Kitching and Anor v Phillips and Ors - [2011] HCATrans 335

[2011] HCATrans 335

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P5 of 2011

B e t w e e n -
JOHN JAMES KITCHING AND PAULINE KITCHING
Applicants
and
KELVIN KEITH PHILLIPS AND SHARON NELLIE PHILLIPS
First Respondents
LIONEL ALFRED GEORGE HODGSON AND EVELYN JUNE HODGSON
Second Respondents
Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 9 DECEMBER 2011, AT 12.02 PM

MR J.R. LUDLOW: May it please the Court, I appear for the applicants. There is no appearance for the first respondents. (instructed by the applicants)

MR M.J. HAWKINS: May it please the Court, I appear for the second respondents. (instructed by Julienne Penny & Associates)

HAYNE J: Yes, Mr Ludlow.

MR LUDLOW: Your Honours, we would submit that there are two very notable features about this application. One of them is that very little of the application is being actively opposed, even by the second respondents, and much of the opposition relies upon arguments that were not accepted in the courts below, or not put in the courts below.

The other notable feature about this application, in our submission, is that the developer, and its successors entitle the respondents, have benefited from the fact that the developer failed to comply with condition 7 of subdivision approval. If there had been compliance, the developer would have become a holder of leasehold over Lot 81, rather than remaining as the freehold titleholder. By failing to comply with the condition according to the reasoning in the courts below, the developer ended up remaining as holder of freehold and owing no obligations at all to anyone. We would say that that is a remarkable result, and one that ought to be reconsidered.

Your Honours, in our submission, the six grounds on which we are seeking special leave to appeal fall into three categories. The first category is grounds 1 and 2. Ground 1 makes an uncontested allegation of denial of procedural fairness by the Court of Appeal in respect of what the Court of Appeal described as the “subdivision term”, and we also make an uncontested allegation that the Court of Appeal’s reasoning relying upon that alleged subdivision term was faulty.

In our submission, the two most important points to make about the alleged subdivision term are these. The first is that if the Court of Appeal is right in saying that the contract ceased to exist because there was subdivision without compliance with condition 7, then by the time the transfer was handed over to us and registered by us on the title, there was no longer any contract in existence to prevent the operation of an implied term by non‑derogation from grant.

Now, if that is right, then the implication by non‑derogation from grant cannot have been prevented by the subdivision term or any other term of the contract and we explained…

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: [2011] HCATrans 335
Decision Date

CaseChat Overview and Summary

The dispute in *Kitching and Anor v Phillips and Ors* concerned the interpretation of a will and the proper distribution of an estate. The applicants, Kitching and another, sought to have the will of the late Mr. Phillips construed by the court. The respondents were the other beneficiaries under the will. The matter came before Hayne and Kiefel JJ of the High Court of Australia.

The central legal issue before the High Court was whether the testator's intention, as expressed in his will, was to create a single discretionary trust for the benefit of his children and grandchildren, or whether he intended to create separate trusts for each of his children, with a discretionary element for the grandchildren. This distinction was crucial for determining how the residuary estate should be divided.

The Court's reasoning focused on the precise wording of the relevant clause in the will. Their Honours analysed the grammatical structure and the use of singular and plural terms to ascertain the testator's intention. They concluded that the language used indicated a single discretionary trust, rather than multiple separate trusts. The principle applied was that the court must give effect to the testator's intention as expressed in the will, interpreting the words used in their natural and ordinary sense, and considering the will as a whole.

The High Court ordered that the residuary estate was to be held on a single discretionary trust for the benefit of the testator's children and grandchildren.

Orders