Tobin v Ezekiel; Estate of Lily Ezekiel [2009] NSWSC 1209

Tobin v Ezekiel; Estate of Lily Ezekiel [2009] NSWSC 1209

Leave to rely on the affidavit was refused because no sufficient cause was shown for leaving service of the s 67 notice until 17 September 2009, the hearing date had been determined many months earlier, and extending time for service of the notice or dispensing with the notice requirement would create serious potential prejudice to the defendants by denying them an opportunity to investigate what was attributed to Ms Brook.

Jurisdiction
Australia
Judgment Date
23 September 2009
Procedural Posture
Probate List Proceeding / Application for Leave to Read Affidavit
Outcome
Leave to read affidavit refused.
Legal Topics
['affidavits' 'previous Representation' 'firsthand Hearsay' 'notice Under Evidence Act 1995 (nsw), S 67' 'extension or Dispensation of Notice Requirement' 'prejudice']
['evidence' 'civil Procedure' 'probate'] ['affidavits' 'previous Representation' 'firsthand Hearsay' 'notice Under Evidence Act 1995 (nsw), S 67' 'extension or Dispensation of Notice Requirement' 'prejudice']

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Procedural Posture

Probate List Proceeding / Application for Leave to Read Affidavit

Legal Issues

  1. 1 ['Whether the plaintiffs should be given leave to read the affidavit of Timothy Dennis Kelly sworn 17 September 2009 annexing a note of a conversation with Rachel Brook.' "Whether the plaintiffs' late notice under Evidence Act 1995 (NSW), s 67, for evidence of a previous representation in reliance on s 64(2), should be accepted, extended or dispensed with despite non-compliance with the 21 day notice requirement." 'Whether admission of the affidavit would cause prejudice to the defendants by denying them an opportunity to investigate what was attributed to Ms Brook.']

Ratio Decidendi

Leave to rely on the affidavit was refused because no sufficient cause was shown for leaving service of the s 67 notice until 17 September 2009, the hearing date had been determined many months earlier, and extending time for service of the notice or dispensing with the notice requirement would create serious potential prejudice to the defendants by denying them an opportunity to investigate what was attributed to Ms Brook.

Court Disposition

Leave to read affidavit refused.

Orders

  • ['Leave to rely on the affidavit of Timothy Dennis Kelly sworn 17 September 2009 refused.']