NEW SOUTH WALES. Will-Construction-Direction to pay charges or encumbrances -Conditionally
purchased land in New South Wales-Unpaid instalments of purchase-money- Vendor's lien-Crown Lands Consolidation Act 1913 (N.S.W.) (No. 7 of 1913), SYDNEY,
Held, that in respect of land conditionally purchased pursuant to the Crown Lands Consolidation Act 1913 (N.S.W.) and the Acts thereby consolidated, the Crown has not a vendor's lien for the instalments of purchase-money not yet
due, nor are such instalments a charge or encumbrance on the land or the H. C. OF interest therein of the conditional purchaser.
Brett v. Hamilton. (1900) 21 N.S.W.L.R. (Eq.) 84, overruled. By his will a testator directed his trustees, until the "charges or encum- brances on his station properties should be entirely liquidated, to appropriate the income of his residuary estate towards payment of those charges or
Held, that, there being nothing in the will requiring or permitting the expression 'charges or encumbrances to be given a meaning other than its ordinary legal meaning, that expression did not include the instalments of purchase-money on conditionally purchased lands forming part of those station properties which were not due and were unpaid at the date of the
Decision of the Supreme Court of New South Wales (Harvey J.) varied.
APPEAL from the Supreme Court of New South Wales.
By the will of John Henry Davies, who died on 18th September 1908, it was provided (inter alia) as follows " I devise and bequeath all the residue of my real estate of every description and all the remainder of my personal estate the business of a station proprietor and grazier now carried on by me in New South Wales unto my trustees upon trust that my trustees shall as and when they shall in their absolute discretion think fit sell call in and convert into money my said real and personal estate or any part or parts thereof respectively and shall out of the net proceeds of such sale calling in and conversion or a sufficient part thereof pay my funeral and testamentary expenses and debts (includ- ing in particular any mortgages or charges over or on my said real and personal estate) and shall hold the residue of the proceeds of such sale calling in and conversion upon the trusts hereinafter declared con- cerning the same Provided always that the trustees were to have power to postpone the sale and conversion of such real and personal estate or any part of it. "I further authorize my trustees to continue and carry on for such period as they shall in their uncontrolled discretion think fit my said business and to employ therein the whole or such parts as they shall think necessary of my real and personal estate with power from…
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
Davies v Littlejohn [1923] HCA 64
Case
[1923] HCA 64
Decision Date
CaseChat Overview and Summary
The parties to this appeal were the trustees and beneficiaries under the will of John Henry Davies, who had conditionally purchased land in New South Wales. The dispute concerned the interpretation of the phrase "charges or encumbrances" in the testator's will, specifically whether it included unpaid instalments of purchase-money owed to the Crown for conditionally purchased land. The matter was heard by the High Court of Australia on appeal from the Supreme Court of New South Wales.
The legal issues before the High Court were whether unpaid instalments of purchase-money on conditionally purchased land constituted a "charge or encumbrance" on that land within the ordinary legal meaning of those terms, and consequently, whether such instalments were to be paid out of the income of the testator's residuary estate as directed by his will. This required the Court to determine the nature of the Crown's interest in conditionally purchased land and the legal status of outstanding purchase-money.
The Court reasoned that the rights and obligations of the Crown and a conditional purchaser were governed by the *Crown Lands Consolidation Act 1913* (N.S.W.) and its associated regulations, which established a statutory code. This code did not create an equitable vendor's lien in favour of the Crown for unpaid instalments, nor did it impose a charge or encumbrance on the land in the ordinary legal sense. The Court found that the provisions for forfeiture under the Act were inherent to the nature of a conditional purchase and did not constitute an encumbrance separate from the land itself. Therefore, the unpaid instalments were not included in the "charges or encumbrances" to be paid from the residuary estate's income. The decision in *Brett v. Hamilton* was overruled.
The High Court allowed the appeal, varying the order of the Supreme Court. It declared that the "charges or encumbrances" referred to in the will did not include the unpaid instalments of purchase-money owing to the Crown on the conditionally purchased lands. The costs of all parties were to be paid out of the estate, with the trustees' costs to be taxed as between solicitor and client.