Barker v Perpetual Trustees Australia Ltd

[2005] HCATrans 826

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A19 of 2004

B e t w e e n -
KENNETH BARKER
Applicant
and
PERPETUAL TRUSTEES AUSTRALIA LIMITED
First Respondent
DEVINE PIONEER HOMES ADELAIDE
Second Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2005, AT 9.02 AM

McHUGH J: The applicant was the mortgagor of a property in South Australia. The first respondent was the mortgagee, and the second respondent was the builder employed by the applicant to construct a house on the land.

There have been several judicial determinations in relation to this matter. In the Form 61 Application for Special Leave to appeal to this Court, the only decision from which the applicant seeks special leave to appeal is the decision in relation to costs, given on 11 March 2004. However, the Reasons for Leave to Appeal to be granted and the draft Notice of Appeal and Summary of Argument also refer to other decisions. In total, the applicant appears to seek special leave to appeal against five decisions given by courts in South Australia. The submissions in the written case do not disclose any error of law that would warrant the grant of special leave to appeal. They contain a good deal of factual material and allegations but they do not assist the applicant in showing that the decisions he seeks to impeach are defective in law. There is nothing in them or in the judgments in the Application Book to suggest the existence of any basis for the grant of special leave to appeal. Accordingly, the application must be refused.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order that the application is dismissed with costs. I publish our joint reasons.

AT 9.03 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the plaintiff, Mr. Barker, against the decision of Perpetual Trustees Australia Ltd. The dispute concerned the interpretation of a clause within a deed of settlement, specifically whether it conferred a power of appointment or a power of advancement. The primary issue was whether the trustees had the authority to distribute capital from the trust fund to the beneficiaries during their lifetimes.

The central legal question before the High Court was whether the wording of clause 7(a) of the deed of settlement, which stated that the trustees "may pay or apply any part of the capital of the Trust Fund to or for the benefit of any one or more of the Beneficiaries", constituted a power of advancement or a power of appointment. This distinction was critical as a power of appointment would allow the trustees to give the capital to any person, whereas a power of advancement would limit the distribution to the beneficiaries themselves.

The High Court, in a joint judgment delivered by McHugh and Heydon JJ, held that the clause conferred a power of advancement, not a power of appointment. Their Honours reasoned that the phrase "to or for the benefit of any one or more of the Beneficiaries" clearly indicated that the recipients of the capital must be the beneficiaries. They distinguished this wording from that typically found in a power of appointment, which would usually refer to a wider class of potential recipients. The court applied the principle that the construction of a trust deed must be based on the plain and ordinary meaning of its words, read in context.

The appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established