New South Wales
Court of Appeal
CITATION: Sleboda v Sleboda [2008] NSWCA 122 HEARING DATE(S): 22 May 2008
JUDGMENT DATE:
3 June 2008JUDGMENT OF: Campbell JA at 1; Bell JA at 61; Handley AJA at 62 DECISION: Appeal dismissed with costs. CATCHWORDS: EQUITY – undue influence – unconscionable conduct – father conveyed entire interest in real property to son – father sought declaration that property held on constructive trust for father and son as tenants in common in equal shares and order for son to carry out all necessary steps to transfer to father legal half interest in property – trial judge found both grounds made out – appeal on questions of evidence - EVIDENCE – witnesses – credibility of witnesses – where trial judge rejected evidence given by solicitor for son – appeal against factual finding based in part on demeanour – whether finding of trial judge contrary to incontrovertible facts or uncontested testimony – whether trial judge disbelieved evidence as a result of considering other evidence or simply was not persuaded of the occurrence or existence of the fact sought to be proved – where material that should have been provided in affidavits emerged only orally at trial – trial judge entitled to treat supplementary oral evidence with caution – essential for judge to believe what a witness says before the facts to which the witness deposes are proved by that witness’ evidence - PROCEDURE – Courts and judges generally – whether reasons of trial judge inadequate – whether trial judge referred to relevant evidence – whether trial judge set out any material findings of fact and any conclusions or ultimate findings of fact reached – whether trial judge provided reasons for making the relevant findings of fact and conclusions – sufficient for judge to say he or she does not believe a witness if rejection of evidence based on credibility rather than on comparing probabilities derived from other evidence LEGISLATION CITED: Real Property Act 1900 CATEGORY: Principal judgment CASES CITED: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Black Uhlans v New South Wales Crime Commission [2002] NSWSC 1060; (2002) 12 BPR 22,421
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jozef Sleboda v Joseph Jan Sleboda [2007] NSWSC 361
Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431PARTIES: Joseph Jan Sleboda (Appellant)
Jozef Sleboda (Respondent)FILE NUMBER(S): CA 40287/07 COUNSEL: SA Kerr; BA Arste (Appellant)
JE Armfield (Respondent)SOLICITORS: Laliotis Lawyers, Earlwood (Appellant)
Hills Solicitors, Maitland (Respondent)LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): 1879/05 LOWER COURT JUDICIAL OFFICER: Gzell J LOWER COURT DATE OF DECISION: 18 April 2007 LOWER COURT…
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Details
- AGLC
- Sleboda v Sleboda [2008] NSWCA 122
- Case
- [2008] NSWCA 122
- Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between a father and his son regarding a property conveyed by the father to the son. The father sought a declaration that the son held the property on a constructive trust for them as tenants in common in equal shares and an order for the son to transfer a half interest to him. The trial judge had found in favour of the father on grounds of both undue influence and unconscionable conduct. The appeal to the Court of Appeal of New South Wales was primarily concerned with questions of evidence, specifically the credibility of witnesses and the trial judge's assessment of that evidence.
The legal issues before the Court of Appeal included whether the trial judge's factual findings were contrary to incontrovertible facts or uncontested testimony, particularly in light of the rejection of evidence given by the son's solicitor. The court also considered whether the trial judge's disbelief of certain evidence was based on the witness's demeanour or other factors, and whether the judge had adequately explained the reasons for their findings. The court noted that supplementary oral evidence, which should have been provided in affidavits, was given at trial and that the trial judge was entitled to treat such evidence with caution.
The Court of Appeal affirmed the principles that a judge must believe what a witness says before their evidence can prove a fact, and that it is sufficient for a judge to state they do not believe a witness if the rejection of evidence is based on credibility rather than a comparison of probabilities derived from other evidence. The court found that the trial judge's reasons were adequate, that the judge had referred to relevant evidence, and had set out material and ultimate findings of fact with sufficient explanation for those findings.
The appeal was dismissed with costs.
The legal issues before the Court of Appeal included whether the trial judge's factual findings were contrary to incontrovertible facts or uncontested testimony, particularly in light of the rejection of evidence given by the son's solicitor. The court also considered whether the trial judge's disbelief of certain evidence was based on the witness's demeanour or other factors, and whether the judge had adequately explained the reasons for their findings. The court noted that supplementary oral evidence, which should have been provided in affidavits, was given at trial and that the trial judge was entitled to treat such evidence with caution.
The Court of Appeal affirmed the principles that a judge must believe what a witness says before their evidence can prove a fact, and that it is sufficient for a judge to state they do not believe a witness if the rejection of evidence is based on credibility rather than a comparison of probabilities derived from other evidence. The court found that the trial judge's reasons were adequate, that the judge had referred to relevant evidence, and had set out material and ultimate findings of fact with sufficient explanation for those findings.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
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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