Trewin v Felton [2007] NSWSC 919

Trewin v Felton [2007] NSWSC 919

Notice under Evidence Act s 67 is dispensed with as the intention to rely on Mr Wall's statutory declaration was manifest and no prejudice is shown. Hearsay evidence is admitted except for assertions of subjective intention, which are not relevant. Late-served affidavit is admitted in part, admitting only relevant paragraphs and excluding paragraphs relating to personal relationships.

Parties
First Plaintiff: Audrey Trewin; Second Plaintiff: Stephen Albert Trewin; Defendant: Graeme John Felton
Jurisdiction
Australia
Judgment Date
14 May 2007
Procedural Posture
Equity Proceedings / Interlocutory Evidence Ruling
Outcome
Notice dispensed with; evidence admitted in part; some paragraphs of affidavits rejected.
Legal Topics
Hearsay Exception, Right of Way, Easement Modification, Affidavit Admissibility
Evidence Property Law Hearsay Exception Right of Way Easement Modification Affidavit Admissibility

Case Brief

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Parties

Audrey Trewin

First Plaintiff

Stephen Albert Trewin

Second Plaintiff

Graeme John Felton

Defendant

Procedural Posture

Equity Proceedings / Interlocutory Evidence Ruling

Legal Issues

  1. 1 Admissibility of hearsay evidence from a deceased person
  2. 2 Dispensation of notice under Evidence Act s 67
  3. 3 Relevance and admissibility of late-served affidavits

Ratio Decidendi

Notice under Evidence Act s 67 is dispensed with as the intention to rely on Mr Wall's statutory declaration was manifest and no prejudice is shown. Hearsay evidence is admitted except for assertions of subjective intention, which are not relevant. Late-served affidavit is admitted in part, admitting only relevant paragraphs and excluding paragraphs relating to personal relationships.

Court Disposition

Notice dispensed with; evidence admitted in part; some paragraphs of affidavits rejected.

Orders

  • Pursuant to Evidence Act s 67(4), s 63(2) applies to Mr Wall's statutory declaration annexed to Mr Felton's affidavit.
  • The words 'the right of carriageway was created to give me' in paragraph 5 of Mr Wall's statutory declaration are rejected.