DIMURA v PUBLIC TRUSTEE [1996] NSWCA 155

DIMURA v PUBLIC TRUSTEE

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA 21 October 1996

[1996] NSWCA 155

Handley JA. In this matter Mr Stubbs of counsel appearing for the claimant, the would be appellant Mr Guglielmo Dimura, moves pursuant to a notice of motion filed 27 September for an extension of the time to appeal from a judgment of Mr Justice Bryson entered on 9 July 1996.

The claimant is substantially out of time and this reflects naturally on the prospects of obtaining the order sought.

However, the principal ground of opposition by Mr Hallen, who appeared for the opponent, was that an extension of time should be refused because the appeal lacked sufficient prospects of success.

The proceedings before Mr Justice Bryson concerned claims by the claimant for specific performance of an alleged oral contract with the late Santo Chera who died at the age of seventy-six in February 1993, or damages for breach of that contract.

The contract alleged involved a promise by Mr Chera to leave his estate by will to the claimant in return for the claimant performing various personal services for him and looking after him in his declining years.

The trial Judge was not satisfied that such a contract had been made and was not impressed by the evidence called in support of the claim. In particular, he was not impressed with the credibility of the claimant.

The claimant called other witnesses who gave evidence that the claimant had been friendly with the deceased and had provided practical assistance for him in the last years of his life. Some of these witnesses deposed to conversations in which the deceased expressed his friendship with the claimant and his intention to leave his property to the claimant.

However, as the trial Judge pointed out the evidence of the independent witnesses did no more than establish that that was the deceased's intention at the time of the conversations. This evidence did not support the view that a binding contract had been entered into between the plaintiff and the deceased, or that the deceased recognised a binding obligation to dispose of his estate in favour of the claimant.