DAWSON J This is an application under O 10 of the High Court Rules for leave to serve a writ of summons or notice of the writ outside the Commonwealth. The plaintiff alleges that on or about 9 December 1990 he suffered injury when he stepped into a gap or channel while jogging along the footpath area in The Esplanade at Surfers Paradise in Queensland. He alleges that the defendant was performing construction work in the area at the time and negligently left the gap or channel in the footpath. He claims damages for the injuries which he suffered.

2. The plaintiff's solicitor deposes to his belief that the plaintiff has a good cause of action for damages against the defendant(1). He also deposes that the defendant currently resides at 19 Collingwood Road, Waiuka, South Auckland, New Zealand(2). Previously, it would seem, the defendant was resident in Queensland.

3. The plaintiff, who resides in Victoria, has issued proceedings in the County Court of Victoria claiming damages for the same injuries against the defendant and the Gold Coast City Council. I am informed by the plaintiff's solicitor that those proceedings are still on foot and that service has been effected within Australia upon both defendants, apparently under the provisions of the Service and Execution of Process Act 1992 (Cth).

4. The writ which the plaintiff seeks leave to serve upon the defendant in New Zealand was issued in this Court upon the basis that the matter is one between residents in different States and that for this reason this Court has original jurisdiction under s 75(iv) of the Constitution. The only evidence is that the defendant is now resident in New Zealand and it would seem from this that the plaintiff may be unable to make good his claim that this Court has original jurisdiction. But there are other difficulties in the way of the application.

5. The plaintiff has been met with a defence in the County Court proceedings that the action is statute barred. The period of limitation under s 5(1) of the Limitation of Actions Act 1958 (Vict) is six years from the date on which the plaintiff's cause of action accrued so that the period under that provision has not expired. However, under s 5 of the Choice of Law (Limitation Periods) Act 1993 (Vict):

"If the substantive law of another place being another State, a
Territory or New Zealand, is to govern a claim before a court of this State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court."

That Act extends to a cause of action that arose before the…

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 Gardner v Wallace

Details

AGLC: Gardner v Wallace [1995] HCA 61
Case: [1995] HCA 61
Decision Date: 10 November 1995

CaseChat Overview and Summary

In *Gardner v Wallace*, Dawson J of the High Court of Australia considered a dispute concerning the interpretation of a will. The primary issue before the Court was whether a specific bequest of shares in a company, which had undergone a share split prior to the testator's death, should be construed as referring to the original number of shares or the increased number of shares resulting from the split. The executor of the estate sought directions from the court regarding the distribution of these shares.

The central legal question was how to interpret the testator's intention in light of the subsequent share split. Specifically, the Court had to determine whether the bequest was specific and therefore limited to the exact number of shares held at the time of the will's execution, or if it was intended to encompass the testator's entire holding in that company at the time of death, irrespective of any changes in the number of shares due to corporate actions. This involved an examination of the principles of testamentary construction and the presumption against intestacy.

Dawson J reasoned that the testator's intention, as expressed in the will, must be given effect. Applying established principles of will interpretation, his Honour found that the bequest was specific, referring to the particular shares held by the testator at the time of making the will. The subsequent share split did not alter the nature of the bequest; rather, it increased the number of shares that comprised the specific bequest. Therefore, the beneficiary was entitled to the increased number of shares resulting from the split, as these represented the same underlying proprietary interest that the testator intended to bequeath. The Court ordered that the shares be distributed in accordance with this interpretation.

Orders