Sutherland Shire Council v Stamatakakos

[2002] NSWCA 406

NSW Court of Appeal

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Interrogate

Catchwords

1. Negligence
2. › Causation
3. › Inference of fact
4. › Whether inference that deceased observed signs of dry rot when painting was reasonably open on the evidence
5. › Whether negligence can be established on a mere possibility
1. Evidence
2. › Inferences of fact
3. › Standard for drawing inferences
4. › Balance of probabilities
5. › Whether evidence establishing only a possibility is sufficient
1. Succession Law
2. › Administration of estates
3. › Liability of estate after full administration
4. › Survival of causes of action accruing after death
5. › Interaction of Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2(4) with Wills, Probate and Administration Act 1898 (NSW), ss 92, 95
6. › Whether equitable right of action against beneficiaries arises

Quick Take

The case confirms that where the only evidence is that paint seeped into softwood timber — a commonplace occurrence — no inference of awareness of dry rot can be drawn. Negligence cannot be established on a mere possibility. The obiter observations by Handley JA identify unresolved questions about whether a person with a claim for unliquidated damages against a fully administered estate can pursue an equitable remedy against beneficiaries under s 95 of the Wills, Probate and Administration Act 1898.