Piras v Egan [2008] NSWCA 59

New South Wales Court of Appeal

CITATION: Piras v Egan [2008] NSWCA 59

HEARING DATE(S): 11 February 2008

JUDGMENT DATE: 11 April 2008

JUDGMENT OF: Giles JA at 1; Tobias JA at 5; Campbell JA at 6

DECISION: (1) Appeal dismissed. (2) Appellant to pay the Respondents' costs of the appeal.

CATCHWORDS: SUCCESSION - wills probate and administration - whether appellant entitled to entire estate of deceased - whether appellant was the de facto spouse of the intestate - s 61B(2) and s 32G(1) Wills, Probate and Administration Act 1898 - whether appellant and deceased lived together as a couple - s 4 Property (Relationships) Act 1984 - relationship between definition of 'de facto relationship' in s 4 Property (Relationships) Act and list of 'circumstances' in s 4 - claim in alternative for provision out of estate under s 7 Family Provision Act 1982 - whether appellant was in a "close personal relationship" with the deceased - s 5(1)(b) Property (Relationships) Act - whether appellant was an "eligible person" within s 6(1) Family Provision Act - whether appellant was a member of the household of which the deceased was a member - EVIDENCE - witnesses - where trial judge forms view that appellant's unsupported word insufficient - whether trial judge's view was inconsistent with incontrovertible facts - whether trial judge's view was based on glaringly improbable evidence, or contrary to compelling inferences - whether trial judge misused his advantage of seeing or hearing witnesses - EVIDENCE - matters relating to proof - onus of proof - whether findings of trial judge were merely findings that appellant had failed to discharge an onus of proof - whether trial judge made positive findings - EVIDENCE - weight and sufficiency of evidence - whether trial judge gave insufficient weight to evidence of witnesses for appellant - EVIDENCE - witnesses - whether trial judge's acceptance of evidence of witness A called for the respondents contravened rule in Browne v Dunn (1893) 6 R 67 - when that evidence alleged that witness B (earlier called for the appellant) had made a particular statement, witness B had given no evidence concerning the topic of that statement, and the allegation that he had made that statement had not been put to witness B in cross-examination - whether evidence of witness A gave rise to any imputation against witness B - PROCEDURE - whether failure of trial judge to inform parties that he proposed to accord to an item of evidence a significance concerning which no submissions had been made or invited amounted to a denial of natural justice - APPEAL - whether, assuming there had been a breach of natural justice, a new trial would be required - whether "substantial wrong or miscarriage" occasioned - Rule 51.53 Uniform Civil Procedure Rules - EVIDENCE - witnesses - credibility of witnesses - whether, once admitted, evidence of conviction can be used as tending to show a witness lacks credibility