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 59 of the Evidence Act 1995 (“the Act”) and therefore, prima facie, inadmissible. They are tendered under the provisions of s 63(2)(a) of the Act. The father is unavailable to give evidence about the asserted fact because he is dead. The evidence is given by the son, who participated in the conversation and therefore heard the representations being made. Because of the father's unavailability to give evidence, s 67(1) of the Act requires that reasonable notice in writing should have been given to the plaintiff of the defendants' intention to adduce the evidence. That notice should state "the provisions of the Act on which the defendants intend to rely" and further requirements of the notice are stipulated in regulation 5 of the Evidence Regulations as follows:

"5(1) This regulation is made for the purpose of s 67 of the Act.
(2) A notice of previous representation must state:
(a) …… the substance of evidence of a previous representation that the notifying party intends to adduce; and
(b) the substance of all other relevant representations made by the person who made that previous representation, so far as they are known to the notifying party; and
(c) particulars of:
(i) the date, time, place and circumstances at or in which each of the representations mentioned in paragraph (a) or (b) was made; and
(ii) the names and addresses of the persons by whom, and the persons to whom, each of those representations was made; so far as they are known to the notifying party.


(3) If a notifying party intends to rely on any of paragraphs [sic] 63(2)(a) or (b) of the Act, the party's notice of previous representation must state particulars of the facts on the basis of which it is alleged that the person who made a representation referred to in the notice is not available to testify concerning the fact to be proved by adducing evidence of that representation.

(4) If a notifying party intends to rely on paragraph 64(2)(a) or (b) of the Act, the party's notice of previous representation must state particulars of the facts that the party will rely on to establish the grounds specified in subsection 64(2) of the Act."

The defendants did not give any notice in a separate document. They contend that the early service of an affidavit containing par 8 is itself a sufficient written notice for the purposes of s 67. I do not think this is so. It may be that, in some cases, if all the relevant factual information were comprised in the affidavit containing the statement of the evidence, it would be arguable that the affidavit amounts to a notice, although I have reservations even about this. I do not need to reach a conclusion on that proposition, because here it is clear that some of the relevant factual material does not appear from the affidavit. For example, whilst the time of the conversation may be inferred from the contents of the affidavit (ie, between the sale of one property and the purchase of another), the place is simply not specified at all. In those circumstances, it is clear that there is no sufficient notice.

3 Miss Winfield, of counsel for the defendants, alternatively seeks a direction under s 67(4) of the Act that s 63(2) apply to this evidence, despite the absence of notice. Certainly in this case there is a strong case for the grant of leave since, despite the absence of a formal notice within the meaning of the section, actual notice was given of most of the matters required. The terms of the conversation were set out in the affidavit. The time, as I have said, appears from the terms of the affidavit. It was common knowledge between the parties that the father was dead. The place of the conversation is not stated, but has been stated by Miss Winfield in Court this morning as the home at Newtown, which is hardly surprising in the context of the evidence in this case. Mr Sibtain, of counsel for the plaintiff, says that leave should not be granted. He says that my relevant discretion under the Act should be exercised, bearing in mind the severe limitations the common law placed upon the admission of the evidence of deceased persons and the reasons behind that policy of the common law, particularly the virtual impossibility of investigation of or challenge to statements made by deceased persons. However, in my opinion this submission is misguided. The policy of Part 3.2 of the Act is to reform the law of hearsay evidence by substantially adding to the exceptions and by quite specifically widening the circumstances in which statements of deceased persons may be placed in evidence as hearsay. I do not think that the matters referred to by Mr Sibtain should impede me in exercising the discretion to grant leave, because, despite the absence of formal notice, the plaintiff was substantially on notice of the relevant matters. In my opinion it is appropriate to grant leave in the circumstances.

4 Mr Sibtain has not, in opposing the admission of the evidence, adverted to the discretion to reject evidence conferred by s 135 of the Act. However, I indicate I should not be inclined, in any event, to reject the evidence through the mechanism of that section.

5    The requisite direction necessitated by the lack of notice will be made and par 8 of the affidavit will be admitted. In saying that, it will not be forgotten, when the evidence comes to be weighed, that it is the uncorroborated statement by an interested party as to what was said to him by a parent who is now dead and unavailable to be cross-examined or to give evidence in any form concerning the matter allegedly asserted by him.

…oOo…

6 Mr Sibtain has subsequently made an application to me, not under s 135 of the Act but under s 136, to limit the use to be made of certain of the evidence when admitted. The portion of par 8 in relation to which he presses this application is:

"'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."

In response to this application Miss Winfield of counsel for the plaintiffs does not oppose a limitation being made so that that evidence may not be used to prove the truth of the assertions but only the fact that those assertions were made by father to son. In view of that concession, I limit the use of that passage in par 8 in that way.

…oOo…

Last Modified: 09/07/1999