NOLAN v NOLAN and Another

10 VR 626·Dodds-Streeton J
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10 VR 626
10 VR 626
NOLAN v NOLAN and AnotherSUPREME COURT OF VICTORIADodds-Streeton J26–29 November, 2–4, 6, 9–12, 16–19 December 2002, 28 April 2003[2003] VSC 121Personal property — Chose in possession — Gifts inter vivos — Art works — Disputed ownership — Alleged gift by delivery — Artist giving paintings to his wife — Wife closely involved in promoting husband’s artistic career — Wife lending paintings by artist for public exhibitions — Exhibition catalogues attributing ownership of some paintings to wife — Artist’s wife predeceasing artist — Artist’s adopted daughter sole beneficiary of mother’s will — Artist aware of distribution of paintings by late wife’s estate — Remarriage of artist — Disputed paintings coming into artist’s possession — Artist dying leaving all his chattels to widow — Daughter belatedly locating circumstantial evidence said to support prior inter vivos gift to her mother — Daughter’s claim as sole beneficiary of mother’s will — Whether artist made a gift — Donative intention — Whether necessary to establish words of gift — Whether claim statute-barred — Whether constructive trust — Limitation of Actions Act 1958 (No 6295) ss 6, 21..Section 55 of the Evidence Act 1958 provided in part as follows:

“(1) In any legal proceeding (not being a criminal proceeding) where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall be admissible as evidence of that fact if —

  • (a)the maker of the statement had at the time of making the statement personal knowledge of the matters dealt with by the statement, and is called as a witness in the proceeding; or
  • (b)the document is, or forms part of, a record relating to any business and made in the course of that business from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied and the person who supplied the information recorded in the statement in question is called as a witness.

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