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Johnston v Johnston

Johnston v Johnston

Case [1965] HCA 15 9 April 1965

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HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Menzies, Windeyer and Owen JJ.

JOHNSTON v. JOHNSTON

(1965) 113 CLR 572

9 April 1965

Divorce

Divorce—Maintenance—Settlement of property—Discretion of court—Irrelevant or erroneous matters taken into account—Validity of exercise of discretionary power—Variation of order—Whether judge has power to prevent later discharge or variation of order—Matrimonial Causes Act 1959 (Cth), ss. 84, 86, 87.

Decisions

April 9.
The following written judgments were delivered:-
BARWICK C.J. The appellant petitioned the Supreme Court of Victoria for a decree of dissolution of her marriage with the respondent on the ground of his cruelty to her. In her petition she claimed custody of her child by a former marriage (who was ordinarily a member of the household of the appellant and the respondent), maintenance pending suit for herself and for the child, maintenance for herself and for the child and a settlement of property for the benefit of herself and of the child. (at p575)

2. The learned judge hearing the proceedings granted the appellant a decree nisi for dissolution of her marriage and made an order for her maintenance. Up till the time of his order for maintenance, an arrangement between the parties had been on foot for the payment to her of 30 pounds per week for her maintenance. Also, the father of the appellant's child had by that time undertaken adequately to provide for the welfare and education of the child. (at p575)

3. Both the appellant and the respondent had formerly been married, the appellant's previous marriage having been dissolved by decree of the Supreme Court of Victoria and that of the respondent by the death of his wife. There were no children of their marriage to each other. The appellant at the date of the decree was forty-five years of age and the respondent fifty-five. The respondent is a man of considerable means but said to be in poor health and with impaired capacity for business activity. The appellant is without any substantial means but with some prospect of a not very substantial accretion in the future from her mother's estate. The appellant was born in Switzerland where she wishes now to reside. Though she might remarry, the learned trial judge thought that her age and her two unsuccessful matrimonial ventures might discourage her. (at p576)

4. His Honour decided that the case was one in which he should order maintenance to be provided by the respondent for the appellant by the payment of a lump sum. The amount he decided to be appropriate in the circumstances of the case was the sum of 21,000 pounds . In expressing his reasons for choosing to order a lump sum payment rather than a periodic payment by way of maintenance his Honour said: "From a not inconsiderable experience, I am convinced that the most satisfactory course in a matter such as this is to order payment of a lump sum where the means of the parties make it possible and proper to do so.…

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 Johnston v Johnston

Details

AGLC: Johnston v Johnston [1965] HCA 15
Case: [1965] HCA 15
Decision Date: 9 April 1965

CaseChat Overview and Summary

The High Court of Australia considered the dispute between Johnston and Johnston 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 capital reconstruction prior to the testator's death, should be construed as referring to the shares as they existed at the time of the will's execution or as they were constituted after the reconstruction.

The Court was required to determine the proper construction of the testamentary instrument in light of the changes to the company's share structure. Specifically, the legal question was whether the testator's intention, as expressed in the will, was to bequeath a specific number of original shares or the equivalent value or entitlement represented by those shares following the capital reconstruction.

The High Court held that the testator's intention was to be ascertained by reference to the will as it stood at the time of its execution, but that the subject matter of the bequest must be identified at the time of the testator's death. In this instance, the capital reconstruction had fundamentally altered the nature and number of the shares. The Court applied the principle that a bequest of specific shares refers to the shares as they exist at the testator's death, and if those shares have been so altered as to be no longer identifiable, the bequest may fail. However, the Court found that the testator's intention was to pass on the entitlement represented by the original shares, which had been transformed into a different class and number of shares through the reconstruction. Therefore, the bequest was held to be effective, referring to the shares as they were constituted at the time of the testator's death, reflecting the testator's underlying intention to bequeath the proprietary interest in the company.

Orders