Private International Law—Choice of law—Voluntary settlement of movables—Essential validity—Law governing—Whether express choice of law—Public policy—Conveyancing Act, 1919-1967 (N.S.W.), s. 36*.

Decisions

June 30.
The following written judgments were delivered :-
BARWICK C.J. I have had the advantage in this matter of having read the reasons for judgment prepared by my brother Walsh. I agree with his conclusions and his reasons therefor. I do not desire to add anything in respect of the ground covered by those reasons. However, I desire to say that had the deed of settlement dated 25th June 1956 not contained cl. 5 which is set out in my brother's reasons, there would remain for me nonetheless the substantial question as to what in the circumstances should be held to be the proper law of the settlement. However having regard to the presence of cl. 5 in the deed of settlement and the views as to its effect with which I agree, I find no need to consider whether the view as to the proper law of the settlement expressed by the Supreme Court of the Australian Capital Territory is correct. (at p249)

2. I agree that the appeal should be allowed and affirmative answers given to questions 1 (a) (ii) and 1 (c) in the originating summons. (at p249)

McTIERNAN J. I agree with Walsh J. and concur in his reasons and in the order which he proposes. (at p249)

WINDEYER J. I have had the advantage of reading the judgment to be delivered by Walsh J. I agree in his Honour's conclusion and in his reasons. (at p249)

OWEN J. I have had the advantage of reading the judgment prepared by my brother Walsh. I agree with the order proposed by him and with his reasons. (at p249)

WALSH J. On 25th June 1956 a deed was executed on behalf of Stewart Walter D'Arrietta, now deceased (the settlor) and on behalf of the respondent, Permanent Trustee Co. (Canberra) Ltd. (the trustee). It was executed in the Australian Capital Territory (the Territory). It was a voluntary settlement. It recited that the settlor had paid to the trustee at Canberra the sum of 42,314.11.3 Pounds to be held upon the trusts declared in the deed. That sum was referred to as the trust funds. After the execution of the deed, the trustee paid that sum to the settlor as the price of shares and stock owned by him, most of these being on registers in the Territory, and they were transferred to the trustee, which was incorporated in the Territory and has not been registered as a foreign company in New South Wales. (at p250)

2. The settlor was domiciled and resided in New South Wales, as did his children and grandchildren. There were two children, Margaret and John. Margaret was then and continued to be a spinster.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Augustus v Permanent Trustee Co (Canberra) Ltd

Details

AGLC: Augustus v Permanent Trustee Co (Canberra) Ltd [1971] HCA 25
Case: [1971] HCA 25
Decision Date: 30 June 1971

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute between Augustus and Permanent Trustee Co (Canberra) Ltd. The core of the disagreement revolved around the interpretation of a will and the entitlement to a share of the residuary estate.

The central legal issue before the Court was whether the appellant, Augustus, was a "child" of the testator for the purposes of the will, specifically in relation to the distribution of the residuary estate. This required the Court to determine the meaning of "child" in the context of the testator's intentions as expressed in the will, and whether the appellant, who was adopted by the testator's son, fell within that definition.

The Court analysed the language of the will and the relevant legislative provisions concerning adoption. It was held that the term "child" in the will referred to a natural child or a child adopted by the testator himself. The Court reasoned that the testator's intention, as evidenced by the will's wording, did not extend to include a child adopted by another beneficiary. Therefore, the appellant, being adopted by the testator's son and not the testator directly, was not considered a "child" for the purposes of the will's distribution.

The appeal was dismissed.

Orders