Decision Date
CaseChat Overview and Summary
The appeal concerned the entitlement of the appellant to the entire estate of the deceased, who died intestate. The appellant claimed to be the de facto spouse of the deceased, relying on provisions of the *Wills, Probate and Administration Act 1898* and the *Property (Relationships) Act 1984*. Alternatively, the appellant sought provision out of the estate under the *Family Provision Act 1982*, asserting she was in a "close personal relationship" with the deceased and an "eligible person" as a member of the deceased's household. The appeal was heard by Giles JA, Tobias JA, and Campbell JA.
The primary legal issues before the court were whether the appellant and the deceased lived together as a couple, thereby establishing a de facto relationship under the *Property (Relationships) Act 1984*, and whether the appellant qualified as an "eligible person" for the purposes of a family provision claim. The court also considered whether the trial judge's assessment of the appellant's evidence, particularly her unsupported word, was inconsistent with incontrovertible facts or based on glaringly improbable evidence, and whether the trial judge misused his advantage of seeing and hearing the witnesses. Further issues included whether the trial judge's findings were merely a failure to discharge an onus of proof rather than positive findings, whether insufficient weight was given to the appellant's evidence, and whether the rule in *Browne v Dunn* was contravened. Finally, the court examined whether a failure by the trial judge to inform the parties of the significance he proposed to accord to certain evidence amounted to a denial of natural justice, and if so, whether a new trial was required under Rule 51.53 of the *Uniform Civil Procedure Rules*.
The court dismissed the appeal, upholding the trial judge's findings. The judges found no error in the trial judge's assessment of the evidence, concluding that his view of the appellant's unsupported testimony was not inconsistent with incontrovertible facts or based on improbable evidence. The court held that the trial judge made positive findings of fact and did not merely find that the appellant had failed to discharge an onus of proof. The court also found no breach of the rule in *Browne v Dunn* or denial of natural justice. The appeal was dismissed with costs ordered against the appellant.
The primary legal issues before the court were whether the appellant and the deceased lived together as a couple, thereby establishing a de facto relationship under the *Property (Relationships) Act 1984*, and whether the appellant qualified as an "eligible person" for the purposes of a family provision claim. The court also considered whether the trial judge's assessment of the appellant's evidence, particularly her unsupported word, was inconsistent with incontrovertible facts or based on glaringly improbable evidence, and whether the trial judge misused his advantage of seeing and hearing the witnesses. Further issues included whether the trial judge's findings were merely a failure to discharge an onus of proof rather than positive findings, whether insufficient weight was given to the appellant's evidence, and whether the rule in *Browne v Dunn* was contravened. Finally, the court examined whether a failure by the trial judge to inform the parties of the significance he proposed to accord to certain evidence amounted to a denial of natural justice, and if so, whether a new trial was required under Rule 51.53 of the *Uniform Civil Procedure Rules*.
The court dismissed the appeal, upholding the trial judge's findings. The judges found no error in the trial judge's assessment of the evidence, concluding that his view of the appellant's unsupported testimony was not inconsistent with incontrovertible facts or based on improbable evidence. The court held that the trial judge made positive findings of fact and did not merely find that the appellant had failed to discharge an onus of proof. The court also found no breach of the rule in *Browne v Dunn* or denial of natural justice. The appeal was dismissed with costs ordered against the appellant.
Orders
Orders of the court
(1) Appeal dismissed. (2) Appellant to pay the Respondents' costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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