Nagle & Anor - as Executors, Estate Late Marie Jewell Lodge v Lavender [2002] NSWSC 595

Nagle & Anor - as Executors, Estate Late Marie Jewell Lodge v Lavender [2002] NSWSC 595

Paragraphs 2 to 8 of Patricia Nagle's affidavit were inadmissible because they stated facts rather than opinions and did not recount the actual or substantive representations made by Miss Lodge or the deponent's mother as required for first hand hearsay under s 63. Mr Hogan's proposed evidence was admissible because, after Mr Lavender gave evidence of a conversation with Mr Hogan about the post-death withdrawal, that conversation became part of the factual matrix relevant to whether Miss Lodge had authorised the withdrawals during her lifetime, and the evidence was not relevant only to credibility.

Jurisdiction
Australia
Judgment Date
28 June 2002
Procedural Posture
Equity Proceeding Concerning Alleged Authorised Withdrawals From Bank Accounts of Deceased Person / Rulings on Objection to Affidavit Evidence and on Admission of Evidence
Outcome
Hearsay evidence excluded; evidence to contradict evidence of defendant permitted.
Legal Topics
['hearsay' 'first Hand Hearsay' 'relevance' 'credibility Evidence' 'admission of Evidence' "authorisation of Withdrawals From Deceased Person's Bank Accounts"]
['evidence' 'equity' 'estates'] ['hearsay' 'first Hand Hearsay' 'relevance' 'credibility Evidence' 'admission of Evidence' "authorisation of Withdrawals From Deceased Person's Bank Accounts"]

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Procedural Posture

Equity Proceeding Concerning Alleged Authorised Withdrawals From Bank Accounts of Deceased Person / Rulings on Objection to Affidavit Evidence and on Admission of Evidence

Legal Issues

  1. 1 ['Whether paragraphs 2 to 8 of the affidavit of Patricia Nagle were admissible as opinion evidence or under s 63 of the Evidence Act 1995.' "Whether evidence from Mr Hogan contradicting Mr Lavender's account of a telephone conversation was inadmissible as evidence relevant only to credibility under s 102 of the Evidence Act 1995." "Whether Mr Lavender's conduct immediately after Miss Lodge's death was relevant to whether Miss Lodge had authorised withdrawals during her lifetime."]

Ratio Decidendi

Paragraphs 2 to 8 of Patricia Nagle's affidavit were inadmissible because they stated facts rather than opinions and did not recount the actual or substantive representations made by Miss Lodge or the deponent's mother as required for first hand hearsay under s 63. Mr Hogan's proposed evidence was admissible because, after Mr Lavender gave evidence of a conversation with Mr Hogan about the post-death withdrawal, that conversation became part of the factual matrix relevant to whether Miss Lodge had authorised the withdrawals during her lifetime, and the evidence was not relevant only to credibility.

Court Disposition

Hearsay evidence excluded; evidence to contradict evidence of defendant permitted.

Orders

  • ['Paragraphs 2 to 8 of the affidavit of Patricia Nagle sworn 6 March 2001 rejected.' 'Leave granted for supplementary oral evidence to be given for the material contained in paragraph 8.' 'Evidence from Mr Hogan allowed to be called.']