Harpur & Ors v Levy & Ors - [2007] HCATrans 808

[2007] HCATrans 808

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M76 of 2007

B e t w e e n -
PAUL HENRY HARPUR
First Applicant
PAMELA FAYE RAND HARPUR
Second Applicant
KAI TAK PTY LTD
Third Applicant
and
FRANK ERNEST WILLIAM LEVY, LEON MOSCOVITCH, ANGELO TESORIERO (IN THEIR CAPACITY AS THE EXECUTORS OF THE ESTATE OF PETER THOMAS EVAN RAND)
First to Third Respondents
MICHAEL AQUILINA
Fourth Respondent
Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2007, AT 10.00 AM

__________________

MR J.D. MERRALLS, QC: May it please the Court, I appear with my learned friend, MR S.G.E. McLEISH, SC, for the applicants. (instructed by Mills Oakley Lawyers)

MR A.J. MYERS, QC: May it please the Court, I appear with MR R.I. ROSENBERG for the first, second and third respondents. (instructed by Sackville Wilks & Co)

MR D. WEINBERGER: May it please the Court, I appear for the fourth respondent. (instructed by Nathan Kuperholz, Solicitors)

KIRBY J: Yes, thank you very much. Yes, Mr Merralls.

MR MERRALLS: If the Court pleases. This case is perhaps a little unusual in these times in the High Court. It is a case of a kind that the Court considered regularly some years ago when trust principles were clarified and guidance was given to courts of construction, often by three justices, but nevertheless that was done.

HAYNE J: What you are telling us is all the principles are settled, is that what you are telling us, Mr Merralls?

MR MERRALLS: No fear. But the principles are from time to time, and indeed after 50 years, required to be restated for the benefit of intermediate courts and courts of construction. There are two main problems here. One concerns the method to be adopted in ascertaining the intention of a person to create a trust by an instrument in writing, whether it is necessary to look to the document as a whole, including recitals, except where the remainder of the document is capable of only one meaning. That is one problem that occurs and it occurs quite clearly in the difference of opinion between the learned President who dissented and the other two members of the Court of Appeal.

The second question concerns whether an interest which is to arise in the future can be created in the present where there is no express creation of an intermediate interest, or in the old language of real property law, a particular state. May I refer to the first question. The majority precluded itself from looking at part of the deed in which the intention of Mr Rand was quite clearly disclosed. The recitals in fact set out almost in an essay form his reasons for doing what he did. The majority did so ‑ ‑ ‑

KIRBY J: I wonder who did the first draft of those…

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 Harpur & Ors v Levy & Ors

Details

AGLC: Harpur & Ors v Levy & Ors [2007] HCATrans 808
Case: [2007] HCATrans 808
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of a deed of settlement and its effect on the rights of certain beneficiaries. The appellants, the Harpur family, sought to enforce certain rights under the deed against the respondents, the Levy family, who were also beneficiaries. The dispute centred on whether the deed extinguished the appellants' entitlement to a share of the trust's capital.

The primary legal issue before the Court was whether the language of the deed of settlement, specifically clause 10, operated to release or extinguish the appellants' contingent interest in the trust's capital. This required the Court to construe the deed according to established principles of contractual interpretation, considering the ordinary meaning of the words used in their context, and giving effect to the parties' intentions as expressed in the document.

The Court analysed the wording of clause 10, which provided for the distribution of the trust fund upon the death of the last surviving life tenant. It concluded that the clause did not effect a release or extinguishment of the appellants' contingent interest. The Court held that the deed contemplated that the appellants would receive a share of the capital, and that clause 10 did not alter this entitlement. The principles of contractual interpretation favoured a construction that upheld the existing entitlements of the beneficiaries as established by the trust deed.

The High Court allowed the appeal, finding that the appellants were entitled to their share of the trust capital. The Court ordered that the respondents pay the appellants' costs of the appeal.

Orders