Brown v Abbott

The appeal concerned a dispute over the payment of an annuity. The plaintiff, Eliza Brown, representing residuary devisees under the will of Edwin Trenerry, appealed an order of the Supreme Court of Victoria. The dispute centred on whether the annuity, originally secured by a marriage settlement, was a charge on the corpus or solely the income of certain land, and how that charge applied to the proceeds of the land's subsequent sale. The respondent, Louisa Wilkinson (formerly Louisa Trenerry), was the annuitant.

The High Court was required to determine the nature of the charge on the land created by the marriage settlement and subsequent court orders. Specifically, the court had to consider whether the annuity was a charge on the corpus of the land, and if so, whether that charge extended to the proceeds of the land's sale. The court also had to assess whether a subsequent court order, directing a portion of the sale proceeds to be set aside to answer the annuity, diminished the annuitant's rights to the corpus.

The Court held that regardless of whether the original settlement created a charge on the corpus, an instrument of charge executed under the Transfer of Land Statute 1866 had the effect of making both the corpus and income of the land liable for the annuity. The Court found it was too late to correct this charge, even if it had been inadvertently made. This charge attached to the proceeds of the land's sale, and subsequent events had not diminished the extent of this charge. Therefore, the annuitant was entitled to payment of arrears from the corpus of the investments representing the sale proceeds. The Court affirmed the judgment of Hood J. and dismissed the appeal, ordering that the costs of all parties be paid out of the fund.