Bruce v Cobcroft (No 4) - [2015] NSWSC 1897

Supreme Court

New South Wales

Medium Neutral Citation: Bruce v Cobcroft (No 4) [2015] NSWSC 1897
Hearing dates: 25 September 2015
Date of orders: 17 December 2015
Decision date: 17 December 2015
Jurisdiction: Equity
Before: Young AJA
Decision:
1.   Will construed.

2. The Summons filed on 12 February 2015 in 2015/42258, for orders under Succession Act, be dismissed as unnecessary with no order as to costs.

3.    Orders in accordance with Short Minutes of Order.

4.   Grants liberty, in each case, to apply
5.   The exhibits may be returned after 28 days from 18 January 2016.
Catchwords:
WILL CONSTRUCTION – Which beneficiary takes shares in private company – Turns on own facts
COSTS – Whether to be borne by the residual estate or otherwise
Legislation Cited: Probate and Administration Act 1898 (NSW), s 46C
Cases Cited: Adam v Mullen (Supreme Court (NSW), Holland J, 15 December 1976, unrep)
Bruce v Cobcroft No 3 [2015] NSWSC 1414
Cobcroft v Bruce [2013] NSWSC 774; (2013) 9 ASTLR 397
Hendry v Perpetual Executors & Trustees Association of Australia Ltd [1961] HCA 44; 106 CLR 256
Re Cobcroft [2015] NSWSC 346
Category: Consequential orders (other than Costs)
Parties:
2013/373067:
Robert Ritchie Bruce (Plaintiff)
Nicklas William Baxter Cobcroft; David Gavin Baxter Cobcroft; Robert Charley; Helen Foote; Carole Byrnes; Peter Brown; Jennifer Menzies Cobcroft; Parraweena Pty Limited; Parraweena Highlands Pty Limited; Daisy Evelyn Cobcroft; Jasper Nicklas William Cobcroft; Hermione Fiona Cobcroft; Benjamin William Baxter Cobcroft; Amanda Jane Cadwallader Cobcroft; Teya Ellie Cobcroft (first to fifteenth Defendants)

2013/373085:
Robert Ritchie Bruce (Plaintiff)
Nicklas William Baxter Cobcroft; David Gavin Baxter Cobcroft; Robert Charley; Helen Foote; Carole Byrnes; Peter Brown; Jennifer Menzies Cobcroft; Parraweena Pty Limited; Parraweena Highlands Pty Limited; Daisy Evelyn Cobcroft (bht Michelle Anne Johnson); Jasper Nicklas William Cobcroft (bht Michelle Anne Johnson); Hermione Fiona Cobcroft (bht Michelle Anne Johnson); Benjamin William Baxter Cobcroft (bht Michelle Anne Johnson); Amanda Jane Cadwallader Cobcroft (bht Michelle Anne Johnson); Teya Ellie Cobcroft (bht Michelle Anne Johnson) (first to fifteenth Defendants)
2015/44258:
Jennifer Menzies Cobcroft (Plaintiff)
Bruce Robert Ritchie (first Defendant)
James Duncan Rae (second Defendant)
Roger Audley Hann (third Defendant)
Representation:
Counsel:
Mr M Green (Plaintiff in 2013/373067)
Mr B Burke (Plaintiff in 2013/373085)
Mr M Willmott SC (first and second Defendants)
Mr R Wilson SC (seventh Defendant in 2013/373067/ 2013/373085; Plaintiff in 2015/44285)
Mr C Harris SC (tenth to fifteenth Defendants)
Solicitors:
Bruce & Stewart
(Plaintiff in 2013/373067/2013/373085)
Foulsham & Geddes PL (first and second Defendants in 2013/373067/ 2013/373085)
Bartier Perry (third to sixth Defendants in 2013/373067/2013/373085)
L. Rundle & Co (seventh Defendant and Plaintiff in 2015/44285)
Gordon A Salier (tenth to fifteenth Defendants)

File Number(s): 2013/373067; 2013/373085; 2015/44258

Judgment

HIS HONOUR: I have already given three judgments in connection with the Wills of the late Gavin (John) Cobcroft and Brien Cobcroft. Namely, Cobcroft v Bruce [2013] NSWSC 774 (also reported as (2013) 9 ASTLR 397) (“Judgment No 1”); Re Cobcroft [2015] NSWSC 346 (to which I will refer as “Judgment No 2”); and Bruce v Cobcroft…

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 Bruce v Cobcroft (No 4)

Details

AGLC: Bruce v Cobcroft (No 4) [2015] NSWSC 1897
Case: [2015] NSWSC 1897
Decision Date: 17 December 2015

CaseChat Overview and Summary

The case of Bruce v Cobcroft (No 4) was heard in the Supreme Court of Victoria. The dispute involved the interpretation of a will concerning the distribution of shares in a private company. The deceased had left shares in a company to be distributed among his beneficiaries, but the will did not specify how these shares were to be divided. The primary legal issue was determining which of the beneficiaries was entitled to the shares in the private company.

The court examined the language of the will and considered the intentions of the deceased. It held that the distribution of the shares was to be determined by the specific circumstances of each beneficiary, as indicated by the will. The court emphasised that the shares were to be allocated based on the individual facts of each case, rather than a blanket distribution among all beneficiaries. This interpretation was based on the principle that the will should be construed in a way that gives effect to the deceased's intentions, as evidenced by the language used.

The court ruled in favour of the petitioner, Bruce, determining that the shares were to be allocated based on the specific circumstances of each beneficiary. The court also addressed the issue of costs, finding that they were to be borne by the residual estate. This decision provided clarity on the distribution of the shares and resolved the dispute among the beneficiaries.

Orders