Trewin v Felton

[2007] NSWSC 919

CITATION:	Trewin v Felton [2007] NSWSC 919
HEARING DATE(S):	14 May 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	14 May 2007
DECISION:	Notice under s 67 dispensed with. Hearsay evidence admitted where maker of previous representation deceased.
CATCHWORDS:	EVIDENCE – affidavits – late service – where reasonable opportunity to investigate and respond denied. - EVIDENCE – hearsay – exceptions – notice under Evidence Act s 67 – dispensing with notice.
LEGISLATION CITED:	(NSW) Conveyancing Act 1919 s 89 (NSW) Evidence Act 1995 ss 63, 67 (NSW) Evidence Regulation 1995 cl 4
CASES CITED:	Perpetual Trustee Co Limited v Westfield Management Limited [2006] NSWCA 337
PARTIES:	Audrey Trewin (first plaintiff) Stephen Albert Trewin (second plaintiff) Graeme John Felton (defendant)
FILE NUMBER(S):	SC 3832/05
COUNSEL:	Ms P Lane (plaintiffs) Mr I Mescher w Ms A Horvath (defendant)
SOLICITORS:	Crane Butcher McKinnon Lawyers (plaintiffs) R I McBroom, Solicitor (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Monday, 14 May 2007

3832/05 Audrey Trewin and Anor v Graeme Felton

JUDGMENT (ex tempore)

1 HIS HONOUR: The defendant tenders a statutory declaration of Ivan Matthew Wall, the former owner of the land which is now subdivided into the plaintiffs’ and the defendant’s land, which statutory declaration was made on 14 May 2004. It is common ground that Mr Wall is since deceased, and is therefore “not available” within the meaning of (NSW) Evidence Act 1995, s 63(1). Although no such formal notice as is required by Evidence Act, s 67, has been given of the intention to rely on his statutory declaration, that intention was otherwise manifest from its annexure to Mr Felton’s affidavit, and Ms Lane for the plaintiff, very fairly, does not complain of any prejudice, the absence of which is apparent from the circumstance that the plaintiffs have themselves served hearsay evidence of Mr Wall in response to that tendered by the defendant.

2 That is not to suggest, for a moment, that it will always, or even usually, be sufficient to obtain an order dispensing with notice under s 67 that the evidence has been referred to in or annexed to affidavits served in the case. One particular reason for that is that the notice required by s 67 and (NSW) Evidence Regulation 1995, cl 4, includes notification of the substance of all other relevant representations that have been made by the maker of the representation, a requirement that will not normally be satisfied by the mere service of an affidavit annexing or setting out those representations on which one party seeks to rely. But it was not suggested that that gives rise to any relevant disadvantage in this case.

3 The evidence of Mr Wall which it is sought to adduce falls broadly into two categories. One category relates to the user of the right of way at the time and shortly after it was created by him. The second category is his subjective purpose and intention, as the creator of the right of way, in creating it.

4 It is clear that I cannot rely on or have regard to the subjective intention of the creator of a right of way, as distinct from facts and states of affairs that were in existence at the time of the creation of the right of way [see, for example, Perpetual Trustee Co Limited v Westfield Management Limited [2006] NSWCA 337]. On the other hand, particularly where one of the issues in the case is whether, for the purposes of (NSW) Conveyancing Act 1919, s 89(1)(a), there has been a change in the user of the dominant land or in the character of the neighbourhood or other circumstances of the case which the Court may deem material whereby the easement should be deemed obsolete and should be modified or extinguished in part, it must be relevant to prove what in fact was the user of the dominant land or the character of the neighbourhood, or other circumstances of the case, at the time of the creation of the easement.

5 In dealing with a statement by a deceased person, apparently prepared in contemplation of litigation, that is to be admitted pursuant to Evidence Act, s 63(2), it is important that not too liberal a view be taken as to admissibility, since the opportunity for cross-examination of the witness will be denied.

6 In paragraph 5 of the statutory declaration, I reject the words “The right of carriageway was created to give me”, as being evidence of subjective purpose. The sense of the balance, as admitted, is that Mr Wall says that he obtained access to his backyard from a point 25 metres from the front boundary, and that no other points were then accessible.

7 I reject the whole of paragraph 7, because I cannot be satisfied, without an opportunity for the maker to be cross-examined, that paragraph 7 involves an assertion of what he did, as opposed to an assertion of his intention.

8 Accordingly:

(1) I direct, pursuant to Evidence Act , s 67(4), that s 63(2) apply in respect of Mr Wall’s statutory declaration being Annexure A to the affidavit of Mr Felton, despite the defendant’s failure to give the notice required by s 67(1) of that Act of his intention to adduce that evidence.

(2) I reject, in paragraph 5, the words “the right of carriageway was created to give me”;

(3) I reject the whole of paragraph 7;

(4) I otherwise admit Annexure A to Mr Felton’s affidavit.

AT 1:07 PM

9 HIS HONOUR: The defendant seeks to read an affidavit of Roxayne Marilyn Felton sworn 9 May 2007. The affidavit was served long after the time limited for the service of further affidavits by pre-trial directions made by me in October last year. No explanation is offered as to why it is served so late.

10 So far as paragraphs 8, 9 and 10 are concerned, they are obviously potentially relevant; the contrary is not suggested. They cover material that is already the subject of evidence in the case, and I see no prejudice from admitting them.

11 Paragraphs 2 to 7 inclusive are, it seems to me, irrelevant. They depose to personal relationships between the defendants and the previous owner of the plaintiffs’ property and another neighbour. I do not think that personal relationships of that type are the subject matter with which the concept of change of user referred to in Conveyancing Act, s 89(1)a, is concerned.

12 In any event, the late service of this affidavit, in so far as it would raise those matters – in particular concerning another neighbour who is apparently still there today – is potentially prejudicial in denying a reasonable opportunity to investigate and respond to the allegation.

13 I reject paragraphs 2 to 7 inclusive, and admit the balance, of the affidavit.

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