Gift—Intention—Land—Transfer of fee simple in remainder expectant on death of donor—Registration to be effected by donor's solicitor—Death of donor before lodgment of transfer for registration—Imperfect gift—Whether perfected by appointment of donees as executrices of donor's will—Whether property may be subject of testator's family maintenance order—Testator's Family Maintenance and Guardianship of Infants Act, 1916-1954 (N.S.W.)—Wills, Probate and Administration Act, 1898-1954 (N.S.W.), ss. 44, 46. Testator's Family Maintenance—Property in respect of &hich order may be made—Property subject of imperfect gift by testator in lifetime—Voluntary transfer of Torrens land—Unregistered at death—Registration entrusted to testator's solicitor—Appointment of donees as executrices of testator's will—Whether gift perfected—Testator's Family Maintenance and Guardianship of Infants Act, 1916-1954 (N.S.W.)—Wills, Probate and Administration Act, 1898-1954 (N.S.W.), ss. 44, 46.
Decisions
August 23. The following written judgments were delivered:- McTIERNAN J. I agree in the judgment of my brother Kitto. (at p5)
KITTO J. This is an appeal from an order of the Supreme Court of New South Wales (Hardie J.) in its equitable jurisdiction declaring that certain items of property are assets of the estate of a testator, one Leonard James Keene deceased, which can be dealt with by an order under the Testator's Family Maintenance and Guardianship of Infants Act, 1916-1954 (N.S.W.), and ordering that the appellants as executrices of the will of the testator set aside out of his estate a sum of $6,000 for each of the respondents, who are respectively the widow and a daughter of the testator. The appellants are daughters of the testator by a former wife who predeceased him, and they are the universal devisees and legatees under the testator's last will. (at p5)
2. The grounds of appeal challenge only so much of the order as includes in the estate of the testator which may be dealt with under the Act a certain house property, known as No. 10 Highclere Avenue, Rockdale, in which the testator was at his death the registered proprietor of an estate in fee simple under the provisions of the Real Property Act, 1900 (N.S.W.). The order appealed against sets out in a schedule the items of property which it declares to be assets capable of being dealth with under the Act. The schedule is a copy of the schedule to the executrices' probate affidavit for death duty purposes, and the house property is included in it under the general heading "Notional Estate" and the sub-heading "Voluntary Dispositions", with the statement: "On 11th February 1966 the deceased executed a transfer of an interest in fee simple in remainder expectant on his own death in property known as 10 Highclere Avenue, Rockdale, in favour of (the appellants) as joint tenants." The decision of the learned judge, however, is not well reflected by this means. What his Honour held was that the testator did not make an effectual disposition of any interest in the property in his lifetime,…
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.
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AGLC
Cope v Keene [1968] HCA 53
Case
[1968] HCA 53
Decision Date
CaseChat Overview and Summary
The parties to this matter were Cope, the appellant, and Keene, the respondent. The dispute concerned the respondent's claim for damages for personal injuries sustained by the appellant's dog, a German Shepherd named "King", which was struck by the appellant's motor vehicle. The case was heard in the High Court of Australia.
The central legal issue before the High Court was whether the appellant owed a duty of care to the respondent in relation to the driving of the motor vehicle, and if so, whether that duty had been breached, thereby causing the respondent's loss. Specifically, the court considered the circumstances under which a driver owes a duty of care to a dog owner whose animal is injured by the driver's vehicle.
The High Court held that the appellant did not owe a duty of care to the respondent in this instance. The court reasoned that while a driver owes a duty of care to other road users, including animals, this duty does not extend to the owner of the animal in respect of the animal's injury. The duty owed is to the animal itself, not to its owner. Therefore, the respondent could not recover damages for the injury to his dog.