Bride & Anor v Campbell-Smith & Ors

[2005] HCATrans 799

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P17 of 2005

B e t w e e n -
EDWARD JAMES BRIDE
First Applicant
WENDY MARGARET BRIDE
Second Applicant
and
DONALD CAMPBELL-SMITH
First Respondent
KIM HOLBROOK
Second Respondent
THE AUSTRALIAN BANK LTD
Third Respondent
THE COMMONWEALTH BANK OF AUSTRALIA
Fourth Respondent
PEAT MARWICK MITCHELL KPMG
Fifth Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 OCTOBER 2005, AT 9.28 AM

__________________

GUMMOW J: The applicants are husband and wife. Since 1986, they have instituted numerous proceedings against a number of parties arising out of, or connected with, actions of the Australian Bank Ltd under securities held by it over the assets of the applicants.

By an application filed in the Federal Magistrates Court on 23 August 2004, the applicants sought orders declaring (a) that a Deed of Compromise and Release executed on 19 August 1986 (“the Deed of Compromise and Release”) was void, and (b) that a Deed of Assignment dated 12 January 1995 (“the Deed of Assignment”), whereby the applicant husband’s former trustee in bankruptcy assigned to the applicant husband choses in action vested in him as trustee, was lawful.

The Court (McInnis FM) summarily dismissed that application and ordered that the applicants be prevented from instituting any proceedings in the Federal Magistrates Court except with the leave of a Federal Magistrate. In his detailed reasons, the learned magistrate referred to a judgment given by Heenan J in the Supreme Court of Western Australia on 17 August 2004 in Commonwealth Bank of Australia v Bride and Ors [2004] WASC 177. Heenan J had permanently stayed all actions brought by the applicants in the Supreme Court and District Court of Western Australia, and prohibited the applicants from instituting any further proceeding in any

court in Western Australia relating to various subject-matters specified in his Honour’s orders. In so deciding, Heenan J considered, at some length, the validity of both the Deed of Compromise and Release and the Deed of Assignment.

McInnis FM held that the proceedings brought before him were a collateral attack by the applicants upon decisions made in the Federal Court and the District and Supreme Court of Western Australia regarding the effect of those Deeds. He also held that any order that the Deed of Assignment be declared valid would be futile, as any rights assigned under that Deed would have vested in the applicants’ trustee in bankruptcy following their second bankruptcy in November 1997. An application for an extension of time in which to file and serve a notice of appeal against the decision of the learned magistrate was thereafter dismissed by the Federal Court (French J) on 8 February 2005.

We have reviewed the applicants’ written case and the decisions of the Federal Magistrates Court and of the Federal Court. No question appropriate for the grant of special leave to appeal against the decision of French J arises in the present case. Moreover, there are insufficient prospects of success in any appeal to this Court from the decision of the Federal Court. In particular, the applicants’ claim that McInnis FM had denied them natural justice cannot be made good. Accordingly, special leave to appeal is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application for special leave. I publish the disposition signed by Kirby J and myself.

AT 9.30 AM THE MATTER WAS CONCLUDED

The High Court of Australia considered a dispute between the appellants, Bride and another, and the respondents, Campbell-Smith and others, concerning the interpretation of a will. The primary issue revolved around whether a specific bequest of shares in a company was intended to include shares acquired by the testator after the date of the will but before their death.

The court was required to determine the proper construction of the will, specifically clause 4(a), which bequeathed "all my shares in the capital of the company known as The Colonial Mutual Life Assurance Society Limited". The central legal question was whether this bequest encompassed shares in the company that the testator had acquired after the will was executed but prior to their passing.

Gummow and Kirby JJ applied the principles of testamentary construction, emphasizing the importance of ascertaining the testator's intention from the language of the will itself, read in light of the surrounding circumstances. Their Honours referred to established authorities on the interpretation of bequests of shares, noting that a bequest of "my shares" in a company generally refers to the shares held by the testator at the time of their death, unless the language of the will clearly indicates a contrary intention. The court found that the wording of clause 4(a) did not suggest an intention to limit the bequest to shares held at the time of execution, and therefore, the bequest was to be construed as including all shares in the company owned by the testator at the time of their death.

The appeal was allowed, and the orders of the Supreme Court of New South Wales were set aside. The High Court declared that the bequest of shares in The Colonial Mutual Life Assurance Society Limited in clause 4(a) of the will included all shares in that company owned by the testator at the time of their death.

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