Sleboda v Sleboda

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.