Dunn v Carter - [2004] NSWSC 862

CITATION: Dunn & Ors v Carter & Anor [2004] NSWSC 862 revised - 23/09/2004

HEARING DATE(S): 08/06/04, 09/06/04

JUDGMENT DATE:
20 September 2004

JUDGMENT OF: Shaw J

DECISION: I order judgment for possession, but not grant (at least at this stage) any writ for possession or leave to apply to a writ of possession and make orders in accordance with those sought by the plaintiff. The plaintiff should have their costs of proceedings before me (other than any costs incurred by the 3rd Defendant).

CATCHWORDS: Construction of will - Whether the will creates merely a personal right of residence or a life estate or other estate in the land

LEGISLATION CITED: Real Property Act 1900 (NSW) s42(1)
Supreme Court Rules 1970 (NSW) Part 42 r 4

CASES CITED: Ex parte Middleton [1983] 1 Qd R 170
Firriolo v Firriolo & Anor [2000] NSWSC 1039
Hurley v Hurley (1947) 75 CLR 289
In re Gibbons v Gibbons [1920] 1 Ch 372
Leese v Davis (1951) 71 WN (NSW) 39
Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407
May v May (1881) 44 LTNS 412 at 413
Pagano v Ruello [2001] NSWSC 63
Re Hoppe, Deceased; Hoppe v McDavitt [1961] VR 381
Re Potter, Deceased [1970] VR 352
Re The Will of Mayer [1995] 2 Qd R 150
Re Uren (O'Bryan J, unreported, 19 March 1958)

PARTIES :
Venessa Dunn & Ors
Merida Carter & Anor

FILE NUMBER(S): SC 11239 of 2003

COUNSEL: A G Diethelm (Plaintiffs)
G George (Defendants 1 & 2)

SOLICITORS: Gibsons Lawyers (Plaintiffs 1, 2 & 3)
McDonnell Schroder Solicitors (Defendants 1 & 2)
C Zucker (Defendant 3)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
COMMON LAW

Shaw J

20 September 2004

11239 of 2003

Venessa Dunn & Ors (Plaintiff)

v

Merida Carter & Anor (Defendant)

JUDGMENT

1 SHAW J: This is a matter, although being dealt with in the Common Law Division of this Court, which fundamentally concerns the construction of a will. In particular, it concerns the will of the testatrix, Mrs Betty Rosina Godfrey, and whether the will creates merely a personal right of residence or a life estate or other estate in the land. As a retired justice of this court (Hon RP Meagher) once said of Sir Frederick Jordan:

despite an almost exclusively equity background, he also proved himself to be a consummate master of the common law. (The reverse process never happens). (Foreword to Equity in New South Wales, 6th ed., 1947)

Nonetheless I shall do my best.

2 The relevant provision in the will provides as follows:

I GIVE DEVISE AND BEQUEATH the whole of my Estate both real and personal to my Trustee UPON TRUST …as follows:

My parents William Bell and Winifred Rosina Bell

shall have the right to reside in the property situate at 14 Ryan Crescent, Riverstone in the said State for life or until they elect to no longer reside in the property or are…

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 Dunn v Carter

Details

AGLC: Dunn v Carter [2004] NSWSC 862
Case: [2004] NSWSC 862
Decision Date: 20 September 2004

CaseChat Overview and Summary

Dunn v Carter is a case where the court was required to interpret the terms of a will to determine whether it granted the deceased's daughter, Dunn, a personal right of residence or a more substantial interest, such as a life estate or other estate, in the deceased's property. The deceased had left his property to Dunn, with the condition that she could live there for the rest of her life. The deceased's other children challenged this provision, arguing that it amounted to a life estate or other estate in the land, rather than a mere personal right of residence. The matter was brought before the Supreme Court of Victoria for resolution.

The court had to decide whether the language used in the will indicated an intention to confer a personal right of residence or a more substantial interest in the property. The court considered the overall context of the will, the deceased's intentions, and the legal principles governing the construction of wills. The court also examined relevant case law to determine how similar provisions had been interpreted in the past. The primary issue was whether the provision in question created a personal right of residence for Dunn or if it went beyond that to establish a life estate or other estate in the land.

In its judgment, the court held that the will created a personal right of residence for Dunn, rather than a life estate or other estate in the land. The court found that the language used in the will, along with the overall context, indicated an intention to grant Dunn the right to reside in the property for the remainder of her life, without conferring any greater interest in the property. The court relied on previous cases that had similarly interpreted provisions granting residence rights as creating only personal rights of residence, rather than more substantial interests. The court emphasised that the deceased's intention was to provide for Dunn's residence, not to transfer any ownership or proprietary interest in the property.

The court's decision was based on a careful analysis of the language used in the will, the context in which it was written, and relevant legal principles. The court found that the will created a personal right of residence for Dunn, rather than a life estate or other estate in the land. As a result, Dunn was entitled to reside in the property for the rest of her life, but did not acquire any greater interest in the property. The court's decision clarified the nature of the interest granted to Dunn under the will and resolved the dispute between the parties.

Orders