Tjiong v Tjiong

[2012] NSWCA 201

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Further evidence on appeal
3. › Special grounds
4. › Whether evidence could have been obtained with reasonable diligence for use at trial
5. › Whether high degree of probability of different verdict
6. › Whether evidence credible
7. › Relevance of gravity of findings
8. › Supreme Court Act 1970 (NSW), s 75A(7), (8)
1. Appeal
2. › Fact finding
3. › Findings based on credibility and demeanour
4. › Whether primary judge failed to use or palpably misused advantage of seeing witnesses
5. › Whether findings inconsistent with incontrovertible facts or glaringly improbable
1. Trusts
2. › Discretionary trust
3. › Establishment
4. › Whether consent procured by fraudulent misrepresentation
5. › Whether appellant fabricated claim upon estate to delay distributions
6. › Whether appellant fabricated evidence in support of case

Quick Take

The three conditions in Akins v National Australia Bank for admitting further evidence on appeal (reasonable diligence, probability of different verdict, credibility) are not exhaustive of the considerations relevant to 'special grounds' under s 75A(8), but where the evidence was available at trial and would not have produced a different outcome on the principal issues, the gravity of the findings against the applicant does not itself constitute special grounds. A finding of fabrication of a claim provides a sufficient independent basis for adverse credibility findings on other issues, even where separate adverse findings (such as fabrication of documents) are also made.