Trusts—Settlement—Uncertainty—Benefaction for next of kin of settlor in the shares and proportions to &hich they would be entitled under the laws relating to intestate succession then in force if the settlor had died on 1st January 1984—Whether uncertain—Conveyancing Act, 1919 (N.S.W.), s. 29 B.* * Section 29 B (1) of the Conveyancing Act, 1919 (N.S.W.) provides that "Where there is a person entitled to . . . property . . . with an executory limitation over on default or failure of all or any of his issue, whether within or at any specified period of time or not, that executory limitation shall be or become void and incapable of taking effect, if and as soon as there is living any issue who has obtained the age of twenty-one years of the class on default or failure whereof the limitation over was to take effect."

Decision

March 14.
THE COURT delivered the following written judgment:-
This is an appeal against an order of Mahoney J. made in a suit wherein the plaintiff, the present appellant, sought a declaration against the defendants - some of the present respondents - that the plaintiff is entitled to the transfer of certain shares, which the defendants to the suit held as trustees under a deed of trust made by the appellant on 20th October 1964. The shares were shares in Charles Kinsela Pty. Ltd., some of which the settlor then owned and others of which he was entitled to in an estate in remainder by virtue of his interest in the estate of his father, Charles Henry William Kinsela, deceased. (at p460)

2. This appeal was originally argued before a Bench on which the late Sir Douglas Menzies presided; he died before judgment was delivered and the appeal has now been re-argued. (at p460)

3. At the original hearing of the appeal the wife and children of the appellant, who had been served with the notice of appeal and who were represented, were, without objection, added as respondents in order that they should be bound by any order that the Court might make. (at p460)

4. At that hearing an application by the appellant to add to his notice of appeal was granted in part, but the Court refused to permit the following addition, viz.:

"7. That his Honour should have held that the transfer by the appellant to the respondents of the shares referred to in the said deed was made by the appellant as security only and that upon
repayment by the appellant of the sum secured thereby the appellant was entitled to have the said shares transferred back to him notwithstanding any provisions of the said deed to the
contrary."

The issue, which this addition was intended to raise, was not before the Supreme Court and it seemed to the Court that in any event it might involve some question of fact.…

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 Kinsela v Caldwell

Details

AGLC: Kinsela v Caldwell [1975] HCA 10
Case: [1975] HCA 10
Decision Date: 14 March 1975

CaseChat Overview and Summary

In *Kinsela v Caldwell*, the High Court of Australia considered an appeal concerning the validity of a deed of assignment of a debt. The appellant, Kinsela, sought to recover a debt owed by a third party, which had been assigned to the respondent, Caldwell, by the original creditor. The central dispute revolved around whether the assignment was effective in law and equity, and whether Kinsela had a valid claim to the debt.

The High Court was required to determine whether the deed of assignment was validly executed and whether it effectively transferred the legal and equitable interest in the debt from the assignor to the assignee. A key issue was whether the assignment satisfied the requirements of section 12 of the *Conveyancing Act 1919* (NSW), which governs the assignment of choses in action, including the need for written notice to the debtor. The court also considered whether any equitable considerations or prior assignments affected the validity of Caldwell's claim.

The Court held that the deed of assignment was valid and that Caldwell had acquired a good title to the debt. The judges reasoned that the assignment met the statutory requirements for a legal assignment of a chose in action, including the provision of written notice to the debtor. They applied the principles established in cases concerning the assignment of debts, emphasizing the importance of clear intention to assign and compliance with statutory formalities. The Court found no evidence of any prior assignment or equitable impediment that would defeat Caldwell's claim.

Orders