HEATON v LUCZKA [1998] NSWCA 104

HEATON v LUCZKA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE, BEAZLEY and STEIN JJA 3 March 1998, 3 March 1998 [1998] NSWCA 104

Evidence — Rule in Browne v Dunn — operation of rule in Browne v Dunn — Admissibility of evidence.

Cole JA I will ask Beazley JA to give the first judgment.

Beazley JA This is an appeal from a decision of Judge Christie of the District Court in which his Honour held that the terms of an agreement reached between the appellant and the respondent included a term for the payment of interest at 10 per cent. This finding is challenged and three main errors are alleged. One, that his Honour wrongly precluded a witness, Ben Heaton, the son of the appellant, from giving certain evidence because of an alleged breach of a rule in Browne v Dunn (1894) 6 R67; two, that his Honour's findings were against the weight of evidence; and three, that his Honour failed to draw certain inferences exculpatory of the appellant.

It was submitted that given the fine balance which his Honour found between the evidence of the appellant and the respondent the wrongful rejection of Mr Heaton's evidence would or may well have tipped the balance in favour of the appellant. It is necessary to place these issues in their brief factual context.

The appellant and the respondent had been involved in a relationship during which time they had become engaged and had cohabited at least for a short period. During the course of the relationship the appellant decided to build duplexes on land owned by her. She made a number of loan applications to financial institutions to enable her to do so. However, the respondent offered to build the home for the appellant and to lend her the moneys to do so. The appellant accepted this offer. There is no dispute about those aspects of the transaction. The respondent said it was a term of the loan agreement that interest would be payable at 10 per cent. The appellant denied that there was any conversation and, it follows, any agreement as to interest.