Brunker v Perpetual Trustee Company (Limited)

Bessie Brunker (the appellant) brought a suit in equity against Perpetual Trustee Company (Limited) and the Royal Society for the Prevention of Cruelty to Animals N.S.W. Incorporated (the respondents), seeking to enforce equitable rights under a deed of settlement or, alternatively, rectification of the deed. The deed, executed by the late R. J. D. Sellar, established a trust for the maintenance of a bird sanctuary, with the income payable to the Royal Society for the Prevention of Cruelty to Animals N.S.W. Incorporated, provided certain conditions were met. A key condition stipulated that the settlor would be employed as manager during his lifetime and reserved to him the right to nominate the first manager after his death. The settlor nominated Brunker as manager for life at a salary of £5 per week. Brunker claimed the right to be employed as manager at this salary, or for the deed to be rectified to reflect the settlor's intentions.

The legal issues before the court were whether Brunker had a vested right to be appointed manager for life at the nominated salary, whether the deed should be rectified to accord with the settlor's intentions, and if Brunker possessed the necessary locus standi to bring the suit. The respondents contended that the clause concerning the manager was merely a machinery clause, not creating a beneficial trust for the nominee, and that there was insufficient evidence of mistake for rectification. They also argued that any breach of trust would lead to a gift over to another society, rendering Brunker's claim moot and stripping her of standing.

The High Court affirmed the decision of the Supreme Court of New South Wales, holding that Brunker had no locus standi to maintain the suit and that no case for rectification had been made out. The Court reasoned that the deed did not create a trust in favour of the settlor's nominee, and the right to be employed as manager was not an interest in property. The clause regarding the manager's employment and salary was interpreted as requiring agreement between the trustee and the society, and the employment was determinable by a week's notice, with the exception only applying to the settlor himself, not his nominee. Furthermore, the court found no evidence that the deed's wording departed from the settlor's actual intentions at the time of execution, and a solicitor's subsequent advice did not constitute grounds for rectification.

Consequently, the appeal was dismissed. The court found that Brunker's claim failed on construction and that she lacked the standing to seek rectification. While acknowledging a moral obligation on the society to honour the settlor's wishes, the court upheld the deed as written and dismissed Brunker's suit with costs.