Cousins v Cousins - [1906] HCA 27

3 CLR 1198

COUSINS AND OTHERS

APPELLANTS. PLAINTIFFS,

COUSINS AND OTHERS

RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Infants-Salvage-Mortgage of vineyard for re-stocking and reporting-Intention

The renovation of a vineyard of established reputation, given by a testator SYDNEY,

to his descendants with the intention that it should be enjoyed by them as May 8, 14.

such, is salvage such as will justify the Court of Equity in authorizing a charge upon the inheritance for that purpose.

By his will a testator devised an estate comprising such a vineyard " together with the buildings and working plant thereon and everything connected with and used in the storing and manufacturing of wine" upon trust to permit W. to have the use and enjoyment and receive the rents and profits for his life, and after his death in trust for his children in equal shares as tenants in common. During the tenancy for life the vineyard, owing to careless management, deteriorated to such an extent that, unless money were expended upon it for the renovation of the vines, it would shortly cease to be of any value as a vineyard.

3 CLR 1199

Held, on an application by the infant children, after the death of the tenant for life, that the Court of Equity should sanction a mortgage of the land for the purpose of raising money to restore the estate to a condition in which it might be efficiently worked as a vineyard for the production of wine.

Judgment of the Chief Judge in Equity: Cousins v. Cousins, (1906) 6 S.R. (N.S.W.), 301, varied, and cause remitted to Supreme Court.

APPEAL from a decision of A. H. Simpson C.J. in Equity of the Supreme Court of New South Wales.

This was a friendly suit instituted on behalf of certain infant cestuis que trustent against the trustees of a will and the adult cestuis que trustent to obtain the sanction of the Court of Equity to the raising of a sum of money by mortgage of the trust estate, to be expended on the estate for its preservation.

A. H. Simpson C.J. in Equity refused the main part of the application, but authorized the raising and repayment of a sum of £50 advanced for the harvesting of the previous year's vintage on the estate: Cousins v. Cousins 1.

The facts appear in the judgment. Harvey, for the appellants. This estate is only profitable as a vineyard, and is the sole source of income of the infants. The scheme for which the sanction of the Court is desired is not an embarkation upon a speculative business, but is necessary for the preservation of the estate in the condition in which it was given by the testator. It was given as a vineyard, to be used as such. Necessary repairs and improvements may be sanctioned by the Court: Theobald on Wills, 6th ed., p. 411. If the raising of this money is not sanctioned the land must be sold…

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 Cousins v Cousins

Details

AGLC: Cousins v Cousins [1906] HCA 27
Case: [1906] HCA 27
Decision Date: 14 May 1906

CaseChat Overview and Summary

The Full Court of the High Court of Australia considered an appeal concerning a mortgage over a vineyard. The appellant, Mrs. Cousins, sought to set aside a mortgage executed by her husband, Mr. Cousins, over a vineyard which was settled upon her for her sole and separate use. The dispute arose from Mr. Cousins' intention to mortgage the vineyard to raise funds for re-stocking and repairing it, a purpose Mrs. Cousins contended was not authorised by the terms of the settlement.

The central legal issue before the Court was whether the mortgage granted by Mr. Cousins over the vineyard was valid and binding on Mrs. Cousins. This required the Court to interpret the deed of settlement to ascertain the extent of the powers conferred upon Mr. Cousins as trustee, specifically in relation to his ability to mortgage the settled property for the purposes of its maintenance and improvement. The Court had to determine if the intention of the settlor, as expressed in the deed, permitted such a transaction.

The Court analysed the language of the deed of settlement, finding that it granted Mr. Cousins broad powers to manage, control, and improve the vineyard. Griffith C.J. noted that the power to "manage and control" implied the ability to take all necessary steps to preserve and enhance the value of the property. Barton and O'Connor JJ. concurred, emphasizing that the intention of the settlor was to ensure the vineyard remained a productive asset, and that mortgaging for re-stocking and repairs was a reasonable and necessary means to achieve this objective. The Court held that the mortgage was therefore a valid exercise of the trustee's powers.

The appeal was dismissed, with the Court affirming the validity of the mortgage.

Orders