Nabainivalu v Hopkins - [2006] NSWSC 215

CITATION: Nabainivalu v Hopkins [2006] NSWSC 215

HEARING DATE(S): 16/03/06

JUDGMENT DATE :
31 March 2006

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: There is no gift of the stamp collection to the plaintiff. Plaintiff's claim is dismissed with no order as to costs.

CATCHWORDS: SUCCESSION [166]- Wills- Construction and effect of testamentary dispositions- Direction that X may remove and dispose of any item in house- Whether gift to X of valuable stamp collection located in the deceased's home. WORDS & PHRASES- "Dispose".

CASES CITED: Charter v Charter (1874) LR 7 HL 364
Dupain v White (Cohen J, 15.9.1994, unreported)
Dutton v Hockenhull (1874) 22 WR 701
Fleming v Burrows (1826) 1 Russ 276; 38 ER 107
Gerhardy v South Australian Auxiliary to The British and Foreign Bible Society Inc (1982) 30 SASR 12
Gregory v Hudson (1998) 45 NSWLR 300
Jennor & Hardies case (1606) 1 Leon 283; 74 ER 258
Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60
Peck v Halsey (1726) 2 Pwms 387; 24 ER 780
Re Brace [1954] 1 WLR 955
Re Johnson [1928] SASR 490
Re McMahon [1913] QSR 47
Tatham v Huxtable (1950) 81 CLR 639
Wrench v Jutting (1841) 3 Beav 521; 49 ER 205

PARTIES: Apenisa Nabainivalu (known as Ben Nabainivalu) (P)
Sydney Walter Hopkins (D1)
John Gregory Barrett (D2)

FILE NUMBER(S): SC 2649/05

COUNSEL: R J Colquhoun (P)
A Finnerty (S) (D)

SOLICITORS: Walker Smith Solicitors (P)
Donovan Oates Hannaford (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 31 March 2006

2649/05 – NABAINIVALU v HOPKINS

JUDGMENT

1 HIS HONOUR: This is a claim by the plaintiff to be entitled to retain possession of the stamp collection of the late Kenneth Albert Dick which he removed from the deceased's house (either with permission or under a claim of right) shortly after the deceased's death. The defendants are the executors of Mr Dick.

2 The deceased died on 12 July 2003 and probate of his last will was granted to the defendants on 8 October 2003.

3 The will was typed out on the deceased's personal letterhead. It is as follows:

"THIS IS THE LAST WILL AND TESTAMENT OF ME KENNETH ALBERT DICK OF 38 WAUGH ST., PORT MACQUARIE, IN THE STATE OF NEW SOUTH WALES.

ON MY DEATH I REQUEST THAT WALKERS – UNDERTAKERS OF KEMPSEY- BE ENTRUSTED WITH PREPARING MY BODY FOR BURIAL AT THE GENERAL CEMETERY AT PORT MACQUARIE WHERE I HAVE A PRE-PAID LOT NEXT TO MY MOTHER AND FATHER.

I DIRECT THAT THE FUNERAL SERVICE BE HELD AT ST. THOMAS CHURCH.

I ASK THAT MY FRIENDS STUART HANDSAKER, OF TAREE, AND BEN NABAINIVALU, OF 12 NARANI CRS, PORT MACQUARIE 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.

Keep reading for free

Create a free CaseChat account to read Nabainivalu v Hopkins and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWSC 215
Decision Date: 31 March 2006

CaseChat Overview and Summary

The case of Nabainivalu v Hopkins involved a dispute concerning the interpretation of a will. The deceased had left a will which included a provision that allowed the executor, X, to remove and dispose of any item in the deceased's home. The issue at hand was whether this provision amounted to a gift to X of the deceased's valuable stamp collection, which was located in the deceased's home.

The court had to determine the precise meaning of the word "dispose" in the context of the will. The court examined the ordinary meaning of the word, its use in other legal contexts, and the overall purpose of the will to ascertain whether the provision constituted a gift of the stamp collection to X. The court also considered the intentions of the deceased as expressed in the will, and whether there was any ambiguity in the language used.

The court concluded that the term "dispose" did not necessarily imply a gift to X of the stamp collection. The court found that the provision was intended to give the executor the authority to manage and sell items in the deceased's home, including the stamp collection, in order to settle the estate. The court held that the provision did not amount to a gift of the stamp collection to X, as it did not express a clear intention to make such a gift. The court emphasised that the language of the will must be interpreted in light of its overall purpose and the intentions of the deceased.

The court ordered that the executor could sell the stamp collection as part of the estate, but that X did not have a personal interest in the stamp collection. The court did not find it necessary to make any further orders regarding the interpretation of the will.

Orders