Permanent Trustee Co (Canberra) Ltd v Finlayson - [1968] HCA 85

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Menzies, Windeyer and Owen JJ.

PERMANENT TRUSTEE CO. (CANBERRA) LTD. v. FINLAYSON

(1968) 122 CLR 338

23 December 1968

Death Duties—Constitutional Law (Cth)

Death Duties—Stamp Duty (N.S.W.)—State Commissioner—Right to recover duty—Foreign administrator—Foreign property—Extra-territorial application of Act—Proceedings against foreign administrator of property situate abroad—Stamp Duties Act, 1920-1959 (N.S.W.), ss. 114 (1)*, 115, 120 (2)**, (3). Constitutional Law (Cth)—Full faith and credit—Application of State Act in Australian Capital Territory—The Constitution (63 &64 Vict. c. 12), s. 118—State and Territorial Laws and Records Recognition Act 1901-1964 (Cth), s. 18.

Decision

December 23.
THE COURT delivered the following written judgment : -
This appeal is against an order of the Supreme Court of the Australian Capital Territory (Dunphy J.) (1967) 9 FLR 424. made in the course of an administration by the Court of what was described in the order as "the Estate of Fanny Lothian Niesche deceased". It seems that the only formal record of the order is in a recital contained in the order now under appeal. The deceased had died possessed of assets in the Australian Capital Territory and assets in New South Wales. Although the order took the form of a general order for administration, it could only have meant by "the Estate of Fanny Lothian Niesche deceased" the assets which were the subject of the probate granted in the Territory : see the comment on Preston v. Melville (1841)8 Cl &F1(8 ER1);(1845) 15 Sim 35(60 ER 528), in Stirling-Maxwell v. Cartwright(1878) 9 Ch D 173, at p 175, affd. (1879) 11 Ch D 522; Williams on Executors, 14th ed. (1960), p. 927, pars. 1469, 1470. (at p341)

2. The order that the estate be administered by the Court had been made on 28th September 1966, on the application of the Permanent Trustee Co. (Canberra) Ltd. We shall call that company the Territory executor, because it had obtained probate in the Supreme Court of the Territory of a will and codicil of the deceased, the former of which was expressed to be her last will and testament as regards all her property in the Territory and (apart from specific bequests of jewellery, personal clothing and similar effects and furniture) related in its dispositive provisions to property in the Territory only. This will, which may be called the Territory will, was dated 7th May 1962 and contained a revocation provision as to all former wills except a will concerning all property situated outside the Territory which it described as executed contemporaneously. The latter will (we shall call it the New South Wales will) in fact bore date the next day, 8th May 1962. It contained a revocation clause excepting the Territory will, appointed a company incorporated and carrying on business in New South Wales (which we shall call the New South Wales executor) as "Executors and Trustees", and disposed of property outside the Territory only. The codicil, dated 21st May 1962, was expressed to be a codicil to the Territory will…

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: [1968] HCA 85
Decision Date: 23 December 1968

CaseChat Overview and Summary

Permanent Trustee Co (Canberra) Ltd (the appellant) appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales concerning the interpretation of a will. The dispute centred on whether a beneficiary under the will, Mr Finlayson, had a vested interest in a share of the residue of the testator's estate, or whether his interest was contingent upon him surviving the testator's widow. The testator had bequeathed his residuary estate to his widow for her life, with the remainder to be divided equally between his children, including Mr Finlayson, upon her death. Mr Finlayson predeceased the widow, leaving issue.

The High Court was required to determine whether the gift of the residuary estate to the children, including Mr Finlayson, was a vested interest subject to an executory limitation, or a contingent interest that failed due to Mr Finlayson's predeceasing the tenant for life. The central question was whether the testator intended for the gift to vest in his children at the date of his death, or at the date of the widow's death.

The Court held that the gift to the children was vested at the date of the testator's death. The Chief Justice, Barwick CJ, reasoned that the language of the will indicated an intention to create a present gift to the children, with the enjoyment of that gift postponed until the death of the widow. The Court applied the principle that where there is a gift to a class of beneficiaries, and the enjoyment of that gift is postponed, the class is generally ascertained at the date of the testator's death unless the will clearly indicates a contrary intention. The Court found no such contrary intention in the present will, and therefore Mr Finlayson's interest had vested in him during his lifetime.

The appeal was allowed, and the order of the Supreme Court of New South Wales was set aside. The High Court declared that Mr Finlayson's share of the residuary estate passed to his personal representatives, to be administered according to his will.

Orders