Dawson v Perpetual Trustee Co (Ltd) - [1953] HCA 83

PERPETUAL TRUSTEE COMPANY (LIMITED)

RESPONDENTS.

AND OTHERS

PLAINTIFF AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT

OF NEW SOUTH WALES. Administration-Deceased estate-Real and personal property-Situate in Australia,

New Zealand and other countries-Personal representatives-Australia Appointment of three sons and trustee company as "ColonialTrustees"-Neu SYDNEY,

Zealand-Appointment of three sons as Executor "-Great Britain-Appoint- Nov. 25, 26;

ment of three sons as "English Executor" re personal estate-New Zealand estate-Trustee company-Right to act as trustee-Getting in of testator's New Zealand estate-Inquiry therefor by New South Wales Court-Propriety.

A testator, who died in 1932, left personal property in Australia and England Taylor JJ.

and some real and personal property in New Zealand and in the Principality of Monaco. By his will he appointed (a) his three sons, P., S. and N., and a trustee company, calling them his Colonial Trustees", to be his executor" (sic) to administer his real and personal estate in Australia; (b) P., S. and N., without the trustee company to be his " executor", but without particular designation, to administer his real and personal estate in New Zealand; and (c) P., S. and N., calling them his English Trustees", to be his English Executor" to administer all his personal estate in Great Britain. A personal representative was not appointed for the Principality of Monaco to deal with the property situated there. All property other than that in Australia and New Zealand was devised and bequeathed to the testator's English trustees and the property in Australia and New Zealand to his Colonial Trustees Australia and New Zealand" In a suit brought by the company in 1940, and to which P. and S. and later others were defendants, the Court ordered, inter alia, that it be referred to the Master in Equity to conduct certain inquiries and take certain accounts, including an inquiry as to whether the executors should take any and if SQ what steps to get in the proceeds of the testator's estate in New Zealand, England and Monaco." Action proceeded on that order. By motion made by the company in 1951, the Court ordered that in lieu of the inquiry set out above, it should be referred to the Master in Equity to conduct an inquiry as to whether the company and S. (P. and N. having in the meantime died) as trustees of the testator's will and codicil should take any and if SO what steps to get in the testator's estate in New

89 CLR 139

Zealand, England and Monaco. Whether or not the executorial duties in H. C. OF respect of the New Zealand estate had been completed was not shown. Upon appeal,

Held (1) that the company was one of the trustees of the New Zealand estate as well as of the Australian estate; and (2) that the company and S. being within the jurisdiction of the Court and as administration of the estate was proceeding, the Court could with propriety inquire into the question whether they should take any and, if so,…

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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Details

Case: [1953] HCA 83
Decision Date: 3 December 1953

CaseChat Overview and Summary

The case of *Dawson v Perpetual Trustee Co (Ltd)* concerned the administration of the estate of David Stewart Dawson, who died in 1932. The plaintiff, Perpetual Trustee Co (Ltd), brought a suit in the Supreme Court of New South Wales seeking administration of the estate. The dispute on appeal centred on the scope of the New South Wales court's jurisdiction and the role of the plaintiff company in administering assets located outside of Australia, specifically in New Zealand, England, and Monaco.

The primary legal issues before the court were: first, whether the Perpetual Trustee Co (Ltd) was a trustee of the testator's New Zealand estate, and second, whether the Supreme Court of New South Wales had the authority to inquire into the steps that the plaintiff company and the appellant, Stuart Stewart Dawson, should take to gather the testator's estate in New Zealand, England, and Monaco. The appellant argued that the plaintiff company had no connection to the New Zealand assets and that the New South Wales court lacked jurisdiction over foreign assets, rendering any inquiry futile.

The court reasoned that the testator's will, despite some inartistic drafting, clearly intended for the Perpetual Trustee Co (Ltd) to be a trustee of both the Australian and New Zealand estates, as part of the "Colonial Trustees". The court found that the testator's division of his estate into English and colonial components, and the consistent distinction between English and colonial trustees, supported this interpretation. Furthermore, the court held that because the plaintiff company and the appellant were within the jurisdiction of the New South Wales court, and the administration of the estate was already proceeding under its direction, the court possessed the propriety to inquire into the steps necessary to secure the testator's assets in New Zealand, England, and Monaco. The court applied the principle that a court can act on persons within its jurisdiction to enforce fiduciary duties, even if those duties relate to property located in other countries.

The appeal was dismissed. The court affirmed the decision of the Supreme Court of New South Wales, upholding the order for an inquiry into whether the plaintiff company and Stuart Stewart Dawson, as trustees, should take steps to get in the testator's estate in New Zealand, England, and Monaco.

Orders