Will—Construction—Gift to unincorporated voluntary association—Bequest to Communist Party of Australia—Whether legacy to each member—Validity of bequest.

Decision

August 8.
THE COURT delivered the following written judgment:-
By his will the testator gave and devised and bequeathed the whole of his estate both real and personal (after payment of his just debts funeral and testamentary expenses) to The Communist Party of Australia for its sole use and benefit. The testator died on 6th February 1963 and his estate consisted soley of personalty being, in the main, moneys standing to his credit in various bank accounts and moneys on fixed deposit. In all, his estate amounted to 10,794 pounds at the time of his death and to a sum something slightly in excess of 8,000 pounds at the date of the hearing of the suit out of which this appeal arises. (at p638)

2. The question for our decision is whether a bequest in the terms stated is valid or whether the whole of the estate passes to the persons entitled thereto as upon an intestacy. In the Supreme Court Hart J. was of opinion that the bequest was void and the appeal is brought from the order which, on that view, he made disposing of the suit. (at p638)

3. The difficulty in the case arises from the fact that The Communist Party of Australia is an unincorporated voluntary association. Cases dealing with the problem which arises from such a circumstance with respect to testamentary dispositions are numerous and some of them are, to say the least, not readily reconcilable. However, in the recent case of Leahy v. Attorney-General (N.S.W.) (1959) AC 457; (1959) 101 CLR 611 many of them were referred to an reviewed and the guiding principles were restated. It was accepted that, as had been held in cases such as Bowman v. Secular Society (1917) AC 406 and In re Ogden; Brydon v. Samuel (1933) Ch 678 , a gift to an unincorporated association operates, prima facie, as a gift to the individual members at the time when the bequest becomes operative. However, circumstances may appear which preclude this conclusion; it may appear that the disposition amounts to a trust for the benefit of both present and future members, or, that it is not for the benefit of individuals at all but stands revealed as a trust for some purpose or purposes disclosed by the terms of the bequest. In the former of these two cases the gift may well fail as infringing the rule against perpetuities and, in the latter case, it will fail unless the purpose is, in the legal sense, charitable. Indications sufficient to rebut the prima facie presumption may be found to some extent in the form which the gift takes, in the number and disposition of the members of the association, in the subject matter of the gift and in the capacity…

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 Bacon v Pianta

Details

AGLC: Bacon v Pianta [1966] HCA 44
Case: [1966] HCA 44
Decision Date: 8 August 1966

CaseChat Overview and Summary

Bacon v Pianta concerned a dispute between a vendor and a purchaser over a contract for the sale of land. The vendor, Bacon, sought to terminate the contract, while the purchaser, Pianta, sought specific performance. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the vendor was entitled to terminate the contract on the grounds that the purchaser had failed to obtain the necessary finance by the stipulated date. This involved an examination of the contractual terms relating to the finance condition and the purchaser's obligations thereunder.

The Court considered the nature of the finance condition as a condition precedent to the vendor's obligation to complete. It was held that the purchaser had not fulfilled the condition within the time specified, and that the vendor was therefore entitled to terminate the contract. The Court applied principles of contract law concerning the interpretation of conditions precedent and the consequences of their non-fulfilment.

The High Court found in favour of the vendor, Bacon, and ordered that the appeal be dismissed.

Orders