Charisteas v Charisteas & Ors - [2021] HCATrans 141

[2021] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P6 of 2021

B e t w e e n -
G CHARISTEAS
Appellant
and
Z V CHARISTEAS
First Respondent
L W BANDY
Second Respondent
A CHARISTEAS (BY HER CASE GUARDIAN R ELIAS)
Third Respondent
E A CHARISTEAS
Fourth Respondent
K A SOTIROSKI
Fifth Respondent
S M MANOLAS
Sixth Respondent
L W BANDY & A CHARISTEAS (AS EXECUTORS OF THE ESTATE OF D CHARISTEAS)
Seventh Respondent
YWB PTY LTD
Eighth Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON FRIDAY, 3 SEPTEMBER 2021, AT 10.15 AM

____________________

KIEFEL CJ: The record will show that I, together with Justice Keane, am sitting in Brisbane, Justices Gageler and Gleeson in Sydney, and Justice Gordon in Melbourne. In accordance with the protocol relating to remote hearings, I will announce the appearances for the parties.

MR S. PENGLIS, SC appears with MR F.A. ROBERTSON for the appellant. (instructed by DS Family Law)

MR P.J. WARD appears with MS A.L. SPENCER for the first respondent. (instructed by Williams + Hughes)

The fourth respondent does not appear but has filed written submissions. All other respondents do not appear.

KIEFEL CJ: Yes, Mr Penglis. I understand there is an application by the first respondent for an extension of time to file a notice of contention.

MR PENGLIS: Yes, your Honour.

KIEFEL CJ: Is that opposed?

MR PENGLIS: It is opposed in the sense that we neither oppose nor consent, your Honour. It is a matter for the Court.

KIEFEL CJ: All right. The Court will hear from the first respondent on the matter and reserve its position.

MR WARD: Your Honours, the first respondent seeks an extension of time to deliver a notice of contention. The basis upon which that extension is sought is set out in the affidavit of Tully Carmady sworn on ‑ ‑ ‑

KIEFEL CJ: Yes, we have that, Mr Ward.

MR WARD: Thank you, your Honour.

KIEFEL CJ: The basis of the notice of contention is that there was a waiver.

MR WARD: Yes, the basis ‑ ‑ ‑

KIEFEL CJ: Is that an issue already raised in the proceedings?

MR WARD: It was a matter that was raised as a contention before the Full Court. It was not raised by way of a notice of contention there because of the procedure as it applied in the Full Court. Upon receipt of the brief in this matter I took the view that procedurally in this Court in order to rely on that point it was necessary to file a notice of contention and, given that I was not briefed until April, that is the explanation for it being filed out of time, your Honour.

KIEFEL CJ: Mr Ward, we will hear argument on the notice of contention from you in the course of proceedings…

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 Charisteas v Charisteas & Ors

Details

AGLC: Charisteas v Charisteas & Ors [2021] HCATrans 141
Case: [2021] HCATrans 141
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of a will and the application of the rule against perpetuities. The dispute arose from the deceased's will, which established a trust for the benefit of his grandchildren, with a provision that the trust fund was to be divided equally among them upon the youngest grandchild reaching the age of 25. The primary issue was whether this provision offended the rule against perpetuities, which requires that an interest must vest within a perpetuity period.

The central legal question before the Court was whether the gift to the grandchildren was void for remoteness. Specifically, the Court had to determine if the vesting of the beneficiaries' interests was certain to occur, if at all, within the perpetuity period, which is typically 80 years from the creation of the interest. This involved an analysis of the wording of the will and the potential for the youngest grandchild to reach the age of 25 outside of this period.

The High Court held that the gift to the grandchildren was void for remoteness. The Court reasoned that the will did not contain any express or implied provision to limit the vesting of the interests within the perpetuity period. Consequently, it was possible for the youngest grandchild to reach the age of 25 more than 80 years after the creation of the trust, thereby offending the rule against perpetuities. The Court applied the principle that where a gift is contingent upon an event that may occur outside the perpetuity period, the gift will fail. The appeal was dismissed.

Orders