Perpetual Trustees WA Ltd v Macfarlane

[2009] WASC 61

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PERPETUAL TRUSTEES WA LTD -v- MACFARLANE [2009] WASC 61

CORAM:   MASTER SANDERSON

HEARD:   25 FEBRUARY 2009

DELIVERED          :   24 MARCH 2009

FILE NO/S:   CIV 1491 of 2007

BETWEEN:   PERPETUAL TRUSTEES WA LTD as trustee for WILLIAM THOMAS WOOD

Plaintiff

AND

IAN RUSS MACFARLANE
JULIE MAY GILL
THOMAS KEITH MACFARLANE
First Defendants

SHEILA MARY COOPER
BARBARA LESLEY BRACKEN
Second Defendants

HECTOR THOMAS WOOD as executor of the estate of HORACE CHARLES WOOD (dec)
BARRY JAMES WOOD,
NEIL WILLIAM WOOD and
MARGARET ANNE SEABROOK as executors of the estate of THORNTON JAMES WOOD (dec)
Third Defendants

Catchwords:

Wills - Application by trustee as to the proper interpretation of the will of deceased - Turns on own facts

Legislation:

Nil

Result:

Will interpreted

Category:    B

Representation:

Counsel:

Plaintiff:        Mr P J Mugliston

First Defendants               :        Mr G R Hancy & Dr J J Hockley

First-named Second Defendant     :        No appearance

Second-named Second Defendant   :        Dr P R McMillan

Third Defendants               :        No appearance

Solicitors:

Plaintiff:        Kott Gunning

First Defendants               :        Lavan Legal

First-named Second Defendant     :        No appearance

Second-named Second Defendant   :        Marks & Sands

Third Defendants               :        No appearance

Case(s) referred to in judgment(s):

Hornsby v Playoust [2004] VSC 472

Lutheran Church of Australia South Australia District Inc v Farmers Co‑operative Executors & Trustee Ltd (1970) 121 CLR 628

Perrin v Morgan [1943] 1 All ER 187

1. MASTER SANDERSON:  This case concerns the interpretation of a will, probate of which was granted in September 1937.  The question of the proper interpretation of the will has been before the court before.  The order made subsequent to the hearing before Dwyer CJ was dated 25 March 1938.  This will probably be the last time the proper meaning of the deceased's will is in issue.

2. The plaintiff applies pursuant to s 92 of the Trustees Act 1962 (WA) for directions from the court in relation to the interpretation of the will of the late William Thomas Wood (the deceased).

3. Paragraphs 2 and 3 of cl 6 of the deceased's will establish a trust in relation to properties owned by the deceased that are located on the corner of Hay and Pier Streets, Perth (the trust).  The plaintiff is a current trustee of the trust.

4. Paragraphs 2 and 3 of cl 6 of the deceased's will read as follows:

   My property at the corner of Hay and Pier Streets six (6) shops my wife and four daughters to draw equal shares and should anyone of them die their share to go to the surviving three and so on until all the rents to be divided every month between them in equal shares but sufficient to be paid into the Bank to pay all rates and taxes and repairs

   Not on any account is anyone of them to borrow any money on their share nor to sell nor to mortgage their share or their right but should there be any children of their own alive at…