WILSON, BRENNAN, DEANE, TOOHEY AND GAUDRON JJ: This is an appeal from a unanimous decision of the Full Court of the Supreme Court of Queensland whereby the Court set aside a judgment in favour of the appellant for damages he suffered when his motor cycle came into collision with a utility motor vehicle driven by the respondent at the intersection of Cook Highway and Reed Road, north of Cairns. The circumstances surrounding the collision fall within a small compass but unfortunately the evidence raises questions of fact upon which the learned trial judge and the Full Court have disagreed.

2. The collision occurred when both the respondent's utility and the appellant's motor cycle were travelling north along Cook Highway approaching the intersection with Reed Road. For vehicles travelling north the highway consisted of a single bituminized lane in good condition, but from a point about 200 metres south of the intersection the road surface had been widened to provide a second lane so as to allow vehicles continuing north past the intersection to pass to the left of vehicles which had slowed down in order to make a right hand turn into Reed Road. After the intersection the highway narrowed again to a single lane. The left-hand lane was marked with an arrow pointing straight ahead while the principal lane was marked by an arrow pointing to the right in the direction of Reed road. The photographs of the highway in the vicinity suggest that the surface of the left-hand lane was not in as good a condition as the principal lane. The two lanes were divided by a broken white line with a continuous line dividing the north-bound lanes from the south-bound side of the highway. At the trial the appellant's case was that the respondent's utility had overtaken him some two kilometres prior to the intersection and that the two vehicles had then continued separated by a distance of about three car lengths and travelling at approximately the same speed. He said that as the utility approached the intersection it was travelling mostly in the right-hand turning lane but straddled the broken white line and it occupied about half a metre of the left-hand lane. The utility slowed suddenly just before reaching the intersection, apparently because of a vehicle which was travelling south along the highway and turning left into Reed Road. The appellant said that he did not see any indication from the utility or its driver that a right-hand turn was intended. The appellant attempted to clear the rear of the utility by swinging to his left but the right-hand handle bar of the motor cycle struck the left-hand rear of the utility causing him and the motor cycle to fall to the highway. The appellant suffered serious injuries in the accident.

3. The respondent's version of the accident was that he had…

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 Braund v Henning

Details

AGLC: Braund v Henning [1988] HCA 36
Case: [1988] HCA 36
Decision Date: 1 July 1988

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Braund and Henning concerning the interpretation of a will. The primary issue before the Court was whether a specific bequest of shares in a company, which had undergone a significant reconstruction prior to the testator's death, should be construed as referring to the shares as they existed at the time of the will's execution or as they were constituted at the time of the testator's death.

The Court was required to determine the proper approach to interpreting testamentary dispositions of shares in a company where the company's capital structure has been altered between the making of the will and the testator's death. Specifically, the Court had to ascertain whether the testator's intention, as expressed in the will, was to bequeath the specific number of shares held at the time of execution, or the shares that represented the testator's interest in the company at the time of death, notwithstanding the alteration.

The High Court held that the primary object of the court in construing a will is to ascertain the testator's intention. In this instance, the Court found that the testator's intention was to dispose of his interest in the company, rather than a specific number of shares. The reconstruction of the company's capital was considered a significant event that altered the nature of the shares. The Court applied the principle that where a testator bequeaths shares in a company, and the company subsequently reconstructs its capital, the bequest should be interpreted as referring to the shares that represent the testator's interest in the company at the time of his death, unless the will clearly indicates a contrary intention. The Court therefore concluded that the bequest should be construed as referring to the shares as they existed at the time of the testator's death.

Orders