du Maurier v du Maurier [2021] NSWSC 83

du Maurier v du Maurier [2021] NSWSC 83

The disputed paragraphs of the plaintiff's affidavit are either irrelevant (failing s 55 Evidence Act) or, if not, should be excluded under s 135 due to limited probative value, inability to contradict, and undue waste of time. The Court ruled the paragraphs inadmissible in the interests of case management and efficiency.

Parties
Applicant/defendant: David Pierre du Maurier; Respondent/plaintiff: Karen Dominique du Maurier
Jurisdiction
Australia
Judgment Date
11 February 2021
Procedural Posture
Equity Procedural Ruling / Advance Ruling on Admissibility of Affidavit Evidence Prior to Trial
Outcome
Application granted. Specified paragraphs of affidavit ruled inadmissible and to be redacted. Plaintiff to pay Defendant's costs.
Legal Topics
Mutual Wills, Trust Enforcement, Affidavit Evidence, Case Management, Relevance, Admissibility
Evidence Trusts Wills and Estates Civil Procedure Mutual Wills Trust Enforcement Affidavit Evidence Case Management +2 more

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Parties

David Pierre du Maurier

Applicant/defendant

Karen Dominique du Maurier

Respondent/plaintiff

Procedural Posture

Equity Procedural Ruling / Advance Ruling on Admissibility of Affidavit Evidence Prior to Trial

Legal Issues

  1. 1 Whether certain paragraphs of the plaintiff's affidavit are admissible
  2. 2 Whether the statements in the affidavit are relevant to the issue of a binding agreement to make mutual wills
  3. 3 Application of Evidence Act (NSW), ss 55 and 135

Ratio Decidendi

The disputed paragraphs of the plaintiff's affidavit are either irrelevant (failing s 55 Evidence Act) or, if not, should be excluded under s 135 due to limited probative value, inability to contradict, and undue waste of time. The Court ruled the paragraphs inadmissible in the interests of case management and efficiency.

Court Disposition

Application granted. Specified paragraphs of affidavit ruled inadmissible and to be redacted. Plaintiff to pay Defendant's costs.

Orders

  • The Plaintiff will not read paragraphs 146-150, 154, 155, 157, 158, 182(a) to (j) and (l) to (n), 184(b) to (e) and (g) to (j), 186, 188, together with exhibits referred to therein, in the Affidavit.
  • Paragraphs 193, 195 and 196 of the Affidavit are ruled inadmissible and will not be read by the Plaintiff.