Gardner v Wallace - [1995] HCATrans 320

TRANSCRIPT

OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone (03) 672 5608
Fax (03) 670 8883
O/N 5809

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M33 of 1995

BETWEEN: C. GARDNER

Plaintiff

and
R. WALLACE
Defendant

DAWSON J (in Chambers)

AT MELBOURNE, FRIDAY THE 10TH DAY OF NOVEMBER 1995

Continued from 31.10.95

HIS HONOUR: Mr McGarvie, from what you told me on the last occasion we were here, the County Court proceedings in this matter are still on foot, are they not?

MR McGARVIE: They are.

HIS HONOUR: And service was effected under the provisions of the Service and Execution of Process Act?

MR McGARVIE: In Australia.

HIS HONOUR: Yes, within Australia.

MR McGARVIE: Yes.

HIS HONOUR: And under that act. Which one, the 1901 one or the 1992 one which is the new one?

MR McGARVIE: Look, I cannot answer that.

HIS HONOUR: But it was one or the other anyway?

MR McGARVIE: One or the other, yes.

HIS HONOUR: And you depose that the present residence of the defendant is in New Zealand?

MR McGARVIE: That is right.

HIS HONOUR: And that is the position as you know it now?

MR McGARVIE: Yes.

HIS HONOUR: And in the County Court action, I understand there are now pleadings in the County Court which is a revelation to me, although I understand it has been so for some time. But in the County Court action, a limitation defence has been raised, has it?

MR McGARVIE: It has.

HIS HONOUR: Based on the Choice of Law (Limitations Periods) Act?

MR McGARVIE: Yes.

HIS HONOUR: Yes, I see. And, as I understand what you explained to me, the purpose of the commencement of this action in this Court is to found an application for remitter subsequently to Queensland?

MR McGARVIE: Yes, or Victoria, but probably Queensland.

HIS HONOUR: Yes. Well, I can understand that because in reliance on Fielding v Doran you would say then that there is no limitation period applicable in Queensland?

MR McGARVIE: Yes.

HIS HONOUR: And that the Choice of Law (Limitation Periods) Act would not apply.

MR McGARVIE: Yes.

HIS HONOUR: Yes, thank you very much. This is an application under Order 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.

The plaintiff's solicitor deposes to his belief that the plaintiff has a good cause of action for damages against the defendant. (See Order 10 Rule 3(1)(a)). He…

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] HCATrans 320
Case: [1995] HCATrans 320
Decision Date

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