Practice-Amendment-Action brought by wrong plaintif-Substitution of another
person as plaintif-Application to High Court on appeal-Common Law Pro- cedure Act 1899 (N.S.W.) (No. 21 of 1899), secs. 36, 37.
Sec. 6 of the Trustee Act 1898 (N.S.W.) provides, by sub-sec. 1, that whenever any trustee dies, or desires to be discharged from, or refuses, or becomes unfit or incapable to act in the trusts or powers in him reposed, new trustee may by instrument in writing be appointed and, by sub-sec. 2, that "so often as any new trustee is SO appointed as aforesaid all the property (if any) which for the time being is vested in the surviving or continuing trustee, or in the heir, executors, or administrators of any trustee, or in the Chief Justice or senior Puisne Judge for the time being by virtue of the Pro- bate Act of 1890, or any Act amending or consolidating the same, or in the trustee so desiring to be discharged, or refusing, or becoming unfit or incapable to act as aforesaid, and is subject to the trust in respect of which the new trustee is appointed, shall, by virtue of such instrument and without other assurance in the law, become and be conveyed, assigned, and transferred so that the same shall thereupon become and be legally and effectually vested in such new trustee, either solely or jointly with the surviving or continuing trustee as the case may require."
Held, by Griffith C.J. and Isaacs and Rich JJ. (Gavan Duffy J. doubting), that by virtue of that section a legal chose in action which is part of the trust property, vests as by operation of law in the new trustee either solely or jointly with the continuing trustee as the case may require.
Therefore, where the payment of interest on a mortgage debt due to trustees was secured by a deed of guarantee, and new trustees were appointed in their stead under sec. 6 of the Trustee Act 1898,
Held, that the right of action upon the guarantee was vested in the new Decision of the Supreme Court: Moir v. Loxton, 13 S.R. (N.S.W.), 143, The Supreme Court gave judgment for the plaintiff on a demurrer to the declaration, the ground of the demurrer being that he was not the proper person to bring the action. On appeal, the High Court having decided that the plaintiff was not the proper person to bring the action, and being about to allow the appeal and to give judgment for the defendant on the demurrer, an application was made to the High Court to substitute as plaintiffs the persons who could properly have brought the action.
Held, that the application should be…
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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AGLC
Loxton v Moir [1914] HCA 89
Case
[1914] HCA 89
Decision Date
CaseChat Overview and Summary
James Moir (the respondent) brought an action against Edward James Loxton (the appellant) concerning a deed of guarantee. The dispute arose from the appellant's guarantee of interest payments on a mortgage originally made to the respondent and one Robert Maddrell. Following the death of Robert Maddrell and subsequent appointments of new trustees and transfers of the mortgage, the respondent, who had retired from the trust, continued to be the sole plaintiff in the action. The appellant demurred to the declaration, arguing that the respondent was no longer the proper party to sue on the guarantee. The Supreme Court of New South Wales found in favour of the respondent, allowing the demurrer to be overruled. The appellant then appealed to the High Court of Australia.
The central legal issue before the High Court was the interpretation of section 6(2) of the *Trustee Act 1898* (N.S.W.). Specifically, the court had to determine whether this provision operated to vest a legal chose in action, such as the right of action on the guarantee, in newly appointed trustees by operation of law, or if it merely facilitated the transfer of property that was already capable of being assigned by ordinary legal instruments. The court also considered the effect of subsequent legislative amendments and consolidations on this provision.
The High Court, by a majority, held that section 6(2) of the *Trustee Act 1898* was intended to and did effect a vesting of all trust property, including legal choses in action, in new trustees by operation of law. The majority reasoned that the language of the section, particularly the words "shall become and be conveyed, assigned, and transferred so that the same shall thereupon become and be legally and effectually vested," indicated a statutory divestment and vesting that was not limited to property capable of ordinary assignment. This interpretation was supported by the legislative history and the context of subsequent amendments, which demonstrated an intention to simplify the transfer of trust property and remove doubts about the inclusion of legal choses in action. Consequently, the right of action on the guarantee had vested in the new trustees, and the respondent, as a retired trustee, was not entitled to sue.
The High Court allowed the appeal, setting aside the judgment of the Supreme Court and ordering that the demurrer to the declaration be allowed. The court did not express an opinion on subsequent pleadings.