Grace v Grace [2010] NSWSC 1516

New South Wales Supreme Court

CITATION : Grace v Grace [2010] NSWSC 1516

HEARING DATE(S) : 19 November 2010 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 19 November 2010

DECISION : Decline to grant the leave sought

CATCHWORDS : EVIDENCE – Witnesses – adverse witnesses – whether leave should be granted under (NSW) Evidence Act 1995, s 38

LEGISLATION CITED : (NSW) Evidence Act 1995 s 38, s 192

CATEGORY : Procedural and other rulings

CASES CITED : Commercial Union Assurance Co of Aust Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Jones v Dunkel (1959) 101 CLR 298

David Alexander Grace (plaintiff) Deborah Sharon Grace (first defendant) Julienne Grace (second defendant) PARTIES : Nevilda Holdings Pty Ltd (prov liq'r appted) (third defendant) Nevilda Investments Pty Ltd (prov liq'r appted) (fourth defendant) Dutchie Pty Ltd (sixth defendant) Phoenix Rising Investments Pty Ltd (seventh defendant)

FILE NUMBER(S) : SC 06/259566

COUNSEL : D Williams SC w S Goodman (plaintiff) A Moses SC w D Stewart (first, second & seventh defendants)

SOLICITORS : James Tuite & Associates (plaintiff) Clinch Long Letherbarrow Pty Ltd (first, second & seventh defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Friday, 19 November 2010

2006/259566 David Alexander Grace v Deborah Sharon Grace & Ors JUDGMENT (ex tempore) 1 HIS HONOUR: In the course of her cross-examination, the first defendant Deborah Sharon Grace gave evidence to the effect that, until at least some time in 2007, she had believed that the trustees of the Nevilda Investments Pty Ltd Superannuation Fund were Nevilda Holdings Pty Ltd (as a corporate trustee), and her mother the second defendant Dr Julienne Grace, herself and her brother the plaintiff David Alexander Grace (as individual trustees). She gave evidence that this belief was formed on the basis of advice given to her by an accountant, the present witness Mr Ashton, to the effect that as a result of the amendments to superannuation laws in the late 1990s, it was required that all members of a self-managed superannuation fund be trustees of that fund. She said that Mr Ashton had told her, and at one point I think she said he had told her "many times", that the three individuals as well as the corporate trustee were trustees of the superannuation fund.