Australian Mutual Provident Society v Gregory - [1908] HCA 7

THE AUSTRALIAN MUTUAL PROVIDENT

APPELLANTS;

SOCIETY AND OTHERS

DEFENDANTS,

ARTHUR JAMES GREGORY AND OTHERS. RESPONDENTS.

PLAINTIFFS AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF Private international law-Distinction between immoveables and moveables-

Incorporeal right with respect to immoveable-Interest in trust estate-Trust to self-Insolvency-Notice to trustees-Effect of foreign insolvency-Subsequent assignment-Priorities-Bankruptey Act 1870 (Tas.) (34 Vict. No. 32), sec. 16 -Law No. 47 of 1887 (Natal), secs, 51, 52, 53.

A right enforceable with respect to an immoveable is, for the purposes of private international law, an immoveable.

A person claiming in Tasmania under an assignment of an equitable chose in action executed by a bankrupt after sequestration, who took his assignment without notice of the bankruptcy and has given notice of his assignment to the trustee of the property to which the chose in action attached, is entitled to priority over the trustee in bankruptcy who has not given notice.

5 CLR 616

The recognition offered by the rules of private international law to an assignment to creditors of the moveables of a debtor under the law of a foreign country extends only to recognizing it as having the same validity as an assignment made in accordance with the laws of the situs of the

A testator by his will devised land in Tasmania to trustees to pay his widow out of the income a certain annuity, and to pay the residue of the income to his sons in equal shares, and he directed that upon the death of his widow the trustees should sell the land (with a discretionary power to postpone the sale for seven years) and divide the proceeds equally among the sons. One of the sons having gone to the Colony of Natal, in South Africa, before the death of his mother, became insolvent there, and according to the law of Natal his trustee in insolvency would have priority over subsequent incumbrancers of the insolvent's choses in action without the necessity of giving notice, The insolvent, having returned to Tasmania, executed an assignment of his interest in his father's estate to an assignee who had no notice of the insolvency and who gave notice to the trustee of the property.

Held, that from the date of the testator's death until the date of the sale of the land the interest of each son was an immoveable within the principle of private international law, and therefore that the insolvency in Natal did not operate in Tasmania as an assignment of the insolvent's interest in his

Held, further, that even if the insolvent's interest were a moveable, the assignee in Tasmania had priority over the Natal trustee in insolvency.

Decision of the Supreme Court reversed.

APPEAL from the Supreme Court of Tasmania.

By his will, dated 23rd July 1900, and two codicils dated respectively 19th November 1903 and 31st December 1903, James Gregory of Queenborough in Tasmania, who died on 7th January 1904, gave, devised and bequeathed all his property real and personal to his trustees,…

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.

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Details

Case: [1908] HCA 7
Decision Date: 23 March 1908

CaseChat Overview and Summary

The Australian Mutual Provident Society (AMP) appealed to the High Court of Australia from a decision of the Supreme Court of Tasmania. The dispute concerned the priority of claims to the interest of George William Gregory in his deceased father's Tasmanian estate. The AMP and other assignees claimed priority based on assignments of George William Gregory's interest made after his insolvency in Natal, South Africa, but to which they had given notice to the trustees of the estate. The respondent, Thomas Herbert Green, was the trustee in insolvency of George William Gregory's estate in Natal.

The legal issues before the High Court were twofold. Firstly, whether George William Gregory's interest in his father's Tasmanian estate was to be classified as an immoveable or a moveable for the purposes of private international law. Secondly, assuming the interest was a moveable, whether the Natal trustee in insolvency had priority over subsequent assignees who had given notice to the trustees of the estate, or if the priority was governed by Tasmanian law requiring notice to perfect such a claim.

The High Court, in allowing the appeal, held that George William Gregory's interest in the Tasmanian land, which was subject to a trust for sale, was an immoveable for the purposes of private international law. This was because the right was enforceable with respect to land, and therefore followed the character of the land itself, irrespective of any notional conversion to personalty under Tasmanian municipal law. Consequently, the insolvency in Natal did not operate as a valid assignment of this immoveable interest within Tasmania. Furthermore, the Court determined that even if the interest were considered a moveable, the assignee in Tasmania who took without notice of the insolvency and gave notice to the trustees of the property would have priority over the Natal trustee in insolvency, applying the principles of priority established by Tasmanian law.

Orders