De Lorenzo v De Lorenzo

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Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: De Lorenzo v De Lorenzo [2020] NSWCA 351
Hearing dates: 29 September 2020, further submissions 20 October 2020 and 5 November 2020
Decision date: 22 December 2020
Before: Gleeson JA at [1];
Leeming JA at [2];
White JA at [47].
Decision:

1. Grant leave to appeal.

2. Appeal dismissed, with costs.

Catchwords:

SUCCESSION – construction of will – gift of two shares to three children as tenants in common – will stated that if shares not divisible by three, daughter would receive more – whether daughter entitled to both shares under will – consideration of joint ownership of choses in action

Legislation Cited:

Companies (New South Wales) Code, Sch 3

Corporations Act 2001 (Cth), ss 140, 168, 169, 231, 237, 247A, 1070A

Conveyancing Act 1919 (NSW), ss 12, 26, 27, 66F, 66G

Copyright Act 1968 (Cth), s 196

Judicature Act 1873 (UK), s 25

Supreme Court Act 1970 (NSW), s 101

Cases Cited:

Beck v Henley [2014] NSWCA 201; 11 ASTLR 457

Blackborough v Graves (1673) 1 Mod Rep 102; 86 ER 765

Chhabra v McPherson as Trustee for the McPherson Practice Trust [2019] FCAFC 228

Christopher John De Lorenzo in his capacity as an executor of the Estate of the late Patricia Ellen De Lorenzo v Vincent Joseph De Lorenzo in his personal capacity & in his capacity as an executor of the Estate of the late Patricia Ellen De Lorenzo [2020] NSWSC 188

Clerk v Equity Trustees Executors and Agency Co Ltd (1913) 15 CLR 625; [1913] HCA 8

Commonwealth Bank of Australia v McDonald [2000] NSWSC 553; 10 BPR 18,111

Fell v Fell (1922) 31 CLR 268; [1922] HCA 55

Hatzantonis v Lawrence [2003] NSWSC 914

In Re Allan [1950] VLR 405

Lewin v Lewin [2019] NSWSC 380

Michael Victor Henley; In the Estate of Hedy Jadwiga Weinstock and Leo Arie Weinstock [2013] NSWSC 975; 10 ASTLR 1

Neilan v Neilan [2019] NSWSC 66

Nullagine Investments Pty Ltd v The Western Australian Club Inc (1993) 177 CLR 635; [1993] HCA 45

Parmalat Capital Finance Ltd v Food Holdings Ltd [2008] UKPC 23; [2009] 1 BCLC 274

Perrin v Morgan [1943] AC 399

Re McIlrath, decd [1959] VR 720

Re McKerrell [1912] 2 Ch 648

Re Pulbrook; Pulbrook v Pulbrook (1937) 37 SR (NSW) 345

Re VGM Holdings Ltd [1942] Ch 235

Re Wood Trading Co Ltd (1927) 28 SR (NSW) 106

Rule v Mallon [2000] NSWSC 346; (2000) 10 BPR 18,005

Russell v Scott (1936) 55 CLR 440; [1936] HCA 34

Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482

Seven Network (Operations) Ltd v TCN Channel Nine Pty Ltd (2005) 146 FCR 183; [2005] FCAFC 144

Winter v Perratt (1843) 6 Man & G 314; 134 ER 914

Texts Cited:

I Alexander, Copyright Law and the Public Interest in the Nineteenth Century (Cambridge University Press, 2010)

C Butler (ed),

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Details
Case
[2020] NSWCA 351
Decision Date

CaseChat Overview and Summary

The appeal concerned the construction of a will made by the late Mr. De Lorenzo, who bequeathed two shares in a company to his three children as tenants in common. The dispute arose from a specific provision in the will stating that if the shares were not divisible by three, his daughter would receive more. The primary issue was whether this provision entitled the daughter to both shares, or if it was intended to operate in some other way. The case was heard in the Court of Appeal of New South Wales.

The central legal question before the court was how to interpret the testator's intention regarding the distribution of the two company shares amongst his three children, particularly in light of the clause addressing divisibility by three. This required the court to consider the principles of will construction, the nature of joint ownership of choses in action, and the potential for ambiguity in testamentary dispositions.

The Court of Appeal determined that the testator's intention, as expressed in the will, was to ensure an unequal distribution in favour of the daughter if the shares could not be divided equally. The court reasoned that the phrase "if the shares are not divisible by three" referred to the practical impossibility of dividing two shares equally amongst three beneficiaries. Consequently, the court held that the daughter was entitled to both shares under the will.

Leave to appeal was granted, but the appeal was ultimately dismissed, with costs awarded to the respondents.

Orders

Orders of the court

1. Grant leave to appeal.

2. Appeal dismissed, with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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