Sleboda v Sleboda [2008] NSWCA 122

New South Wales Court of Appeal

CITATION: Sleboda v Sleboda [2008] NSWCA 122

HEARING DATE(S): 22 May 2008

JUDGMENT DATE: 3 June 2008

JUDGMENT OF: Campbell JA at 1; Bell JA at 61; Handley AJA at 62

DECISION: Appeal dismissed with costs.

CATCHWORDS: EQUITY – undue influence – unconscionable conduct – father conveyed entire interest in real property to son – father sought declaration that property held on constructive trust for father and son as tenants in common in equal shares and order for son to carry out all necessary steps to transfer to father legal half interest in property – trial judge found both grounds made out – appeal on questions of evidence - EVIDENCE – witnesses – credibility of witnesses – where trial judge rejected evidence given by solicitor for son – appeal against factual finding based in part on demeanour – whether finding of trial judge contrary to incontrovertible facts or uncontested testimony – whether trial judge disbelieved evidence as a result of considering other evidence or simply was not persuaded of the occurrence or existence of the fact sought to be proved – where material that should have been provided in affidavits emerged only orally at trial – trial judge entitled to treat supplementary oral evidence with caution – essential for judge to believe what a witness says before the facts to which the witness deposes are proved by that witness' evidence - PROCEDURE – Courts and judges generally – whether reasons of trial judge inadequate – whether trial judge referred to relevant evidence – whether trial judge set out any material findings of fact and any conclusions or ultimate findings of fact reached – whether trial judge provided reasons for making the relevant findings of fact and conclusions – sufficient for judge to say he or she does not believe a witness if rejection of evidence based on credibility rather than on comparing probabilities derived from other evidence