SAVAGE and ORS v LUNN and ORS [1998] NSWCA 203

SAVAGE v LUNN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHEPPARD AJA, HANDLEY and SHELLER JJA 8, 9,10,11, 12, 15,16, 17 and 18 September 1997, 9 March 1998

[1998] NSWCA 203

COMPANIES — shares — share register rectification — onus of proof EQUITY — laches — onus of proof — plaintiffs' knowledge of cause of action EVIDENCE — further evidence on appeal — may be led by respondents EVIDENCE — circumstantial — weight depends on combined strength FORGERY — requirement of fraud

FORGERY — effect of nullity

LIMITATION OF ACTIONS — forgery — when time starts to run

PRACTICE — directions for filing of affidavits — witness held in reserve — attempt to call witness — discretion of trial Judge

The appeal arose out of a dispute over the ownership of shares in Cardiff Coal Company, which was incorporated under a private Act of

Parliament on 30 December 1863. It ceased mining in the last century but remained the registered proprietor of 299 acres of freehold land at Belmont until 1993. Title to the shares was claimed by the respondents (plaintiffs) through the will of their ancestor, James Lunn, who died on 31 August 1912 while registered as the owner of the disputed shares. The appellants (defendants) alleged that the shares were owned by Belmont Colliery Pty Ltd which had acquired them from a Mr Blackwood in April 1938, he having acquired them from the estate of James Lunn in November 1916. The respondents asserted that these transfers were forgeries. The trial Judge, acting on uncontradicted evidence from a handwriting expert, and circumstantial evidence covering the period from 1916 to 1977, found that the relevant share transfers, company minutes, and entries in the share register were forgeries, rejected defences of limitation and laches, and upheld the plaintiffs' claim. The defendants appealed.