Nagle & Anor - as Executors, Estate Late Marie Jewell Lodge v Lavender [2002] NSWSC 595

New South Wales Supreme Court

CITATION : Nagle & Anor - as Executors, Estate Late Marie Jewell Lodge v Lavender [2002] NSWSC 595 revised - 5/09/2002 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4475/99 HEARING DATE(S) : 24/6/02-28/6/02 JUDGMENT DATE : 28 June 2002

PARTIES : Patricia Nagle & Richard Patrick Nagle as Executors of the Estate of the Late Marie Jewell Lodge (Plaintiffs/Cross Defendants) Geoffrey Lavender (Defendant/Cross Claimant) JUDGMENT OF : Campbell J

COUNSEL : M Ashhurst (Plaintiffs/Cross Defendants) R Lovas (Defendant/Cross Claimant) SOLICITORS : Blackshaw Lindsay (Plaintiffs/Cross Defendants) George Loupos & Associates (Defendant/Cross Claimant) CATCHWORDS : EVIDENCE - facts excluded from proof - hearsay - exception for first hand hearsay under s 63(2)(a) Evidence Act 1995 - evidence needs to be in substance stating what was the previous representation - EVIDENCE - facts excluded from proof - evidence relevant to credibility of witness - interrelationship of s 55 and s 102 Evidence Act 1995 LEGISLATION CITED : Evidence Act 1995 Adam v R (2001) 75 ALJR 1537 CASES CITED : Palmer v R (1998) 151 CLR 16 Urban Transport Authority of New South Wales v Weiser (1991) 28 NSWLR 47 DECISION : Hearsay evidence excluded; Evidence to contradict evidence of defendant permitted.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

THURSDAY 27 JUNE 2002

4475/99 PATRICIA NAGLE – AS EXECUTOR OF THE ESTATE OF MARIE JEWELL LODGE - & ANOR v GEOFFREY LAVENDER JUDGMENT – (On objection to paragraphs 2 to 8 of affidavit of Patricia Nagle sworn 6 March 2001) 1 HIS HONOUR: Paragraphs 2 to 8 say that the deponent is aware of the personal history of Miss Lodge from many conversations the deponent has had with her mother and with Miss Lodge, and that the deponent's mother is dead. (Other evidence establishes that Miss Lodge is dead.) The paragraphs go on to recount facts the deponent has learned from those conversations. 2 I propose to reject paragraphs 2 to 8. They were tendered by Mr Ashhurst on two alternative bases: