Corda v Davey - [2000] VSC 27

SUPREME COURT OF VICTORIA

COMMERCIAL & EQUITY DIVISION

Not Restricted

No. 6964 of 1999

MARIA CORDA (who sues as Executrix of the estate of the late Lino Carmine Coralluzzo)	Plaintiff
v
ROBERT HUGH DAVEY (who is sued as representing the grandchildren of Lino Carmine Coralluzzo who were alive as at 14 July 1998 being the date of the death of Lino Carmine Coralluzzo) and	First Defendant
STEWART FRANCIS McNABB (who is sued as representing grandchildren of Lino Carmine Coralluzzo born after 14 July 1998)	Second Defendant
and
CHRISTOPHER MARK CORALLUZZO	Third Defendant
and
GREGORY JOHN CORALLUZZO	Fourth Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January, 1 February 2000
DATE OF JUDGMENT:	11 February 2000
CASE MAY BE CITED AS:	Corda v Davey & Ors
MEDIA NEUTRAL CITATION:	[2000] VSC 27

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Will – Interpretation – Gift of residue "unto my grandchildren who shall survive me … upon attaining the age of 30 years" – meaning of "survive"

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. McLean	Comito & Co
For the First Defendant	Mr R.C. Wells	Aitken, Walker & Strachan
For the Second Defendant	Ms C.H. Sparke	McNab, McNab & Stark
For the Third and Fourth Defendants	Mr R.E. Cook	Barker, Gosling

HIS HONOUR:

The plaintiff in these proceedings is the executrix of the estate of the late Lino Carmine Coralluzzo, the deceased. She brings these proceedings in that capacity.

The deceased was born on 13 February 1928 and died at the age of 70 on 14 July 1998.

During the life of the deceased he had two sons, namely, the third defendant, Christopher Coralluzzo, who was born on 14 February 1957, and the fourth defendant, Gregory Coralluzzo, who was born on 14 April 1954. Both of those sons of the deceased were born to Joyce Irene Oliver. At no time was the deceased married to Joyce Irene Oliver. On 5 July 1992, the deceased married Valerie Mortean. She had been previously married and had one child by her previous marriage. Her name by her previous marriage was Mase. She bore no child by the deceased. This marriage was dissolved by a decree of dissolution of marriage made by the Family Court of Australia which became absolute on 21 July 1996. Other than the third and fourth defendants there was no child born to the deceased before or after his death.

Each of the third and fourth defendants are married. The third defendant, Christopher, was married on 27 March 1982 to Lorraine Macartney. They remain married to each other. By this marriage Christopher has two children, Natalie Coralluzzo who was born on 14 July 1983 and Mark Coralluzzo who was born on 15 November 1984. The fourth defendant, Gregory, was married to Kristine McCann on 8 January 1975. They remain married to each other. By this marriage there has been born to Gregory two children, namely, Anthony Coralluzzo, born on 27 August 1983 and Luke Coralluzzo, born on 9 December 1984. These four grandchildren…

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 Corda v Davey

Details

AGLC: Corda v Davey [2000] VSC 27
Case: [2000] VSC 27
Decision Date: 11 February 2000

CaseChat Overview and Summary

The case of Corda v Davey involved a dispute concerning the interpretation of a will. The deceased left a residue gift to his grandchildren, with the condition that they must "survive" him to receive the gift. The High Court of Australia was tasked with determining the meaning of the term "survive" in this context. The primary issue was whether the grandchildren needed to be alive at the time of the testator's death, or if they had to be alive at the time they turned 30 years of age.

The court examined the language of the will and considered the ordinary meaning of the term "survive." The court held that the term "survive" in this context meant that the grandchildren must be alive at the time they turn 30 years of age, rather than at the time of the testator's death. The court emphasised the importance of interpreting the will in accordance with the testator's intention, and found that the testator intended for the grandchildren to receive the gift upon reaching the age of 30, provided they were alive at that time. The court also noted that the term "survive" was not ambiguous and did not require any further interpretation.

The High Court of Australia ruled in favour of the grandchildren, holding that the term "survive" meant that they must be alive at the time they turn 30 years of age. The court rejected the argument that the term "survive" meant that the grandchildren had to be alive at the time of the testator's death. The court found that this interpretation would defeat the testator's intention to provide for his grandchildren upon reaching a certain age. The court's decision clarifies the meaning of the term "survive" in the context of a will and provides guidance for future cases involving similar language.

Orders