CEEDIVE Pty Ltd v MAY, TIMMS, McFADDEN & MUDWAY [2004] NSWSC 33

CEEDIVE Pty Ltd v MAY, TIMMS, McFADDEN & MUDWAY [2004] NSWSC 33

The family history material in the affidavit was relevant to issues in the possession claim and cross-claim, and evidence based on conversations between the witness and his father was admissible under s73(1)(d) of the Evidence Act 1995 as reputation evidence concerning family history. However, material based on government records or company records was not reputation evidence and could not be admitted under s73.

Jurisdiction
Australia
Judgment Date
04 February 2004
Procedural Posture
Civil Proceeding Involving the Plaintiff's Claim for Possession and Defendants' Cross Claim / Ruling on Admissibility of Affidavit Evidence Under S73 Evidence Act 1995
Outcome
Evidence admitted in part.
Legal Topics
['hearsay' 'pedigree Declarations' 'reputation Evidence' 'family History' 'admissibility of Affidavit Evidence']
['evidence' 'civil Procedure'] ['hearsay' 'pedigree Declarations' 'reputation Evidence' 'family History' 'admissibility of Affidavit Evidence']

Case Brief

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Procedural Posture

Civil Proceeding Involving the Plaintiff's Claim for Possession and Defendants' Cross Claim / Ruling on Admissibility of Affidavit Evidence Under S73 Evidence Act 1995

Legal Issues

  1. 1 ["Whether paragraphs of Kevin Leslie McFadden's affidavit concerning his parents, grandparents, residence and work history were admissible under s73 of the Evidence Act 1995 as evidence of reputation concerning family history or family relationship." 'Whether material sourced from government records and records of the Lithgow Valley Colliery Company could be admitted under s73 of the Evidence Act 1995.' "Whether the historical family material was relevant to the plaintiff's claim for possession, the defendants' denial of entitlement, the cross-claim, occupation of the house, and estoppel by convention."]

Ratio Decidendi

The family history material in the affidavit was relevant to issues in the possession claim and cross-claim, and evidence based on conversations between the witness and his father was admissible under s73(1)(d) of the Evidence Act 1995 as reputation evidence concerning family history. However, material based on government records or company records was not reputation evidence and could not be admitted under s73.

Court Disposition

Evidence admitted in part.

Orders

  • ["Paragraph 2 of Kevin Leslie McFadden's affidavit was admitted." 'Paragraph 3 was admitted only from "To the best of my knowledge and based upon many conversations with my father" to the end of the paragraph; the parts referring to government records or company records were not admitted under s73.' 'Paragraphs 4,...