CHAPMAN v CHAPMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, SAMUELS and HANDLEY JJA 9 September, 1991, 9 September 1991 [1991] NSWCA 51 EVIDENCE — fresh evidence — application on appeal to adduce as fresh evidence details of financial situation and evidence of alleged de facto relationship not tendered at hearing of application under Family Provision Act 1982: held that if this evidence had been given at first instance it would not have altered the result: Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435 applied. Samuels JA This is an appeal from Master Windeyer who, on 13 October 1989, ordered, under the provisions of the Family Provision Act, that the plaintiff, the present respondent, should receive from the estate of Robert Chapman, the respondent's deceased husband, a legacy of $25,000. The appellant is the son of the testator, born in 1957, and the sole executor of his will by which the whole of the estate was left to the appellant and the testator's daughter in equal shares. In the circumstances in which the appeal has been prosecuted, and having regard to its limited basis, it is unnecessary to traverse any but a limited portion of the evidence before the master. It will suffice to say that the testator and the respondent married, each for the second time, in March 1982 when the respondent was forty eight and the testator fifty one. The testator was, and apparently had been for many years, an alcoholic, but this condition was not known to the respondent. The marriage, understandably enough, was unsuccessful and the parties separated in October 1982 although they continued to see one another thereafter. The testator died on 12 June 1985. At the time of the proceedings before Master Windeyer the net estate was worth something in excess of $137,000, less the costs of proceedings. Before they were married the testator and the respondent entered into an agreement by which they undertook that they would maintain their estates separate from one another save for some exceptions which it is unnecessary to note. That is to say the agreement was they should maintain financial independence. The master, however, did not regard this agreement as denying any claim under the Familv Provision Act by one party on the other. I need not, I think, indicate the detail of the evidence which the respondent gave concerning her own assets. However, in her original affidavit, or in the course of her evidence, she indicated that she had a superannuation entitlement, she then being employed full time by the National Australia Bank, in the sum of some $3000 upon immediate retirement. She also said, in the course of her affidavit evidence, that she had sums in a cheque account and a savings account amounting to $5800. This was said in an affidavit sworn on 5 October 1989, intended to bring up to date for the purposes of the hearing the material to which she had deposed in an earlier affidavit made in 1985. The only ground of appeal which is taken seeks to adduce fresh evidence upon two matters. The first is that the respondent failed to disclose, in either affidavit or in her evidence before the master, the fact that she had obtained from her 2 UNREPORTED JUDGMENTS stepmother an inheritance, a legacy, of a little over $30,000 received during December 1988. The second is that she was in, if I may use that term, what has been described as a de facto relationship with some gentleman for a period after the testator's death which she had failed to disclose. The genesis of both these alleged circumstances was a conversation which the appellant had in October 1989 with some person whom he believed was an acquaintance at least of the respondent. In support of this application the appellant has sworn an affidavit which establishes the matter to which I have just referred. In answer the respondent has herself filed an affidavit upon which she was cross-examined before us. The basis of the first point appears to be that in some way the failure of the respondent to disclose before the master the manner in which she disbursed her legacy, or, rather the source of the funds of $5800 which had increased somewhat from the amount which she said had been held in a cheque account four years earlier, was a matter which was of relevance to the trial and attracts the principles which are set out in cases such as Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435. The principles set out in that case are substantially these. Evidence to be fresh evidence and thus to authorise a new trial must not have been available at the trial by the exercise of reasonable diligence; and, more importantly here, must be of a character that, had it been adduced at the first trial, there would have been an opposite result or, if that is not reasonably clear, then it must have been so highly likely as to make it unreasonable to suppose otherwise. In the course of cross-examination the respondent's counsel produced a document which set out the way in which the legacy had been disbursed and which is entirely consistent, in my opinion, with the description of that process contained in the affidavit sworn before us in August of this year. It contains greater detail. In my view, had the whole of that material been before Master Windeyer no different result is likely to have ensued. Certainly its inclusion amongst the evidence would not have satisfied the relevant requirements of Cowan. As to the alleged relationship with an unnamed male person I would, for my part, entirely accept what the respondent has said about it. But I would add, on this point also, that had the whole of the evidence which is before us dealing with that topic been before the master, it would again not have altered the result or satisfied the requirements set out in Cowan. Accordingly, in my view, the new evidence which has been advanced does not satisfy the criteria of fresh evidence and does not entitle the appellant to a new trial. I might add that it was earlier suggested, and this argument was advanced in the first written submissions that were filed, that the master's discretion in some way miscarried. But I would merely add that I can see no sign of that or of any error in the judgment which would authorise our intervention. However, confining myself to the matter specifically argued before us this morning, it is my view that the appeal fails and should be dismissed. Gleeson CJ I agree with the orders proposed by Mr Justice Samuels and with hisHonour's reasons in that regard. I would only add one brief comment in relation to a particular subject matter that seems to have promoted the present appeal. It concerns the legacy which was received by the respondent in 1988 and which came to the notice of the appellant some time after the hearing before Master Windeyer. There is nothing in the URJ CHAPMAN v CHAPMAN (Handley JA) 3 further evidence that has been led before this Court concerning the matter of that legacy that casts any doubt on the correctness of the information which the respondent gave to Master Windeyer as to the nature and extent of her assets and liabilities at the date of the hearing. Nor is there anything in that further material which, if known to Master Windeyer, would have led to a different result at the hearing of first instance. As I said, I agree with the orders proposed by Mr Justice Samuels. Handley JA I agree with both previous judgments. The appeal is dismissed with costs. I should make it clear, however, that, in making that order concerning costs, the Court is not intending in any way to express any view concerning the reasonableness, or lack of reasonableness, of the commencing of this appeal, or the propriety of the conduct of the executor in commencing the appeal. It will be a matter to be worked out, if any dispute should arise and it is to be hoped no dispute will arise, between the appellant and the other beneficiary in the estate, his sister. The order of the Court is entirely without prejudice to the position of the parties in that regard. Counsel for the Appellant: P TOMASETTI Counsel for the Respondent: J A RINGROSE Solicitors for the Appellant: GREGORY J HALPIN (MIRANDA) Solicitors for the Respondent: GREGORY T WARD and CO (CARINGBAH)