Turnbull v Gorgievski [1999] NSWSC 871

Turnbull v Gorgievski [1999] NSWSC 871

Despite lack of formal written notice, substantial actual notice of the hearsay evidence was provided and the plaintiff was aware of the relevant facts; leave was granted under s 67(4) and par 8 of the affidavit was admitted; additionally, use of certain statements in the affidavit was limited to proof they were made, not their truth.

Jurisdiction
Australia
Judgment Date
05 August 1999
Procedural Posture
Suit Under S 37 a Conveyancing Act 1919 to Set Aside Property Transfer / Interlocutory Decision on Admissibility of Affidavit Evidence
Outcome
Direction made that s 63 applies; par 8 of the affidavit admitted; limited use of part of the evidence as requested.
Legal Topics
['hearsay' 'admissibility of Affidavit' 'notice Requirements' 'discretion for Leave' 'limitation on Use of Evidence']
['evidence' 'equity'] ['hearsay' 'admissibility of Affidavit' 'notice Requirements' 'discretion for Leave' 'limitation on Use of Evidence']

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Procedural Posture

Suit Under S 37 a Conveyancing Act 1919 to Set Aside Property Transfer / Interlocutory Decision on Admissibility of Affidavit Evidence

Legal Issues

  1. 1 ["Whether hearsay evidence in par 8 of First Defendant's affidavit is admissible under Evidence Act 1995 s 63 despite notice requirements under s 67" 'Whether written notice requirements for hearsay evidence were fulfilled' 'Whether the Court should grant leave for admissibility without formal notice' 'Whether use of certain statements should be limited under s 136']

Ratio Decidendi

Despite lack of formal written notice, substantial actual notice of the hearsay evidence was provided and the plaintiff was aware of the relevant facts; leave was granted under s 67(4) and par 8 of the affidavit was admitted; additionally, use of certain statements in the affidavit was limited to proof they were made, not their truth.

Court Disposition

Direction made that s 63 applies; par 8 of the affidavit admitted; limited use of part of the evidence as requested.

Orders

  • ['Direction that s 63 apply to evidence though notice under s 67 not given.' 'Admission of par 8 of affidavit sworn 26 June 1998.' 'Limitation placed on certain evidence—may not be used to prove truth of assertions, only the fact the statements were made.']