Costa and Another v The Public Trustee of NSW

[2008] NSWCA 223

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appeal by way of rehearing
3. › Question of fact
4. › Inference from undisputed written evidence
5. › Whether necessary for appeal court to find error
6. › Standard of appellate review of inferences drawn from primary facts
7. › Whether Warren v Coombes principles require identification of error as precondition
8. › Supreme Court Act 1970 (NSW), s 75A
1. Appeal
2. › Appeal by way of rehearing
3. › Categories of appellate review
4. › Distinction between review of inferences, evaluative judgments, and discretionary decisions
5. › Different standards applicable to each category
6. › House v The King principles distinguished from Warren v Coombes principles
1. Succession
2. › Wills
3. › Informal documents
4. › Whether document purported to convey testamentary intentions
5. › Whether deceased intended document to be his will
6. › Inference of testamentary intention from circumstantial evidence
7. › Wills Probate and Administration Act 1898 (NSW), s 18A

Quick Take

On an appeal by way of rehearing under s 75A of the Supreme Court Act 1970 (NSW), where the appellate court is reviewing inferences drawn from undisputed facts and the trial judge enjoyed no advantage, the appellate court must give effect to its own view as to the appropriate inferences and need not first identify error on the part of the primary judge. The constraints in House v The King apply to evaluative judgments (damages, apportionment) but not to the drawing of inferences from established facts. A handwritten document addressed to family members stating 'I want you to have my house', written shortly before the author's suicide and placed prominently, may satisfy s 18A as an informal will.