Goldsbrough, Mort and Co Ltd v Tolson - [1909] HCA 80

GOLDSBROUGH, MORT &CO. LTD.

DEFENDANTS, TOLSON

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND. BRISBANE, Dec. 2, 3.

Meat and Dairy Produce Encouragement Act 1893 (57 Vict. No. 11) (Qd.)-Meat SYDNEY,

and Dairy Produce Encouragement Act 1895 (59 Vict. No. 6) (Qd.)-Certific - cates for payment of taxes-Conveyance-Chattels and effects.

The respondent, who was the holder of certain grazing properties, paid taxes under the Meat and Dairy Produce Encouragement Acts 1S93, 1895, and received certificates therefor. By mortgage deeds he assigned his rights in

10 CLR 471

these properties to the appellants, "and also all and singular the sheep cattle horses stock chattels and effects which are now or may at any time during the continuance of this security be upon or belonging to the said stations." The respondent subsequently conveyed his equity of redemption in the properties to the appellants in identical language.

Held, that the right of the taxpayer under the certificates to a return of the taxes paid by him was a personal right in the nature of a chose in action and did not pass in a conveyance of an equity of redemption under the words

upon or belonging to the said stations." Decision of the Supreme Court of Queensland (Cooper C.J.) affirmed.

APPEAL from decision of Cooper C.J.

The respondent owned several pastoral properties, which he mortgaged to the defendant company in 1891. In 1893 and subsequent years the respondent paid taxes to the Government under the Meat and Dairy Produce Encouragement Act 1893 (Queensland) (57 Vict. No. 11) and received certificates under 59 Vict. No. 6, sec. 3, for a total amount of £770: 7: 0. On 25th July 1900 the plaintiff conveyed his equity of redemption to the defendant company.

The deed of assignment, after setting out the grazing properties and stock in question, contained inter alia the following words:-

And all pre-emptive and other rights incidental or appurtenant thereto together with the dwelling house buildings tanks reser- voirs cultivation and other paddocks hurdles huts watch-boxes working bullocks drays wool stores provisions trade-erections farming stock implements furniture chattels and effects and all improvements which are now or during the continuance of this security shall be at or upon or belonging to the said stations or runs or any or either of them and all compensation which during the continuance of this security may be paid or become payable in respect of any such improvements."

In 1902 the defendants, claiming to be holders of the certifi- cates, applied to the Minister for and received a certain sum and still held certificates entitling them to payment of a further sum, making up the full amount claimed. The plaintiff then sued for the amount received by the defendants and the return of the other certificates or damages in lieu thereof.

The action was tried before Cooper C.J., who gave judgment

10 CLR 472

OF for the plaintiff. From this judgment the defendant company

appealed to the High Court.

Woolcock and Power, for 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.

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Details

Case: [1909] HCA 80
Decision Date: 18 December 1909

CaseChat Overview and Summary

The parties to this appeal were Goldsbrough, Mort and Co Ltd (appellants) and Tolson (respondent). The dispute concerned whether certain tax certificates, issued under the Meat and Dairy Produce Encouragement Acts 1893 and 1895 (Qld), passed to the appellants under mortgage deeds and a subsequent conveyance of the respondent's equity of redemption. The matter was heard by the High Court of Australia on appeal from the Supreme Court of Queensland.

The legal issues before the court were whether the right of a taxpayer to a return of taxes paid, as evidenced by certificates issued under the relevant Queensland Acts, constituted "chattels and effects" within the meaning of the mortgage deeds and the conveyance of the equity of redemption. Specifically, the court had to determine if the language used in these documents, particularly the phrase "chattels and effects which are now or may at any time during the continuance of this security be upon or belonging to the said stations," was sufficient to transfer this personal right to the appellants.

The court reasoned that the right of a taxpayer to a return of taxes under the certificates was a personal right in the nature of a chose in action. It held that this right did not pass under the conveyance of the equity of redemption, nor under the mortgage deeds, by virtue of the words "chattels and effects." The court found that in the context of the deeds, which listed numerous tangible items and specifically enumerated other incorporeal rights like compensation for improvements, the term "chattels and effects" was intended to refer to physical possessions and not to choses in action. Therefore, the appellants had failed to establish their right to the moneys represented by the certificates.

The High Court affirmed the decision of the Supreme Court of Queensland and dismissed the appeal. The respondent was therefore entitled to the moneys represented by the certificates.

Orders