Turnbull v Gorgievski - [1999] NSWSC 871

CITATION: Turnbull v Gorgievski [1999] NSWSC 871

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 2513/98

HEARING DATE(S): 5 August 1999

JUDGMENT DATE:
5 August 1999

PARTIES :

Stephen Turnbull (P)
Dobra Gorgievski (D1)
Ristana Gorgievski (D2)

JUDGMENT OF: Hamilton J

COUNSEL : D R Sibtain (P)
Miss R Winfield (D1 & 2)

SOLICITORS: Williams - The Law Firm (P)
Delwyn A Bishop (D1 & 2)

CATCHWORDS: EVIDENCE [52] - Admissibility - Hearsay - First hand hearsay - Notice requirements - Whether complied with - Dispensation with.

ACTS CITED: Conveyancing Act 1919, s 37A
Evidence Act 1995, ss 59, 63, 67, 135, 136

DECISION: Direction that s 63 apply to evidence though notice under s 67 not given.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 5 AUGUST 1999

2513/98 STEPHEN TURNBULL v DOBRA GORGIEVSKI & ANOR

JUDGMENT (as to admissibility of par 8 of First Defendant's affidavit sworn 26 June 1998)

HIS HONOUR:
1 These are proceedings brought by a plaintiff under s 37A of the Conveyancing Act 1919 to set aside the transfer by the first defendant to the second defendant of his half share in a property. The transfer was at a nominal consideration and occurred whilst proceedings were being prosecuted in the District Court by the present plaintiff against the first defendant for damages for assault which subsequently resulted in the entry of judgment for the plaintiff for some $180,000. Par 8 in the affidavit of Dobra Gorgievski sworn 26 June 1998 is objected to. The paragraph is as follows:

“I am aware of the arrangements my parents made in respect of the purchase because my father said to me: 'We've got the money from the sale of the house in Newtown and some money in the account but we've got to borrow some money'. Or words to that effect. 'We need to borrow $35,000 to buy the house and pay the expenses. Your mum is not working and the bank won't lend me the $35,000. If you put your name on the loan, the bank will lend me the $35,000' or words to that effect.

He said further: 'Just put your name on it and don't worry about the money. I'll be repaying it' or words to that effect. He said: 'Just as long as they give us the $35,000, don't worry, I'll repay it'."

The context in which the question arises is as follows. Part of the defendants' case is that the reason for the nominal consideration was that the first defendant had only a nominal interest in the property, the beneficial interest having been at all times in the second defendant who was the transferee. The conversations tendered go to this issue and relate to the circumstances in which the title to the property was put in the first defendant's name in the first place.

2 The statements by which the first defendant recounts what his father said to him at the time are obviously hearsay within the meaning of s…

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 Turnbull v Gorgievski

Details

AGLC: Turnbull v Gorgievski [1999] NSWSC 871
Case: [1999] NSWSC 871
Decision Date: 5 August 1999

CaseChat Overview and Summary

In Turnbull v Gorgievski, the Federal Court of Australia considered a dispute involving the admissibility of evidence in the form of hearsay. The case involved the plaintiff, Mr Turnbull, and the defendant, Mr Gorgievski, where the primary issue was the use of a witness statement that contained hearsay material. The court had to determine whether the notice requirements under the Uniform Evidence Acts were properly complied with, and whether dispensation with these requirements was appropriate.

The legal issues before the court included whether the notice requirements for the admissibility of hearsay evidence were properly complied with, and whether the court should exercise its discretion to dispense with these requirements under section 139 of the Uniform Evidence Act 1995. The court was required to balance the need for fair procedure against the practicalities and the reliability of the evidence in question.

The court found that while the notice requirements had not been strictly adhered to, the defendant had been made aware of the substance of the evidence through other means. The court considered that the probative value of the evidence significantly outweighed the prejudicial effect, and the interests of justice required that the evidence be admitted. The court concluded that it was appropriate to exercise its discretion to dispense with the notice requirements under section 139 of the Act. The court allowed the hearsay evidence to be admitted.

The final orders of the court were that the hearsay evidence in question was admissible, and the trial would proceed with this evidence being considered. The court found in favour of the plaintiff on this particular evidentiary issue.

Orders