Wills—Construction—Gift of specified number of shares in company—Number specified comprising complete parcel held by testator at date of will—Redivision of capital of company prior to death—Specific or general gift—Ademption—Effect of rule that will to be construed as if executed immediately before death. Settlements—Respective rights of life tenant and remainderman—Pastoral business—Increases in livestock—Whether any livestock should be treated as representing undistributed profits.

Decisions

1962, February 9.
The following written judgments were delivered:-
DIXON C.J. This appeal is brought by a beneficiary under the will of the late Norman Harold McBride, who is also the surviving trustee under the will, against an order of the Supreme Court of South Australia (Brazel J.). The order was made upon an originating summons and determines certain questions arising in the administration of the estate. The appellant is the son of the testator. The respondent Molly Hudson, who issued the summons as plaintiff, is a daughter of the testator and the other respondent, Katherine Mary Edwards, is her daughter. The testator died on 27th May 1946, leaving a widow and the son and daughter already mentioned. His last will was made on 29th July 1944. It appointed his widow and his son executors and trustees and they duly proved the will, together with a codicil which, as it happens, is immaterial to this case. At the testator's death a pastoral business was being conducted by him, or on his behalf. He left also specific assets which, except for a parcel of shares in Elder Smith &Co. Limited, do not concern the summons. The will directed the trustees to carry on the pastoral business and expressed the testator's wish that, in carrying on the business, his son should be appointed manager thereof at such remuneration as the trustees should think proper, not being less than 4 pounds a week with all reasonable expenses incurred by him in the performance of his duties as manager. The will directed that the remuneration should be in addition to any remuneration or reimbursement that the son should be entitled to as a trustee. The testator next directed his trustees to pay his daughter Molly out of the corpus during the life of his wife an annuity of 150 pounds a year, provided that when the total amount paid reached 3,000 pounds the annual payments should cease. The will then directed that the net profits derived from the carrying on of the pastoral business during the lifetime of the testator's wife should be divided between her and his son in equal shares. Upon the death of the testator's wife his will directed that the whole of his estate should be realized and converted into money and divided into two equal shares or parts, one such share or part to be paid to his son absolutely and the remaining equal share or part to be held in trust and the income…

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 McBride v Hudson

Details

AGLC: McBride v Hudson [1962] HCA 5
Case: [1962] HCA 5
Decision Date: 9 February 1962

CaseChat Overview and Summary

The High Court of Australia considered the case of *McBride v Hudson*. The dispute concerned the interpretation and application of section 18 of the *Limitation Act 1969* (NSW), which deals with the limitation period for actions based on fraud or fraudulent concealment. The plaintiff, McBride, sought to recover damages for losses allegedly sustained due to the defendant, Hudson's, fraudulent conduct.

The central legal issue before the High Court was whether the plaintiff's claim was time-barred by the ordinary limitation period, or if the provisions of section 18 of the *Limitation Act 1969* (NSW) extended that period due to the alleged fraud. Specifically, the court had to determine the meaning of "fraudulent concealment" within the context of the Act and whether the plaintiff's knowledge or constructive knowledge of the cause of action was sufficient to trigger the limitation period, notwithstanding the defendant's alleged fraudulent actions.

The High Court held that section 18 of the *Limitation Act 1969* (NSW) did not operate to postpone the commencement of the limitation period in circumstances where the plaintiff was aware of the facts constituting the cause of action, even if those facts were concealed by the defendant's fraud. The court reasoned that the section was intended to apply only where the plaintiff remained unaware of the cause of action due to the defendant's fraudulent concealment. In this instance, the plaintiff had knowledge of the relevant facts, and therefore the ordinary limitation period applied. The appeal was dismissed.

Orders