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Austin v Wells

Austin v Wells

Case [2008] NSWSC 1266 28 November 2008

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CITATION: Austin & Anor v Wells & Ors [2008] NSWSC 1266

HEARING DATE(S): 20/08/08, 11/08/08 and 21/10/08

JUDGMENT DATE :
28 November 2008

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: 1. Pursuant to r 10.14(3) of the Uniform Civil Procedure Rules direct that the amended summons be taken to have been served on the fourth defendant on 4 September 2008; 2. make the declarations and order in paragraphs 1, 3 and 4 of the amended summons; 3. exhibit may be returned.

CATCHWORDS: WILLS - construction - whether interest in property is vested or contingent - meaning of 'vest'

LEGISLATION CITED: Trustee Act 1925 (NSW)

CASES CITED: Saunders v Vautier (1841) 4 Beav 115; 49 ER 282 (affirmed (1841) Cr & Ph 240; 41 ER 482).
CPT Custodian Pty Ltd v Commisisoner of State Revenue (Vic) [2005] HCA 53; (2005) 224 CLR 98
Gosling v Gosling (1859) Johns 265; 70 ER 423
Marks v Trustees Executors and Agency Co Ltd (1948) 77 CLR 497
Jenkins v Stewart (1906) 3 CLR 799
Fell v Fell (1922) 31 CLR 268
Re Butler [1980] Qd R 601
Bickersteth v Shanu [1936] AC 290
re Blackwell [1926] Ch 223
Glanvill v Glanvill (1816) 2 Mer 38; 35 ER 855
re Francis [1905] 2 Ch 295
In re Boden [1907] 1 Ch 132
Commissioner of Pay-Roll Tax v R G Elsegood & Co Pty Ltd [1983] 1 NSWLR 223
Perpetual Trustee Co Ltd v Fenton (1940) 40 SR (NSW) 382
Fox v Fox (1875) LR 19 Eq 286
In re Ussher [1922] 2 Ch 321
In re Blackwell; In re Hume [1912] 1 Ch 693

TEXTS CITED: Jarman on Wills, 8th ed 1951
Haines, Construction of Wills in Australia (2007)
Williams on Wills, 9th ed (2008)

PARTIES: Kenneth James Austin & Anor
v
John Hamson Wells & Ors

FILE NUMBER(S): SC 2560/08

COUNSEL: Plaintiff: J van Aalst, M Giugni (11/8/08)
Defendants: na

SOLICITORS: Plaintiff: Austin & Giugni Solicitors
Defendants: na

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 28 November 2008

2560/08 Kenneth James Austin & Anor v John Hamson Wells & Ors

JUDGMENT

1 HIS HONOUR: The plaintiffs are the executors and trustees of the will of James Frederick John Wells. Mr Wells died on 24 April 2007. By an amended summons filed on 22 August 2008, the plaintiffs seek the following declarations:

“ 1. A declaration that upon a proper construction of the trust created in clause 3 (c) of the Will made by the late James Frederick John Wells on 8 January 2007 (“the said Will”) upon the completion of the administration of the estate of the Deceased by the Plaintiffs as executors, the trust thereupon conferred or shall confer upon Elizabeth Ruby Mathews a vested interest in the net proceeds of the sale and conversion of the real estate and investments comprised in the estate.

2. A declaration that upon a proper construction of the said Will the phrase in clause 3 (c) “ON…

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 Austin v Wells

Details

AGLC: Austin v Wells [2008] NSWSC 1266
Case: [2008] NSWSC 1266
Decision Date: 28 November 2008

CaseChat Overview and Summary

The case of Austin v Wells involved the interpretation of a will. The dispute arose between the parties regarding whether a certain interest in a property had vested or remained contingent. The High Court of Australia was tasked with determining the correct interpretation of the will in question.

The central legal issue before the court was the interpretation of the term "vest" in the context of the will. Specifically, the court had to decide whether the interest in the property had already vested in the beneficiaries or remained contingent upon certain conditions being met. The court needed to clarify the meaning of "vest" to resolve the dispute over the beneficiaries' entitlements to the property.

The court considered the ordinary meaning of the term "vest" and noted that it generally implies a transfer of ownership or entitlement that is absolute and unconditional. The court held that in the context of the will, the interest in the property had indeed vested in the beneficiaries. This conclusion was based on the language used in the will, which did not impose any further conditions or contingencies that needed to be fulfilled for the beneficiaries to acquire their interests. The court found that the beneficiaries' interests were not dependent on any future events or conditions, and therefore, they had already vested.

The final orders of the court confirmed that the interest in the property had vested in the beneficiaries. The court ruled that the beneficiaries were entitled to their interests as per the terms of the will, without any further conditions or contingencies needing to be met.

Orders