Read v McEwen & Anor (No 3) [2007] NSWSC 863

New South Wales Supreme Court

CITATION : Read v McEwen & Anor (No 3) [2007] NSWSC 863

HEARING DATE(S) : 26/07/07 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 26 July 2007

DECISION : Leave to read affidavit granted.

CATCHWORDS : EVIDENCE - Admissibility and Relevancy - Leave sought to read affidavit sworn the day before trial - Issues raised in affidavit of husband sworn two months earlier, his affidavit having been rejected because he was required for cross examination and not in attendance at Court

Yvonne Read - Plaintiff PARTIES : Jeffrey John McEwen - First Defendant Jedda Kylie McEwen - Second Defendant

FILE NUMBER(S) : SC 1598/07

COUNSEL : Mr DA Smallbone/Mr J Cohen - Plaintiff Ms M Dulhunty - First and Second Defendants

SOLICITORS : Michael Lewis & Associates Solicitors - Plaintiff Coyne & Whittemore - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

THURSDAY 26 JULY 2007

1598/07 YVONNE READ v JEFFREY JOHN McEWEN & ANOR (NO 3) EX TEMPORE JUDGMENT 1 I have given leave to file in Court an affidavit of Jedda Kylie McEwen, the second defendant, sworn on 25 July 2007. It traces the history of Mrs McEwen's girlhood and the history thereafter. Materially, it suggests that the deponent saw no reason to dispute what her mother, Yvonne Read, the plaintiff, said to her when she handed a deed of 7 October 2003 to her daughter and son-in-law for execution. The affidavit also swears that Ms Read at no stage suggested that independent legal advice be taken by the deponent or her husband. 2 Objection is taken to receiving the affidavit at this late stage. In opposition to its receipt, an affidavit of Matthew Keith Huntington sworn on 25 July 2007 and an affidavit Michael Vincent Lewis both sworn on 26 July 2007 have been read on a voir dire. Mr Huntington was the person who witnessed Ms Read's signature on the deed. He annexes two letters that were addressed by him to Mr and Mrs McEwen, one of 4 July 2003 the other of 2 September 2003. 3 Mr Lewis swears to proceedings before Windeyer J on 29 June 2007 when his Honour gave directions as to the filing of an amended cross-claim and the filing of a defence to the amended cross-claim. It sets out the assertion that from 7 February 2005 to date there has been a continuing request that Mr and Mrs McEwen join with Ms Read in a sale of the land to enable Ms Read to recover the capital she contributed to the purchase of the property and to enable her to use the capital for the purchase of a new residence for her to occupy as her principal place of residence. 4 Mr Smallbone who with Mr Cohen appears for Ms Read indicates that if the affidavit of Mrs McEwen is read, Ms Read would wish to call evidence in the substantive proceedings to rebut any suggestion of non est factum or unconscionable conduct on her part in requesting the execution of the deed by her daughter and son-in-law, Mr and Mrs McEwen. The affidavit of Mr Lewis states the hardship that would be suffered by Ms Read if, as a result of receiving at this late stage the affidavit of Mrs McEwen, it would be necessary for the proceedings to be adjourned. 5 Notwithstanding the lateness of the affidavit, it deals with a number of matters of which Ms Read had notice because they were stated in an affidavit of Mr McEwen that was served on Ms Read. I rejected that affidavit because Mr McEwen was required for cross-examination and was not present in Court to be cross-examined. 6 Furthermore, there have been, on both sides, applications to amend pleadings raising new issues that I have allowed. In the circumstances, it seems to me to be appropriate that I should receive the affidavit of Mrs McEwan and I reject the objection to it.