Official Receiver in Bankruptcy v Schultz - [1990] HCATrans 143

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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Brisbane No Bl4 of 1990
B e t w e e n -

OFFICIAL RECEIVER IN BANKRUPTCY

Appellant

and
RONALD ROY SCHULTZ and MERLE
HEATHER SCHULTZ

Respondents

Y.ASON CJ
BRENNAN J
DEANE J
DAWSON J

Schultz(2)
GAUDRON J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON TUESDAY, 26 JUNE 1990, AT 12.16 PM
Copyright in the High Court of Australia

BlTS/1/ND 1 26/6/90
MR G.L. DAVIES, QC, Solicitor-General for Queensland:
May it please the Court, I appear with my learned
friend, MR J. McGILL, for the appellant.
(instructed by G1lshenan & Luton)

MR G. GIBSON, QC: May it please the Court, I appear for the
respondents with my learned friend, MISS E. FORD.
(instructed by Primrose Couper Cronin Rudkin)

MASON CJ: Yes, Mr Solicitor.

MR DAVIES: May I hand up a copy of our outline.

MASON CJ: Thank you.

MR DAVIES: Your Honours, may I also hand up a bundle of
statutes and authorities to which we would refer.
Your Honours, the relevant facts and the sequence
in which they occurred are set out in chronological
order in the judgment of Mr Justice Thomas in
the Full Court. Could I take Your Honours to
that on page 26 of the appeal book.
Your Honours will see that a sequestration order was made against the estate of Mrs Schultz

on 11 March 1985. Then on 18 June 1987:
Mrs Pereira died leaving a house property
and certain personal property to Mrs Schultz
and appointing -

she and her husband -
to be the executors.

The terms of that will, Your Honours, are set
out in the first page of the judgment of
Mr Justice Cooper below which is on page 5 of
the appeal book although nothing, in our respectful
submission, turns on the form in which the devise
and bequest were given.

The next event was in the following year,

on 26 July:
Upon application by Mr Pereira (the deceased's
husband) under -

the testator's family maintenance prov1s1on 1n
the SUCCESSION ACT -
Moynihan J ordered that the devise of the above house property to Mrs Schultz be read and construed as a devise of it to
Mr Pereira.

BlTS/2/ND 2 26/6/90
Schultz(2)
That order appears at page 2 of the appeal book where His Honour said, just above line 10:
I DIRECT that the Will of the abovenamed
deceased dated the first day of August 1986
be read and construed as though the name
SHELTON CLEMENT PERIERA appeared in
Clause 3(g) thereof instead of -

Mrs Schultz's name.

MASON CJ: So it carried the contents as well, the house?

MR DAVIES: Yes, Your Honour. Then, on 20 September 1988
Mrs Schultz was discharged from bankruptcy and
then on 8 December that year the executors appealed
against Mr Justice Moynihan's order, succeeded
at least in part, and the order of the Full Court
on that appeal appears on page 4 of the appeal
book where it appears, at the…

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: [1990] HCATrans 143
Decision Date

CaseChat Overview and Summary

The appellant, the Official Receiver in Bankruptcy, appealed to the High Court of Australia against a decision concerning the bankrupt estate of Mrs Schultz. The dispute arose from the administration of the estate of Mrs Pereira, who had bequeathed a house property and personal property to Mrs Schultz. A testator's family maintenance application led to an order varying the terms of Mrs Pereira's will, which was subsequently appealed by the executors.

The High Court was required to determine the legal consequences of the orders made in relation to Mrs Pereira's will, particularly in light of Mrs Schultz's bankruptcy and subsequent discharge. The central legal issue was the application of the principles established in *Commissioner of Stamp Duties v Livingston* to the specific facts of this case, specifically concerning the nature of a beneficiary's interest in an unadministered estate.

The court was referred to the principles in *Commissioner of Stamp Duties v Livingston*, which concerned the exigibility of residuary estate for succession duty. The Privy Council in that case held that a beneficiary's interest in an unadministered estate is not a proprietary interest in the assets of the estate, but rather a personal right to have the estate administered according to law. The parties agreed that these principles governed the present case, and the question was how they applied to the specific devises and bequests made to Mrs Schultz. The court considered the effect of the orders varying the will and the timing of Mrs Schultz's discharge from bankruptcy in relation to the administration of Mrs Pereira's estate.

Orders